Helpful and just interesting updates on the UK and EEA immigration law from the Legal Centre, who can help you with any immigration issue. www.legalcentre.org Mob/WhatsApp/Viber: +44(0)7791145923, Office: +44(0)3300010342
>>> Attracting the “brightest and the best”: the UK’s record on visas for academics and researchers
This autumn will see a decided shift in immigration policy toward being more welcoming to non-EU academics, scientists and researchers; a group commonly defined by the somewhat worn-out phrase, “the brightest and the best”, first coined by David Cameron in October 2011.
The upcoming rule changes will see the removal of PhD level jobs (as defined by the PhD level SOC Codes in Appendix J) from the Tier 2 visa quota. There will also be a new exemption within the settlement rules on excessive absences from the UK, where the person’s absences are due to “overseas research activity”.
Specific visa routes for academia
The academic and research sector is fortunate to have access to specific visa routes.
The flagship Tier 1 (Exceptional Talent) route was created in 2011 and continuously reformed due to low initial uptake. Significantly, changes in January 2018 provided automatic endorsements for non-EU citizens appointed to senior positions at a UK university or research institute. As these led to, essentially, a guaranteed Exceptional Talent visa, this was a clear recognition of the value of these roles to the UK.
Another visa route designed specifically for the academic and research community is the Tier 5 (Government Authorised Exchange) route, through which universities and research institutes can sponsor academics and researchers to undertake short-term collaborations. In July 2018, the route was reformed and expanded: these institutions can now host any type of short-term engagement with a non-EU academic or researcher in a manner that other employment sectors would struggle to accommodate.
Carve-outs for universities within immigration routes
In parallel with these specific visa routes, there are a number of carve-outs and exceptions within the other visa routes which facilitate highly skilled researchers.
The Tier 2 route contains a number of exceptions for PhD level roles, including:
• the ability to recruit the best person for the job regardless of nationality
• a Resident Labour Market Test waiver for ‘supernumerary researchers’
• rules allowing Tier 4 students an easier transition into work (under the deliciously byzantine paragraph 245ZY(c)(iii)(7) of Part 6B of the Rules)
• greater weighting for PhD level roles within the Tier 2 quota
• an exemption from the ILR minimum salary rate, amongst other benefits.
The Migration Advisory Committee’s recent recommendations on the Shortage Occupation List, signed off by the Home Office this week, mean that all biological scientist and biochemist roles (SOC Code 2112), and archaeologists under Code 2114 now get priority within Tier 2.
The visitor visa route also contains carve-outs, namely to allow highly skilled individuals to visit and gather information and facts, or share knowledge/advise on an international project that is being led from the UK. Academics can use the route to carry out research for their own purposes, and senior doctors or dentists can take part in research, teaching or clinical practice. The permitted paid engagement visitor route facilitates one-month paid engagements of academics to examine students and/or to deliver a series of lectures.
Visa problems for the best and brightest
Cost remains a significant burden. A recent report by The Royal Society highlights that the current UK visa arrangements are amongst the most expensive in the world. Therefore, the immigration experts like the Legal Centre (www.legalcentre.org) can certainly help, and it is worth considering an initial confidential online consultation with the Legal Centre, which can be booked 24/7 via https://legalcentre.org/Initial-Consultation.html
The cost of visas for skilled workers and students coming to the UK, compared with the visa systems of other leading science nations, is a whopping 540% higher. The Royal Society calls for a reduction in visa costs to fall in line with the average.
Administration of the current Tier 2 system is also a sizable burden for the sector. A recent report by EY, commissioned by the Russell Group, established that the 24 Russell Group universities currently spend around £25 million a year on immigration processes and compliance to recruit and support non-EU staff and students, with an estimated increase of 36% to £34m by 2022. These costs would reach dizzying heights were they to be extrapolated across all employers within the research sector. The white paper’s ambition to reduce sponsorship burden under any new system will certainly be welcomed.
Visa refusals are also an issue, most recently concerning visit visas. There have been several high profile cases of visiting academics and researchers being refused visas, with questions also raised in Parliament. There is ongoing lobbying on this issue from the research sector.
Better brain circulation
To what extent will the proposed autumn rule changes impact on the UK’s attractiveness for the “brightest and the best”? Significantly, in my view.
Firstly, the removal of PhD level roles from the Tier 2 quota, whilst partly symbolic given that no PhD level roles have ever been refused under the cap due to preferential points-weighting, will reduce recruitment time frames on the ground, circumventing the need for monthly pre-approval. This does, unequivocally, send a global message that the UK is committed to supporting the easy movement of highly skilled individuals.
Secondly, the planned exemption for PhD level roles within the absence rules for settlement is very welcome. It is an issue that the sector has lobbied on for years, due to previous high profile settlement refusals for academics and scientists who breached the absence requirements. Whilst refusals are not common, the rules mean highly skilled individuals having to choose which overseas collaborations they can attend and which they cannot for risk of breaching the absence rules.
31 July 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
>>> Applying for a PBS visa as a dependent ? You may not need to show your maintenance in CERTAIN circumstances
This is the extract from the PBS Dependents Policy Guidance:
Para 83
If you apply separately from the main applicant you will need to have the necessary funds to meet the maintenance requirement or have a written undertaking from an A-rated Sponsor, unless the main applicant already had leave in a Tier 2 category and when applying for their most recent period of Tier 2 leave was not required to show evidence of satisfying maintenance requirements.
In other words, as an example, if the main applicant was a Tier 2 migrant and extended their leave in Tier 2 then they would not need the employer to certify maintenance as they would not need to evidence maintenance in any event. And in those circumstances neither does the dependent.
In Secretary of State for the Home Department v MS (Somalia) [2019] EWCA Civ 1345, the Court of Appeal has held that the Home Office can cease refugee status where there has been a change of circumstances in the refugee’s country of origin such that it is possible for them to internally relocate to avoid persecution.
A real mammoth of a case: R (HS) v Secretary of State for the Home Department [2019] EWHC 2070 (Admin). The claimant took what looks like a kitchen sink approach to his unlawful detention claim, succeeding on the fourth ground: that he wasn’t given the “true reason” for his arrest and detention.
The problem was that officials did not inform him that this was the reason behind his re-detention, instead merely ticking several boxes on the IS.91R form to indicate generic reasons such as “character, conduct or associations”.
According to Home Office detention guidance, officials must prepare a “properly evidenced and fully justified explanation” of the reasons to detain, for internal use. It seems a little unfair to give detainees only the barest of facts when a proper explanation is on file anyway.
01 August 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
“Yes. If you, or a nominated third party authorised by the Home Office to collect your BRP on your behalf, wishes to collect your BRP from a different branch to the one in your decision letter, you or they should go to the Post Office branch from which you would like to collect the permit and speak to a Post Office employee.
The Post Office will charge a fee for each and every permit you wish to re-direct between branches. Not all branches offer the collection service. Details of Post Office locations offering the service and their opening times can be found at their website.
If you are part of a family group that has travelled to the UK together, a family member can arrange for all the biometric residence permits belonging to that family group to be re-directed to a new Post Office branch for collection. The family member requesting re-direction must present the travel documents (and vignettes) of everyone whose biometric residence permit they wish to re-direct. They will also need to present these when collecting the biometric residence permits.”
Always a worry (but never a surprise) when Court of Appeal judges start off a judgment by saying that the case “has a tortuous procedural history”, is “highly technical” and involves “Byzantine… provisions” of immigration law. Firdaws v Secretary of State for the Home Department [2019] EWCA Civ 1310 is the latest in a long line of cases where senior judges have deprecated the complexity and obscurity of the UK immigration system.
The core issue was whether Mr Firdaws had a right of appeal against a refusal of a human rights claim made after his leave had expired. The Home Office’s position was that Mr Firdaws did not have a right of appeal before 6 April 2015 because the decision to refuse him was not an “immigration decision” under the old version of section 82(2)(d) of the Nationality, Immigration and Asylum Act 2002. Under the old version of section 82, a refusal to grant someone leave to remain when they were already here without leave was not a decision which could be appealed to the tribunal.
This all changed when the Immigration Act 2014 came in. It allowed appeals against refusals of human rights claim regardless of whether the person was here lawfully or not.
This change didn’t happen overnight, though. It came in phases through four commencement orders between July 2014 and April 2015.
It was the wording of the third and fourth orders which caused the problems. Mr Firdaws argued that they omitted to restrict the right of appeal in his particular circumstances, relying on a close reading of the text of the interlocking statutory.
The final paragraph of the judgment reflects the sad reality of how broken our immigration system has become and how desperately wholesale reform is needed:
“I cannot conclude without commenting, not for the first time, on the extreme complexity and obscurity of drafting in the field of immigration law, as exemplified by these Commencement Orders. Such drafting as this serves to conceal rather than reveal meaning. It confuses even the expert legally qualified reader, never mind those affected by the provisions. In this instance, the drafting has produced a perverse result. Such an approach is firmly to be deprecated.”.
It is embarrassing yet in some cases the practitioners have to regularly say to clients that there is no clear answer to their situation and they essentially need to take a gamble on something as important as their immigration status.
To some extent, progress has been made with the Law Commission finally stepping in and producing a consultation paper on simplification of the Immigration Rules earlier this year. The stark reality, though, is that any reform is likely to take years.
>>> British-Iranian solicitor Seema Kennedy made immigration minister:
Seema Kennedy is the new immigration minister at the Home Office, the BBC’s Danny Shaw reports. The MP for South Ribble, who had been a junior minister at the Department of Health, replaces the sacked Caroline Nokes.
02 August 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
Information and guidance on handling visa applications made outside the UK. Added information for applicants who have discovered an error in their visa before they arrive in the UK.
The Home Office has updated its main guidance on family visas under Appendix FM of the Immigration Rules. The good news is now we have one consolidated guidance document dealing with both the five and ten-year routes for partners, parents and private life applicants. The new guidance runs to 93 pages whereas the previous guidance for ten-year route applications was 104 pages alone.
The other big clear-up is around the section dealing with applications under EX.1(a) of Appendix FM, which is about whether it is reasonable to expect a child to leave the UK with parents who have no right to remain here. This has always been quite a thorny issue and previous guidance has gone both ways. Versions before the Supreme Court’s decision in KO (Nigeria) [2018] UKSC 53 said that leave to remain should normally be given to parents of qualifying children, whereas post-KO (Nigeria) versions have had a more nuanced approach and still re-fer to the conduct of parents and their immigration status as being indirectly relevant. The new guidance is still a little con-fused in this respect and prefers the latter approach.
However, gone are the parts of the guidance which said that if a child is not expected to leave the UK, then paragraph EX.1(a) does not apply. The new guidance makes clear that:
“In accordance with the findings in the case of AB Jamaica (Secretary of State for the Home Department v AB (Jamaica) & Anor [2019] EWCA Civ 661), consideration of whether it is reasonable to expect a child to leave the UK must be undertaken regardless of whether the child is actually expected to leave the UK.”.
One can find that even where a parent’s immigration status is pretty poor, the Home Office seems to be granting leave to remain to qualifying children under the ten-year route, as used to be the case before KO (Nigeria) muddied the waters. One wonders if this change in policy is likely to encourage caseworkers to be bolder and to refuse these types of application more often.
Whilst the guidance has incorporated this change, it has overlooked or confused some of the other conclusions from AB (Jamaica). The document still has a noticeable bias against applicants who don’t have direct contact with their children. In these cases, the guidance says that it is “likely… that a relationship will not be sufficient to engage Article 8”.
On the contrary, what the Court of Appeal actually said was:
“… it is by no means inevitable that a tribunal will conclude that a parent has no “genuine and substantial parental relationship” absent direct contact.
The way the Home Office has worded this is likely to infect decision-makers’ reasoning and steer them more towards refusing such an application.”
05 August 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
>>> I have a fiancé(i) visa. I am now married. Can I go for a honeymoon now ?
“A spouse or civil partner can re-enter the UK following a honeymoon abroad during the remaining validity of their entry clearance as a fiancé, fiancée or proposed civil partner if they can satisfy the Immigration Officer, in the light of the change in their marital or civil partnership status (which they should evidence with a copy of the marriage or civil partnership certificate), of their intention, within the remaining validity of that entry clearance, to regularise their status in the UK as a spouse or civil partner.
Any period of entry clearance or limited leave as a fiancé, fiancée or proposed civil partner does not count towards the continuous period of leave as a partner required for settlement.”
>>> Domestic violence – can the victim (applicant) still reside in the matrimonial house or not ?
The answer is “may be”.
Page 20 of “Victims of domestic violence and abuse” Policy Guidance (Version 14.0):
“The fact the couple are still living at the same address when the application is made may not necessarily be taken as an indicator the relationship has not broken down, as this could be due to a number of reasons.”
Каждый день приносит хорошие новости клиентам Legal Centre
Вот и очередная клиентка из России получила продление ее визы жены (заявление FLR(M)).
Заявление было не простое – клиентке пришлось несколько раз переделывать и добавлять документы.
Я работал с клиенткой по принципу общего сопровождения: https://legalcentre.org/Obshee-soprovozdenie.html
Результат не заставил себя ждать – заявление рассмотрели за 24 часа по принципу Super Premium Service.
Я помог десяткам тысяч других клиентов, и я могу помочь Вам.
06 August 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
>>> Applications from overstayers (non family routes): https://www.gov.uk/…/applications-from-overstayers-non-fami…
Guidance for how UK Visas and Immigration considers applications for further leave to remain made by applicants without valid leave.
>>> UKVI update: Immigration Rules archive: 6 July 2019 to 31 July 2019: https://www.gov.uk/…/immigration-rules-archive-6-july-2019-…
A new Court of Appeal judgment has confirmed that the Home Office wrongly denied that a child asylum seeker seeking transfer to the UK had a brother already living in this country.
The Home Office, as is its wont, claimed that the two young men were not related. The Up-per Tribunal decision in this case explains, at the start officials dismissed the idea of verifying the relationship using DNA evidence and then decided that undertaking a DNA test in France was not possible anyway. Fortunately, the Upper Tribunal found that the boy and his brother were related even without any DNA evidence and therefore the Home Office had to take charge of the boy’s asylum claim in the UK.
The new judgment in MS (A child) v Secretary of State for the Home Department [2019] EWCA Civ 1340 records that once the boy arrived in the UK. a DNA test proved that his claim had been true all along.
07 August 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
>>> National Savings Premium Bonds in an FM application – the Home Office’s clarification and… apology
One may not come to see the apology from the Home Office.
Here we go:
From the Home Office:
“Our current policy in relation to premium bonds is as follows:
Premium bond holdings cannot be counted in themselves towards meeting the minimum income threshold. Owning a capital asset such as a bond, does not in itself provide the means to support a spouse or partner. However, any income received from the asset, or the cash savings derived from its liquidation, can be counted towards meeting the minimum income threshold. A couple’s income and cash savings are the most reliable and practicable indicator of their financial status and independence for the purposes of this requirement.
The individual may choose to rely on cash savings above £16,000 (the level of savings at which a person would generally not qualify for income-related benefits) held by the sponsor, the applicant or jointly for at least six months at the date of application, or derived from the liquidation of assets and transfer of funds from stocks, shares or bonds or sale of assets such as a property within that six-month period, to be used in place of or in addition to income to meet the minimum income threshold. If the premium bonds are liquidated and the money transferred into a personal bank or savings account in the sponsor’s or their spouse or partner’s name or them jointly, their value held as cash savings can be counted towards the minimum income threshold, provided evidence shows the sponsors ownership of the bonds for the balance of the period of six months prior to the date of application. It is the cash held in a personal or savings account which must be accessible immediately. Full details of the ways in which the minimum income requirement may be met can be found on GOV.UK by searching for Appendix FM 1.7 Financial Requirement here: www.homeoffice.gov.uk.
Therefore, our previous guidance was not quite correct and we apologise for the confusion. Money received from liquidated premium bonds can be used providing they have been deposited in an account and there is evidence that the bonds have been in the applicant’s possession for the 6 months prior to their application. Therefore the bonds have to be deposited within that 6 months. The same rules will also apply for fixed term bank savings bonds.”
The ground of appeal in Hameed v Secretary of State for the Home Department [2019] EWCA Civ 1324 was:
"It was wrong to find the appellant had made a false representation under paragraph 322(1A) of the Immigration Rules when he had not acted dishonestly."
Mr Hameed had applied for a student visa using a certificate of sponsorship (CoS) that was, unknown to him, not genuine. The Home Office accordingly refused his application on the basis of paragraph 322(1A). It reads:
“where false representations have been made or false documents or information have been submitted (whether or not material to the application, and whether or not to the applicant’s knowledge), or material facts have not been disclosed, in relation to the application or in order to obtain documents from the Secretary of State or a third party required in support of the application.”
Counsel for Mr Hameed took a close look at this wording and argued that he had not fallen foul of it. A certificate of sponsorship is a digitally generated number and so is not a “document”. Mr Hameed may have made a “representation” by submitting the certificate of sponsorship with his visa application, but it was not “false”, in the sense that he genuinely believed that it was valid. Any dishonesty was on the part of whoever passed him the fake certificate.
The Court of Appeal disagreed with the premise. It said that this was, in fact, a “false document” case: the certificate of sponsorship had been printed out and submitted in hard copy. Even if it hadn’t been printed out, Sir Ernest Ryder held that “a document can be a virtual or online document… a sensible reading of ‘document’ in paragraph 322(1A) includes online documents like a CoS”.
Since this was a false document case, there was no need for the Home Office to establish dishonesty or deception: Adedoyin v Secretary of State for the Home Department [2010] EWCA Civ 773. In that case, the Court of Appeal held:
Of course it is possible for a person to make use of a false document… in total ignorance of its falsity and in perfect honesty. But the document itself is dishonest. It is highly likely therefore that where an applicant uses in all innocence a false document for the purposes of obtaining entry clearance, or leave to enter or to remain, it is because some other party, it might be a parent, or sponsor, or agent, has dishonestly promoted the use of the document. The response of a requirement of mandatory refusal is entirely understandable in such a situation.
As so often in such cases, the result is hard luck on Mr Hameed, whom the court accepted was as much a victim in all this as anyone.
Guidance for caseworkers considering applications under the EU Settlement Scheme.
Change made - added guidance on persons with a Zambrano right to reside.
Readers will, in particular, want to note pages 18 and 19 and especially the following excerpt:
"This means that an applicant cannot be considered a ‘person with a Zambrano right to reside’ if they:
• have (or for the relevant qualifying period had) leave to enter or remain in the UK (unless this was granted under Appendix EU)
• have never made an application under Appendix FM to the Immigration Rules or any other Article 8 ECHR claim, where there is (or was) a realistic prospect that this would succeed (or would have succeeded)
• have been refused leave under Appendix FM or otherwise under ECHR Article 8 but their circumstances have changed since that decision was made such that there is now a realistic prospect that a further such application would succeed - for example, the applicant applied on the basis of their relationship with a British citizen spouse, but the couple now have a British citizen child"
Guide to the sponsorship documents that businesses and educational institutions must keep.
Change made - the guidance has been placed into a new template and revised throughout.
Please note the following excerpt indicating the changes that have been made:
"The guidance has been placed into a new template and revised, including:
• clarifying the time period for which documents must be retained
• updating the guidance on checking the date of entry when the migrant entered through automated ePassport gates (‘eGates’)
• adding information on the Tier 5 creative and sporting visa concession
• clarifying documentation that must be retained as evidence of carrying out a resident labour market test
• replacing reference to ‘Tier 1 (Entrepreneur)’ with ‘Start-up’
• other minor clarifications, corrections and housekeeping changes"
08 August 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)
A small amendment to UK law could soon make a big difference to European families resident here who are struggling to bring home children adopted in Muslim countries abroad.
A change to the legal definition of who counts as an EEA citizen’s “family member” should end the uncertainty over the status of children in kafala arrangements. Kafala is a system of permanent legal guardianship operating in many Muslim countries, where full adoption is usually prohibited.
While some families here view the arrangement as permanent, others consider it a stepping stone to full adoption in the UK, as kafala is sometimes the only way to gain legal custody of a child in his or her birth country.
The amendment to the Immigration (European Economic Area) Regulations 2016, which takes effect on 15 August 2019, explicitly recognises relationships where the child is under 18 and “is subject to a non-adoptive legal guardianship order in favour of an EEA national that is recognised under the national law of the state in which it was contracted”.
This provision means that EEA citizens living in the UK, who have entered a kafala adoption overseas, can now apply for a visa to bring their child home.
>>> VFS Update: Scanning Hub and Preferred Partner operation moving – USA
“Dear Partners,
I’m writing to inform you that our Scanning Hub and Preferred Partner operation is moving by end of the month to our Joint Visa Application Centre located in Times Square.
Please see timelines for you to be aware of:
Thursday August 22: Last day for Preferred Partner submissions in current premise
Friday August 23: Last day in current premise, No Preferred Partner submissions
Saturday August 24: VFS Moving
Sunday August 25: VFS Moving
Monday August 26: Preferred Partner submissions to begin out of our Premium Application Centre
Tuesday August 27: Operations to resume as BAU
Address: 145 West 45th St, Floor 5, New York NY 10036
Preferred Partner submissions will take place within our Premium Application Centre on the 5th floor from 26th onwards. When entering the building, you will be required to sign in at the building security desk before proceeding up to the 5th floor. At the 5th floor, there will be a security check by a VFS guard before entering the centre
We thank you for your patience during this transitional time.
12 August 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)
A student who ran away to join ISIS in Syria has lost a legal challenge to the UK government’s decision to take away his British citizenship. The judgment, handed down yesterday and the first case of its kind in the High Court, is R (Islam) v Secretary of State for the Home Department [2019] EWHC 2169 (Admin).
13 August 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)
>>> Can a Tier 4 Student - main applicant - rely on his bank statements if the bank account is in joint names, such as the applicant’s name and the dependent spouse’s name ?
1A
(k) If the applicant wishes to rely on a joint account as evidence of available funds, the applicant (or for children under 18 years of age, the applicant’s parent or legal guardian who is legally present in the United Kingdom) must be named on the account as one of the account holders.
13
(i) the applicant (whether as a sole or joint account holder); and/or
>>> Can a Tier 2 Dependent provide his bank statements for maintenance funds ?
(c) Where the applicant is applying as the Partner of a Relevant Points Based System Migrant or Appendix W Worker the relevant amount of funds must be available to either the applicant or the Relevant Points Based System Migrant or Appendix W Worker.
…
(f) In all cases, the funds in question must be available to:
(i) the applicant, or
(ii) where they are applying as the partner of a Relevant Points Based System Migrant or Appendix W Worker, either to them or to that Relevant Points Based System Migrant or Appendix W Worker
14 August 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)
>>> No-deal Brexit notice; commentary on the Immigration (European Economic Area) (Amendment) Regulations 2019
Note on the implications of a no-deal Brexit for Europeans
With the prospect of a no-deal Brexit now looking like a more realistic possibility, the EU citizens and their family members may wish to note the following.
EU Settlement Scheme deadlines in a no deal situation
The Department for Exiting the EU (DExEU) have stated that different deadlines for the EU Settlement Scheme will be applicable in a no-deal situation as compared with under a deal. These deadlines appear to have been adopted by the Home Office in its webpages on settled status applications.
• EU citizens intending to be a main applicant under the scheme must enter the UK by 31 October 2019. The Government documents are silent on the time of day an applicant must be in the UK before Brexit. Nonetheless, the European Union (Withdrawal) Act 2018 (Exit Day) (Amendment) (No. 2) Regulations 2019 and the definition of ‘specified date’ in the Immigration Rules, Appendix EU define Brexit day as 11pm on 31 October 2019. Therefore the applicants should be aware that this potentially stricter deadline exists and may eventually be relied on by the Home Office.
• The main closure date for the EU Settlement Scheme for applicants (including both EU nationals and family members) living in the UK by 31 October 2019 will be 31 December 2020 instead of the deadline of 30 June 2021 which applies in the event of a deal.
• Spouses, partners, children, parents and grandparents (and possibly other dependent family members) who have a relationship with the EU national by 31 October 2019 and are living abroad on that date (and children born abroad after 31 October 2019) will need to apply under the EU Settlement Scheme by 29 March 2022 and must continue to have the re-lationship at the date of application – applications made after 29 March 2022 must meet the UK Immigration Rules outside the scheme.
• Spouses, partners and other dependent relatives who establish a relationship after 31 October 2019 with an EU citizen who has status under the scheme will be eligible to apply under the scheme until 31 December 2020 – applications made after 31 December 2020 must meet the Immigration Rules outside the scheme.
In order to be eligible under the EU Settlement Scheme, durable partners (with an exception for those applying from outside the UK) and dependent relatives (other than dependent parents) must also have been issued with a family permit or residence card under the EEA Regulations (or equivalent document/evidence issued by the Islands) by 31 October 2019.
Status of the policy
The drafting of the DExEU policy paper on citizens' rights in the event of a no deal Brexit is high-level and imprecise. The details of exactly which family members are covered is not clear. For example, it is not clear whether “partners” applies to both civil partners and durable partners. It is also not clear what the policy is intended to be for Surinder Singh family members or for the family members of individuals who have EU citizenship, have naturalised as a British citizen following the exercise of treaty rights in the UK and who continue to exercise treaty rights afterwards (i.e. those captured under the decision in Lounes).
Furthermore, it is important to note the policy in relation to no deal is not protected by any international agreement. This means that the government may be free to change the details at some later date. Such changes would of course be subject to ordinary public law principles.
EEA/EFTA nationals
The document was also originally published on 6 December 2018, before the UK concluded citizens’ rights agreements with the EEA/EFTA states (Iceland, Liechtenstein, Norway and Switzerland) and has not been updated for that development. It was updated on 28 March 2019, but only to ‘reflect that the UK will not leave the EU on 29 March 2019 and to clarify that the family reunion policy applies to EU citizens with pre-settled and settled status.’ However, the agreements with the EEA/EFTA states appear to mirror the DExEU policy but with greater detail and with the protection given by an international agreement.
European nationals arriving after 31 October 2019
As a further reminder, in the event of no deal a transitional period will apply after exit until 31 December 2020 to newly arriving EEA/Swiss nationals and their family members. The key points are:
• EU nationals who have not established residence in the UK before 31 October 2019 will be able to enter the UK for three months. If they wish to stay beyond this period, they will need to apply for European temporary leave to remain.
• European temporary leave to remain will be granted for a period of three years, calculated from the date of application. There will be no possibility of renewing this period or of apply-ing for indefinite leave to remain on the basis of this status alone. EU nationals who wish to stay beyond three years will have to find an alternative route under the Immigration Rules.
• EU nationals may be joined by close family members (defined as spouse, partner or dependent children aged under 18) who are third country nationals. However, third country national family members who wish to accompany an EU national under these arrangements will need to apply in advance for a family permit.
• These rules apply to nationals from the EEA/EFTA states.
Updated guidance document published. Removed references to the good character require-ment following the British Nationality Act 1981 (Remedial) Order 2019.
15 August 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)
>>> You can still rely upon both the Appendix FM and EEA Regulations, until Brexit !
For example, if you are a dual EEA/British national. That is, you arrived into the UK as an EEA national, got your Permanent residence in due time and then became a British citizen. Then you brought your partner into the UK under the Appendix FM (“UK spouse visa”). Until Brexit it is, therefore, possible, for your partner, to apply for a 5-year EEA Residence Card under the EEA Regulations prior to 31/10/2019. Should an application be submitted under the EEA Regulations, the partner’s 30-month spouse visa will be concurrently valid with the Residence Card under the EEA Regulations.
Guidance on deciding applications for people to enter or remain in the UK as a Tier 2 migrant.
Changes from last version of this guidance
This version replaces the Tier 2 modernised guidance version 32.0 which has been withdrawn and archived. It has been updated following the higher education regulatory reforms which established the Office for Students (OfS) as the regulatory body for English higher education providers. The OfS regulatory framework came into force fully on 01 August 2019.
>>> Updating certificates of sponsorship following demergers and TUPE transfers
The UK BA Business Help Desk confirms that it is not necessary to report against a certificate of sponsorship under 'sponsor has stopped sponsoring migrant' when there is a TUPE/demerger as long as the necessary updates are made elsewhere.
16 August 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)
>>> Asylum seeker not “effeminate” enough to be gay, immigration judge says
An immigration judge has rejected an asylum seeker’s claim to be gay, saying that the man did not come across as “effeminate” enough to be credible.
According to a lawyer involved in the case, the judge wrote that the man did not have a gay “demeanour” and did not “look around the room in an effeminate manner”.
The judge reportedly went on to say that “on the gay scene younger men are highly valued”.
Statistically, 33% of asylum appeals based on sexual orientation were successful in 2017. That was below the average for all asylum appeals, which was 40% that year, although the statistics are experimental and should be interpreted with caution.
20 August 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)
>>> Online asylum appeals to be rolled out nationwide in 2020
Asylum appeals will be filed and managed entirely online from next year, the courts and tribunals service for England and Wales has said.
HMCTS told Free Movement that it plans to roll out its “reformed digital asylum service” to all hearing centres at the end of January 2020.
The digital appeal system aims to make the process of challenging an asylum system more efficient and less paper-bound. The focus is on electronic document upload, digitised case management and early online resolution rather than the final hearing being on a webcam, although HMCTS is also experimenting with virtual hearings throughout the tribunal system.
Outlining the system in a recent update on its work, HMCTS said that “appeals will be submitted electronically by legal representatives and will be received instantaneously by both HMCTS and the Home Office. The appeals will then progress digitally via the on line service from initial application, through to hearing and judicial decision”.
It adds that the new system will “enable cases to be resolved online where that is appropriate, as well as supporting the use of video and face-to-face hearings”.
Digital asylum appeals are currently being piloted at Manchester and Taylor House hearing centres. Six solicitors’ firms are involved.
The pilot will be expanded to Bradford and Newport in September 2019, and further rolled out to Birmingham and Hatton Cross by the end of the year.
The national rollout that follows will only be for cases where the appellant has legal representation. HMCTS says that a separate service is being designed for unrepresented appellants, which will begin pilot testing early in 2020.
Other areas of immigration and asylum law may be digitised further down the line. The HMCTS annual report notes that “we have plans to continue to research and design other appeals processes including bail”.
22 August 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)
The case of Okedina v Chikale [2019] EWCA Civ 139a3 had been making its way through the courts for some time. In 2013, Ms Okedina arranged for Ms Chikale to move to the UK as her live-in domestic worker and organised her UK visa.
To cut a long story short, Ms Okedina failed to renew the visa and failed to let Ms Chikale know that. Eventually the relationship broke down and Ms Chikale claimed compensation in respect of various employment law breaches, including unfair and wrongful dismissal, race discrimination and unlawful deductions from wages.
Ms Okedina’s position was that Ms Chikale was not entitled to any of this because she had been working in breach of UK immigration laws — the “illegality defence”.
This argument failed in the Employment Tribunal, the Employment Appeal Tribunal and, most recently, in the Court of Appeal. Lord Justice Underhill noted that there was no public policy reason why the relevant legislation should interpreted to support Ms Okedina, pointing out that genuine mistakes over immigration status are not necessarily unreasonable:
“...some aspects of the relevant rules are complicated or unclear, and wrong advice can be given, sometimes by the Home Office itself. In short, not all cases of illegal working involve culpability on the part of the employee.”
This case was pretty unusual. Not only was Ms Chikale oblivious to the fact that she was working without immigration permission, but it was alleged that Ms Okedina had submitted false information in the documents she had prepared for Ms Chikale and had forged her signature.
Abnormal as the case may be, what it shows is that the overlap between immigration law and employment law is in no way clear cut. Lacking immigration status does not mean that an employment contract is unenforceable.
Whilst immigration experts will usually be well-equipped to provide advice on factual points — if a person has leave, whether they have protection under Section 3C or not (and to educate all parties on what that means), etc — it is important to avoid making statements on the legality of the contract of employment (unless you happen to be an expert on employment law also).
23 August 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)
There have been just four applications for the government’s flagship new visa for overseas entrepreneurs in its first three months of operation.
Only four people applied for an Innovator visa between April and June 2019, according to the latest Home Office figures.
By contrast, the visa it replaced — Tier 1 (Entrepreneur) — had 1,900 applications in 2018.
The figures will raise questions about the design of the Innovator route. Aimed at experienced foreign entrepreneurs who have at least £50,000 in capital behind them, it requires applicants to be endorsed by one of a limited number of business incubators and seed funds.
Experts had warned that the design of the Innovator visa scheme is flawed. Issues include the frequent need to participate in a business accelerator programme to secure endorsement; having to give up equity in the start-up; and the “extremely high” bar for getting settlement.
The model is perceived as unattractive to the calibre of people who would meet the criteria for an Innovator visa, which include being able to bring their start-up business into international markets.
A Freedom of Information response released in May showed that there had been zero Innovator application visas in the first fortnight of the scheme.
It has now emerged that only four people applied for entry clearance in the Innovator category between April and June 2019. Two of those applications have been resolved, of which both were granted.
In the previous quarter, there were 738 Tier 1 (Entrepreneur) applications. Tier 1 (Entrepreneur) closed to new applicants on 29 March 2019, the same date that the Innovator route went live.
While the Home Office has previously said that it expects to grant fewer visas under the new Innovator and Start-up routes than under the schemes they replace, it seems unlikely that applications in single figures would make the cost of designing and administering the route worthwhile.
The Start-up visa is off to a slightly better start. It attracted 32 entry clearance applications in its first quarter of operation, of which 25 were decided on and 23 granted.
Guidance for how UK Visas and Immigration considers applications from people to enter or remain in the UK under Tier 4.
"Changes from last version of this guidance
The key changes to this guidance since it was last published on 10 January 2019 are:
• references to UK HEIs have been amended to refer to HEPs (higher education providers) with a track record of compliance, where appropriate, to reflect the additional privileges available to such providers following the HE reforms which have taken effect
• guidance regarding sports scholarships has been added to ensure these are accepted and not considered to be a breach of the definition of working as a ‘professional sportsperson’ which refers to receiving payment, including payment in kind
• guidance regarding sports-related work placements has been added to clarify what activity Tier 4 students are permitted to undertake"
Guidance on how short-term student applications for entry clearance or leave to enter are considered.
"Changes from last version of this guidance
Additions have been made to reflect the expansion of ePassport gate eligibility to seven additional nationalities on Monday 20 May 2019.
...
B5JSSK Nationals
Visitors and entry clearance holders who are nationals of Australia, Canada, Japan, New Zealand, Singapore, South Korea, and the United States of America (B5JSSK) are able to use ePassport gates to enter the UK. If a national of one of these countries does not hold an entry clearance and wishes to seek entry as a Short Term Student they must see a Border Force officer and cannot use the ePassport gates."
The Court of Appeal has held that the UK government can be asked to pay expenses where a judicial review has been brought against the Upper Tribunal’s refusal to grant permission to appeal. The test case of Faqiri v Upper Tribunal (Immigration and Asylum Chamber) [2019] EWCA Civ 151 has only recently been published on Bailli but it makes for interesting reading. To understand why this was such an important case, let’s look at how cases get to the point of judicial review proceedings against the Upper Tribunal.
Immigration appeals typically start life in the First-tier Tribunal. If refused, an appeal to the Upper Tribunal is not automatic. Instead, appellants get two bites at the cherry with a chance to apply first to the First-tier Tribunal for permission to appeal, and, if refused, then directly to the Upper Tribunal. If permission is refused at the Upper Tribunal stage, an appellant becomes “appeal rights exhausted”: there is no statutory right of further appeal.
In a small amount of cases, it is possible to apply for judicial review against the Upper Tribunal’s decision to refuse permission to appeal. In those cases, the courts apply the “second appeals test” which empowers courts to allow such cases to be brought if satisfied:
1. that the proposed appeal would raise some important point of principle or practice, or
2. that there is some other compelling reason for the relevant appellate court to hear the appeal
So, where this Cart type of judicial review is brought, the respondent is always the Upper Tribunal because it is the Upper Tribunal’s decision which is being challenged.
Inevitably, however, the Home Office appears as an interested party backing the tribunal. That is because it will ultimately be the Home Office opposing these appeals in the tribunals below and incurring expense and time if they are sent back there.
In the Faqiri case, the High Court had quashed the decision of the Upper Tribunal but did not award costs against the Upper Tribunal. Instead, the court made a limited costs order against the Home Office.
The appellant’s primary case was that costs should have been awarded against the Upper Tribunal. Lord Justice Hickinbottom was unimpressed, saying:
“The driving force behind the proposition in Davies and Gudanaviciene – that a court or tribunal should not be liable for the costs of a judicial review which seeks to challenge one of its decisions, if the court or tribunal does not act improperly and takes no active part in the proceedings – is the important principle of judicial immunity. That principle applies equally to decisions challenged by way of Cart claims as any judicial review of the decision of a court or tribunal”
The next argument was that the Home Office should have borne the full costs of the judicial review procedure because it was, after all, the real opponent all along. The Secretary of State cross-appealed on the basis that she did not participate in the judicial review proceedings, was not the “unsuccessful party” and did not cause any additional expense in the judicial review proceedings.
The Court of Appeal hit the nail on the head in saying:
“… the right that the Appellant is in reality seeking to vindicate is not his right to pursue an appeal in the UT, but his right to asylum, which the Secretary of State denied by his refusal of the Appellant’s claim for asylum. Given that there is no right of appeal or review in respect of the UT’s refusal of permission to appeal to it, to vindicate that right the Appellant was bound to commence judicial review proceedings. In my view, those proceedings cannot be viewed – as Mr Joseph urges – in isolation. They have been brought to enable the Appellant to proceed with his appeal to the UT, and only for that purpose.”
Hickinbottom LJ noted that the “protagonist” in the appeal was the Secretary of State, and the point of the judicial review to vindicate Mr Faqiri’s right to asylum. "
He went on:
"Perhaps that is a principled basis for an order in the judicial review that may result in the Secretary of State bearing some of the claimant’s costs, even though he played no active part in the claim. Even if, in these circumstances, the Secretary of State might not usually be described as “the unsuccessful party”.
This decision seems likely to force Ms Patel to dig deep into her pockets. Whilst it is true that the number of successful Cart claims is small, the cost associated with judicial review proceedings can be astronomical, especially in Scotland where we have ridiculously extravagant court fees. As an example, it will cost you the princely sum of £418 per hour for a court hearing if you’re not funded by legal aid.
If the Home Office does now have to think carefully about the potential for being held liable for costs at the judicial review stage, it may have to spend a bit more time scrutinising applications for permission to appeal to see whether there is indeed any merit in conceding cases.
28 August 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)
It costs £100 to apply for an emergency travel document. The fee is not refundable. You can pay online as part of your application. If you do not, you’ll be asked to pay over the phone.
You might need to attend an appointment at your nearest British embassy, high commission or consulate after you apply online. You’ll be told after you’ve submitted your application whether you need an appointment.
You’ll need to give a contact telephone number and email address as part of your application.
How long it will take
Your emergency travel document will normally be ready 2 working days after you apply.
It can take longer, for example if you have:
• applied for a child under 16
• not paid or given the right supporting documents
• not given enough or correct information
You’ll be told after you’ve applied how and when you’ll get your emergency travel document.
Apply on behalf of someone else
You can apply for an emergency travel document and book an appointment for someone else if they’re a British citizen. They might have to attend an appointment and they must collect their emergency travel document in person.
If you apply for a child under 16, they’ll need to attend an appointment. Both parents should go with them if possible. If neither parent can attend, they’ll need to send a signed consent letter.
Summary of steps:
1. Apply online for an emergency travel document. It will help immensely if you have a note of your passport details to hand.
2. File a police report within 24 hours.
3. Wait for the email confirming that your travel document has been issued. Don’t book a return flight until you have that confirmation.
4. Bring a copy of the email (electronic is fine) to the nominated embassy or consulate to collect your travel document
29 August 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)
30 August 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)
>>> Upcoming changes in the UK Visa applications – the insider’s selected report
NB: HO = Home Office
• There are plans to align fees and service standards in the Marriage & Family visas route. The HO are looking to uniformly standardize the three different stages to Indefinite Leave to Remain in terms of customer offers and time frames. This is planned for late 2019 (potentially October) and will result in a uniform approach which will manage the expectations of the customer
• The aim will be to offer next day SPV, 30 day PV and 60 day standard service standards so that the customer group has a clear selection of which to select from. This would ensure fees are aligned to the offer and align standards. Yet this may not be achievable for every country overseas in relation to SPV applications
• The marriage and family routes are presently very document heavy. The HO are looking general at document reduction and rationalization in visa applications. They would like to be very clear about what they want, with an emphasis on document quality rather than the quantity. This will help improve decision quality and there is a “culture shift” required to facilitate this. For example, the HO view is that the 1000s of pages of WhatsApp conversations/pictures are unnecessary
• In terms of in-country applications, HO are currently working with Sopra Steria to consider asking them not to accept more than 10 photos, but to advise individuals to submit a range of photos over the time period they are trying to demonstrate their relationship. However, they want to make clear that if HO are minded to refuse on this basis as they’re not satisfied the customer meets the relationship rules, they need to give an applicant the opportunity to provide more. This will be a change in approach. They don’t want to rush this through as they are aware this is a big cultural shift
• The HO are proposing a pilot where they will make clear document requirements for customers applying at VACs such as only submitting 10 photographs. They are looking for feedback and engagement on this pilot. This will initially be rolled out with a small amount of VFS VACs probably in India and Phillipines, and TLS VACs (location to be confirmed). They will come back to certain stakeholders with more information in the next few weeks as the HO would like to engage extensively with both organizations on the pilot
• There are three different streams available now for customers to submit documents through: 1. Free to use self-upload; 2. VAC; 3. Submission of sponsor documentation to the UK centres run by VFS/TLS
• The HO IT system is being upgraded to a new system called ATLAS that will lead the decision maker through in a more process driven manner. This will give a more structured decision and lead to efficiencies, and ultimately it is hoped it will improve decision-making. This will be available for decision-makers in the marriage and family team later this year but ultimately it will go across all Home Office casework, including asylum etc. It will also ensure that decisions can be reviewed by management more easily. They are building a base structure that will encapsulate the core checks that are carried out across all categories
05 September 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)
>>> Can a dependent of Tier 2(ICT) Visa holder can switch to Tier 2 General visa as a main applicant ? A 12 month cooling of period is irrelevant ?
The answer is “No switching, as 245HD(b) fails.”.
Also, no cooling off period is applicable under 245HB(g), if dependant did not have had en-try clearance or leave to remain as a Tier 2 Migrant at any time during the 12 months immediately before the date of the application, etc.
A new revised guidance note for judges has been published by some other judges: Joint Presidential Guidance 2019 No 1: Permission to appeal to UTIAC.
Paragraph 31 seems to be rather odd or at least inexactly phrased:
“If a FtT judge considering an application for permission to appeal is in doubt whether there is an arguable error of law, the default position is that leave should be refused. The application can always be renewed.”
If there is doubt, surely it is arguable? It looks like one rule for First-tier judges and another for judges of the Upper Tribunal.
The guidance is primarily for judges rather than advocates, but it is worth a read if you want some insight into judicial mindset and the go-to procedural cases.
06 September 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)
>>> How does European Temporary Leave to Remain work?
The Euro TLR scheme is perhaps the world’s first voluntary immigration scheme, where an application is not actually needed in order to live, work or study. Applications will be free. Who says the UK can no longer innovate?
As we saw above, because the Immigration (European Economic Area) Regulations 2016 are being preserved in UK law, EU citizens entering after Brexit will have the right to live, work and study in the UK until sometime in 2021. Newly arrived EU citizens do not need to apply for this new Euro TLR status in the short term. In fact, on the face of it, for a lot of people it looks like it would actually be a bad idea to apply for it until shortly before the new immigration system comes into force.
The two advantages applying for Euro TLR to the EU citizen seem to be:
1. That it grants a guaranteed period of three years of lawful residence and
2. That time spent on Euro TLR can count towards settlement time IF the holder qualifies for settlement under the new rules in force in 2021.
The first of the advantages may mean it is better to delay making an application for Euro TLR. If you apply for that on 1 November 2019, it would expire on 1 November 2022 and you might need to leave the UK at that point. If you enter on 1 November 2019 but apply on 1 December 2020, just before the new system is (supposedly) introduced, your residence is guaranteed until 1 December 2023 instead.
The second of these advantages is predicated on the person concerned qualifying under the new immigration system in force from 2021. As we do not know what the rules will be at that time, this hardly seems like much of an advantage at the moment. A spouse will presumably still have to qualify for the £18,600 minimum income rule and a worker will need to be working for an employer with a sponsor licence.
The policy paper states that an EU citizen who arrives on or after 1 November 2019 and does not apply for Euro TRL will become illegally resident and subject to enforcement action after 1 January 2021:
«EU citizens and their family members who move to the UK after 31 October will need to have applied for a UK immigration status (whether Euro TLR or under the new, points-based immigration system) by 31 December 2020. Otherwise, they will be here unlawfully and will be liable to enforcement action, detention and removal as an immigration offender»
The policy paper does not spell this out, but clearly the same applies to EU citizens resident before 31 October 2019 who have not obtained pre settled or settled status under the EU Set-tlement Scheme. This is because enforcers will not be able to tell the difference between a newly arrived EU citizen without status and a long-resident EU citizen without status.
Frankly, no-one will be able to tell the difference between them anyway, at least without checking the Home Office database by phone or online, as none of them are being issued with paperwork. All you get if you do apply is a “secure digital status”, i.e. an entry on a government database. If you are an EU citizen after 2021, whether employers, landlords and so on can be bothered to look you up may determine whether they offer the job or tenancy to you or to a British citizen who has a passport as ready proof.
Family members
Close and extended family members of EU citizens will be able to enter, live, work and study in the UK after 31 October 2019 just the same as EU citizens. The parts of the Immigration (European Economic Area) Regulations 2016 dealing with family members are also being preserved in UK law. However, if they want to remain in the UK long term, they will eventually have to apply under the normal UK family immigration rules, judged to be the most restrictive in the developed world.
Family members can before 2021 make an optional application for Euro TLR if they want to. As for EU citizens, this is voluntary but offers a guaranteed period of leave beyond the start of 2021, when otherwise they would either have to leave, apply under the UK’s normal family rules or become illegally resident. It is a fair bet that a significant number will end up illegally resident, whether knowingly or unknowingly.
The exception to this is Surinder Singh family members of British citizens. British citizens who move abroad after 31 October 2019 will not be able to return later under the Surinder Singh route if there is no deal. If there is a deal, the current Appendix EU rules will apply, which give the British citizen until the expiry of the Withdrawal Agreement to move to the EU.
In the event of no deal, those who are resident abroad before 31 October 2019 will be eligi-ble to return with close family members as long as they do so by 2022. The policy says:
«The current route reflecting EU law will remain open until 29 March 2022 for existing close family members of UK nationals who were resident in the EU27 before exit.»
Given that Surinder Singh currently applies to extended family members and only close family members are mentioned here, it looks like extended family members will not be able to enter the UK under Surinder Singh after 31 October 2019.
How will treatment of resident and newly arrived EU citizens differ?
There is a major question mark over how the Home Office is going to distinguish after 31 October 2019 between EU citizens who are already resident and those who are newly ar-rived. It seems likely that some EU citizens are going to end up with the wrong status, either because they do not understand which application to make or because they are unable to prove their entitlement under the EU Settlement Scheme. In the short term this will not mat-ter, so EU citizens may not notice the problem. When grants of Euro TLR start expiring from 2022 onwards and EU citizens holding that status find they do not qualify under the new rules, that is going to cause huge disruption.
Before 31 October 2019, any EU citizen applying under the EU Settlement Scheme is guar-anteed at least pre-settled status, unless they are excluded by reason of criminality. No real checks on residence therefore have to be carried out.
After 31 October 2019, immigration officials will need to distinguish between EU citizens who were already resident and those who are newly arrived. Those who were already physi-cally present in the UK before 31 October will be entitled to at least pre settled status, which brings with it a route to permanent settlement and the right to be accompanied permanently by family members. Those who are newly arrived will not be entitled to these rights but should instead be granted Euro LTR.
But how will officials tell the difference? EU citizens do not receive a stamp in their pass-port when they arrive in or depart from the United Kingdom. How will an EU citizen who arrived literally on 31 October who is in theory entitled to pre settled status prove that to the Home Office? Maybe the Home Office has a cunning plan, but I do not know what it might be.
As intimated above, there is also going to be no way for immigration officials, employers, landlords, banks and so on to distinguish between an EU citizen resident before 31 October 2019 who has not applied under the EU Settlement Scheme and one who arrived after 31 October 2019 and has not applied under the new immigration system.
It is inevitable that the end of free movement, when it comes in 2021, will leave in its wake a significant population of EU citizens who are illegally resident. Some will have been resident for years, some will be relatively newly arrived. All will be subject to the hostile environment.
09 September 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)
The long-suffering Migration Advisory Committee, or ‘MAC’ to its friends, has been com-missioned to carry out yet another review. Back in June 2019 the MAC were asked by one Home Secretary to think again about salary thresholds for skilled workers. This time they are being asked by a different Home Secretary to think again about the idea of an Australian style immigration system:
“Today, I am asking the MAC, as part of their current work on future potential salary thresholds, to conduct a review of the Australian immigration system and similar systems to advise on what best practice can be used to strengthen the UK labour market and attract the best and brightest from around the world.”
There’s then some flannelling about the benefits of controlled migration, once in a lifetime opportunities and so forth, before the letter concludes:
“This revised commission reflects the Government’s vision and overarching principles of the future UK immigration system: that it must be fair to those in the UK and those coming here; and allow for full control over our borders and immigration to the UK. Delivering on the promise to introduce an Australian-style points-based system is part of our approach to improving public confidence in our immigration system whilst allowing us to welcome talented and skilled individuals from all over the world.”
The report is due by January 2020.
It has not actually operated as a genuine points-based system for many years now, it is true. There is only one route to getting each type of visa under the UK system and the UK system includes subjective “genuineness” tests all over the place, whereas under a true points-based system there will be multiple routes through acquiring different combinations of points for different objective qualities. The one bit of the UK system that really ran on points, called Tier 1 (General) was scrapped for new entrants back in 2011.
The White Paper on post-Brexit immigration published under Theresa May in 2018 pro-posed the abolition of special immigration rules for EU citizens along with some minor re-forms to the existing system. This would essentially bring EU citizens within a slightly re-formed version of the current immigration system. This was followed in March 2019 by the Home Office indicating that it wanted to move away from the now-redundant ‘points based system’ label. The new innovator and start up visa routes were added to a new non-points-based appendix of the Immigration Rules.
Whether any of this matters to anyone but the poor MAC members who now have to conduct the review is a moot point (although they could probably get away with putting a different front cover on the excellent Migration Observatory briefing on points based systems: https://migrationobservatory.ox.ac.uk/resources/reports/the-australian-points-based-system-what-is-it-and-what-would-its-impact-be-in-the-uk/ ). The current government may not last long and anyway already has a history of fake immigration news, like the hollow Johnson pledge to properly protect EU citizen rights and the recanted rumors of ending free movement after Brexit.
>>> Healthcare for British citizens in the EEA after a no-deal Brexit
This is an update on UK citizens’ and residents’ access to healthcare in the EEA and Switzerland if a no-deal Brexit happens on 31 October 2019.
The people who will be affected are those for whom the UK is currently paying for their healthcare in another EEA state or Switzerland under Regulation 883/2004. This includes:
• UK residents temporarily “staying” (as opposed to “residing”) in an EEA state or Switzerland who travel with a European Health Insurance Card (EHIC), including tourists, posted workers, students and others.
• UK pensioners living in an EEA state or Switzerland who are receiving a UK State Pension or another exportable UK contributory benefit and have an “S1” form.
For these people, their EHIC or S1 form will no longer be valid after 31 October 2019 if there is no deal.
People who are working in an EEA state or Switzerland (other than posted workers) will normally already be enrolled in that state’s social security system and their access to healthcare should not be affected.
The Healthcare (European Economic Area and Switzerland Arrangements) Act 2019, which received Royal Assent on 26 March 2019 and came into force on the same day, allows the UK Government to make provision for post-Brexit healthcare. Clause 1 gives the Secretary of State power to make payments, and arrange for payments to be made, in respect of the cost of healthcare provided in an EEA state or Switzerland. The details of the schemes will be set out in regulations made by the Secretary of State under clause 2. It appears that no such regulations have yet been made.
The Act anticipates “healthcare agreements” between the UK and EEA states, Switzerland and/or an international organization (presumably the EU), concerning (a) healthcare provided in an EEA state or Switzerland, payments in respect of which may be made by the government of the United Kingdom and/or (b) healthcare provided in the United Kingdom, payments in respect of which may be made by an EEA state or Switzerland. However, the wording of clauses 1 and 2 is clearly sufficiently wide to allow the UK Government to take unilateral action to fund healthcare abroad, even with no agreement. At the moment, we do not know what arrangements the Government intends to put in place under the 2019 Act.
Some EEA countries have unilaterally enacted legislation to protect British citizens’ healthcare after Brexit. If you are travelling to the EEA or Switzerland after 31 October 2019 you should check what arrangements have been put in place in the country to which you are travelling. It may be advisable to take out private insurance before you travel.
10 September 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)
The detail of the changes being made is included in section 7 of the Explanatory Memorandum, but in summary, the changes will:
• Make revised provision for access to the EU Settlement Scheme for the family members of UK nationals returning from a European Economic Area (EEA) Member State or Switzerland, in line with a policy paper published in April 2019, and make other technical changes to the EU Settlement Scheme and EU Settlement Scheme family permit;
• Mandate an online route for applications for administrative review where the original application was made online;
• Replace references to the Dublin Arrangements which determine which member state is responsible for considering an asylum application;
• Expedite the grant of s67 ‘leave to remain’ on children who have been transferred to the UK under section 67 of the Immigration Act 2016; and,
• Make a number of minor amendments to business sectors, employment, and talent categories listed in the rules.
>>> Litigation win on early years provision
Following successful litigation, the Government has agreed to amend the existing regulations on early years provision for two-year-olds to include families with no recourse to public funds. The current provision enables families in receipt of low-income benefits to access 15 hours of free childcare for two-year-olds. This provision has often excluded some of the most disadvantaged families due to the no recourse to public funds (NRPF) condition that is attached to parents’ leave to remain in the UK.
In light of the litigation, the Department for Education will amend the regulations on early years provision for two-year-olds to make it accessible for the following families:
1. Those with an EU derivative right in the UK as a carer of a British child or a dependent adult i.e. a Zambrano carer in the UK
2. Those with an EU derivative right that is currently unrecognised – namely, someone that would otherwise meets the conditions for leave to remain as a Zambrano carer but does not currently have leave to remain, or is awaiting a decision on an application for leave to remain
3. Those with leave to remain on Article 8 family and private life grounds either within the rules (Appendix FM or 276E(2)) or outside the rules
4. Those who have claimed asylum but are ‘appeal rights exhausted’ (ARE) and in receipt of Section 4 support from the Home Office
This does unfortunately leave out non-British children of parents who do not currently have existing leave to remain and are do not qualify for a Zambrano right.
Where families satisfy the above conditions, they will still need to demonstrate that they have low income. According to guidance that the DfE and LGA have issued for local authorities, parents ‘must meet the income threshold (£15,400) to be eligible for a free place for their two-year-old.'
The DfE has also agreed to consult on the changes with relevant sector partners.
11 September 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)
[size=medium]>>> Statement of changes to the Immigration Rules HC 2631: changes to work visa routes[/size]
Detailed review
A new statement of changes to the Immigration Rules was published on the 9th September 2019. Except where indicated otherwise, these changes will come into force on 1 October 2019.
Tier 2
Quite a number of (positive) changes were made to the Tier 2 route in this Statement of Changes:
• Following the Migration Advisory Committee’s review of May 2019, the Shortage Occupation List has been expanded with professions such as biological scientists and biochemists, psychologists, veterinarians, and architects (but note that some professions have been removed too). Around 1 in 10 jobs are now on the Shortage Occupation list. In addition, companies wishing to offer digital technology jobs in the shortage occupation list will no longer need to meet strict conditions they previously had to satisfy. The main advantage of employing someone on the Shortage Occupation List is that employers do not need to carry on a Resident Labour Market Test. In addition, applicants are exempt from the earnings threshold when applying for indefinite leave to remain (although they must still be paid the appropriate rate for the occupation). These changes come into force on 6 October 2019.
• Still relating to the Shortage Occupation List, those who followed the BBC show “Who Should Get to Stay” may remember the case of a restaurant owner who could not sponsor skilled chefs because the restaurant offered a take away service. This restriction has finally been removed, such that restaurants who offer a takeaway service may still sponsor chefs.
• Some salary rates have been modified and will apply to certificates of sponsorship assigned on or after 6 October 2019.
• PhD level occupations will be exempt from the (20,700) annual limit on visas for skilled non-EU workers from 6 October 2019.
• Another good news for PhD level occupations is that their absences from the UK for research which is directly relating to their Tier 2 employment will not be counted as absences in an application for indefinite leave to remain. The same applies to their partners who accompany them in these circumstances.
• Changes have been made so that those who are absent from work due to sickness, statutory parental leave, assisting in a national or international humanitarian or environmental crisis or engaging in legal strike action may still apply for indefinite leave to remain even if such absences cause their salary to fall below the required threshold (similar rules already existed for those on maternity, paternity, share parental and adoption leave).
• From 6 October 2019, jobs can be advertised on the gov.uk “Teaching Vacancies” for the purpose of carrying on a Resident Labour Market Test.
Start-up and innovator
To qualify under the start-up route, applicants are usually expected to not have previously established a UK business (if they have, they should apply as innovators). A change exempts students in the UK on the doctorate extension scheme from this condition.
Changes are also made to the requirements that an organisation must meet to become an endorsing body under these routes, including that their request may be refused on the grounds of “criminality or other actions or behaviour which are non-conducive to the public good” or due to conflicts of interest.
Tier 1 (investors)
Following the March 2019 Statement of changes, UK government bonds are no longer qualifying investments for Tier 1 (Investors). However the current Statement of changes make provisions for those who were already on the Tier 1 (Investor) route prior to 29 March 2019 to extend or settle in the UK, provided they move their qualifying investments out of UK government bonds. In particular, those who wish to extend their Tier 1 (Investor) leave must move their investments before 6 April 2023, while those who want to apply for indefinite leave to remain must move them before 6 April 2025.
Tier 1 Exceptional Talent
Tech Nation, one of the endorsing bodies for Tier 1 (Exceptional Talent) applicants, has asked that applicants provide three, rather than two, letters of support by established organisations in the digital technology sector. This change brings those applications in line with those applying for endorsement by other designated competent bodies.
In addition, Tech Nation seems to want to attract more “commercially savvy” applicants, and will take into account the commercial impact of the applicant’s previous work, achievements and experiences; and insists on applicants producing “product-led” digital technology rather than just digital technology.
The Royal Society, Royal Academy of Engineering and British Academy are, instead, being more generous, expanding the list of peer-reviewed fellowships which will allow applicants to apply under the fast-track procedure; allowing those who have held a fellowship in the 12 months prior to the application to apply; and allowing a wider range of senior academic or research positions to apply.
Students
Changes have been made so that students on Tier 4 (General) visas will be able to start working for Tier 2 sponsors within 3 months of the completion of their degree. Students who have been supported by an endorsing body can also start their business activities whilst their application for a start-up application is pending.
Another change is being made to allow Tier 4 students studying at masters’ and PhD level to start a different course of study with their current sponsor while they have leave, without having to make an application from overseas.
Professional sportsperson
For the fourth (!) time this year, the definition of professional sportsperson was changed (see Nichola Carter’s post for a bit of history). No doubt partly due to negative media coverage, the Rules went back to confirm that Tier 4 (General) students studying a course at degree level or above can play or coach as amateurs or as part of a work placement undertaken as an integral and assessed part of their course.
In addition, applicants are no longer required to provide their test certificates, but only the unique reference number, both for English language tests and the Life in the UK Tests, which can be checked by the Home Office.
Lastly, Tier 2-sponsored doctor, dentist, nurse or midwifes whose English language was assessed by the relevant regulated professional body as a requirement for registration will no longer need to pass an additional English language test.
Tier 5
Minor changes to Tier 5 routes include:
• The Foreign & Commonwealth Office government authorised exchange scheme has been removed.
• The list of organisations permitted to sponsor researchers under the “UK Research and Innovation – Science, Research and Academia” scheme has been expanded.
• From 1 January 2020, South Korean nationals applying under the Youth Mobility Scheme no longer need to apply for sponsorship from their government before applying for their visa.
Administrative review
Last but not least, administrative reviews must now be submitted online, unless the original application was made on a valid paper form.
12 September 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)
[size=medium]>>> Important changes for the EU citizens under the EU Pre-Settled and Settled Scheme
[/size]
Some changes have been rather worrying – see the detailed review below.
The UK Government has introduced the Statement of Changes to the Immigration Rules HC 2631. This is a formal change to the immigration rules and there is a lot to it; the full version weighs in at 102 pages. This review will be about the changes made the EU Settlement Scheme.
The ministerial announcement suggests that most of the changes relate to Surinder Singh, with some ‘technical changes’ here and there. While many are technical changes in order to improve understanding and clarity, some of them are quite important.
These changes to the EU Settlement Scheme, formally known as Appendix EU in the Immigration Rules, are brought into effect on 1 October 2019.
Administrative Reviews
The rules relating to Administrative Review have been changed to specify deadlines for such applications depending on the location and situation of the applicant.
For applications made by persons in the UK but not in detention the deadline will be 28 calendar days after receipt by the applicant of the relevant decision. For applications made by person in the UK and in detention the deadline is 7 calendar days. For applications made by persons overseas the deadline is 28 calendar days.
Those in immigration detention will have a torrid time trying to apply within 7 calendar days. There are administrative barriers to overcome, such as restrictions on communications to those outside the centres. The barriers to accessing good quality legal advice are even higher. Often individuals have to represent themselves for that reason. Without specialist knowledge of this scheme, it will reduce the chances of successfully challenging decisions.
The previous version of the rules allowed Administrative Review applications to be made outside of the deadline at the discretion of the Secretary of State. This discretion to allow late applications has been removed from the rules, meaning that from 1 October 2019 all Administrative Review applications must be made within the deadline.
This is a particularly unwelcome change given the high rate at which pre-settled rather than settled status is being granted and the continued absence of a right of appeal, where there is a discretion to admit late applications. There appears to be no reasonable justification for this change.
It will be possible to apply for Administrative Review of a decision to cancel leave granted under Appendix EU on the grounds that a person ceases to meet the requirements of that leave. But not where leave is cancelled for other reasons – see below.
In future any application for review, it will need to be made online unless the original application was made using a paper form.
Family members
This section of the rules sees many minor changes to improve scope, understanding and clarity.
For instance, the definition of EEA or Irish citizens who have naturalised to become British is adjusted. This means that family members of naturalised Brits who previously seemed to be excluded from the scheme are now included.
There are a few changes to the position of family members of an EEA citizen who has ceased activity, for example where an EEA citizen was in work but lost their job. The rules now require the family member to have been resident for a continuous qualifying period before the EEA citizen ceased activity. There was no such requirement in the previous version.
Children under 21 of British citizens are able to apply for settled status if their parents were durable partners (i.e. not married or in a civil partnership but in a serious relationship) before Brexit happens. But the durable partners need to marry or form a civil partnership before the application is made.
A person who is applying as the dependent parent of an under 18-year-old EEA citizen is now required to prove their dependency in order to be granted status.
Surinder Singh
The rules relating to family members of British citizens have been amended to reflect the recent policy paper.
The British citizen can return with specific family to the UK under these in the following circumstances:
• The British citizen can return with the spouse, civil partner or durable partner where these relationships were formed before Brexit day, in these instances they must return before 29 March 2022
• The British citizen can return with the spouse or civil partner where these relationships were formed after Brexit day, in these circumstances they must return before 11 pm on 31 December 2020
• The British citizen can return with the durable partner where that relationship was formed after Brexit day, in these circumstances they must return before 11 pm on 31 December 2020
• The British citizen can return with his or her child or dependent parent or the child or dependent parent of his or her spouse or civil partner, in these circumstances they must return before 11 pm on 29 March 2022. If the British citizen married or entered into a civil partnership after Brexit day and they wishh to return with the child or dependent parent of the spouse or civil partner, then the return date changes to 11 pm on 31 December 2020
• The British citizen can return with his dependent relative other than a parent, so long as that family relationship and the dependency existed before their return to the UK. Their return to the UK must occur before 11 pm on 31 December 2020
It is good to see these rules clarified. The Explanatory Statement which accompanies them states these rules and their deadlines apply in both a ‘deal’ and a ‘no deal’ Brexit scenario.
Suitability
There are some substantive additions to the section relating to ’suitability’. This is the section where we find details on the circumstances where applications may (discretionary) or must (mandatory) be refused.
The accompanying ministerial statement says:
“We expect the vast majority of EUSS applicants to be genuine, and for there to be little need for status granted under the EUSS to be cancelled at the border or curtailed in-country.
However, it is appropriate that, to safeguard the integrity of the EUSS, its status should be covered by some of the same powers as other forms of immigration leave, so that appropriate action can be taken where necessary.”
There has always been a worry that pre-settled or settled status could be cancelled or curtailed. These changes bring life to those concerns.
An application for pre-settled status or settled status may (discretionary) now be refused if the applicant has previously been refused entry to the UK under the EEA Regulations. There are instances where EEA citizens or their family members have been incorrectly refused entry to the UK and it requires them to challenge that refusal from outside. It is a long drawn out process that often requires the assistance of a lawyer like the ones from the Legal Centre (www.legalcentre.org ). In many instances these border decisions go unchallenged. Now those historic decisions may be used as a ground to refuse an EUSS application.
An application for pre-settled or settled status may also be refused if it relates to someone who previously had such leave, but that leave was cancelled sometime in the past. This includes, not just leave granted under the EU Settlement Scheme from within the UK, but also leave granted in the course of an application to join an EEA national in the UK for the first time under Appendix EU (Family Permit).
This means that a person’s pre-settled and, crucially, settled status is by no means a guaranteed status. The refusal of the application must be justified on public policy, public security or public health grounds under the EEA Regulations or, if it occurs after a no-deal Brexit, on the grounds that the decision is conductive to the public good.
It essentially it requires a serious criminal offence and, amongst other requirements, the individual has to represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, with higher thresholds to overcome the longer someone has resided in the UK. Public good grounds have a much lower thresholds and is not just about offences but about the adverse conduct of an individual.
A person could now be living outside the UK with pre-settled status or settled status, and they could face the cancellation of their leave by the Home Office for this reason. This cancellation can occur on their arrival in the UK or while they are living outside the UK.
We, the lawyers at the Legal Centre, know too well that the Home Office decisions are sometimes of very poor quality. They often do not apply the public policy, public security, public health grounds or public good grounds properly, lawfully and correctly. An EEA citizen or their family members must have done something wrong to warrant Home Office attention in this way, but we often see the Home Office trying to cancel leave because of very minor offences or actions. This does leave individuals rather vulnerable to poor decision making.
Either statuses could also be cancelled on the basis that false or misleading information, representations or documents were submitted (including false or misleading information) and that material was used to obtain such status. It does not matter if the applicant did or did not know such material was false or misleading. This is major worry because the automatic nature of the EU Settlement Scheme application and the restrictiveness of its declarations has, in some instances, granted status based on incorrect information.
For example, an EEA citizen might now be living outside the UK but continuing to work for a UK based company and taxed accordingly. The EEA citizen intends to rely on a five-year continuous residence that occurred before they left the UK. But the nature of the automated residence checks mean that the application inadvertently grants settled status based on the tax information for the period they are outside the UK. The EEA citizen than accepts the application form declarations on the basis that the information is correct.
If the EEA citizen is aware of how the system works, they could, in theory, contact the Settlement Resolution Centre to try to remedy this. But if they do not know how the system works, there is no obvious way that they would be aware they are unknowingly accepting settled status based on misleading information.
In this scenario, the EEA citizen is obviously eligible for settled status, but they were granted it based on false information and not based on the correct period of residence. The manner in which the Statement of Changes is drafted does not make it clear that, in this scenario, the EEA citizen might not be vulnerable to their leave being cancelled for such a reason. There are many other instances of leave being granted based on incorrect information, though the grant is correct had the right information been requested or obtained. I worry that there may be instances of wrong or unduly harsh cancellations without due regard to the facts and backgrounds of the individual’s circumstances.
The rules also provide for the cancellation of leave where the applicant no longer meets the requirements of Appendix EU. Pre-settled status granted under these Rules is in no means a guaranteed route to settlement, it is now not guaranteed a person can retain pre-settled status to acquire the opportunity to apply for settled status. For example, a family member may cease to be a family member during the pre-settled status grant but cannot in any other way retain their status, they would find their leave cancelled and will need to investigate other routes to acquiring leave under the Rules or apply on human rights grounds to remain in the UK.
Additionally, a person could acquire an Appendix EU Family Permit to join an EEA citizen in the UK but could find that permit cancelled at the border based on adverse conduct after Brexit occurs but before they travel. There are particular concerns of poor decision making at the border. The time pressures of border control do not provide the optimum conditions for reasoned, thoughtful decision making. Entering the UK with a past adverse record of conduct, however minor, is not guaranteed.
We, the Legal Centre, have always been stressing that the British citizenship would have been a much better option, and therefore we can help you at any time now. All you need to to is to book your initial consultation with us via https://www.legalcentre.org/Initial-Consultation.html
12 September 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)
“The Post Study Work Scheme will allow students to work in the UK for the employ-er of their choice for up to 2 years”.
The two-year Post Study Work Visa will be re-introduced, apparently. Multiple statements, from the Prime Minister, the Business Secretary, the Department for Education and, last and least, the Home Office have been released announcing the resurrection of a visa originally introduced in 2004 and killed off by Theresa May in 2012.
As background, the earliest incarnation of the post study work visa was the Science and Engineering Graduates Scheme in 2004, when the visa was limited to graduates in certain subjects and a 12-month post-graduation period of work was permitted. A similar scheme was trialed across all subject areas in Scotland from 2005 as the Fresh Talent: Working in Scot-land Scheme, back in the days when regional immigration policy was permitted. The period of work permitted was extended to two years. The scheme was judged a success and rolled out across the UK in 2007 as the International Graduates Scheme, but offering only a 12 month post-graduation period in which work was permitted. It was then absorbed into the Points Based System from 2008 as the Tier 1 (Post Study Work) visa. A more limited six-month form of the post-study work visa was reintroduced recently.
The date of implementation is not entirely clear yet, but the announcement suggests it will be available to students starting in the next academic year, September 2020. It is unknown whether current students already on courses in the UK will also benefit from the rule change. It is a shame that space could not be found for the measure in the formal Statement of Changes to the Immigration Rules was dropped just two days ago, which would have provided clarity and certainty to all concerned.
The return of the Blair-era drive to recruit foreign students and acknowledgment that there is stiff international competition to attract them has, unsurprisingly, been welcomed by universities themselves. Alistair Jarvis, Chief Executive of Universities UK, is quoted in the press release as saying:
“This is very positive news. Evidence shows that international students bring significant positive
social outcomes to the UK as well as £26 billion in economic contributions, but for too long the lack of post-study work opportunities in the UK has put us at a competitive disadvantage in attracting those students.”
The introduction of a two-year post-study work visa is something Universities UK has long campaigned for, and we strongly welcome this policy change, which will put us back where we belong as a first choice study destination. Not only will a wide range of employers now have access to talented graduates from around the world, these students hold lifelong links in the UK.
An estimated 14% of all university income is from the substantial fees paid by foreign students. Not only that but foreign students contribute considerably to the wider economy when they live in the UK, provide a potential talent pool from which employers can recruit and offer potentially huge ‘soft power’ influence to the United Kingdom in the future.
Foreign students fell out of favor under Theresa May for two reasons. Firstly, the insane net migration target meant that any migrant, even an otherwise highly desirably one, became undesirable. May herself said in 2011 when announcing the scrapping of post study work visas:
“The package of measures that I have outlined today is expected to reduce the number of student visas by between 70,000 and 80,000—a reduction of more than 25%—and it will increase the outflow of foreign students after they have concluded their studies.”
The scrapping of this visa was closely associated with May herself and Ministers have been scrambling to dissociated themselves from it. The previous Home Secretary himself, Sajid Javid, who was until recently nominally in charge of immigration policy, has tweeted that it is ‘About time. Should have reversed this silly policy years ago.’ Jo Johnson was known to have championed re-introduction of the visa before he quit his brother’s government last week:
“About time. Should have reversed this silly policy years ago. Britain should always be open to the best talent from across the world. https://t.co/sAx1BIFSIR
— Sajid Javid (@sajidjavid) September 10, 2019”
The second reason for the fall from grace of this group was that the Home Office wrongly thought that loads of foreign students were overstaying their visas. In fact, the latest evidence is that a tiny percentage do so. With the adjusted data, there was really no rationale for driving numbers down.
Finally, it seems noteworthy that a range of government departments are being associated with the announcement. Even the Department for Education is in on the act. Is this a sign that immigration policy is no longer driven entirely by the Home Office? Let us hope so. Those hoping for a relaxation of the incredibly harsh family immigration rules may be dis-appointed, though. Foreign students are relatively popular in opinion polling. Migrant family members are not. The timing of this announcement, just after a Statement of Changes to the Immigration Rules which could have implemented the policy and at a time when Conservative electoral strategists must be searching around for a way to make the government seem more liberal, certainly points to this being about positive polling rather than good governance.
This version replaces the ‘Dependant family members of points-based system migrants and Appendix W Workers version 16.0’ which has been withdrawn and archived. It covers minor technical changes.
13 September 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)
In DM (Tanzania) v Secretary of State for the Home Department [2019] EWHC 2351 (Admin), the High Court ruled that the lack of accommodation for foreign national offenders cannot be a defence in a claim for unlawful detention.
16 September 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)
>>> Will the UK BA accept all English language tests from an approved provider?
“No. Any tests taken from 6 April 2015 must be on the approved SELT list. You can take IELTS or Trinity tests for many reasons at different centres but only those IELTS and Trinity tests specified for immigration use and taken at an approved centre can be used as part of an application for immigration purposes.
You should take care when booking your test to ensure that the test that you book is the one approved for SELT:
• for IELTS, ensure that you choose ‘IELTS
for UKVI’ rather than ‘IELTS’;
• for Trinity, ensure that you choose ‘Secure
English Language Tests for UKVI’.”
19 September 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)
>>> Document reduction pilot
Beginning the 16 September 2019 the UKVI has launched a document reduction pilot for Settlement Appendix FM Spouse and Partner applications submitted at 6 VACs in India (New Delhi, North Mumbai, South Mumbai, Jalandhar, Chandigarh and Ahmedabad).
UKVI has confirmed as follows:
1. That they want to ensure this pilot runs as smoothly as possible and involves all parties so they are proposing that it is run in 2 phases starting from 16 September. Phase 1 will trial the pilot in the 6 Indian VACs mentioned above before they extend it out to other locations.
2. That the pilot won’t stop customers submitting additional evidence if they want it to be considered. UKVI will be asking their Commercial Partners to relay to customers that the quantity of relationship documentation isn’t required by UKVI and giving them guidance on what they may like to submit to satisfy what UKVI want to see, remembering that there is no specified evidence requirements when submitting relationship evidence. But if a customer insists on submitting thousands of photos and conversations, then they won’t stop them from doing so.
3. Phase 1 of the pilot is expected to run for around 8 weeks before being evaluated, at which point consideration will be given to extending the pilot before any recommendations are made to make it permanent.
4. With regards to evaluating the pilot UKVI intend to capture data in regards to the conversations that have taken place with customers and what documentation is then submitted, evalu-ate that and evaluate both the customer experience from feedback requests as well as the operational decision making impact.
5. With regards to anticipated next steps the trial will be phased with incremental increases before proposals to make this permanent are considered in 2020.
The text of the notice produced by UKVI for use by the VACs is as follows:
“Scanning documents provided to support Appendix FM Spouse/Partner visa applications
Customers often tell us that it is difficult to be sure which documents to provide in support of a settlement visa application. This can often lead to far too many documents being brought to the visa application centre to be scanned.
With immediate effect, we have instructed our commercial partner, VFS not to scan all documents provided in support of:
- Appendix FM spouse (where the sponsor is in salaried employment and non-salaried employment in the UK) and;
- Appendix FM partner (where the sponsor is in salaried employment and non-salaried employment in the UK) visa applications and;
- Children under the age of 18 years who are applying at the same time as the main applicants as described above.
We will only accept a limited number of pages of the following documents:
• Chat history (WhatsApp and social media) - If you wish to submit copies of chat history, you are strongly advised to submit no more than 10 A4 pages of chat. The chat history should demonstrate your relationship over a period of time.
• Photographs - You are strongly advised to submit no more than a total of 10 photographs. You can include photographs from your wedding and/or a range of other photographs sup-porting your relationship over a period of time.
These are the documents that customers most commonly send us. It is not compulsory for you to provide any of these documents. If we need any further information to decide your visa application, we will contact you direct by phone or email.”
The Court of Justice held that a person who had previously been a qualifying family member under Directive 2004/38 but had later lost that status could only be expelled in compliance with Articles 27 and 28. Further, the automatic ban on re-entry was not permitted:
“the expulsion decision that may be made in the case in the main proceedings cannot, under any circumstances, impose a ban on entry into the territory.”
The judgment in Chenchooliah therefore requires a serious rethink on the treatment of family members who have lost their EU law residence rights. The same applies to recognised extended family members. The arguments against expulsion are in fact far broader than previously understood and in the UK go far beyond the very limited provisions at paragraph 276ADE of the Immigration Rules. The UK re-entry ban rules do not on the face of it breach EU law as clearly as do the Irish rules but there is an argument to be had there should a family member seek return after removal.
Комментарии
Helpful and just interesting updates on the UK and EEA immigration law from the Legal Centre, who can help you with any immigration issue. www.legalcentre.org Mob/WhatsApp/Viber: +44(0)7791145923, Office: +44(0)3300010342
>>> Attracting the “brightest and the best”: the UK’s record on visas for academics and researchers
This autumn will see a decided shift in immigration policy toward being more welcoming to non-EU academics, scientists and researchers; a group commonly defined by the somewhat worn-out phrase, “the brightest and the best”, first coined by David Cameron in October 2011.
The upcoming rule changes will see the removal of PhD level jobs (as defined by the PhD level SOC Codes in Appendix J) from the Tier 2 visa quota. There will also be a new exemption within the settlement rules on excessive absences from the UK, where the person’s absences are due to “overseas research activity”.
Specific visa routes for academia
The academic and research sector is fortunate to have access to specific visa routes.
The flagship Tier 1 (Exceptional Talent) route was created in 2011 and continuously reformed due to low initial uptake. Significantly, changes in January 2018 provided automatic endorsements for non-EU citizens appointed to senior positions at a UK university or research institute. As these led to, essentially, a guaranteed Exceptional Talent visa, this was a clear recognition of the value of these roles to the UK.
Another visa route designed specifically for the academic and research community is the Tier 5 (Government Authorised Exchange) route, through which universities and research institutes can sponsor academics and researchers to undertake short-term collaborations. In July 2018, the route was reformed and expanded: these institutions can now host any type of short-term engagement with a non-EU academic or researcher in a manner that other employment sectors would struggle to accommodate.
Carve-outs for universities within immigration routes
In parallel with these specific visa routes, there are a number of carve-outs and exceptions within the other visa routes which facilitate highly skilled researchers.
The Tier 2 route contains a number of exceptions for PhD level roles, including:
• the ability to recruit the best person for the job regardless of nationality
• a Resident Labour Market Test waiver for ‘supernumerary researchers’
• rules allowing Tier 4 students an easier transition into work (under the deliciously byzantine paragraph 245ZY(c)(iii)(7) of Part 6B of the Rules)
• greater weighting for PhD level roles within the Tier 2 quota
• an exemption from the ILR minimum salary rate, amongst other benefits.
The Migration Advisory Committee’s recent recommendations on the Shortage Occupation List, signed off by the Home Office this week, mean that all biological scientist and biochemist roles (SOC Code 2112), and archaeologists under Code 2114 now get priority within Tier 2.
The visitor visa route also contains carve-outs, namely to allow highly skilled individuals to visit and gather information and facts, or share knowledge/advise on an international project that is being led from the UK. Academics can use the route to carry out research for their own purposes, and senior doctors or dentists can take part in research, teaching or clinical practice. The permitted paid engagement visitor route facilitates one-month paid engagements of academics to examine students and/or to deliver a series of lectures.
Visa problems for the best and brightest
Cost remains a significant burden. A recent report by The Royal Society highlights that the current UK visa arrangements are amongst the most expensive in the world. Therefore, the immigration experts like the Legal Centre (www.legalcentre.org) can certainly help, and it is worth considering an initial confidential online consultation with the Legal Centre, which can be booked 24/7 via https://legalcentre.org/Initial-Consultation.html
The cost of visas for skilled workers and students coming to the UK, compared with the visa systems of other leading science nations, is a whopping 540% higher. The Royal Society calls for a reduction in visa costs to fall in line with the average.
Administration of the current Tier 2 system is also a sizable burden for the sector. A recent report by EY, commissioned by the Russell Group, established that the 24 Russell Group universities currently spend around £25 million a year on immigration processes and compliance to recruit and support non-EU staff and students, with an estimated increase of 36% to £34m by 2022. These costs would reach dizzying heights were they to be extrapolated across all employers within the research sector. The white paper’s ambition to reduce sponsorship burden under any new system will certainly be welcomed.
Visa refusals are also an issue, most recently concerning visit visas. There have been several high profile cases of visiting academics and researchers being refused visas, with questions also raised in Parliament. There is ongoing lobbying on this issue from the research sector.
Better brain circulation
To what extent will the proposed autumn rule changes impact on the UK’s attractiveness for the “brightest and the best”? Significantly, in my view.
Firstly, the removal of PhD level roles from the Tier 2 quota, whilst partly symbolic given that no PhD level roles have ever been refused under the cap due to preferential points-weighting, will reduce recruitment time frames on the ground, circumventing the need for monthly pre-approval. This does, unequivocally, send a global message that the UK is committed to supporting the easy movement of highly skilled individuals.
Secondly, the planned exemption for PhD level roles within the absence rules for settlement is very welcome. It is an issue that the sector has lobbied on for years, due to previous high profile settlement refusals for academics and scientists who breached the absence requirements. Whilst refusals are not common, the rules mean highly skilled individuals having to choose which overseas collaborations they can attend and which they cannot for risk of breaching the absence rules.
>>> Applying for a PBS visa as a dependent ? You may not need to show your maintenance in CERTAIN circumstances
This is the extract from the PBS Dependents Policy Guidance:
Para 83
If you apply separately from the main applicant you will need to have the necessary funds to meet the maintenance requirement or have a written undertaking from an A-rated Sponsor, unless the main applicant already had leave in a Tier 2 category and when applying for their most recent period of Tier 2 leave was not required to show evidence of satisfying maintenance requirements.
In other words, as an example, if the main applicant was a Tier 2 migrant and extended their leave in Tier 2 then they would not need the employer to certify maintenance as they would not need to evidence maintenance in any event. And in those circumstances neither does the dependent.
>>> Refugee status can be taken away even if threat of persecution still looms: https://www.bailii.org/ew/cases/EWCA/Civ/2019/1345.html
In Secretary of State for the Home Department v MS (Somalia) [2019] EWCA Civ 1345, the Court of Appeal has held that the Home Office can cease refugee status where there has been a change of circumstances in the refugee’s country of origin such that it is possible for them to internally relocate to avoid persecution.
>>> Immigration detainees must be given the “true reason” for their detention: https://www.bailii.org/ew/cases/EWHC/Admin/2019/2070.html
A real mammoth of a case: R (HS) v Secretary of State for the Home Department [2019] EWHC 2070 (Admin). The claimant took what looks like a kitchen sink approach to his unlawful detention claim, succeeding on the fourth ground: that he wasn’t given the “true reason” for his arrest and detention.
The problem was that officials did not inform him that this was the reason behind his re-detention, instead merely ticking several boxes on the IS.91R form to indicate generic reasons such as “character, conduct or associations”.
According to Home Office detention guidance, officials must prepare a “properly evidenced and fully justified explanation” of the reasons to detain, for internal use. It seems a little unfair to give detainees only the barest of facts when a proper explanation is on file anyway.
>>> UKVI Guidance: Guidance on application for UK visa as Tier 2 worker: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwjm-fWysOHjAhUZSxUIHZtTDIwQFjAAegQIABAC&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/791035/Tier_2_Policy_Guidance_03_2019.pdf&usg=AOvVaw1pzmfO0ulnseUegreQtDnF
Guidance to apply to come to the UK as a Tier 2 skilled worker or to extend your stay.
Change made - Guidance document updated.
Addendum – Changes to appropriate rates (Appendix J)
>>> Can I collect my biometric residence permit from a different Post Office branch to one in my decision letter?
See https://www.gov.uk/government/publications/biometric-residence-permits-overseas-applicant-and-sponsor-information
“Yes. If you, or a nominated third party authorised by the Home Office to collect your BRP on your behalf, wishes to collect your BRP from a different branch to the one in your decision letter, you or they should go to the Post Office branch from which you would like to collect the permit and speak to a Post Office employee.
The Post Office will charge a fee for each and every permit you wish to re-direct between branches. Not all branches offer the collection service. Details of Post Office locations offering the service and their opening times can be found at their website.
If you are part of a family group that has travelled to the UK together, a family member can arrange for all the biometric residence permits belonging to that family group to be re-directed to a new Post Office branch for collection. The family member requesting re-direction must present the travel documents (and vignettes) of everyone whose biometric residence permit they wish to re-direct. They will also need to present these when collecting the biometric residence permits.”
>>> Senior judges despair of “Byzantine” immigration laws: https://www.bailii.org/ew/cases/EWCA/Civ/2019/1310.html
Always a worry (but never a surprise) when Court of Appeal judges start off a judgment by saying that the case “has a tortuous procedural history”, is “highly technical” and involves “Byzantine… provisions” of immigration law. Firdaws v Secretary of State for the Home Department [2019] EWCA Civ 1310 is the latest in a long line of cases where senior judges have deprecated the complexity and obscurity of the UK immigration system.
The core issue was whether Mr Firdaws had a right of appeal against a refusal of a human rights claim made after his leave had expired. The Home Office’s position was that Mr Firdaws did not have a right of appeal before 6 April 2015 because the decision to refuse him was not an “immigration decision” under the old version of section 82(2)(d) of the Nationality, Immigration and Asylum Act 2002. Under the old version of section 82, a refusal to grant someone leave to remain when they were already here without leave was not a decision which could be appealed to the tribunal.
This all changed when the Immigration Act 2014 came in. It allowed appeals against refusals of human rights claim regardless of whether the person was here lawfully or not.
This change didn’t happen overnight, though. It came in phases through four commencement orders between July 2014 and April 2015.
It was the wording of the third and fourth orders which caused the problems. Mr Firdaws argued that they omitted to restrict the right of appeal in his particular circumstances, relying on a close reading of the text of the interlocking statutory.
The final paragraph of the judgment reflects the sad reality of how broken our immigration system has become and how desperately wholesale reform is needed:
“I cannot conclude without commenting, not for the first time, on the extreme complexity and obscurity of drafting in the field of immigration law, as exemplified by these Commencement Orders. Such drafting as this serves to conceal rather than reveal meaning. It confuses even the expert legally qualified reader, never mind those affected by the provisions. In this instance, the drafting has produced a perverse result. Such an approach is firmly to be deprecated.”.
It is embarrassing yet in some cases the practitioners have to regularly say to clients that there is no clear answer to their situation and they essentially need to take a gamble on something as important as their immigration status.
To some extent, progress has been made with the Law Commission finally stepping in and producing a consultation paper on simplification of the Immigration Rules earlier this year. The stark reality, though, is that any reform is likely to take years.
>>> British-Iranian solicitor Seema Kennedy made immigration minister:
Seema Kennedy is the new immigration minister at the Home Office, the BBC’s Danny Shaw reports. The MP for South Ribble, who had been a junior minister at the Department of Health, replaces the sacked Caroline Nokes.
>>> UKVI Guidance: Correcting an incorrect endorsement: https://www.gov.uk/government/publications/correcting-an-incorrect-endorsement-ecb19/correcting-an-incorrect-endorsement-ecb19
Information and guidance on handling visa applications made outside the UK. Added information for applicants who have discovered an error in their visa before they arrive in the UK.
>>> New Home Office policy on removing migrants with children: https://www.gov.uk/government/publications/family-life-as-a-partner-or-parent-private-life-and-exceptional-circumstance
The Home Office has updated its main guidance on family visas under Appendix FM of the Immigration Rules. The good news is now we have one consolidated guidance document dealing with both the five and ten-year routes for partners, parents and private life applicants. The new guidance runs to 93 pages whereas the previous guidance for ten-year route applications was 104 pages alone.
The other big clear-up is around the section dealing with applications under EX.1(a) of Appendix FM, which is about whether it is reasonable to expect a child to leave the UK with parents who have no right to remain here. This has always been quite a thorny issue and previous guidance has gone both ways. Versions before the Supreme Court’s decision in KO (Nigeria) [2018] UKSC 53 said that leave to remain should normally be given to parents of qualifying children, whereas post-KO (Nigeria) versions have had a more nuanced approach and still re-fer to the conduct of parents and their immigration status as being indirectly relevant. The new guidance is still a little con-fused in this respect and prefers the latter approach.
However, gone are the parts of the guidance which said that if a child is not expected to leave the UK, then paragraph EX.1(a) does not apply. The new guidance makes clear that:
“In accordance with the findings in the case of AB Jamaica (Secretary of State for the Home Department v AB (Jamaica) & Anor [2019] EWCA Civ 661), consideration of whether it is reasonable to expect a child to leave the UK must be undertaken regardless of whether the child is actually expected to leave the UK.”.
One can find that even where a parent’s immigration status is pretty poor, the Home Office seems to be granting leave to remain to qualifying children under the ten-year route, as used to be the case before KO (Nigeria) muddied the waters. One wonders if this change in policy is likely to encourage caseworkers to be bolder and to refuse these types of application more often.
Whilst the guidance has incorporated this change, it has overlooked or confused some of the other conclusions from AB (Jamaica). The document still has a noticeable bias against applicants who don’t have direct contact with their children. In these cases, the guidance says that it is “likely… that a relationship will not be sufficient to engage Article 8”.
On the contrary, what the Court of Appeal actually said was:
“… it is by no means inevitable that a tribunal will conclude that a parent has no “genuine and substantial parental relationship” absent direct contact.
The way the Home Office has worded this is likely to infect decision-makers’ reasoning and steer them more towards refusing such an application.”
>>> I have a fiancé(i) visa. I am now married. Can I go for a honeymoon now ?
The answer is “Yes”, in line with the https://www.gov.uk/government/publications/chapter-8-appendix-fm-family-members:
“A spouse or civil partner can re-enter the UK following a honeymoon abroad during the remaining validity of their entry clearance as a fiancé, fiancée or proposed civil partner if they can satisfy the Immigration Officer, in the light of the change in their marital or civil partnership status (which they should evidence with a copy of the marriage or civil partnership certificate), of their intention, within the remaining validity of that entry clearance, to regularise their status in the UK as a spouse or civil partner.
Any period of entry clearance or limited leave as a fiancé, fiancée or proposed civil partner does not count towards the continuous period of leave as a partner required for settlement.”
>>> Domestic violence – can the victim (applicant) still reside in the matrimonial house or not ?
The answer is “may be”.
Page 20 of “Victims of domestic violence and abuse” Policy Guidance (Version 14.0):
“The fact the couple are still living at the same address when the application is made may not necessarily be taken as an indicator the relationship has not broken down, as this could be due to a number of reasons.”
The following case-law may also be of use: https://www.bailii.org/uk/cases/UKIAT/2009/00019.html
>>> UKVI Guidance: Family Policy: Partners, divorce and dissolution published: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=9&cad=rja&uact=8&ved=2ahUKEwi65ZbOsuvjAhUlxYUKHV62BjYQFjAIegQIARAC&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/804738/Partner_divorce_and_dissolution_guidance_v.1.0ext.pdf&usg=AOvVaw20FDtpFZjYNs3P241OKVqw
How UK Visas and Immigration staff recognise a genuine and subsisting relationship and identify a valid divorce or dissolution of a civil partnership.
>>> UKVI Guidance: Guidance on applications for UK Tier 4 student visas updated: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwiuq4nwsuvjAhUMThoKHUP-BUIQFjAAegQIAxAC&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/812143/T4_Migrant_Guidance_JUNE_2019_FINAL_v3.pdf&usg=AOvVaw3XoVLslrZqeY-hgq9ep9XO
Guidance on UK Visas and Immigration’s policy for Tier 4 (General) Student and Tier 4 (Child) Student applications to stay or come to the UK updated.
Вот и очередная клиентка из России получила продление ее визы жены (заявление FLR(M)).
Заявление было не простое – клиентке пришлось несколько раз переделывать и добавлять документы.
Я работал с клиенткой по принципу общего сопровождения: https://legalcentre.org/Obshee-soprovozdenie.html
Результат не заставил себя ждать – заявление рассмотрели за 24 часа по принципу Super Premium Service.
Я помог десяткам тысяч других клиентов, и я могу помочь Вам.
Вы можете записаться на телефонную/online консультацию со мной, Антоном Ковалем, 24 часа в сутки: https://legalcentre.org/Konsultacija-s-Advokatom.html
Антон Коваль
Legal Centre
+44(0)7791145923 (Mob/WhatsApp/Viber)
+44(0)3300010342 (Office)
www.legalcentre.org
>>> Applications from overstayers (non family routes): https://www.gov.uk/…/applications-from-overstayers-non-fami…
Guidance for how UK Visas and Immigration considers applications for further leave to remain made by applicants without valid leave.
>>> UKVI update: Immigration Rules archive: 6 July 2019 to 31 July 2019: https://www.gov.uk/…/immigration-rules-archive-6-july-2019-…
>>> DNA evidence proves Home Office wrong about Calais child: https://www.bailii.org/ew/cases/EWCA/Civ/2019/1340.html
A new Court of Appeal judgment has confirmed that the Home Office wrongly denied that a child asylum seeker seeking transfer to the UK had a brother already living in this country.
The Home Office, as is its wont, claimed that the two young men were not related. The Up-per Tribunal decision in this case explains, at the start officials dismissed the idea of verifying the relationship using DNA evidence and then decided that undertaking a DNA test in France was not possible anyway. Fortunately, the Upper Tribunal found that the boy and his brother were related even without any DNA evidence and therefore the Home Office had to take charge of the boy’s asylum claim in the UK.
The new judgment in MS (A child) v Secretary of State for the Home Department [2019] EWCA Civ 1340 records that once the boy arrived in the UK. a DNA test proved that his claim had been true all along.
>>> National Savings Premium Bonds in an FM application – the Home Office’s clarification and… apology
One may not come to see the apology from the Home Office.
Here we go:
From the Home Office:
“Our current policy in relation to premium bonds is as follows:
Premium bond holdings cannot be counted in themselves towards meeting the minimum income threshold. Owning a capital asset such as a bond, does not in itself provide the means to support a spouse or partner. However, any income received from the asset, or the cash savings derived from its liquidation, can be counted towards meeting the minimum income threshold. A couple’s income and cash savings are the most reliable and practicable indicator of their financial status and independence for the purposes of this requirement.
The individual may choose to rely on cash savings above £16,000 (the level of savings at which a person would generally not qualify for income-related benefits) held by the sponsor, the applicant or jointly for at least six months at the date of application, or derived from the liquidation of assets and transfer of funds from stocks, shares or bonds or sale of assets such as a property within that six-month period, to be used in place of or in addition to income to meet the minimum income threshold. If the premium bonds are liquidated and the money transferred into a personal bank or savings account in the sponsor’s or their spouse or partner’s name or them jointly, their value held as cash savings can be counted towards the minimum income threshold, provided evidence shows the sponsors ownership of the bonds for the balance of the period of six months prior to the date of application. It is the cash held in a personal or savings account which must be accessible immediately. Full details of the ways in which the minimum income requirement may be met can be found on GOV.UK by searching for Appendix FM 1.7 Financial Requirement here: www.homeoffice.gov.uk.
Therefore, our previous guidance was not quite correct and we apologise for the confusion. Money received from liquidated premium bonds can be used providing they have been deposited in an account and there is evidence that the bonds have been in the applicant’s possession for the 6 months prior to their application. Therefore the bonds have to be deposited within that 6 months. The same rules will also apply for fixed term bank savings bonds.”
>>> Student who innocently relied on fake certificate of sponsorship refused visa for producing “false document”: https://www.bailii.org/ew/cases/EWCA/Civ/2019/1324.html
The ground of appeal in Hameed v Secretary of State for the Home Department [2019] EWCA Civ 1324 was:
"It was wrong to find the appellant had made a false representation under paragraph 322(1A) of the Immigration Rules when he had not acted dishonestly."
Mr Hameed had applied for a student visa using a certificate of sponsorship (CoS) that was, unknown to him, not genuine. The Home Office accordingly refused his application on the basis of paragraph 322(1A). It reads:
“where false representations have been made or false documents or information have been submitted (whether or not material to the application, and whether or not to the applicant’s knowledge), or material facts have not been disclosed, in relation to the application or in order to obtain documents from the Secretary of State or a third party required in support of the application.”
Counsel for Mr Hameed took a close look at this wording and argued that he had not fallen foul of it. A certificate of sponsorship is a digitally generated number and so is not a “document”. Mr Hameed may have made a “representation” by submitting the certificate of sponsorship with his visa application, but it was not “false”, in the sense that he genuinely believed that it was valid. Any dishonesty was on the part of whoever passed him the fake certificate.
The Court of Appeal disagreed with the premise. It said that this was, in fact, a “false document” case: the certificate of sponsorship had been printed out and submitted in hard copy. Even if it hadn’t been printed out, Sir Ernest Ryder held that “a document can be a virtual or online document… a sensible reading of ‘document’ in paragraph 322(1A) includes online documents like a CoS”.
Since this was a false document case, there was no need for the Home Office to establish dishonesty or deception: Adedoyin v Secretary of State for the Home Department [2010] EWCA Civ 773. In that case, the Court of Appeal held:
Of course it is possible for a person to make use of a false document… in total ignorance of its falsity and in perfect honesty. But the document itself is dishonest. It is highly likely therefore that where an applicant uses in all innocence a false document for the purposes of obtaining entry clearance, or leave to enter or to remain, it is because some other party, it might be a parent, or sponsor, or agent, has dishonestly promoted the use of the document. The response of a requirement of mandatory refusal is entirely understandable in such a situation.
As so often in such cases, the result is hard luck on Mr Hameed, whom the court accepted was as much a victim in all this as anyone.
>>> UKVI update: EU Settlement Scheme: person with a Zambrano right to reside: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&cad=rja&uact=8&ved=2ahUKEwjKz4CE7O7jAhVKBGMBHUqrDv0QFjABegQICxAF&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/823680/euss-zambrano-guidance-v1.0-ext.pdf&usg=AOvVaw1S_zzRN8E7Lu4zFjkpdKch
Guidance for caseworkers considering applications under the EU Settlement Scheme.
Change made - added guidance on persons with a Zambrano right to reside.
Readers will, in particular, want to note pages 18 and 19 and especially the following excerpt:
"This means that an applicant cannot be considered a ‘person with a Zambrano right to reside’ if they:
• have (or for the relevant qualifying period had) leave to enter or remain in the UK (unless this was granted under Appendix EU)
• have never made an application under Appendix FM to the Immigration Rules or any other Article 8 ECHR claim, where there is (or was) a realistic prospect that this would succeed (or would have succeeded)
• have been refused leave under Appendix FM or otherwise under ECHR Article 8 but their circumstances have changed since that decision was made such that there is now a realistic prospect that a further such application would succeed - for example, the applicant applied on the basis of their relationship with a British citizen spouse, but the couple now have a British citizen child"
>>> UKVI update: Sponsor guidance appendix
Guide to the sponsorship documents that businesses and educational institutions must keep.
Change made - the guidance has been placed into a new template and revised throughout.
Please note the following excerpt indicating the changes that have been made:
"The guidance has been placed into a new template and revised, including:
• clarifying the time period for which documents must be retained
• updating the guidance on checking the date of entry when the migrant entered through automated ePassport gates (‘eGates’)
• adding information on the Tier 5 creative and sporting visa concession
• clarifying documentation that must be retained as evidence of carrying out a resident labour market test
• replacing reference to ‘Tier 1 (Entrepreneur)’ with ‘Start-up’
• other minor clarifications, corrections and housekeeping changes"
>>> Change in law for European families offers temporary hope for unrecognised adoptions: https://www.bailii.org/uk/cases/UKSC/2018/9.html
A small amendment to UK law could soon make a big difference to European families resident here who are struggling to bring home children adopted in Muslim countries abroad.
A change to the legal definition of who counts as an EEA citizen’s “family member” should end the uncertainty over the status of children in kafala arrangements. Kafala is a system of permanent legal guardianship operating in many Muslim countries, where full adoption is usually prohibited.
While some families here view the arrangement as permanent, others consider it a stepping stone to full adoption in the UK, as kafala is sometimes the only way to gain legal custody of a child in his or her birth country.
The amendment to the Immigration (European Economic Area) Regulations 2016, which takes effect on 15 August 2019, explicitly recognises relationships where the child is under 18 and “is subject to a non-adoptive legal guardianship order in favour of an EEA national that is recognised under the national law of the state in which it was contracted”.
This provision means that EEA citizens living in the UK, who have entered a kafala adoption overseas, can now apply for a visa to bring their child home.
>>> VFS Update: Scanning Hub and Preferred Partner operation moving – USA
“Dear Partners,
I’m writing to inform you that our Scanning Hub and Preferred Partner operation is moving by end of the month to our Joint Visa Application Centre located in Times Square.
Please see timelines for you to be aware of:
Thursday August 22: Last day for Preferred Partner submissions in current premise
Friday August 23: Last day in current premise, No Preferred Partner submissions
Saturday August 24: VFS Moving
Sunday August 25: VFS Moving
Monday August 26: Preferred Partner submissions to begin out of our Premium Application Centre
Tuesday August 27: Operations to resume as BAU
Address: 145 West 45th St, Floor 5, New York NY 10036
Preferred Partner submissions will take place within our Premium Application Centre on the 5th floor from 26th onwards. When entering the building, you will be required to sign in at the building security desk before proceeding up to the 5th floor. At the 5th floor, there will be a security check by a VFS guard before entering the centre
We thank you for your patience during this transitional time.
UKVI & Canada VAC Operations – USA"
>>> The return of the HSMP or the Tier 1(General) programmes ? https://www.politicshome.com/news/uk/political-parties/conservative-party/news/105814/boris-johnson-unveils-immigration-shake
Boris Johnson has pledged to make it quicker and easier for foreign scientists to settle in the UK under a shake-up of immigration rules after Brexit.
>>> Student facing death penalty for ISIS membership stripped of British citizenship: https://www.bailii.org/ew/cases/EWHC/Admin/2019/2169.html
A student who ran away to join ISIS in Syria has lost a legal challenge to the UK government’s decision to take away his British citizenship. The judgment, handed down yesterday and the first case of its kind in the High Court, is R (Islam) v Secretary of State for the Home Department [2019] EWHC 2169 (Admin).
>>> UKVI update: Country returns guide for August: https://www.gov.uk/government/publications/country-returns-guide
Home Office guidance on the documents required and processes for returning immigration offenders to their country of origin.
Updated to add August 2019 information.
>>> Can a Tier 4 Student - main applicant - rely on his bank statements if the bank account is in joint names, such as the applicant’s name and the dependent spouse’s name ?
The answer is “Yes”: https://www.gov.uk/guidance/immigration-rules/immigration-rules-appendix-c-maintenance-funds
1A
(k) If the applicant wishes to rely on a joint account as evidence of available funds, the applicant (or for children under 18 years of age, the applicant’s parent or legal guardian who is legally present in the United Kingdom) must be named on the account as one of the account holders.
13
(i) the applicant (whether as a sole or joint account holder); and/or
>>> Can a Tier 2 Dependent provide his bank statements for maintenance funds ?
The answer is “Yes: https://www.gov.uk/guidance/immigration-rules/immigration-rules-appendix-e-maintenance-funds-for-the-family-of-relevant-points-based-system-migrants
Appendix E
(c) Where the applicant is applying as the Partner of a Relevant Points Based System Migrant or Appendix W Worker the relevant amount of funds must be available to either the applicant or the Relevant Points Based System Migrant or Appendix W Worker.
…
(f) In all cases, the funds in question must be available to:
(i) the applicant, or
(ii) where they are applying as the partner of a Relevant Points Based System Migrant or Appendix W Worker, either to them or to that Relevant Points Based System Migrant or Appendix W Worker
>>> No-deal Brexit notice; commentary on the Immigration (European Economic Area) (Amendment) Regulations 2019
Note on the implications of a no-deal Brexit for Europeans
With the prospect of a no-deal Brexit now looking like a more realistic possibility, the EU citizens and their family members may wish to note the following.
EU Settlement Scheme deadlines in a no deal situation
The Department for Exiting the EU (DExEU) have stated that different deadlines for the EU Settlement Scheme will be applicable in a no-deal situation as compared with under a deal. These deadlines appear to have been adopted by the Home Office in its webpages on settled status applications.
• EU citizens intending to be a main applicant under the scheme must enter the UK by 31 October 2019. The Government documents are silent on the time of day an applicant must be in the UK before Brexit. Nonetheless, the European Union (Withdrawal) Act 2018 (Exit Day) (Amendment) (No. 2) Regulations 2019 and the definition of ‘specified date’ in the Immigration Rules, Appendix EU define Brexit day as 11pm on 31 October 2019. Therefore the applicants should be aware that this potentially stricter deadline exists and may eventually be relied on by the Home Office.
• The main closure date for the EU Settlement Scheme for applicants (including both EU nationals and family members) living in the UK by 31 October 2019 will be 31 December 2020 instead of the deadline of 30 June 2021 which applies in the event of a deal.
• Spouses, partners, children, parents and grandparents (and possibly other dependent family members) who have a relationship with the EU national by 31 October 2019 and are living abroad on that date (and children born abroad after 31 October 2019) will need to apply under the EU Settlement Scheme by 29 March 2022 and must continue to have the re-lationship at the date of application – applications made after 29 March 2022 must meet the UK Immigration Rules outside the scheme.
• Spouses, partners and other dependent relatives who establish a relationship after 31 October 2019 with an EU citizen who has status under the scheme will be eligible to apply under the scheme until 31 December 2020 – applications made after 31 December 2020 must meet the Immigration Rules outside the scheme.
In order to be eligible under the EU Settlement Scheme, durable partners (with an exception for those applying from outside the UK) and dependent relatives (other than dependent parents) must also have been issued with a family permit or residence card under the EEA Regulations (or equivalent document/evidence issued by the Islands) by 31 October 2019.
Status of the policy
The drafting of the DExEU policy paper on citizens' rights in the event of a no deal Brexit is high-level and imprecise. The details of exactly which family members are covered is not clear. For example, it is not clear whether “partners” applies to both civil partners and durable partners. It is also not clear what the policy is intended to be for Surinder Singh family members or for the family members of individuals who have EU citizenship, have naturalised as a British citizen following the exercise of treaty rights in the UK and who continue to exercise treaty rights afterwards (i.e. those captured under the decision in Lounes).
Furthermore, it is important to note the policy in relation to no deal is not protected by any international agreement. This means that the government may be free to change the details at some later date. Such changes would of course be subject to ordinary public law principles.
EEA/EFTA nationals
The document was also originally published on 6 December 2018, before the UK concluded citizens’ rights agreements with the EEA/EFTA states (Iceland, Liechtenstein, Norway and Switzerland) and has not been updated for that development. It was updated on 28 March 2019, but only to ‘reflect that the UK will not leave the EU on 29 March 2019 and to clarify that the family reunion policy applies to EU citizens with pre-settled and settled status.’ However, the agreements with the EEA/EFTA states appear to mirror the DExEU policy but with greater detail and with the protection given by an international agreement.
European nationals arriving after 31 October 2019
As a further reminder, in the event of no deal a transitional period will apply after exit until 31 December 2020 to newly arriving EEA/Swiss nationals and their family members. The key points are:
• EU nationals who have not established residence in the UK before 31 October 2019 will be able to enter the UK for three months. If they wish to stay beyond this period, they will need to apply for European temporary leave to remain.
• European temporary leave to remain will be granted for a period of three years, calculated from the date of application. There will be no possibility of renewing this period or of apply-ing for indefinite leave to remain on the basis of this status alone. EU nationals who wish to stay beyond three years will have to find an alternative route under the Immigration Rules.
• EU nationals may be joined by close family members (defined as spouse, partner or dependent children aged under 18) who are third country nationals. However, third country national family members who wish to accompany an EU national under these arrangements will need to apply in advance for a family permit.
• These rules apply to nationals from the EEA/EFTA states.
>>> UKVI Guidance: Registration as a British citizen: children of British parents: https://www.gov.uk/government/publications/children-of-british-parents-nationality-policy-guidance
Updated guidance document published. Removed references to the good character require-ment following the British Nationality Act 1981 (Remedial) Order 2019.
>>> UKVI update: addition to Shortage Occupation List consultation response: https://www.gov.uk/government/consultations/shortage-occupation-list-2018-call-for-evidence
UKVI has added the Food and Drink Federation’s submission to the Shortage Occupation List consultation responses document
>>> You can still rely upon both the Appendix FM and EEA Regulations, until Brexit !
For example, if you are a dual EEA/British national. That is, you arrived into the UK as an EEA national, got your Permanent residence in due time and then became a British citizen. Then you brought your partner into the UK under the Appendix FM (“UK spouse visa”). Until Brexit it is, therefore, possible, for your partner, to apply for a 5-year EEA Residence Card under the EEA Regulations prior to 31/10/2019. Should an application be submitted under the EEA Regulations, the partner’s 30-month spouse visa will be concurrently valid with the Residence Card under the EEA Regulations.
>>> UKVI update: Guidance on deciding applications for people to enter or remain in the UK as a Tier 2 migrant: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwjrwdXewITkAhVSxoUKHc4iCsQQFjAAegQIAhAC&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/825246/tier-2-v33.0.pdf&usg=AOvVaw0NxB3M6Y3uVsH8__J7-UYU
Guidance on deciding applications for people to enter or remain in the UK as a Tier 2 migrant.
Changes from last version of this guidance
This version replaces the Tier 2 modernised guidance version 32.0 which has been withdrawn and archived. It has been updated following the higher education regulatory reforms which established the Office for Students (OfS) as the regulatory body for English higher education providers. The OfS regulatory framework came into force fully on 01 August 2019.
>>> Updating certificates of sponsorship following demergers and TUPE transfers
The UK BA Business Help Desk confirms that it is not necessary to report against a certificate of sponsorship under 'sponsor has stopped sponsoring migrant' when there is a TUPE/demerger as long as the necessary updates are made elsewhere.
>>> The NHS Surcharge – UK BA – what you need to know: https://www.gov.uk/healthcare-immigration-application/refunds
>>> Asylum seeker not “effeminate” enough to be gay, immigration judge says
An immigration judge has rejected an asylum seeker’s claim to be gay, saying that the man did not come across as “effeminate” enough to be credible.
According to a lawyer involved in the case, the judge wrote that the man did not have a gay “demeanour” and did not “look around the room in an effeminate manner”.
The judge reportedly went on to say that “on the gay scene younger men are highly valued”.
Statistically, 33% of asylum appeals based on sexual orientation were successful in 2017. That was below the average for all asylum appeals, which was 40% that year, although the statistics are experimental and should be interpreted with caution.
>>> Online asylum appeals to be rolled out nationwide in 2020
Asylum appeals will be filed and managed entirely online from next year, the courts and tribunals service for England and Wales has said.
HMCTS told Free Movement that it plans to roll out its “reformed digital asylum service” to all hearing centres at the end of January 2020.
The digital appeal system aims to make the process of challenging an asylum system more efficient and less paper-bound. The focus is on electronic document upload, digitised case management and early online resolution rather than the final hearing being on a webcam, although HMCTS is also experimenting with virtual hearings throughout the tribunal system.
Outlining the system in a recent update on its work, HMCTS said that “appeals will be submitted electronically by legal representatives and will be received instantaneously by both HMCTS and the Home Office. The appeals will then progress digitally via the on line service from initial application, through to hearing and judicial decision”.
It adds that the new system will “enable cases to be resolved online where that is appropriate, as well as supporting the use of video and face-to-face hearings”.
Digital asylum appeals are currently being piloted at Manchester and Taylor House hearing centres. Six solicitors’ firms are involved.
The pilot will be expanded to Bradford and Newport in September 2019, and further rolled out to Birmingham and Hatton Cross by the end of the year.
The national rollout that follows will only be for cases where the appellant has legal representation. HMCTS says that a separate service is being designed for unrepresented appellants, which will begin pilot testing early in 2020.
Other areas of immigration and asylum law may be digitised further down the line. The HMCTS annual report notes that “we have plans to continue to research and design other appeals processes including bail”.
>>> Migrants working illegally still have employment rights: https://www.bailii.org/ew/cases/EWCA/Civ/2019/1393.html
The case of Okedina v Chikale [2019] EWCA Civ 139a3 had been making its way through the courts for some time. In 2013, Ms Okedina arranged for Ms Chikale to move to the UK as her live-in domestic worker and organised her UK visa.
To cut a long story short, Ms Okedina failed to renew the visa and failed to let Ms Chikale know that. Eventually the relationship broke down and Ms Chikale claimed compensation in respect of various employment law breaches, including unfair and wrongful dismissal, race discrimination and unlawful deductions from wages.
Ms Okedina’s position was that Ms Chikale was not entitled to any of this because she had been working in breach of UK immigration laws — the “illegality defence”.
This argument failed in the Employment Tribunal, the Employment Appeal Tribunal and, most recently, in the Court of Appeal. Lord Justice Underhill noted that there was no public policy reason why the relevant legislation should interpreted to support Ms Okedina, pointing out that genuine mistakes over immigration status are not necessarily unreasonable:
“...some aspects of the relevant rules are complicated or unclear, and wrong advice can be given, sometimes by the Home Office itself. In short, not all cases of illegal working involve culpability on the part of the employee.”
This case was pretty unusual. Not only was Ms Chikale oblivious to the fact that she was working without immigration permission, but it was alleged that Ms Okedina had submitted false information in the documents she had prepared for Ms Chikale and had forged her signature.
Abnormal as the case may be, what it shows is that the overlap between immigration law and employment law is in no way clear cut. Lacking immigration status does not mean that an employment contract is unenforceable.
Whilst immigration experts will usually be well-equipped to provide advice on factual points — if a person has leave, whether they have protection under Section 3C or not (and to educate all parties on what that means), etc — it is important to avoid making statements on the legality of the contract of employment (unless you happen to be an expert on employment law also).
>>> New Innovator visa attracts just four applicants in first three months: https://www.gov.uk/government/statistics/immigration-statistics-year-ending-june-2019
There have been just four applications for the government’s flagship new visa for overseas entrepreneurs in its first three months of operation.
Only four people applied for an Innovator visa between April and June 2019, according to the latest Home Office figures.
By contrast, the visa it replaced — Tier 1 (Entrepreneur) — had 1,900 applications in 2018.
The figures will raise questions about the design of the Innovator route. Aimed at experienced foreign entrepreneurs who have at least £50,000 in capital behind them, it requires applicants to be endorsed by one of a limited number of business incubators and seed funds.
Experts had warned that the design of the Innovator visa scheme is flawed. Issues include the frequent need to participate in a business accelerator programme to secure endorsement; having to give up equity in the start-up; and the “extremely high” bar for getting settlement.
The model is perceived as unattractive to the calibre of people who would meet the criteria for an Innovator visa, which include being able to bring their start-up business into international markets.
A Freedom of Information response released in May showed that there had been zero Innovator application visas in the first fortnight of the scheme.
It has now emerged that only four people applied for entry clearance in the Innovator category between April and June 2019. Two of those applications have been resolved, of which both were granted.
In the previous quarter, there were 738 Tier 1 (Entrepreneur) applications. Tier 1 (Entrepreneur) closed to new applicants on 29 March 2019, the same date that the Innovator route went live.
While the Home Office has previously said that it expects to grant fewer visas under the new Innovator and Start-up routes than under the schemes they replace, it seems unlikely that applications in single figures would make the cost of designing and administering the route worthwhile.
The Start-up visa is off to a slightly better start. It attracted 32 entry clearance applications in its first quarter of operation, of which 25 were decided on and 23 granted.
>>> UKVI update: Tier 4 of the points-based system: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwii4a6ezpjkAhWjunEKHel-DYwQFjAAegQIAhAC&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/825737/tier-4-guidance-v47.0-ext.pdf&usg=AOvVaw1O8sr4WJx1MRvQkY26QpF9
Guidance for how UK Visas and Immigration considers applications from people to enter or remain in the UK under Tier 4.
"Changes from last version of this guidance
The key changes to this guidance since it was last published on 10 January 2019 are:
• references to UK HEIs have been amended to refer to HEPs (higher education providers) with a track record of compliance, where appropriate, to reflect the additional privileges available to such providers following the HE reforms which have taken effect
• guidance regarding sports scholarships has been added to ensure these are accepted and not considered to be a breach of the definition of working as a ‘professional sportsperson’ which refers to receiving payment, including payment in kind
• guidance regarding sports-related work placements has been added to clarify what activity Tier 4 students are permitted to undertake"
>>> UKVI update: Short-term students guidance: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwix2bDKzpjkAhXHVRUIHetYAEQQFjAAegQIARAC&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/826915/short-term-students-v11.0ext.pdf&usg=AOvVaw1L7QOyEKg60kFOEVkWoy8F
Guidance on how short-term student applications for entry clearance or leave to enter are considered.
"Changes from last version of this guidance
Additions have been made to reflect the expansion of ePassport gate eligibility to seven additional nationalities on Monday 20 May 2019.
...
B5JSSK Nationals
Visitors and entry clearance holders who are nationals of Australia, Canada, Japan, New Zealand, Singapore, South Korea, and the United States of America (B5JSSK) are able to use ePassport gates to enter the UK. If a national of one of these countries does not hold an entry clearance and wishes to seek entry as a Short Term Student they must see a Border Force officer and cannot use the ePassport gates."
>>> Government can be liable for costs in Cart type judicial review cases: https://www.bailii.org/ew/cases/EWCA/Civ/2019/151.html
The Court of Appeal has held that the UK government can be asked to pay expenses where a judicial review has been brought against the Upper Tribunal’s refusal to grant permission to appeal. The test case of Faqiri v Upper Tribunal (Immigration and Asylum Chamber) [2019] EWCA Civ 151 has only recently been published on Bailli but it makes for interesting reading. To understand why this was such an important case, let’s look at how cases get to the point of judicial review proceedings against the Upper Tribunal.
Immigration appeals typically start life in the First-tier Tribunal. If refused, an appeal to the Upper Tribunal is not automatic. Instead, appellants get two bites at the cherry with a chance to apply first to the First-tier Tribunal for permission to appeal, and, if refused, then directly to the Upper Tribunal. If permission is refused at the Upper Tribunal stage, an appellant becomes “appeal rights exhausted”: there is no statutory right of further appeal.
In a small amount of cases, it is possible to apply for judicial review against the Upper Tribunal’s decision to refuse permission to appeal. In those cases, the courts apply the “second appeals test” which empowers courts to allow such cases to be brought if satisfied:
1. that the proposed appeal would raise some important point of principle or practice, or
2. that there is some other compelling reason for the relevant appellate court to hear the appeal
So, where this Cart type of judicial review is brought, the respondent is always the Upper Tribunal because it is the Upper Tribunal’s decision which is being challenged.
Inevitably, however, the Home Office appears as an interested party backing the tribunal. That is because it will ultimately be the Home Office opposing these appeals in the tribunals below and incurring expense and time if they are sent back there.
In the Faqiri case, the High Court had quashed the decision of the Upper Tribunal but did not award costs against the Upper Tribunal. Instead, the court made a limited costs order against the Home Office.
The appellant’s primary case was that costs should have been awarded against the Upper Tribunal. Lord Justice Hickinbottom was unimpressed, saying:
“The driving force behind the proposition in Davies and Gudanaviciene – that a court or tribunal should not be liable for the costs of a judicial review which seeks to challenge one of its decisions, if the court or tribunal does not act improperly and takes no active part in the proceedings – is the important principle of judicial immunity. That principle applies equally to decisions challenged by way of Cart claims as any judicial review of the decision of a court or tribunal”
The next argument was that the Home Office should have borne the full costs of the judicial review procedure because it was, after all, the real opponent all along. The Secretary of State cross-appealed on the basis that she did not participate in the judicial review proceedings, was not the “unsuccessful party” and did not cause any additional expense in the judicial review proceedings.
The Court of Appeal hit the nail on the head in saying:
“… the right that the Appellant is in reality seeking to vindicate is not his right to pursue an appeal in the UT, but his right to asylum, which the Secretary of State denied by his refusal of the Appellant’s claim for asylum. Given that there is no right of appeal or review in respect of the UT’s refusal of permission to appeal to it, to vindicate that right the Appellant was bound to commence judicial review proceedings. In my view, those proceedings cannot be viewed – as Mr Joseph urges – in isolation. They have been brought to enable the Appellant to proceed with his appeal to the UT, and only for that purpose.”
Hickinbottom LJ noted that the “protagonist” in the appeal was the Secretary of State, and the point of the judicial review to vindicate Mr Faqiri’s right to asylum. "
He went on:
"Perhaps that is a principled basis for an order in the judicial review that may result in the Secretary of State bearing some of the claimant’s costs, even though he played no active part in the claim. Even if, in these circumstances, the Secretary of State might not usually be described as “the unsuccessful party”.
This decision seems likely to force Ms Patel to dig deep into her pockets. Whilst it is true that the number of successful Cart claims is small, the cost associated with judicial review proceedings can be astronomical, especially in Scotland where we have ridiculously extravagant court fees. As an example, it will cost you the princely sum of £418 per hour for a court hearing if you’re not funded by legal aid.
If the Home Office does now have to think carefully about the potential for being held liable for costs at the judicial review stage, it may have to spend a bit more time scrutinising applications for permission to appeal to see whether there is indeed any merit in conceding cases.
>>> Applying for an emergency UK travel document: https://www.gov.uk/emergency-travel-document/how-to-apply
How to apply
You can apply online.
It costs £100 to apply for an emergency travel document. The fee is not refundable. You can pay online as part of your application. If you do not, you’ll be asked to pay over the phone.
You might need to attend an appointment at your nearest British embassy, high commission or consulate after you apply online. You’ll be told after you’ve submitted your application whether you need an appointment.
You’ll need to give a contact telephone number and email address as part of your application.
How long it will take
Your emergency travel document will normally be ready 2 working days after you apply.
It can take longer, for example if you have:
• applied for a child under 16
• not paid or given the right supporting documents
• not given enough or correct information
You’ll be told after you’ve applied how and when you’ll get your emergency travel document.
Apply on behalf of someone else
You can apply for an emergency travel document and book an appointment for someone else if they’re a British citizen. They might have to attend an appointment and they must collect their emergency travel document in person.
If you apply for a child under 16, they’ll need to attend an appointment. Both parents should go with them if possible. If neither parent can attend, they’ll need to send a signed consent letter.
Summary of steps:
1. Apply online for an emergency travel document. It will help immensely if you have a note of your passport details to hand.
2. File a police report within 24 hours.
3. Wait for the email confirming that your travel document has been issued. Don’t book a return flight until you have that confirmation.
4. Bring a copy of the email (electronic is fine) to the nominated embassy or consulate to collect your travel document
>>> Guidance - Apply for a UK visa in the USA: https://www.gov.uk/government/publications/usa-apply-for-a-uk-visa/apply-for-a-uk-visa-in-the-usa
>>> Guidance - Apply for a UK visa in Australia: https://www.gov.uk/government/publications/australia-apply-for-a-uk-visa/apply-for-a-uk-visa-in-australia
>>> Guidance - Apply for a UK visa in New Zealand: https://www.gov.uk/government/publications/new-zealand-apply-for-a-uk-visa/apply-for-a-uk-visa-in-new-zealand
>>> UKVI: Apply for destitution domestic violence (DDV) concession: https://www.gov.uk/government/publications/application-for-benefits-for-visa-holder-domestic-violence
Form for people on a UK partner visa to claim public funds (benefits) while applying to settle in the UK because of domestic violence.
'Victims of domestic violence (DDV) concession replaced with new version.'
>>> UKVI update: visit guidance: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwiN5Pmo3afkAhXPX8AKHa2VDE4QFjAAegQIAhAC&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/827480/Visit-guidance-v9.0ext.pdf&usg=AOvVaw1KdH6zJhyClYps1AhBKa-4
Updated guidance about the different visitor categories for visiting the UK and how UK Visas and Immigration makes decisions on visitor cases.
>>> Upcoming changes in the UK Visa applications – the insider’s selected report
NB: HO = Home Office
• There are plans to align fees and service standards in the Marriage & Family visas route. The HO are looking to uniformly standardize the three different stages to Indefinite Leave to Remain in terms of customer offers and time frames. This is planned for late 2019 (potentially October) and will result in a uniform approach which will manage the expectations of the customer
• The aim will be to offer next day SPV, 30 day PV and 60 day standard service standards so that the customer group has a clear selection of which to select from. This would ensure fees are aligned to the offer and align standards. Yet this may not be achievable for every country overseas in relation to SPV applications
• The marriage and family routes are presently very document heavy. The HO are looking general at document reduction and rationalization in visa applications. They would like to be very clear about what they want, with an emphasis on document quality rather than the quantity. This will help improve decision quality and there is a “culture shift” required to facilitate this. For example, the HO view is that the 1000s of pages of WhatsApp conversations/pictures are unnecessary
• In terms of in-country applications, HO are currently working with Sopra Steria to consider asking them not to accept more than 10 photos, but to advise individuals to submit a range of photos over the time period they are trying to demonstrate their relationship. However, they want to make clear that if HO are minded to refuse on this basis as they’re not satisfied the customer meets the relationship rules, they need to give an applicant the opportunity to provide more. This will be a change in approach. They don’t want to rush this through as they are aware this is a big cultural shift
• The HO are proposing a pilot where they will make clear document requirements for customers applying at VACs such as only submitting 10 photographs. They are looking for feedback and engagement on this pilot. This will initially be rolled out with a small amount of VFS VACs probably in India and Phillipines, and TLS VACs (location to be confirmed). They will come back to certain stakeholders with more information in the next few weeks as the HO would like to engage extensively with both organizations on the pilot
• There are three different streams available now for customers to submit documents through: 1. Free to use self-upload; 2. VAC; 3. Submission of sponsor documentation to the UK centres run by VFS/TLS
• The HO IT system is being upgraded to a new system called ATLAS that will lead the decision maker through in a more process driven manner. This will give a more structured decision and lead to efficiencies, and ultimately it is hoped it will improve decision-making. This will be available for decision-makers in the marriage and family team later this year but ultimately it will go across all Home Office casework, including asylum etc. It will also ensure that decisions can be reviewed by management more easily. They are building a base structure that will encapsulate the core checks that are carried out across all categories
>>> No-deal Brexit plan: EU nationals could stay three years: https://www.bbc.com/news/uk-49579480
>>> Can a dependent of Tier 2(ICT) Visa holder can switch to Tier 2 General visa as a main applicant ? A 12 month cooling of period is irrelevant ?
The answer is “No switching, as 245HD(b) fails.”.
Also, no cooling off period is applicable under 245HB(g), if dependant did not have had en-try clearance or leave to remain as a Tier 2 Migrant at any time during the 12 months immediately before the date of the application, etc.
>>> New guidance advises judges “doubt doesn’t mean it is arguable”: https://www.judiciary.uk/publications/joint-presidential-guidance-2019-no-1-permission-to-appeal-to-utiac/
A new revised guidance note for judges has been published by some other judges: Joint Presidential Guidance 2019 No 1: Permission to appeal to UTIAC.
Paragraph 31 seems to be rather odd or at least inexactly phrased:
“If a FtT judge considering an application for permission to appeal is in doubt whether there is an arguable error of law, the default position is that leave should be refused. The application can always be renewed.”
If there is doubt, surely it is arguable? It looks like one rule for First-tier judges and another for judges of the Upper Tribunal.
The guidance is primarily for judges rather than advocates, but it is worth a read if you want some insight into judicial mindset and the go-to procedural cases.
>>> How does European Temporary Leave to Remain work?
The Euro TLR scheme is perhaps the world’s first voluntary immigration scheme, where an application is not actually needed in order to live, work or study. Applications will be free. Who says the UK can no longer innovate?
As we saw above, because the Immigration (European Economic Area) Regulations 2016 are being preserved in UK law, EU citizens entering after Brexit will have the right to live, work and study in the UK until sometime in 2021. Newly arrived EU citizens do not need to apply for this new Euro TLR status in the short term. In fact, on the face of it, for a lot of people it looks like it would actually be a bad idea to apply for it until shortly before the new immigration system comes into force.
The two advantages applying for Euro TLR to the EU citizen seem to be:
1. That it grants a guaranteed period of three years of lawful residence and
2. That time spent on Euro TLR can count towards settlement time IF the holder qualifies for settlement under the new rules in force in 2021.
The first of the advantages may mean it is better to delay making an application for Euro TLR. If you apply for that on 1 November 2019, it would expire on 1 November 2022 and you might need to leave the UK at that point. If you enter on 1 November 2019 but apply on 1 December 2020, just before the new system is (supposedly) introduced, your residence is guaranteed until 1 December 2023 instead.
The second of these advantages is predicated on the person concerned qualifying under the new immigration system in force from 2021. As we do not know what the rules will be at that time, this hardly seems like much of an advantage at the moment. A spouse will presumably still have to qualify for the £18,600 minimum income rule and a worker will need to be working for an employer with a sponsor licence.
The policy paper states that an EU citizen who arrives on or after 1 November 2019 and does not apply for Euro TRL will become illegally resident and subject to enforcement action after 1 January 2021:
«EU citizens and their family members who move to the UK after 31 October will need to have applied for a UK immigration status (whether Euro TLR or under the new, points-based immigration system) by 31 December 2020. Otherwise, they will be here unlawfully and will be liable to enforcement action, detention and removal as an immigration offender»
The policy paper does not spell this out, but clearly the same applies to EU citizens resident before 31 October 2019 who have not obtained pre settled or settled status under the EU Set-tlement Scheme. This is because enforcers will not be able to tell the difference between a newly arrived EU citizen without status and a long-resident EU citizen without status.
Frankly, no-one will be able to tell the difference between them anyway, at least without checking the Home Office database by phone or online, as none of them are being issued with paperwork. All you get if you do apply is a “secure digital status”, i.e. an entry on a government database. If you are an EU citizen after 2021, whether employers, landlords and so on can be bothered to look you up may determine whether they offer the job or tenancy to you or to a British citizen who has a passport as ready proof.
Family members
Close and extended family members of EU citizens will be able to enter, live, work and study in the UK after 31 October 2019 just the same as EU citizens. The parts of the Immigration (European Economic Area) Regulations 2016 dealing with family members are also being preserved in UK law. However, if they want to remain in the UK long term, they will eventually have to apply under the normal UK family immigration rules, judged to be the most restrictive in the developed world.
Family members can before 2021 make an optional application for Euro TLR if they want to. As for EU citizens, this is voluntary but offers a guaranteed period of leave beyond the start of 2021, when otherwise they would either have to leave, apply under the UK’s normal family rules or become illegally resident. It is a fair bet that a significant number will end up illegally resident, whether knowingly or unknowingly.
The exception to this is Surinder Singh family members of British citizens. British citizens who move abroad after 31 October 2019 will not be able to return later under the Surinder Singh route if there is no deal. If there is a deal, the current Appendix EU rules will apply, which give the British citizen until the expiry of the Withdrawal Agreement to move to the EU.
In the event of no deal, those who are resident abroad before 31 October 2019 will be eligi-ble to return with close family members as long as they do so by 2022. The policy says:
«The current route reflecting EU law will remain open until 29 March 2022 for existing close family members of UK nationals who were resident in the EU27 before exit.»
Given that Surinder Singh currently applies to extended family members and only close family members are mentioned here, it looks like extended family members will not be able to enter the UK under Surinder Singh after 31 October 2019.
How will treatment of resident and newly arrived EU citizens differ?
There is a major question mark over how the Home Office is going to distinguish after 31 October 2019 between EU citizens who are already resident and those who are newly ar-rived. It seems likely that some EU citizens are going to end up with the wrong status, either because they do not understand which application to make or because they are unable to prove their entitlement under the EU Settlement Scheme. In the short term this will not mat-ter, so EU citizens may not notice the problem. When grants of Euro TLR start expiring from 2022 onwards and EU citizens holding that status find they do not qualify under the new rules, that is going to cause huge disruption.
Before 31 October 2019, any EU citizen applying under the EU Settlement Scheme is guar-anteed at least pre-settled status, unless they are excluded by reason of criminality. No real checks on residence therefore have to be carried out.
After 31 October 2019, immigration officials will need to distinguish between EU citizens who were already resident and those who are newly arrived. Those who were already physi-cally present in the UK before 31 October will be entitled to at least pre settled status, which brings with it a route to permanent settlement and the right to be accompanied permanently by family members. Those who are newly arrived will not be entitled to these rights but should instead be granted Euro LTR.
But how will officials tell the difference? EU citizens do not receive a stamp in their pass-port when they arrive in or depart from the United Kingdom. How will an EU citizen who arrived literally on 31 October who is in theory entitled to pre settled status prove that to the Home Office? Maybe the Home Office has a cunning plan, but I do not know what it might be.
As intimated above, there is also going to be no way for immigration officials, employers, landlords, banks and so on to distinguish between an EU citizen resident before 31 October 2019 who has not applied under the EU Settlement Scheme and one who arrived after 31 October 2019 and has not applied under the new immigration system.
It is inevitable that the end of free movement, when it comes in 2021, will leave in its wake a significant population of EU citizens who are illegally resident. Some will have been resident for years, some will be relatively newly arrived. All will be subject to the hostile environment.
>>> MAC instructed to ponder points based immigration system: https://www.gov.uk/government/publications/commissioning-letter-to-the-mac-on-a-points-based-system-for-migration
The long-suffering Migration Advisory Committee, or ‘MAC’ to its friends, has been com-missioned to carry out yet another review. Back in June 2019 the MAC were asked by one Home Secretary to think again about salary thresholds for skilled workers. This time they are being asked by a different Home Secretary to think again about the idea of an Australian style immigration system:
“Today, I am asking the MAC, as part of their current work on future potential salary thresholds, to conduct a review of the Australian immigration system and similar systems to advise on what best practice can be used to strengthen the UK labour market and attract the best and brightest from around the world.”
There’s then some flannelling about the benefits of controlled migration, once in a lifetime opportunities and so forth, before the letter concludes:
“This revised commission reflects the Government’s vision and overarching principles of the future UK immigration system: that it must be fair to those in the UK and those coming here; and allow for full control over our borders and immigration to the UK. Delivering on the promise to introduce an Australian-style points-based system is part of our approach to improving public confidence in our immigration system whilst allowing us to welcome talented and skilled individuals from all over the world.”
The report is due by January 2020.
In fact, the UK already has a points based system. It is literally called “the points based system” and it appears at Part 6A and numerous appendices of the Immigration Rules: https://www.gov.uk/guidance/immigration-rules/immigration-rules-part-6a-the-points-based-system
It has not actually operated as a genuine points-based system for many years now, it is true. There is only one route to getting each type of visa under the UK system and the UK system includes subjective “genuineness” tests all over the place, whereas under a true points-based system there will be multiple routes through acquiring different combinations of points for different objective qualities. The one bit of the UK system that really ran on points, called Tier 1 (General) was scrapped for new entrants back in 2011.
The White Paper on post-Brexit immigration published under Theresa May in 2018 pro-posed the abolition of special immigration rules for EU citizens along with some minor re-forms to the existing system. This would essentially bring EU citizens within a slightly re-formed version of the current immigration system. This was followed in March 2019 by the Home Office indicating that it wanted to move away from the now-redundant ‘points based system’ label. The new innovator and start up visa routes were added to a new non-points-based appendix of the Immigration Rules.
Whether any of this matters to anyone but the poor MAC members who now have to conduct the review is a moot point (although they could probably get away with putting a different front cover on the excellent Migration Observatory briefing on points based systems: https://migrationobservatory.ox.ac.uk/resources/reports/the-australian-points-based-system-what-is-it-and-what-would-its-impact-be-in-the-uk/ ). The current government may not last long and anyway already has a history of fake immigration news, like the hollow Johnson pledge to properly protect EU citizen rights and the recanted rumors of ending free movement after Brexit.
>>> Healthcare for British citizens in the EEA after a no-deal Brexit
This is an update on UK citizens’ and residents’ access to healthcare in the EEA and Switzerland if a no-deal Brexit happens on 31 October 2019.
The people who will be affected are those for whom the UK is currently paying for their healthcare in another EEA state or Switzerland under Regulation 883/2004. This includes:
• UK residents temporarily “staying” (as opposed to “residing”) in an EEA state or Switzerland who travel with a European Health Insurance Card (EHIC), including tourists, posted workers, students and others.
• UK pensioners living in an EEA state or Switzerland who are receiving a UK State Pension or another exportable UK contributory benefit and have an “S1” form.
For these people, their EHIC or S1 form will no longer be valid after 31 October 2019 if there is no deal.
People who are working in an EEA state or Switzerland (other than posted workers) will normally already be enrolled in that state’s social security system and their access to healthcare should not be affected.
The Healthcare (European Economic Area and Switzerland Arrangements) Act 2019, which received Royal Assent on 26 March 2019 and came into force on the same day, allows the UK Government to make provision for post-Brexit healthcare. Clause 1 gives the Secretary of State power to make payments, and arrange for payments to be made, in respect of the cost of healthcare provided in an EEA state or Switzerland. The details of the schemes will be set out in regulations made by the Secretary of State under clause 2. It appears that no such regulations have yet been made.
The Act anticipates “healthcare agreements” between the UK and EEA states, Switzerland and/or an international organization (presumably the EU), concerning (a) healthcare provided in an EEA state or Switzerland, payments in respect of which may be made by the government of the United Kingdom and/or (b) healthcare provided in the United Kingdom, payments in respect of which may be made by an EEA state or Switzerland. However, the wording of clauses 1 and 2 is clearly sufficiently wide to allow the UK Government to take unilateral action to fund healthcare abroad, even with no agreement. At the moment, we do not know what arrangements the Government intends to put in place under the 2019 Act.
Some EEA countries have unilaterally enacted legislation to protect British citizens’ healthcare after Brexit. If you are travelling to the EEA or Switzerland after 31 October 2019 you should check what arrangements have been put in place in the country to which you are travelling. It may be advisable to take out private insurance before you travel.
>>> Statement of Changes to the Immigration Rules: https://www.gov.uk/government/publications/statement-of-changes-to-the-immigration-rules-hc-2631-9-september-2019
The detail of the changes being made is included in section 7 of the Explanatory Memorandum, but in summary, the changes will:
• Make revised provision for access to the EU Settlement Scheme for the family members of UK nationals returning from a European Economic Area (EEA) Member State or Switzerland, in line with a policy paper published in April 2019, and make other technical changes to the EU Settlement Scheme and EU Settlement Scheme family permit;
• Mandate an online route for applications for administrative review where the original application was made online;
• Replace references to the Dublin Arrangements which determine which member state is responsible for considering an asylum application;
• Expedite the grant of s67 ‘leave to remain’ on children who have been transferred to the UK under section 67 of the Immigration Act 2016; and,
• Make a number of minor amendments to business sectors, employment, and talent categories listed in the rules.
>>> Litigation win on early years provision
Following successful litigation, the Government has agreed to amend the existing regulations on early years provision for two-year-olds to include families with no recourse to public funds. The current provision enables families in receipt of low-income benefits to access 15 hours of free childcare for two-year-olds. This provision has often excluded some of the most disadvantaged families due to the no recourse to public funds (NRPF) condition that is attached to parents’ leave to remain in the UK.
In light of the litigation, the Department for Education will amend the regulations on early years provision for two-year-olds to make it accessible for the following families:
1. Those with an EU derivative right in the UK as a carer of a British child or a dependent adult i.e. a Zambrano carer in the UK
2. Those with an EU derivative right that is currently unrecognised – namely, someone that would otherwise meets the conditions for leave to remain as a Zambrano carer but does not currently have leave to remain, or is awaiting a decision on an application for leave to remain
3. Those with leave to remain on Article 8 family and private life grounds either within the rules (Appendix FM or 276E(2)) or outside the rules
4. Those who have claimed asylum but are ‘appeal rights exhausted’ (ARE) and in receipt of Section 4 support from the Home Office
This does unfortunately leave out non-British children of parents who do not currently have existing leave to remain and are do not qualify for a Zambrano right.
Where families satisfy the above conditions, they will still need to demonstrate that they have low income. According to guidance that the DfE and LGA have issued for local authorities, parents ‘must meet the income threshold (£15,400) to be eligible for a free place for their two-year-old.'
The DfE has also agreed to consult on the changes with relevant sector partners.
[size=medium]>>> Statement of changes to the Immigration Rules HC 2631: changes to work visa routes[/size]
Detailed review
A new statement of changes to the Immigration Rules was published on the 9th September 2019. Except where indicated otherwise, these changes will come into force on 1 October 2019.
Tier 2
Quite a number of (positive) changes were made to the Tier 2 route in this Statement of Changes:
• Following the Migration Advisory Committee’s review of May 2019, the Shortage Occupation List has been expanded with professions such as biological scientists and biochemists, psychologists, veterinarians, and architects (but note that some professions have been removed too). Around 1 in 10 jobs are now on the Shortage Occupation list. In addition, companies wishing to offer digital technology jobs in the shortage occupation list will no longer need to meet strict conditions they previously had to satisfy. The main advantage of employing someone on the Shortage Occupation List is that employers do not need to carry on a Resident Labour Market Test. In addition, applicants are exempt from the earnings threshold when applying for indefinite leave to remain (although they must still be paid the appropriate rate for the occupation). These changes come into force on 6 October 2019.
• Still relating to the Shortage Occupation List, those who followed the BBC show “Who Should Get to Stay” may remember the case of a restaurant owner who could not sponsor skilled chefs because the restaurant offered a take away service. This restriction has finally been removed, such that restaurants who offer a takeaway service may still sponsor chefs.
• Some salary rates have been modified and will apply to certificates of sponsorship assigned on or after 6 October 2019.
• PhD level occupations will be exempt from the (20,700) annual limit on visas for skilled non-EU workers from 6 October 2019.
• Another good news for PhD level occupations is that their absences from the UK for research which is directly relating to their Tier 2 employment will not be counted as absences in an application for indefinite leave to remain. The same applies to their partners who accompany them in these circumstances.
• Changes have been made so that those who are absent from work due to sickness, statutory parental leave, assisting in a national or international humanitarian or environmental crisis or engaging in legal strike action may still apply for indefinite leave to remain even if such absences cause their salary to fall below the required threshold (similar rules already existed for those on maternity, paternity, share parental and adoption leave).
• From 6 October 2019, jobs can be advertised on the gov.uk “Teaching Vacancies” for the purpose of carrying on a Resident Labour Market Test.
Start-up and innovator
To qualify under the start-up route, applicants are usually expected to not have previously established a UK business (if they have, they should apply as innovators). A change exempts students in the UK on the doctorate extension scheme from this condition.
Changes are also made to the requirements that an organisation must meet to become an endorsing body under these routes, including that their request may be refused on the grounds of “criminality or other actions or behaviour which are non-conducive to the public good” or due to conflicts of interest.
Tier 1 (investors)
Following the March 2019 Statement of changes, UK government bonds are no longer qualifying investments for Tier 1 (Investors). However the current Statement of changes make provisions for those who were already on the Tier 1 (Investor) route prior to 29 March 2019 to extend or settle in the UK, provided they move their qualifying investments out of UK government bonds. In particular, those who wish to extend their Tier 1 (Investor) leave must move their investments before 6 April 2023, while those who want to apply for indefinite leave to remain must move them before 6 April 2025.
Tier 1 Exceptional Talent
Tech Nation, one of the endorsing bodies for Tier 1 (Exceptional Talent) applicants, has asked that applicants provide three, rather than two, letters of support by established organisations in the digital technology sector. This change brings those applications in line with those applying for endorsement by other designated competent bodies.
In addition, Tech Nation seems to want to attract more “commercially savvy” applicants, and will take into account the commercial impact of the applicant’s previous work, achievements and experiences; and insists on applicants producing “product-led” digital technology rather than just digital technology.
The Royal Society, Royal Academy of Engineering and British Academy are, instead, being more generous, expanding the list of peer-reviewed fellowships which will allow applicants to apply under the fast-track procedure; allowing those who have held a fellowship in the 12 months prior to the application to apply; and allowing a wider range of senior academic or research positions to apply.
Students
Changes have been made so that students on Tier 4 (General) visas will be able to start working for Tier 2 sponsors within 3 months of the completion of their degree. Students who have been supported by an endorsing body can also start their business activities whilst their application for a start-up application is pending.
Another change is being made to allow Tier 4 students studying at masters’ and PhD level to start a different course of study with their current sponsor while they have leave, without having to make an application from overseas.
Professional sportsperson
For the fourth (!) time this year, the definition of professional sportsperson was changed (see Nichola Carter’s post for a bit of history). No doubt partly due to negative media coverage, the Rules went back to confirm that Tier 4 (General) students studying a course at degree level or above can play or coach as amateurs or as part of a work placement undertaken as an integral and assessed part of their course.
English language
For once we get rid of an Appendix! Appendix O will no longer exist, and details of acceptable English tests will be on the main gov.uk page (presumably here: https://www.gov.uk/government/publications/guidance-on-applying-for-uk-visa-approved-english-language-tests )
In addition, applicants are no longer required to provide their test certificates, but only the unique reference number, both for English language tests and the Life in the UK Tests, which can be checked by the Home Office.
Lastly, Tier 2-sponsored doctor, dentist, nurse or midwifes whose English language was assessed by the relevant regulated professional body as a requirement for registration will no longer need to pass an additional English language test.
Tier 5
Minor changes to Tier 5 routes include:
• The Foreign & Commonwealth Office government authorised exchange scheme has been removed.
• The list of organisations permitted to sponsor researchers under the “UK Research and Innovation – Science, Research and Academia” scheme has been expanded.
• From 1 January 2020, South Korean nationals applying under the Youth Mobility Scheme no longer need to apply for sponsorship from their government before applying for their visa.
Administrative review
Last but not least, administrative reviews must now be submitted online, unless the original application was made on a valid paper form.
[size=medium]>>> Important changes for the EU citizens under the EU Pre-Settled and Settled Scheme
[/size]
Some changes have been rather worrying – see the detailed review below.
The UK Government has introduced the Statement of Changes to the Immigration Rules HC 2631. This is a formal change to the immigration rules and there is a lot to it; the full version weighs in at 102 pages. This review will be about the changes made the EU Settlement Scheme.
The ministerial announcement suggests that most of the changes relate to Surinder Singh, with some ‘technical changes’ here and there. While many are technical changes in order to improve understanding and clarity, some of them are quite important.
These changes to the EU Settlement Scheme, formally known as Appendix EU in the Immigration Rules, are brought into effect on 1 October 2019.
Administrative Reviews
The rules relating to Administrative Review have been changed to specify deadlines for such applications depending on the location and situation of the applicant.
For applications made by persons in the UK but not in detention the deadline will be 28 calendar days after receipt by the applicant of the relevant decision. For applications made by person in the UK and in detention the deadline is 7 calendar days. For applications made by persons overseas the deadline is 28 calendar days.
Those in immigration detention will have a torrid time trying to apply within 7 calendar days. There are administrative barriers to overcome, such as restrictions on communications to those outside the centres. The barriers to accessing good quality legal advice are even higher. Often individuals have to represent themselves for that reason. Without specialist knowledge of this scheme, it will reduce the chances of successfully challenging decisions.
The previous version of the rules allowed Administrative Review applications to be made outside of the deadline at the discretion of the Secretary of State. This discretion to allow late applications has been removed from the rules, meaning that from 1 October 2019 all Administrative Review applications must be made within the deadline.
This is a particularly unwelcome change given the high rate at which pre-settled rather than settled status is being granted and the continued absence of a right of appeal, where there is a discretion to admit late applications. There appears to be no reasonable justification for this change.
It will be possible to apply for Administrative Review of a decision to cancel leave granted under Appendix EU on the grounds that a person ceases to meet the requirements of that leave. But not where leave is cancelled for other reasons – see below.
In future any application for review, it will need to be made online unless the original application was made using a paper form.
Family members
This section of the rules sees many minor changes to improve scope, understanding and clarity.
For instance, the definition of EEA or Irish citizens who have naturalised to become British is adjusted. This means that family members of naturalised Brits who previously seemed to be excluded from the scheme are now included.
There are a few changes to the position of family members of an EEA citizen who has ceased activity, for example where an EEA citizen was in work but lost their job. The rules now require the family member to have been resident for a continuous qualifying period before the EEA citizen ceased activity. There was no such requirement in the previous version.
Children under 21 of British citizens are able to apply for settled status if their parents were durable partners (i.e. not married or in a civil partnership but in a serious relationship) before Brexit happens. But the durable partners need to marry or form a civil partnership before the application is made.
A person who is applying as the dependent parent of an under 18-year-old EEA citizen is now required to prove their dependency in order to be granted status.
Surinder Singh
The rules relating to family members of British citizens have been amended to reflect the recent policy paper.
The British citizen can return with specific family to the UK under these in the following circumstances:
• The British citizen can return with the spouse, civil partner or durable partner where these relationships were formed before Brexit day, in these instances they must return before 29 March 2022
• The British citizen can return with the spouse or civil partner where these relationships were formed after Brexit day, in these circumstances they must return before 11 pm on 31 December 2020
• The British citizen can return with the durable partner where that relationship was formed after Brexit day, in these circumstances they must return before 11 pm on 31 December 2020
• The British citizen can return with his or her child or dependent parent or the child or dependent parent of his or her spouse or civil partner, in these circumstances they must return before 11 pm on 29 March 2022. If the British citizen married or entered into a civil partnership after Brexit day and they wishh to return with the child or dependent parent of the spouse or civil partner, then the return date changes to 11 pm on 31 December 2020
• The British citizen can return with his dependent relative other than a parent, so long as that family relationship and the dependency existed before their return to the UK. Their return to the UK must occur before 11 pm on 31 December 2020
It is good to see these rules clarified. The Explanatory Statement which accompanies them states these rules and their deadlines apply in both a ‘deal’ and a ‘no deal’ Brexit scenario.
Suitability
There are some substantive additions to the section relating to ’suitability’. This is the section where we find details on the circumstances where applications may (discretionary) or must (mandatory) be refused.
The accompanying ministerial statement says:
“We expect the vast majority of EUSS applicants to be genuine, and for there to be little need for status granted under the EUSS to be cancelled at the border or curtailed in-country.
However, it is appropriate that, to safeguard the integrity of the EUSS, its status should be covered by some of the same powers as other forms of immigration leave, so that appropriate action can be taken where necessary.”
There has always been a worry that pre-settled or settled status could be cancelled or curtailed. These changes bring life to those concerns.
An application for pre-settled status or settled status may (discretionary) now be refused if the applicant has previously been refused entry to the UK under the EEA Regulations. There are instances where EEA citizens or their family members have been incorrectly refused entry to the UK and it requires them to challenge that refusal from outside. It is a long drawn out process that often requires the assistance of a lawyer like the ones from the Legal Centre (www.legalcentre.org ). In many instances these border decisions go unchallenged. Now those historic decisions may be used as a ground to refuse an EUSS application.
An application for pre-settled or settled status may also be refused if it relates to someone who previously had such leave, but that leave was cancelled sometime in the past. This includes, not just leave granted under the EU Settlement Scheme from within the UK, but also leave granted in the course of an application to join an EEA national in the UK for the first time under Appendix EU (Family Permit).
This means that a person’s pre-settled and, crucially, settled status is by no means a guaranteed status. The refusal of the application must be justified on public policy, public security or public health grounds under the EEA Regulations or, if it occurs after a no-deal Brexit, on the grounds that the decision is conductive to the public good.
It essentially it requires a serious criminal offence and, amongst other requirements, the individual has to represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, with higher thresholds to overcome the longer someone has resided in the UK. Public good grounds have a much lower thresholds and is not just about offences but about the adverse conduct of an individual.
A person could now be living outside the UK with pre-settled status or settled status, and they could face the cancellation of their leave by the Home Office for this reason. This cancellation can occur on their arrival in the UK or while they are living outside the UK.
We, the lawyers at the Legal Centre, know too well that the Home Office decisions are sometimes of very poor quality. They often do not apply the public policy, public security, public health grounds or public good grounds properly, lawfully and correctly. An EEA citizen or their family members must have done something wrong to warrant Home Office attention in this way, but we often see the Home Office trying to cancel leave because of very minor offences or actions. This does leave individuals rather vulnerable to poor decision making.
Either statuses could also be cancelled on the basis that false or misleading information, representations or documents were submitted (including false or misleading information) and that material was used to obtain such status. It does not matter if the applicant did or did not know such material was false or misleading. This is major worry because the automatic nature of the EU Settlement Scheme application and the restrictiveness of its declarations has, in some instances, granted status based on incorrect information.
For example, an EEA citizen might now be living outside the UK but continuing to work for a UK based company and taxed accordingly. The EEA citizen intends to rely on a five-year continuous residence that occurred before they left the UK. But the nature of the automated residence checks mean that the application inadvertently grants settled status based on the tax information for the period they are outside the UK. The EEA citizen than accepts the application form declarations on the basis that the information is correct.
If the EEA citizen is aware of how the system works, they could, in theory, contact the Settlement Resolution Centre to try to remedy this. But if they do not know how the system works, there is no obvious way that they would be aware they are unknowingly accepting settled status based on misleading information.
In this scenario, the EEA citizen is obviously eligible for settled status, but they were granted it based on false information and not based on the correct period of residence. The manner in which the Statement of Changes is drafted does not make it clear that, in this scenario, the EEA citizen might not be vulnerable to their leave being cancelled for such a reason. There are many other instances of leave being granted based on incorrect information, though the grant is correct had the right information been requested or obtained. I worry that there may be instances of wrong or unduly harsh cancellations without due regard to the facts and backgrounds of the individual’s circumstances.
The rules also provide for the cancellation of leave where the applicant no longer meets the requirements of Appendix EU. Pre-settled status granted under these Rules is in no means a guaranteed route to settlement, it is now not guaranteed a person can retain pre-settled status to acquire the opportunity to apply for settled status. For example, a family member may cease to be a family member during the pre-settled status grant but cannot in any other way retain their status, they would find their leave cancelled and will need to investigate other routes to acquiring leave under the Rules or apply on human rights grounds to remain in the UK.
Additionally, a person could acquire an Appendix EU Family Permit to join an EEA citizen in the UK but could find that permit cancelled at the border based on adverse conduct after Brexit occurs but before they travel. There are particular concerns of poor decision making at the border. The time pressures of border control do not provide the optimum conditions for reasoned, thoughtful decision making. Entering the UK with a past adverse record of conduct, however minor, is not guaranteed.
We, the Legal Centre, have always been stressing that the British citizenship would have been a much better option, and therefore we can help you at any time now. All you need to to is to book your initial consultation with us via https://www.legalcentre.org/Initial-Consultation.html
[size=medium]>>> The 2 Years Post Study Work Visa will be available again, apparently[/size] : https://www.gov.uk/government/news/worlds-largest-genetics-research-project-to-fight-deadly-diseases-and-offer-new-offer-for-international-students
The news in 1 sentence:
“The Post Study Work Scheme will allow students to work in the UK for the employ-er of their choice for up to 2 years”.
The two-year Post Study Work Visa will be re-introduced, apparently. Multiple statements, from the Prime Minister, the Business Secretary, the Department for Education and, last and least, the Home Office have been released announcing the resurrection of a visa originally introduced in 2004 and killed off by Theresa May in 2012.
As background, the earliest incarnation of the post study work visa was the Science and Engineering Graduates Scheme in 2004, when the visa was limited to graduates in certain subjects and a 12-month post-graduation period of work was permitted. A similar scheme was trialed across all subject areas in Scotland from 2005 as the Fresh Talent: Working in Scot-land Scheme, back in the days when regional immigration policy was permitted. The period of work permitted was extended to two years. The scheme was judged a success and rolled out across the UK in 2007 as the International Graduates Scheme, but offering only a 12 month post-graduation period in which work was permitted. It was then absorbed into the Points Based System from 2008 as the Tier 1 (Post Study Work) visa. A more limited six-month form of the post-study work visa was reintroduced recently.
The date of implementation is not entirely clear yet, but the announcement suggests it will be available to students starting in the next academic year, September 2020. It is unknown whether current students already on courses in the UK will also benefit from the rule change. It is a shame that space could not be found for the measure in the formal Statement of Changes to the Immigration Rules was dropped just two days ago, which would have provided clarity and certainty to all concerned.
The return of the Blair-era drive to recruit foreign students and acknowledgment that there is stiff international competition to attract them has, unsurprisingly, been welcomed by universities themselves. Alistair Jarvis, Chief Executive of Universities UK, is quoted in the press release as saying:
“This is very positive news. Evidence shows that international students bring significant positive
social outcomes to the UK as well as £26 billion in economic contributions, but for too long the lack of post-study work opportunities in the UK has put us at a competitive disadvantage in attracting those students.”
The introduction of a two-year post-study work visa is something Universities UK has long campaigned for, and we strongly welcome this policy change, which will put us back where we belong as a first choice study destination. Not only will a wide range of employers now have access to talented graduates from around the world, these students hold lifelong links in the UK.
An estimated 14% of all university income is from the substantial fees paid by foreign students. Not only that but foreign students contribute considerably to the wider economy when they live in the UK, provide a potential talent pool from which employers can recruit and offer potentially huge ‘soft power’ influence to the United Kingdom in the future.
Foreign students fell out of favor under Theresa May for two reasons. Firstly, the insane net migration target meant that any migrant, even an otherwise highly desirably one, became undesirable. May herself said in 2011 when announcing the scrapping of post study work visas:
“The package of measures that I have outlined today is expected to reduce the number of student visas by between 70,000 and 80,000—a reduction of more than 25%—and it will increase the outflow of foreign students after they have concluded their studies.”
The scrapping of this visa was closely associated with May herself and Ministers have been scrambling to dissociated themselves from it. The previous Home Secretary himself, Sajid Javid, who was until recently nominally in charge of immigration policy, has tweeted that it is ‘About time. Should have reversed this silly policy years ago.’ Jo Johnson was known to have championed re-introduction of the visa before he quit his brother’s government last week:
“About time. Should have reversed this silly policy years ago. Britain should always be open to the best talent from across the world. https://t.co/sAx1BIFSIR
— Sajid Javid (@sajidjavid) September 10, 2019”
The second reason for the fall from grace of this group was that the Home Office wrongly thought that loads of foreign students were overstaying their visas. In fact, the latest evidence is that a tiny percentage do so. With the adjusted data, there was really no rationale for driving numbers down.
Finally, it seems noteworthy that a range of government departments are being associated with the announcement. Even the Department for Education is in on the act. Is this a sign that immigration policy is no longer driven entirely by the Home Office? Let us hope so. Those hoping for a relaxation of the incredibly harsh family immigration rules may be dis-appointed, though. Foreign students are relatively popular in opinion polling. Migrant family members are not. The timing of this announcement, just after a Statement of Changes to the Immigration Rules which could have implemented the policy and at a time when Conservative electoral strategists must be searching around for a way to make the government seem more liberal, certainly points to this being about positive polling rather than good governance.
>>> UKVI update: Family members of points-based system migrants: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwiq0qKR7sjkAhUtQkEAHSraAt8QFjAAegQIABAC&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/830320/family-members-of-pbs-migrants-v17.0.pdf&usg=AOvVaw1oH4MyYD-jTpgSKkTiw2ch
This version replaces the ‘Dependant family members of points-based system migrants and Appendix W Workers version 16.0’ which has been withdrawn and archived. It covers minor technical changes.
>>> UKVI update: Family life (as a partner or parent), private life and exceptional circumstances: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwj3m4-37sjkAhWLecAKHdxNDRcQFjAAegQIABAC&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/826902/5-and-10-year-partner-parent-private-life-and-exceptional-circumstances-v1.0-ext.pdf&usg=AOvVaw2Y7LjI1x7fBxnC5C2gHu6E
Minor update to amend LTR requirements to mirror rules.
>>> UKVI update: First-tier Tribunal bail: completing the bail summary: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwj-nq_c7sjkAhXHTcAKHfF8A3AQFjAAegQIAhAC&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/830613/first-tier-tribunal-bail-completing-the-bail-summary-v5.0-ext.pdf&usg=AOvVaw1lwusNYxSoTYX3ahY81Y5I
Amendments have been made to some of the wording in the Standard paragraphs when op-posing bail section.
>>> All UK BA news, in one place: https://www.gov.uk/government/latest...nd-immigration
>>> Lack of accommodation does not prevent claim for unlawful detention: https://www.bailii.org/ew/cases/EWHC...2019/2351.html
In DM (Tanzania) v Secretary of State for the Home Department [2019] EWHC 2351 (Admin), the High Court ruled that the lack of accommodation for foreign national offenders cannot be a defence in a claim for unlawful detention.
>>> Will the UK BA accept all English language tests from an approved provider?
From the UK BA: https://www.gov.uk/government/publications/guidance-on-applying-for-uk-visa-approved-english-language-tests
“No. Any tests taken from 6 April 2015 must be on the approved SELT list. You can take IELTS or Trinity tests for many reasons at different centres but only those IELTS and Trinity tests specified for immigration use and taken at an approved centre can be used as part of an application for immigration purposes.
You should take care when booking your test to ensure that the test that you book is the one approved for SELT:
• for IELTS, ensure that you choose ‘IELTS
for UKVI’ rather than ‘IELTS’;
• for Trinity, ensure that you choose ‘Secure
English Language Tests for UKVI’.”
>>> Document reduction pilot
Beginning the 16 September 2019 the UKVI has launched a document reduction pilot for Settlement Appendix FM Spouse and Partner applications submitted at 6 VACs in India (New Delhi, North Mumbai, South Mumbai, Jalandhar, Chandigarh and Ahmedabad).
UKVI has confirmed as follows:
1. That they want to ensure this pilot runs as smoothly as possible and involves all parties so they are proposing that it is run in 2 phases starting from 16 September. Phase 1 will trial the pilot in the 6 Indian VACs mentioned above before they extend it out to other locations.
2. That the pilot won’t stop customers submitting additional evidence if they want it to be considered. UKVI will be asking their Commercial Partners to relay to customers that the quantity of relationship documentation isn’t required by UKVI and giving them guidance on what they may like to submit to satisfy what UKVI want to see, remembering that there is no specified evidence requirements when submitting relationship evidence. But if a customer insists on submitting thousands of photos and conversations, then they won’t stop them from doing so.
3. Phase 1 of the pilot is expected to run for around 8 weeks before being evaluated, at which point consideration will be given to extending the pilot before any recommendations are made to make it permanent.
4. With regards to evaluating the pilot UKVI intend to capture data in regards to the conversations that have taken place with customers and what documentation is then submitted, evalu-ate that and evaluate both the customer experience from feedback requests as well as the operational decision making impact.
5. With regards to anticipated next steps the trial will be phased with incremental increases before proposals to make this permanent are considered in 2020.
The text of the notice produced by UKVI for use by the VACs is as follows:
“Scanning documents provided to support Appendix FM Spouse/Partner visa applications
Customers often tell us that it is difficult to be sure which documents to provide in support of a settlement visa application. This can often lead to far too many documents being brought to the visa application centre to be scanned.
With immediate effect, we have instructed our commercial partner, VFS not to scan all documents provided in support of:
- Appendix FM spouse (where the sponsor is in salaried employment and non-salaried employment in the UK) and;
- Appendix FM partner (where the sponsor is in salaried employment and non-salaried employment in the UK) visa applications and;
- Children under the age of 18 years who are applying at the same time as the main applicants as described above.
The documents we will NOT accept are:
• Money Transfers
• Greeting Cards
• Phone Cards
• Letters from friends
• Call Logs
• Wedding Receipts/Invitations
• USB/DVD’s
• Newspaper Clippings
We will only accept a limited number of pages of the following documents:
• Chat history (WhatsApp and social media) - If you wish to submit copies of chat history, you are strongly advised to submit no more than 10 A4 pages of chat. The chat history should demonstrate your relationship over a period of time.
• Photographs - You are strongly advised to submit no more than a total of 10 photographs. You can include photographs from your wedding and/or a range of other photographs sup-porting your relationship over a period of time.
These are the documents that customers most commonly send us. It is not compulsory for you to provide any of these documents. If we need any further information to decide your visa application, we will contact you direct by phone or email.”
>>> CJEU: expulsion of family members who lose right of residence must still comply with EU law: http://curia.europa.eu/juris/document/document.jsf;jsessionid=3047466A5BEF035DB1967A5327CB9539?text=&docid=217542&pageIn-dex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=14628768
The Court of Justice held that a person who had previously been a qualifying family member under Directive 2004/38 but had later lost that status could only be expelled in compliance with Articles 27 and 28. Further, the automatic ban on re-entry was not permitted:
“the expulsion decision that may be made in the case in the main proceedings cannot, under any circumstances, impose a ban on entry into the territory.”
The judgment in Chenchooliah therefore requires a serious rethink on the treatment of family members who have lost their EU law residence rights. The same applies to recognised extended family members. The arguments against expulsion are in fact far broader than previously understood and in the UK go far beyond the very limited provisions at paragraph 276ADE of the Immigration Rules. The UK re-entry ban rules do not on the face of it breach EU law as clearly as do the Irish rules but there is an argument to be had there should a family member seek return after removal.