20 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)
Guidance on arranging removals for officers dealing with immigration enforcement matters within the UK.
Changes from last version of this guidance
New paragraph in section Third country and non-suspensive appeal (NSA) cases to clarify that a second notice period must be given if, after an asylum claim is certified, a subsequent human rights claim is separately certified.
Section heading level adjusted for ‘Third country and non-suspensive appeal (NSA) cases’ and ‘Special arrangements (including charter flights)’ to show they are not part of section Cases where the removal window should not be used.
23 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 Upper Tribunal in AAR & AA (Non-Arab Darfuris – return) Sudan [2019] UKUT 282 (IAC) has rejected a Home Office attempt to resume returns of non-Arab Darfuris to Sudan. The tribunal upheld its previous guidance, reaffirming the position that all non-Arab Darfuris are at risk of persecution in Sudan, and internal relocation to Khartoum is not an option.
The tribunal allowed both appeals on asylum grounds, ignoring previous adverse credibility findings relating to the appellants’ accounts of treatment in Sudan. This is because non-Arab Darfuri asylum claims are based solely on ethnicity. Once this ground has been made out, everything else is irrelevant and they should be granted refugee status on that issue alone.
24 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)
>> Immigration Bill back on as the Supreme Court recalls Parliament
Earlier today the Supreme Court handed down its judgment on whether the Prime Minister suspending Parliament for five weeks at a crucial time in the Brexit saga was legal.
So the Immigration Bill is back. Prorogation, the particular form of suspension used, meant that it and most other pending legislation died on the vine and would have to start from scratch when Parliament returned. The effect of the Supreme Court finding that the prorogation was never legally valid is that these bills are actually alive and kicking, according to assorted experts on parliamentary procedure.
The main purpose of the bill is to formally end the free movement rights of EU citizens. However, even if the bill is passed any time soon, this element will not be implemented for some time. After much fuss about nothing over the summer, the government has confirmed that free movement rules will remain largely in place until at least 2021.
The bill also guarantees the unique rights of Irish citizens, explicitly exempting them from the need to have leave to enter or remain in the UK.
25 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)
• updated to include reference to criminality and delay when considering permission to work applications
• improved guidance on applying for permission to work to provide clarity for claimants on what is expected
• updated information about the difference between working for a voluntary organisation and volunteering to make clearer that asylum seekers are able to volunteer
• new guidance template applied, and section and paragraph numbering removed in line with guidance requirements
The new section on volunteering is considerably clearer than the old version.
26 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 Court of Justice of the European Union has had to find that self-employed EU citizens retain rights of residence during their maternity period. Why on earth the government of the United Kingdom tried to argue they did not is one of those mysteries to which we’ll probably never know the answer. Particularly when the outcome of the case — C 544/18 HMRC v Dakneviciute — seemed legally inevitable and Brexit has highlighted the need for security of residence rights for women.
27 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)
>>> Possible upcoming changes in the UK Visa Application process:
The Home Office has recently said that they would like to move away from requiring biometrics and document uploading for every stage once a document has been viewed once in a previous application
>> > Appellant can remain in UK to pursue EEA appeal even if lodged abroad:
Of course, if the appellant can get back in. The case is Isufaj (PTA decisions/reasons; EEA reg. 37 appeals) [2019] UKUT 283 (IAC). There is no right of admission but if admitted the appeal can be pursued from within the UK. Why the case gets reported for that when it was uncontentious — and some would say obvious — is a bit of a mystery. The other point on which the case is reported could be dealt with by an internal memo. The official headnote:
“(1) Judges deciding applications for permission to appeal should ensure that, as a general matter, there is no apparent contradiction between the decision on the application and what is said in the “reasons for decision” section of the document that records the decision and the reasons for it. As was said in Safi and others (permission to appeal decisions) [2018] UKUT 388 (IAC), a decision on a permission application must be capable of being under-stood by the Tribunal’s administrative staff, the parties and by the court or tribunal to which the appeal lies. In the event of such an apparent contradiction or other uncertainty, the par-ties can expect the Upper Tribunal to treat the decision as the crucial element.
(2) Although regulation 37(1) of the Immigration (European Economic Area) Regulations 2016 provides that a person may not appeal under regulation 36 whilst he or she is in the United Kingdom, where the decision in question falls within regulation 37(1)(a) to (g), once the appeal is instituted by a person who is then outside the United Kingdom, there is no statutory prohibition on the appeal continuing if the person concerned thereafter is physically present in the United Kingdom. It will, however, be for the Secretary of State to decide whether to give that person temporary admission for the purpose of attending an appeal hearing, since regulation 41 does not apply to such cases.”
Guidance on applications for naturalisation as a British citizen.
"Changes from last version of this guidance
Temporary admission has been replaced by immigration bail. Changed “temporary admission” to “immigration bail”.
Clarified that spouses and civil partners of British citizens in the armed forces should be considered under the criteria for spouses and civil partners of Crown servants."
30 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 status of EU immigration and asylum law after Brexit
The government’s stated aim is to leave the EU, with or without a deal, on 31 October 2019. If there is a deal, there will be a transitional period. During this time nothing will change and EU law will continue. Under the deal negotiated by Theresa May, that period would last until 31 December 2020. The period under any deal negotiated by Boris Johnson is likely to be the same or similar.
The more pertinent question, given that very little progress has been made towards concluding a deal, is what happens if there is a no-deal Brexit?
The UK will leave the EU by automatic operation of law on 31 October 2019. The Benn Act requires the Prime Minister (whoever that may be at the time) to seek an extension from the EU to 31 January 2020 if a deal has not been approved by Parliament before 19 October 2019.
Boris Johnson has suggested he will not comply with this Act. In any case, complying with the Act would not prevent no deal; merely delay it until January.
So what exactly is the status of EU immigration and asylum law in the UK after no deal?
EU free movement law after Brexit
The date the UK leaves the EU is referred to in Brexit legislation as “exit day”. Various things happen automatically on exit day.
Firstly, under section 2 of the European Union (Withdrawal) Act 2018, all UK legislation derived from EU law continues to have effect. This includes, for example, the Immigration (EEA) Regulations 2016 — the legislation that implements EU free movement law in the UK.
Directly effective EU rights, including those in the Free Movement Directive, also become part of UK law automatically on exit day (under section 4 of the Act). Where the EU legislation concerned is a directive, as is the case with much of the detail of free movement law, only rights which have been recognised by the Court of Justice of the EU prior to exit day become part of UK law. The supremacy of EU law continues in relation to pre-Brexit law so, as is the case now, where the 2016 Regulations and rights recognised under the Free Movement Directive are in conflict, the directive prevails (needless to say, the supremacy of EU law does not apply to post-Brexit UK law). As such, very little changes overnight on exit day.
That being said, from exit day onwards all this “retained EU law” can be changed in future by the UK Parliament, without any limits being imposed by EU law. So we will have to keep track of any amendments made.
What we already know is that on exit day the 2016 Regulations will be amended by legislation passed back in March 2019 by Theresa May’s government. One of the main ones is to abolish the rules on deporting EU citizens and replace them with a system more favourable to the Home Office.
Other changes will be made by the Immigration and Social Security Co-Ordination (EU Withdrawal) Bill. This bill has been revived recently following the Supreme Court’s decision to quash the prorogation of Parliament. Schedule 1 contains a list of EU immigration laws that would be repealed once that bill is passed and comes into force, which includes the 2016 Regulations.
EU asylum law after Brexit
Due to the Common European Asylum System, Brexit will also affect those claiming asylum in the UK.
Asylum law is based on a variety of international, European Union and domestic legislation. The international law — the Refugee Convention and the European Convention on Human Rights (ECHR) — will not be affected by Brexit. Despite the name, the ECHR is not an EU treaty. Domestic legal provisions — such as the asylum section of the Immigration Rules — will also remain substantially unchanged.
The EU law — namely the Qualification Directive and Procedures Directive — and EU-derived domestic law such as the Refugee of Persons in Need of International Protection (Qualification) Regulation 2006 which implement the Qualification Directive in the UK will become retained EU law on exit day in the same way as the 2016 Regulations.
The Qualification Directive and the UK regulations implementing them outline the criteria for determining asylum clams. However, as they are based on international treaties such as the Refugee Convention and ECHR which will remain unchanged by Brexit, the underlying law is unlikely to change substantially even if they are repealed after Brexit.
Some asylum legislation has already been earmarked for immediate repeal on exit day by those March 2019 regulations mentioned earlier. Anything which is not included in these regulations will become retained EU law and remain in place, until amended or repealed after Brexit.
An important example of legislation which will be repealed on exit day is the Dublin III Regulation. This is the piece of EU law which allows the UK to return asylum seekers to an EU country they passed through on their way to the UK. It is marked down for immediate repeal because it is meaningless without cooperation of other EU member states. Under transitional provisions, some parts of the Regulation will continue to apply to requests for family reunion which have been made, but not decided, before Brexit. However, for most purposes, the Regulation will no longer be part of UK law.
For a full list of the asylum-related EU legislation which will be revoked on exit day see here: http://www.legislation.gov.uk/uksi/2019/745/schedule/1/part/2/made Again, there may be more such changes in future, but anything not explicitly repealed is kept in force.
EU case law after Brexit
Case law refers to the decisions of courts and tribunals interpreting and applying legislation and common law rules. It often clarifies the meaning or effect of legal provisions and is frequently used by lawyers to support a particular interpretation or application of the law. Such cases set precedents that become part of the law, meaning that the same issue does not need to be litigated over and over again.
The Court of Justice of the European Union interprets and applies EU law. Its judgments are binding on UK courts (and, despite its habitual reluctance, the UK government).
This will end after Brexit. UK courts will not be bound by future Court of Justice decisions after exit day and will not be able to refer questions of EU law to that court.
UK courts “may have regard” to Court of Justice case law handed down after Brexit (and post-Brexit EU legislation, in fact) if they want. But they do not have to. It is essentially up to UK judges to decide if, and to what extent, certain provisions of EU law are to apply in the UK after Brexit. So to know which new EU cases are relevant to UK immigration law, we will have to keep an eye on the UK case law. They will not be automatically relevant, as they are now.
If a helpful Court of Justice case is handed down, lawyers can highlight this and seek to persuade the UK court or tribunal to follow it; in the same way that a Scottish lawyer might highlight a non-binding decision of an English court with a view to having it followed in the Scottish courts (or vice versa).
What about Court of Justice case law from before Brexit? This will apply when interpreting retained EU law, and all lower courts are required to follow it.
However, the Supreme Court can depart from this pre-Brexit case law if it wishes. This can be done in the same way that the Supreme Court can depart from its own case law i.e. when in the circumstances of the case “it would be right for it to do so”. For instance, when adhering to a previous decision “would produce serious anomalies” or other “plainly unsatisfactory” results; when there has been “a fundamental change in circumstances”; or when there is experience showing that the previous decision has resulted in “unforeseen serious injustice” (see Austin v Mayor and Burgesses of the London Borough of Southwark [2010] UKSC 28 at paragraphs 24 to 26 for further details). The test for departing from Court of Justice case law after Brexit will be the same.
01 October 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)
>>> Restricted Certificates of Sponsorship (RCoS) applications made by 5 October can invoke the new Shortage Occupation List
The Immigration Rules are due to change on 6 October 2019, as heralded by statement of changes HC 2631. One particularly notable change will be the amendment of the Shortage Occupation List, with many roles being added to the list and some removed.
One advantage of a role being on the Shortage Occupation List is that no Resident Labour Market Test is required when advertising it. Generally, if an employer wants to sponsor a non-European worker for a Tier 2 work visa, they must first advertise the vacancy and demonstrate that there were no suitable settled workers. Roles on the shortage list do not come with this requirement, significantly lessening the administrative burden for sponsors.
Another big advantage of a role being on the list is to do with ‘Restricted Certificates of Sponsorship’ (RCoS). With some exceptions, an RCoS is required if an employer wants to sponsor a worker who requires entry clearance and is coming from abroad (or a dependent of a Tier 4 migrant who requires leave to remain and is switching to Tier 2). There is a monthly quota for RCoS, and a sponsor needs to submit an application by the 5th of each month to be considered in that month’s allocation. Roles on the shortage list get a boosting in the scoring system used to award RCoS — again making it better for employers to have the role being recruited for including on the list.
The shortage list is to expand on 6 October. Sponsors have to make their October RCoS applications by the 5th of October with a decision normally around the 12th.
A sponsor can therefore apply for a role which they know will be on the shortage list from 6 October, even though it isn’t when they actually apply. They do not have to wait until November to rely on the new list. So all’s well that ends well.
03 October 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 much does the Sopra Steria VIP biometric enrolment around London cost ?
From the Home Office, September 2019:
“The total cost of the requested VIP service for one person for post code in London is £ 5525.00”.
The Court of Justice of the European Union has found that a child is self-sufficient in EU law even if supported only by the earnings of a parent who is working without permission to do so. The case is C 93/18 Bajratari.
The case involved an Albanian family living in Northern Ireland where the father and husband had held a residence card enabling him to work. He had ceased to meet the requirements for that card but it had not been revoked and he had carried on working. He continued to do so even after it did eventually expire.
The Court of Justice held:
“...a Union citizen minor has sufficient resources not to become an unreasonable burden on the social assistance system of the host Member State during his period of residence, despite his resources being derived from income obtained from the unlawful employment of his father, a third-country national without a residence card and work permit.”.
04 October 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)
>>> Did you know that, when it comes to determining settled status eligibility of non-EU spouses of EU citizens, the Home Office considers the beginning of the marriage as the beginning of the residency, completely disregarding time previously spent lawfully residing in the UK?
Unfortunately, that is how it works. The EU Settlement Scheme considers the qualifying time of a non-EU spouse to begin once the family relationship with their EU citizen sponsor is established (i.e. at the point of marriage).
This mirrors the way the non-EU spouse would be treated under the Free Movement Directive / EEA Regulations; the journey to permanent residence begins at the point of marriage. Under EU law, the non-EU citizen cannot derive any residence rights until they be-come a family member.
The EU Settlement Scheme takes the same approach, disregarding a person’s lawful UK residence (for example, time spent as a Tier 2 worker) before they became a family member. Surprisingly, this does not offend current EU law principles.
"Changes from last version of this guidance
Amendments have been made to reflect the changes to Appendix EU made in Statement of Changes in Immigration Rules: HC 2631, laid on 9 September 2019.
A new section has been added on multiple applications."
Guidance for entry clearance officers on how to assess and decide applications for EU Settlement Scheme family and travel permits made under Appendix EU (Family Permit) of the Immigration Rules.
This guidance is updated to include:
• the EUSS travel permit
• new eligibility requirements for EUSS family permit applications where the relevant EEA citizen is an Irish citizen or a relevant naturalised British citizen
• the requirement to evidence parental dependency for an EUSS family permit where the relevant EEA citizen is under 18
• new suitability provisions in Appendix EU (Family Permit)"
• adds the exemption for Tier 2 (General) applicants in PhD occupations who have conducted research overseas
• adds minor clarifications and corrections"
To reflect the Statement of Changes to the Immigration Rules HC published on 01 October 2019 for the removal of Appendix O: Approved English language tests to the Immigration Rules.
Page 7, the last paragraph was reworded to reflect that it may not always be possible for both parents to provide DNA samples.
Page 17, additional letter templates have been added.
Page 22, a new section has been added on retaining DNA evidence.
07 October 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)
Campaigners have lost a High Court case challenging the “immigration exemption” to personal data rights. The judgment is R (Open Rights Group & the3million) v Secretary of State for the Home Department [2019] EWHC 2562 (Admin).
08 October 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 GM (Sri Lanka) v Secretary of State for the Home Department [2019] EWCA Civ 1630, handed down on Friday, the Court of Appeal provides a helpful summary of where we currently stand with private and family life cases under Article 8 of the European Convention on Human Rights.
The court outlines six “general observations” about the proportionality test, firing a few warning shots at both the Home Office and at those who seek to rely on private and family life to stay in the UK:
1. The Immigration Rules and section 117B must be construed to ensure consistency with Article 8.
2. The Home Office is entitled to outline the weight to be applied to various factors in the proportionality assessment. Courts and tribunals must accord “considerable weight” to the policy of the Home Office, including the policy weightings set out in section 117B. However, to ensure consistency with the Human Rights Act 1998, this section must have injected into it a limited degree of flexibility so that its application always leads to an end result consistent with Article 8.
3. The test for an assessment outside the Immigration Rules is whether a “fair balance” is struck between competing public and private interests. This is a proportionality test. References in the Rules and Home Office policy to a case having to be “exceptional” before leave to remain can be granted must be construed as not imposing any incremental requirement over and above that arising out of the application of an Article 8 proportionality test, for instance that there be some highly unusual or unique factor or feature.
4. The proportionality test is to be applied on the circumstances of the individual case. The facts must be evaluated in a “real world” sense.
5. There is a requirement for proper evidence. Mere assertion by an applicant as to his/her personal circumstances will not necessarily be accepted as adequate if unsupported by documentary evidence.
6. The list of relevant factors to be considered in a proportionality assessment is “not closed”. There is in principle no limit to the factors which might, in a given case, be relevant to an evaluation under Article 8, which is a fact sensitive exercise.
The Home Office is reminded that the correct test is proportionality, not exceptionality. The correct question is not whether there are any exceptional circumstances, but whether a fair balance has been struck between the competing interests. Officials are also reminded the policy outlined in section 117B is not necessarily sacrosanct.
The appellant are reminded that cases will always be fact specific. Proper evidence of why the Home Office decision disproportionately interferes with the person’s right to private and family life is therefore needed. Mere assertion will not get you very far. Expert reports — from country of origin experts about the conditions likely to be faced on return, or from a psychologist or psychiatrist about the impact of return on any children or vulnerable adults involved — are invaluable. They help to discharge the obligation to provide “proper evidence”. They are, however, expensive so cannot be obtained by everyone.
10 October 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)
“This is the first edition of this guidance. False representation and deception were previously covered in amalgamated guidance on the general grounds for refusal.”
Changes made to reflect the removal of Appendix O from the Immigration Rules and changes to the English Language requirements for doctors, dentists, nurses and midwives applying under Tier 2 (General).
Namely,
“Doctors, dentists, nurses and midwives applying under Tier 2 (General) are exempt from having to meet the English language requirements for visa purposes where they have passed a valid English language test which is accepted by a health professional regulatory body. These are:
• General Medical Council
• General Dental Council
• Nursing and Midwifery Council
Where an applicant is applying for leave in association with a certificate of sponsorship in one of the following SOC codes:
• 2211 – Medical Practitioners
• 2215 – Dental Practitioners
• 2231 – Nurses; and
• 2232 – Midwives
You do not need to make any assessment of their English language as this will have been undertaken by their regulatory body as part of their registration.”
14 October 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)
>>> Brexit threat to refugee family reunion rights
If and when Brexit happens, the UK will no longer take part in the “Dublin” system for transferring asylum seekers from one EU member country to another better placed to handle the asylum claim. A parliamentary committee says today that this will mean “the loss of a safe, legal route for the reunification of separated refugee families in Europe”.
The House of Lords EU Committee says that it is “particularly concerned about a potential reduction in the reunion rights of vulnerable unaccompanied children”.
Its report on Brexit: refugee protection and asylum policy: https://publications.parliament.uk/pa/ld201719/ldselect/ldeucom/428/42802.htm warns that the sudden end to the Dublin system that would occur under a no deal exit would leave asylum seekers waiting for transfer to the UK in “legal limbo”.
There is a change in the section on “The notice period” at the 1st para at page 14, where under the two bullet points the HO has added: “These notice periods apply to all persons notified of a removal window, whether that is a window of 3 months or a limited notice of removal.”
There is additional wording that has been added by the Home Office at the request of Medical Justice as a consequence of their challenge to the removal windows policy. This relates to certified third country cases. Where there is a subsequent certification of a human rights claim a further notice period is triggered of at least 5 working days. The additional wording is at the end of the 3rd para at p.21 and states: “This applies whether or not the person has previously been served with notice of a removal window (and whether or not the removal window is still open), a limited notice of removal, or notice of removal directions.”.
15 October 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)
>>> Immigration announcements in the Queen’s Speech
The main elements of the Bill are:
• Ending the free movement of EU citizens under UK law.
• The power to align the treatment of EU citizens arriving after January 2021 with non-EU citizens, and to maintain the treatment of EU citizens resident in the UK before exit day.
• Clarifying the immigration status of Irish citizens in the UK once the free movement rules are removed from UK law.
• Confirming the deadline for applications to be made under the EU Settlement Scheme.
• Giving EU citizens and their family members who apply a right of appeal against EU Settlement Scheme decisions.
• The power to make changes to the current rules for access to benefits and social security coordination for EU nationals.
A right of appeal for EU citizens denied settled status would certainly be welcome. At the moment the only real remedy is administrative review.
The Bill is also said to be “paving the way for a new points-based immigration system”. Priti Patel told the Mail on Sunday over the weekend that migrants will be incentivized to work outside London and the South-East under this system.
The government separately plans to legislate for tougher sentences for foreign criminals who re-enter the UK in breach of a deportation order. A Foreign National Offenders Bill would “increase the maximum penalty for foreign national offenders who return to the UK in breach of a deportation order”. The briefing does not say by how much, or whether this is really a big problem.
Finally, a Windrush Compensation Scheme (Expenditure) Bill is planned to put the existing system of compensation for wronged Commonwealth citizens on a statutory footing.
This Queen’s Speech is a bit of a pantomime, in the sense that the government has a majority of minus 45 and almost no chance of passing any of this legislation as things stand. But it is quite possible that a general election in the coming months would see the government gain a majority and press on with the measures announced in the speech.
15 October 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)
>>>Plague of incorrect Biometric Residence Permits causes havoc across education sector
The Tier 4 students have been hit with a plague of incorrectly printed Biometric Residence Permits (“BRPs”) this year. From incorrectly spelt names to incorrect statements of working rights, it is common for sponsors to spot a handful of incorrect BRPs each year. However, one university reports that over 500 incorrect BRPs were issued to its students this autumn.
Institutions are being advised that the BRP errors team have a four-week delay on processing corrections, leaving thousands of students with incorrect working restrictions, or no ability to work, during this time.
Many sponsors wrongly believe that the duty to report an incorrect visa rests solely with the student. This is partly correct in that Points Based System migrants also have a duty to report an incorrect BRP within 14 days of receiving the document. Yet in line with the paragraph 2.9 of the Tier 4 sponsor guidance, a sponsor has a duty to notify the Home Office if “it becomes aware that any of the students it is sponsoring has been granted leave with the incorrect conditions of stay, for instance if they have mistakenly been granted permission to work”.
Despite there being a positive obligation on sponsors to report incorrect BRPs, the Home Office, rather unhelpfully, never saw fit to include an option to report the issue under the “drop downs” available on the online sponsor management system.
Until now. The sheer volume of incorrectly issued BRPs this year has led to the following message appearing on the sponsor management system:
“A new migrant activity reporting option has been introduced to SMS. Under ‘Change in student circumstances’ you can now report when a student has been granted incorrect conditions of leave, for instance work permissions, as set out at paragraph 2.9 of the ‘Sponsorship Duties’ guidance document. Please accept our apologies for this omission to date.”
>>> USA New Customer Journey – Appointment Management System (AMS) update
From the VFS:
“As of 10 October, we have introduced VFS Global’s Appointment Management System (AMS) in the USA.
Some of you may be familiar with the system from other Regions. With AMS, your customers will be able to schedule an appointment, upload supporting documents and purchase value added services on the VFS Global shopping cart directly. This will offer the customer a streamlined online application process.
Because AMS is integrated with AccessUK, we encourage you to use AccessUK instead of Visa4UK here onwards. If you apply with Visa4UK, you will no longer have the option to purchase any services online. The AccessUK portal can be located on the Gov.UK website.
AMS introduces the opportunity for the customer to self-upload documents as a free-to-use option. From 04 November, assisted scanning packages will be available for sale online if the customer so chooses to have the documents scanned at the Scan Hub. We will send out another announcement with those service prices and inclusions as we get closer to the date.”.
21 October 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)
>>> UKVI update: using the ‘EU Exit: ID Document Check’ app – iPhone at last:https://www.gov.uk/…/using-the-eu-exit-id-document-check-ap…
From the UK BA:
‘The ‘ID Document Check’ beta app is now available for iPhone 8 and newer models. The app will be available on the iPhone 7 and 7 Plus shortly following an upcoming iOS software update.You’ll need:iPhone 8 or 8 Plus or newer modeliOS 13.1 or newer - to find the software version installed, go to Settings > General, then Aboutat least 120MB of storage space to install the appto be connected to 3G, 4G or WiFiThe app will need access to your phone’s camera. If the app does not request access, please enable access in your settings.’
“Following a change to the Immigration Rules the time limit for bringing an application for administrative review is now 7 days where the person is in immigration detention on the date they receive notice of their decision.”
24 October 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)
7.6 The changes amend the Immigration Rules for the EUSS, contained in Part 1 of Appendix EU, in two main ways, for a ‘no deal’ Brexit:
• To reflect the fact that applications by certain categories of family members who, after Brexit, join EEA citizens resident here before Brexit will need to be able to rely on residence in the UK and Islands, which began after Brexit; and
• To reflect the policy published on 6 December 2018 (and updated on 28 March 2019)4 about the deadline by when applications by such family members will need to be made:
- by 29 March 2022, where the relationship existed before Brexit and continues to exist when the application is made, in the case of spouses, civil partners, durable partners, children, parents and grandparents, and of children born overseas after Brexit; and
- by 31 December 2020, where the relationship as a spouse, civil partner or durable partner was formed after Brexit and continues to exist when the application is made, or from other dependent relatives.
7.7 The deadline in a ‘no deal’ scenario for applications by existing family members overseas at Brexit, who wish to rely on pre-exit residence in the UK and Islands in applying for status under the EUSS, will be 31 December 2020 (which will also be the deadline, in that scenario, for applications by those in the UK at Brexit), with scope in any case for a late application by a person with reasonable grounds for missing the deadline. Otherwise, they may be able to return to the UK by 29 March 2022 and apply then, based on post-exit residence, for status under the scheme.
7.8 The changes also amend the Immigration Rules for the EUSS family permit, contained in Appendix EU (Family Permit), to reflect the fact that, after a ‘no deal’ Brexit, there will need to be scope for relevant non-EEA national family members to apply for an EUSS family permit to join an EEA citizen here with EUSS status, where the relevant family relationship was formed after Brexit as well as where it was formed before.
European Temporary Leave to Remain Scheme
7.9 The changes introduce the Immigration Rules for the European Temporary Leave to Remain Scheme, in Part 2 of Appendix EU, which will become operative on a ‘no deal’
Brexit. The scheme will enable EEA citizens, and their close family members, moving to the UK after a ‘no deal’ Brexit and before the start of the new points-based immigration system from January 2021, to obtain a UK immigration status so that they can continue to work or study here as they do now, for a temporary period. It will provide EEA citizens who move to the UK after a ‘no deal’ Brexit, and their employers, with greater certainty during that transitional period, and will ensure that they have a secure UK immigration status before the introduction of the new system.
7.10 The main features of the Euro TLR scheme will be as follows:
• Applications will be made within the UK, will be free of charge and will involve a simple online process and identity, security and criminality checks;
• EEA citizens applying under the scheme by 31 December 2020 will, if their application is successful, be granted a period of 36 months’ limited leave to remain in the UK, running from the date the leave is granted;
• Non-EEA national close family members (spouses, partners and children under the age of 18) who are in the UK lawfully (other than as a visitor) may, from 4 December 2019, apply for Euro TLR and, if their application is successful, they will
be granted limited leave to remain for the remaining duration of the Euro TLR held by the relevant EEA citizen. From 1 January 2021, EEA citizen close family members will be able to apply for Euro TLR on that basis;
• Euro TLR will not be extendable. Euro TLR holders wishing to stay in the UK after their Euro TLR leave expires will need to make a further application and qualify under the new points-based immigration system. If they do, and this is in a route
under the new system which leads to settlement (indefinite leave to remain) in the UK, their period of Euro TLR will count towards the qualifying residence period for settlement under that route;
• Where an individual who holds Euro TLR does not meet the requisite criteria under the new points-based immigration system or otherwise have a right to remain in the UK, they will be expected to leave the UK when their Euro TLR expires; and
• An applicant refused Euro TLR on the basis of an application made from 4 December 2019 will be able to apply under Appendix AR (EU) for an administrative review of that decision.
Criminality rules
7.4 It is appropriate that, in a ‘no deal’ scenario, when we leave the EU, we better protect the public by applying UK conduct and criminality thresholds in considering the refusal of entry, deportation and exclusion of EEA citizens and their family members, and when considering the cancellation and curtailment of leave granted to EEA citizens and their family members. In particular, the UK criminality thresholds provide that such decisions may be made where this is conducive to the public good. The changes therefore:
• Apply current UK conduct and criminality thresholds to EEA citizens and their family members moving to the UK after Brexit, and to Turkish workers, business persons and their family members whose applications for leave under the European Communities Association Agreement (ECAA) are decided after Brexit. This is reflected in changes to Part 9 of the Immigration Rules (general grounds for refusal), and in the suitability provisions for Euro TLR, set out in Part 2 of Appendix EU;
• Apply those thresholds to the post-exit conduct of EU citizens living in the UK immediately before Brexit or who have EUSS leave, and their family members, and of Turkish workers, business persons and their family members granted leave
under the ECAA before exit, and to their pre-exit conduct where their conduct after exit results in a sentence of imprisonment. This is reflected in changes to Part 9 of the Immigration Rules, and to the suitability provisions for the EUSS, set out in Part 1 of Appendix EU, and for the EUSS family permit, set out in
Appendix EU (Family Permit). Otherwise, their pre-exit conduct will continue to be considered under the EU law public policy tests (in the case of EU citizens, Turkish workers and their family members), or applying UK criminality thresholds subject to the ECAA standstill provision (in the case of Turkish business persons and their family members); and
• Apply various provisions in Part 9 of the Immigration Rules in order to ensure that, for Turkish workers, business persons and their family members, applications for entry clearance or limited leave by virtue of the ECAA can be refused, and limited leave granted by virtue of the ECAA can be cancelled or curtailed, on the grounds of conduct committed after exit day, or before exit day where the relevant person has received a sentence of imprisonment based on postexit conduct or did not have entry clearance or limited leave by virtue of the ECAA immediately before exit day. This reflects amendments made to the ECAA
by the Nationality, Immigration and Asylum Regulations 2019 (S.1. 2019/745) and the Immigration (Amendment) (EU Exit) Regulations 2019.
7.5 In line with the citizens’ rights agreements reached with the other (non-EU) EEA countries (Iceland, Liechtenstein and Norway) and with Switzerland, the pre-exit conduct of citizens of those countries and their family members resident in the UK
before Brexit will continue in all cases to be considered under the EU law public policy tests.
28 October 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 Court of Appeal has now found that the Upper Tribunal erred in law in its consideration of the objective evidence and documents fundamental to the claim. The case is PK (Ukraine) v Secretary of State for the Home Department [2019] EWCA Civ 1756.
Draft evasion penalties needs “proper analysis
”The main issue raised in the Court of Appeal was whether a punishment for draft evasion must reach minimum severity in order for a draft evader to be considered as a refugee for the Convention reasons. The discrepancy between Upper Tribunal’s approach and the Secretary of State’s guidance addressing the question of “minimum severity” was also argued.
Background evidence on the situation in Ukraine included an Amnesty International report, Breaking Bodies, a US State Department report, and a third review by the UN human rights watchdog. The Court of Appeal accepted that the Upper Tribunal failed satisfactorily to engage with these documents (having criticized the First-tier Tribunal for the exact same error).
Sir Rupert Jackson also held that “whether a draft evader facing a non-custodial punishment for failing to serve in an army which regularly commits acts contrary to IHL is entitled to refugee status” was a question of “overarching importance”. The issue had “not received proper analysis” from the tribunal.
Therefore, the appeal was allowed and the case was remitted to the Upper Tribunal.
30 October 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)
>>> Tribunal finds “centre of life” integration and intention tests irrelevant in Surinder Singh cases:
The Upper Tribunal has finally, some six years after the test was introduced into domestic regulations, taken a good, hard look at the “centre of life” test applied by the Home Office to Surinder Singh cases.
The new case is ZA (Reg 9. EEA Regs; abuse of rights) Afghanistan [2019] UKUT 281 (IAC). Unsurprisingly the tribunal finds there is no basis for the centre of life test at all in EU law and it is not to be applied when judges assess Surinder Singh cases. The determination goes through cases including Surinder Singh itself, Akrich, O and B, Emsland Stärke (on abuse of rights) and the following helpful guidance is given at paragraph 75:
“(i) Where an EU national of one state (“the home member state”) has exercised the right of freedom of movement to take up work or self-employment in another EU state (“the host state”) , his or her family members have a derivative right to enter the member state if the exercise of Treaty rights in the host state was genuine;
(ii) “genuine” must be interpreted in the sense that it was real, substantive, or effective [not in the sense of the opposite of false or untrue or for that matter, tainted by dishonesty];
(iii) An analysis of “genuine” residence cannot involve the consideration of the motives of the persons who moved except in the limited sense of what they intended to [do] in the host member state
(iv) Whether family life was established and/or strengthened, requires a qualitative assessment which will be fact-specific; the burden of doing so lies on the appellant;
(v) There must in fact have been an exercise of Treaty rights; any work or self-employment must have been “genuine and effective” and not marginal or ancillary;
(vi) The assessment of whether a stay in the host state was genuine does not involve an assessment of the intentions of the parties over and above a consideration of whether what they intended to do was in fact to exercise Treaty rights;
(vii) There is no requirement for the EU national or his family to have integrated into the host member state, nor for the sole place of residence to be in the host state; there is no requirement to have severed ties with the home member state; albeit that these factors may, to a limited degree, be relevant to the qualitative assessment of whether the exercise of Treaty rights was genuine;
(viii) The requirement to have transferred the centre of one’s life to the host member state is not a requirement of EU law, nor is it endorsed by the CJEU;
(ix) If it is alleged that the stay in the host member state was such that reg. 9 (4) applies, the burden is on the Secretary of State to show that there was an abuse of rights.”
The big question is whether the Home Office will amend the EEA Regulations to get rid of the offending centre of life test and other irrelevant considerations. Probably not. Ministers and civil servants seem hell bent on preventing family members of British citizens from living in the UK wherever possible. Applications will continue to be refused by immigration officials on a legally incorrect basis but those with the resources to appeal ought to be able to get a significant number of such cases overturned at the tribunal.
• Events that break continuous residence: reference to ‘31st October 2016’ deleted and replaced with ‘24 November 2016’
• Time spent outside the UK : reference to ‘6th October 2016’ deleted and replaced with ‘24 November 2016’
• Breaks in lawful residence : amendment to first and last bullet point in second paragraph
• Applications made before 24 November 2016 amendment to first and last bullet point in second paragraph"
>>> New guidance documents for Tier 2, Tier 4; new endorsing bodies for innovator and start-up visas
Appendix A: The document lists the following changes:
• Table 5 (additional information to sponsor migrants in digital technology shortage occupations), and other references to digital technology occupations, have been deleted following changes to the Immigration Rules on 6 October 2019 – see ‘Digital technology shortage occupations’ below for further information
• cover page and contents page added
• a number of clarifications and minor drafting and formatting amendments
• links updated or corrected
Appendix The document lists the following changes:
• Part 1b: clarification of the circumstances in which a Tier 2 or Tier 5 sponsor is required to check the migrant’s date of entry to the UK
• Part 2g-h: updated to include reference to the GOV.UK ‘Teaching Vacancies’ online job-search service
• Part 4b and 4d: text stating that it is not necessary to retain evidence of qualifications or relevant professional registration for contractual service suppliers or independent professionals deleted, as this did not accurately reflect the Immigration Rules or sponsor guidance
• other minor housekeeping changes
• Links have been updated throughout the document to make it easier for students and sponsors to navigate
• Additional guidance has been included to make it clear that students may be asked to attend more than one credibility interview
• Additional guidance has been included to clarify that when an applicant is switching into the student route from another points-based system route the new course must start within 28 days of the expiry of their permission to stay.
• The reference to the applicant’s legal guardian being named on the birth certificate has been removed as this isn’t applicable and ensures the guidance is consistent with the Immigration Rules.
• A clarification has been made to confirm that the period before the course starts is considered to be outside of term-time and therefore students who are permitted to work are able to so on a fulltime basis during this period.
• References to Tier 1 (Graduate Entrepreneur) have been removed following the closure of this route. These have been replaced with ‘Start-Up migrant’. Additionally, guidance has been added that confirms that these applicants can undertake self-employed work whilst awaiting a decision on their application.
• The exemptions to academic progression have been updated to clarify that Tier 4 students studying a PhD or doctoral qualification are able to apply for leave to remain from within the UK where they are extending in order to continue studying the course they had undertaken in their last grant of leave.
New endorsing bodies for innovator and start-up visas
>>> Home Office admits double counting in the EU settlement statistics
The Home Office has confirmed that it counts repeat applications to the EU Settlement Scheme as new applications. It appears that thousands of repeat applications from EU citizens already granted pre-settled status have been counted towards the total number of applications. This makes Home Office statistics unreliable and raises questions over the integrity of its reporting.
What should the Home Office do now?
Firstly, it should confirm whether the system allows only one repeat application, or multiple.
Secondly, the number of repeat applications needs to be reported separately from new applications. Re-applications and re-applicants also need to be separated in the statistics if multiple applications are allowed. Repeat applications are to be expected from pre-settled status holders, but multiple applications are not.
Thirdly, and most importantly, re-application outcomes need to be reported separately and scrutinized. Should a repeat application outcome be anything but a grant of settled status, it would raise questions over the Home Office assurances that nobody is being refused on eligibility grounds.
As Madeleine Sumption, director of the Migration Observatory at Oxford University, says in the Financial Times: “the longer we don’t have that data, the more meaningless the statistics will become”.
31 October 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)
An immigration detainee who has indefinite leave to remain must apply to their local council for housing benefit rather than for a bail address or asylum support provided by the Home Office. R (AT (Guinea))) v Secretary of State for the Home Department [2019] EWHC 2709 (Admin) is about the interaction between mainstream benefits for people not subject to immigration control, and support for those in the immigration system. AT unusually fell into both groups; he had previously been granted indefinite leave to remain but had claimed asylum when the Home Office tried to deport him.
Entitlement to mainstream benefits
AT was granted bail in principle by the First-tier Tribunal on three occasions. As is often the case, the judge was happy for AT to be released into the community, but wanted him discharged to a stable address. Unfortunately, AT was not able to provide that for himself, so he applied to the Home Office for asylum accommodation under section 95 of the Immigration and Asylum Act 1999.
When rejected, he appealed that decision to the asylum support arm of the First-tier Tribunal. The appeal was dismissed on the ground that he was not “destitute” within the meaning of the legislation because he could apply for support from his local authority.
Nigel Poole QC, sitting as a deputy High Court judge, agreed with the specialist social support judge:
“The Claimant was, until 22 January 2019, a person with indefinite leave to remain. Accordingly, whilst the appeal against his deportation order was pending, he was not under “immigration control” for the purposes of the 1999 Act, and therefore he was not excluded from eligibility to benefits under s.115 of the 1999 Act. Those benefits included housing benefit. Thus, the Claimant was, at all relevant times, not excluded from eligibility for housing benefit and other social security benefits. As such he had the means of obtaining adequate accommodation upon his release from detention, were that to occur. Under s.95(3)(a) of the 1999 Act he was not destitute. Accordingly, he was not entitled to the provision of support under that section.”
For the same reasons, the judge also concluded that AT was not entitled to bail accommodation under Schedule 10 of the Immigration Act 2016:
"For the avoidance of doubt, it is clear in my judgement that Schedule 10 did not apply at the earlier date of 16 May 2018. At that time the Claimant was granted bail on condition of being offered schedule 10 accommodation. He was however entitled to benefits and so would have been able to support himself at an address if one had been specified. Further, since no specific address was identified in the bail application or grant of bail, it is difficult to see how Schedule 10 would be engaged, notwithstanding the reference to it in the condition for bail granted by the First-tier Tribunal."
The judge was also quite critical of AT for having failed to make proper enquiries about local authority support:
“I have seen little evidence that the Claimant took steps to secure benefits or accommodation support to which he was entitled. Some correspondence has been provided from after the First-Tier Tribunal’s decision that s.95 did not apply, but there is generally a lack of evidence of timely or sustained engagement with the local authority or other authorities and agencies. It was not argued before me that the Claimant would not have been granted benefits or which he was potentially entitled. I have not been provided with evidence that the Secretary of State obstructed the Claimant from seeking benefits and support to which he was potentially entitled.”
As a result, Nigel Poole QC rejected AT’s claim that the Home Office had behaved irrationally when refusing to provide him with accommodation.
He also rejected AT’s separate claim that he had been unlawfully detained despite the serious delays in obtaining travel documents from the Guinean authorities highlighted by AT’s representatives. In this case, travel documents were authorised in “early 2019” but had not been provided by the time of the hearing in September.
Home Office support as a last resort
This case seems to suggest that having indefinite leave to remain makes it more difficult to obtain a bail address. AT was granted accommodation as a failed asylum seeker quickly once his asylum appeal had been refused and a deportation order made against him. However, we know from other cases (such as DM (Tanzania) that the process of obtaining bail accommodation from the Home Office is incredibly slow. It appears that AT did not appreciate the need to apply for housing benefit and that he could have applied for a grant of bail conditional on the local authority providing him with housing support.
The important lesson to take away from this judgment is that the High Court will not look kindly on claims brought by people who blame the Home Office for failing to provide bail accommodation before they have exhausted other types of social assistance.
05 November 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)
>>> Tier 1(Investor) 1M warning/reminder !
The government increased the minimum investment threshold under the Tier 1 (Investor) scheme from £1 million to £2 million back in November 2014.
Existing Tier 1 (Investor) visa holders did not need to increase the level of their investment. They were able to apply for ILR and as the qualifying period is five years, most £1m investors will have qualified by now. But not all.
There are still those with limited leave, who have had to keep on extending their visa, on the basis of a £1m investment. Usually the reason they have not qualified for ILR by now is because:
• they have had excessive absences from the UK in the qualifying period for ILR (more than 180 days per year, or, since January 2018, 180 days in any 12-month period); and/or
• their English is not at an acceptable level; and/or
• they are under 65 and are unable to pass the Life in the UK test
During the course of this year — most recently in the October 2019 statement of changes the Home Office has made a number of further changes to the route.
The effect of all the recent changes means that many investors who entered the route before 29 March 2019 will not be able to secure further leave or ILR beyond a certain date, unless they make changes to their investment portfolio and/or increase the level of their qualifying investment. The steps needed differ depending on when an applicant entered the route and the type of investments they have made.
Deadlines
An investor who needs to extend their stay relying on a £1m investment will need to file their application before 6 April 2020.
To extend after that date, they would have to increase their investment to at least £2m.
An investor relying on £1m in an ILR application will need to file that application before 6 April 2022.
If they can’t file it by then because they don’t meet the requirements, they will need to increase the investment to at least £2m before applying.
Importantly, increasing the investment is not enough. They will only be able to qualify for ILR when they have also clocked up the relevant qualifying period starting from the date they increased their investment: five years if £2m, three years if £5m, two years if £10m). Time already spent under the route just won’t count anymore.
These changes mean that £1m investors need to map out their future plans carefully.
The UK Government Bonds
Those whose investments include government bonds (or gilts as they are also known) face another potential complication. As part of the general tightening up of the route, government bonds were removed as a qualifying investment for a new Tier 1 (Investor) visa from March 2019.
In order to succeed, extension applications where the investment still includes government bonds must be made before 6 April 2023. ILR applications relying on government bonds must be made before 6 April 2025.
This doesn’t just refer to £1m investors, but to anyone who entered the route before 29 March 2019.
Applications filed after the above dates that rely on government bonds held after those dates will be refused. For the application to be successful, the investment must be moved out of government bonds and into share capital or loan capital in active and trading UK registered companies (regarded generally as a higher risk form of investment).
Anyone still relies on investments under the old £1m rules, and/or who is relying on government bonds, should map out now the steps they’ll need to take in order to qualify for ILR (including extending their stay where needed).
This is likely to involve a number of changes such as limiting absences, improving English, increasing investment funds and/or changing the type of investment.
08 November 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)
On 11 September 2019 the UK Government announced the creation of a new immigration route which will enable international students to remain in the UK for two years after they have completed their studies.
Key Points:
• The Graduate Immigration Route will be available to international students who have completed a degree at undergraduate level or above at a Higher Education Provider with a track record of compliance and who have a valid Tier 4 visa at the time of application.
• Successful applicants on this route will be able to stay and work, or look for work, in the UK at any skill level for a maximum period of two years. Graduates will be able to switch into skilled work once they have found a suitable job.
• The new route will be launched in the summer of 2021, meaning that any eligible student who graduates in the summer of 2021 or after will be able to apply for the route. This includes students who have already started their courses. Universities will also be able attract students starting in the 2020/21 academic year on the basis that they will benefit.
• The launch of the route demonstrates the government’s support for our education sector, and commitment to the International Education Strategy, which sets out our ambition to increase education exports to £35 billion and the number of international higher education students to 600,000 by 2030.
• The graduate immigration route will require a new application.
• It will include the payment of a visa fee and the Immigration Health Surcharge. The exact fee will be set out in due course.
• Those who graduate and whose Tier 4 leave expires before the route is introduced will not be eligible, however, most of these students will have had no expectation of benefitting from such a route when they applied to study in the UK.
Statistics:
• In the year ending June 2019, the number of sponsored student visa applications rose 9% to 236,679. This included an 11% increase for the higher education sector to 201,919.
Frequently asked questions:
Why can’t it be implemented sooner?
It takes time to develop a new immigration route and ensure the framework is in place for it to successfully operate. Introducing the route in the summer of 2021 will mean that all students who graduate in the summer of 2021 or after will benefit, regardless of when they started their course. This route was announced in September 2019 to ensure that universities and stakeholders could promote the route when attracting prospective students. It will enable students to decide where to study, knowing they have the option of staying in the UK to work after completing their studies.
Will students who are already here be able to benefit?
Any student who successfully completes their degree-level course at a qualifying institution in the summer of 2021 or after will be eligible. This includes students who are already studying. Those whose Tier 4 leave expires before the route is introduced will not be eligible for it, however, most of these students will have had no expectation of benefitting from such a route when they applied to study in the UK. These students can still benefit from the generous provisions which allow them to switch in the skilled work route on favourable terms.
Will universities be expected to act as sponsors for those students on the graduate immigration visa after they have graduated?
Individuals applying for the Graduate Immigration Route will not need a sponsor. Tier 4 sponsors will not need to fulfil any sponsorship duties for their students if they switch onto the Graduate Immigration Route and students will not need a Certificate of Sponsorship (CoS) to apply under this route. Tier 4 sponsors, however, will continue to be responsible for their students while they are studying.
Will this route count towards settlement?
The route is non-extendable and does not count towards settlement. However, graduates who find an appropriate job and meet the requirements will be able to switch into skilled work, which is a route to settlement.
The controversial English Court of Appeal long residence case of Ahmed has now been endorsed north of the border by the Court of Session in Mbomson v Secretary of State for the Home Department [2019] CSOH 81. Lord Malcolm’s decision is short: although not bound by the Court of Appeal’s decision, his lordship is nevertheless persuaded by it and accordingly endorses it.
What was the decision in Ahmed and now Mbomson? The courts have interpreted the sloppily drafted Immigration Rules on long residence to hold that any period of overstaying, no matter how small, will break “continuous lawful residence” for the purposes of a 10-year long residence application. Residence is broken, in this context, regardless of whether or not it was absolved by the granting of a subsequent application.
The rules do not permit a grant of leave on long residence grounds where there has been a break in continuous lawful residence through overstaying, but the guidance clearly allows caseworkers to exercise discretion in disregarding certain periods of overstaying. See page 16:
“Gaps in lawful residence
You may grant the application if an applicant:
• has short gaps in lawful residence through making previous applications out of time by no more than 28 calendar days where those gaps end before 24 November 2016
• has short gaps in lawful residence on or after 24 November 2016 but leave was granted in accordance with paragraph 39E of the Immigration Rules
• meets all the other requirements for lawful residence”
It is clear from the above that applications where there is past overstaying can be granted, and that the Home Office is not concerned about the kinds of overstaying listed.
The next section of the document says:
“Any decision to exercise discretion and not refuse the application on these grounds must be authorised by a senior caseworker at senior executive officer (SEO) grade or above.
When granting leave in these circumstances, the applicant must be granted leave outside the rules for the same duration and conditions that would have applied had they been granted leave under the rules.”
So any period of overstaying should indeed normally lead to a refusal, as per the Rules and the interpretation of both the English and Scottish courts, but that such applications can (and should if eligible) nevertheless be granted outside of the Immigration Rules rather than under paragraph 276B.
It seems to be the only logical way of reconciling the otherwise harsh Immigration Rules on the one hand and the relatively generous policy on the other.
If one thing is clear, it’s that the Home Office needs to get its collective finger out and set the record straight.
11 November 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)
>>> I got married in my national Embassy in the UK. Will my marriage be accepted by the Home Office ?
Under the Marriage Act 1994 it is only possible for an embassy to be listed as an approved building (https://www.gov.uk/government/publications/civil-marriages-and-partnerships-approved-premises-list) for a civil marriage in the UK if the premises are regularly available to the public for use for the solemnization of marriages or the formation of civil partnerships, and public access to any proceedings in approved premises must be permitted without charge.
Currently, no diplomatic premises in the UK are approved for marriage or civil partnership.
The UK Government is planning to introduce a “NHS visa” as part of their proposals for an Australian style points based immigration system should they win the general election.
The aim is to ensure that the NHS is able to source overseas doctors and nurses once EU free movement comes to an end post-Brexit. From today’s media reports we know that the visa will cost £464, half the normal fee. The visa process will be fast-tracked — decisions will be made within two weeks — and NHS workers applying through this route will have access to some form of payment system to repay the immigration health surcharge in instalments via their salary once in the UK.
It sounds promising. The reduced fee is certainly a positive step and hopefully a sign that the government accepts that the current immigration system has become exorbitantly expensive. The fast-track processing is less exciting, as most non-settlement visas can already be processed via a priority service within a week for a fee of around £250. What will be interesting is whether this enhanced processing is offered free of charge for NHS workers, or if in the small print there will be hidden costs attached — fees to book appointments or scan documents, for instance — which visa applicants often get stung by.
The fact that NHS workers have to pay the £400 per year NHS surcharge in the first place is laughable. At the very least they should get some form of John Lewis-style employee discount. A repayment system will still mean a nurse losing £2,000 from their salary over several years, on top of the up-front visa fee.
Exempting them from the charge altogether would show a real intent to broaden the UK’s appeal to foreign medical professionals.
The announcement shines a tiny bit more light on the government’s overall plans for the immigration system. The Home Secretary, Priti Patel, has said that the new visa route is “part of our plan for an Australian-style, points-based immigration system that allows us to control numbers while remaining open to vital professions like nurses”. We still do not know whether this antipodean vision will be in addition to, or a replacement for, our current points based system. The indications are that this new visa will be outside the Tier 2 work visa apparatus — which raises the question of whether our current sponsorship system will be maintained.
Again, though, this is another example of politicians claiming that a points based system will allow them to control net migration, when the evidence, and the UK’s own recent history, shows that this reasoning is flawed. With ministers unable to say whether the Conservatives want immigration to go up or down, honest answers on why we need an Australian points based system are way overdue.
12 November 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)
>>> Confirmed: children with foreign stepfathers are being unlawfully denied citizenship
The Home Office has dropped its appeal against a judgment that children whose mother is married to someone other than their father are being unlawfully discriminated against by British nationality legislation.
In July 2018, the High Court ruled that part of the British Nationality Act 1981 is incompatible with Article 8 of the European Convention on Human Rights. The case was K (A Child) v Secretary of State for the Home Department [2018] EWHC 1834 (Admin).
The provision in question was section 50(9A). It states that:
For the purposes of this Act, a child’s father is –
“(a) the husband, at the time of the child’s birth, of the woman who gives birth to the child…”
This can prevent a child’s biological father from being recognised as the child’s legal father for the purpose of passing on his British citizenship. In K’s case, the Home Office tore up her British passport, saying that she wasn’t legally a citizen — even though she could prove that her biological father was British. The effect of section 50(9A) was her mother’s new husband was treated as her father, denying K citizenship.
The High Court found that:
“the scheme of section 50(9A) of the BNA 1981 as the Defendant currently reads and applies it breaches the Claimant’s right under Article 14 ECHR read with Article 8, to enjoy equal access to the ability to acquire her biological father’s nationality which she would enjoy if her mother had not been married to a man other than her biological father at the time of her birth.”
The Home Office initially appealed. But Law Lane Solicitors, representing K, now say that the appeal has been abandoned.
The government is expected to take remedial action to change the law. That was what happened after the Supreme Court made a declaration of incompatibility about a different element of nationality law in Johnson [2016] UKSC 56. But this could take some time: Johnson was handed down in October 2016, and the resulting remedial order not made until July 2019.
What can children caught by section 50(9A) do in the meantime? They can apply for registration as British at the Home Office’s discretion, but this costs over £1,000 and involves a good character test.
There’s a decent argument that such a fee would be unlawful: the Home Office has already conceded in Williams [2017] EWCA Civ 98 that the power to charge a nationality or immigration fee may not be exercised incompatibly with the European Convention on Human Rights (see paragraph 30). Victims of the Windrush scandal did not have to pay for citizenship: the Home Secretary could do the same for children currently being denied citizenship unlawfully.
Challenging the good character test in such cases would be more complicated, as unlike the fee it is required by primary legislation. All the same, families where a child is being denied automatic citizenship because their mother has remarried should seek advice on their options.
13 November 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)
>>> I do not have a current passport. Can I still use my expired passport in the immigration application ?
The answer is “depending on the application type”. In line with para 34(b)(ii) of the UK Immigration Rules:
(b) Proof of identity for the purpose of this paragraph means:
…
(ii) if the applicant does not have a valid passport or national identity card, their most recent passport or (except a PBS applicant) their most recent national identity card; or
…
>>> Can I travel while my EU Settled Status (EUSS) application is pending ?
“An application made under Appendix EU will not be treated as automatically withdrawn if the applicant travels outside the Common Travel Area before the application has been decided.”
14 November 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 interest is Lal v Secretary of State for the Home Department [2019] EWCA Civ 1925.
In this case, Ms Lal had been here as a student since 2011 and her leave was due to expire in 2015. Four months prior, she married Mr Wilmhurst, a British citizen, and applied to stay in the UK under Appendix FM of the Immigration Rules.
Refused over doubt about the marriage
The sole reason for refusal was because the Home Office didn’t believe the marriage was genuine and subsisting. We don’t know the reasoning for sure, but one would be astonished if a major part of the reasoning was not the 40-year age difference between the couple and the timing of the marriage.
Such refusals are pretty straightforward to nail down, for the most part. At the First-tier Tribunal, three of Mr Wilmhurst’s four children gave evidence. They all agreed that Mr Wilmhurst was indeed in a genuine relationship.
It did not help.
Insurmountable obstacles to family life
Complicating matters, Ms Lal seems to have accepted that that she had to show “insurmountable obstacles to family life continuing outside the UK”. It looks like she conceded that the requirements of paragraph EX.1 of Appendix FM had to be met despite this never being raised in the refusal letter.
The Court of Appeal was quick to raise an eyebrow and had “doubt” whether meeting EX.1 was actually an issue but, as courts do, they still went on to write a treatise about it.
Indian climate an insurmountable obstacle?
At the First-tier Tribunal, evidence was led that Mr Wilmhurst — who is in his 70s — would not be able to cope with the heat in India and that meant there were insurmountable obstacles. The First-tier Tribunal agreed. The Upper Tribunal did not.
Judge Storey in the Upper Tribunal was pretty annoyed at all this. Whilst he agreed the marriage was genuine, he did not think an inability to cope with heat was insurmountable:
“…[the] judge was required to undertake… an objective assessment of whether Mr KW could in fact cope with the heat and whether a difficulty of this kind would pose an insurmountable obstacle… Difficulty [in] coping with heat is not in itself a serious hardship in a country where there is air conditioning and available urban environments built to protect people against the heat.”
The Court of Appeal allowed permission on the question of whether the “insurmountable obstacles” test was subjective or objective.
An objective test, but still a test
The court outlined the Supreme Court’s decision in Agyarko v SSHD [2017] UKSC 11. In Agyarko, Lady Hale held that the test was to be applied in a way which was “practical and realistic” and said:
“The test cannot… be… subjective… To treat it as such would substantially dilute the intended stringency of the test and give an unfair and perverse advantage to an applicant whose partner is less resolute or committed to their relationship over one whose partner is ready to endure greater hardship to enable them to stay together.”
But, the Court of Appeal said, it was not enough to base a conclusion on the Upper Tribunal’s “sweeping statement” about air conditioning. The facts had to be explored thoroughly; where in India could the couple live; what were the average temperatures; could the heat be mitigated by air conditioning; were there any cooler places to live? There was nothing fundamentally wrong with a finding that a person’s sensitivity to heat was an insurmountable obstacle, but evidence was required.
Relationship formed while immigration status precarious
The other very interesting takeaway from the judgment was a critical look at the Upper Tribunal’s reasoning on the relationship being formed whilst Ms Lal’s immigration status was precarious.
Section 117B of the Nationality, Immigration and Asylum Act 2002 says that
“(4) Little weight should be given to—
(a) a private life, or
(b) a relationship formed with a qualifying partner,
that is established by a person at a time when the person is in the United Kingdom unlawfully.
(5) Little weight should be given to a private life established by a person at a time when the person’s immigration status is precarious.”
The Upper Tribunal judge thought that this “required him to attach little weight to a couple’s relationship when that relationship has been entered into at a time when the applicant’s immigration status is precarious”.
This, the Court of Appeal said, was wrong. Nowhere in section 117B does it say that little weight must be given to a relationship formed with a qualifying partner when a person’s immigration status is precarious (as distinct to unlawful).
Rather, it is open to courts and tribunals to give such weight to the relationship as is appropriate:
“Clearly there are degrees of precariousness in a person’s situation ranging from, at one extreme, someone who is in the country in breach of immigration laws and is liable to removal through to someone who has been present lawfully in the country for some years and is on a pathway to settled status (such as the five or ten year partner route in the UK) but does not yet have indefinite leave to remain. It would be unreasonable to attach equal weight to family relationships established by individuals in such different legal situations and there is no “settled jurisprudence” which requires this. Rather, the Jeunesse case makes clear that a person’s immigration status may greatly affect the weight to be given to their right to respect for family life.”
Ultimately, all of this discussion was academic as Ms Lal and Mr Wilmhurst were now parents to a British child; section 117B(6) was therefore engaged. The Upper Tribunal’s decision was set aside, and it is up to the Home Office to reconsider matters.
Once again, there is nothing here which is brand new but it is useful as a reminder that even in cases where there are not children, paragraph EX.1(b) is still very much arguable (even though a lot of the time it feels like the Home Office is mindlessly rejecting these cases!). The key is to take the time to properly explain, particularise and provide supporting evidence of a claim.
15 November 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 Court of Justice of the European Union has ruled that it is unlawful to completely withdraw all housing and financial support from an asylum seeker, even if they have breached the rules of an accommodation centre. In Case C-233/18 Haqbin v Federaal Agentschap voor de opvang van asielzoekers, the court sharply rebuked Belgium for imposing a total withdrawal of support on a child asylum seeker for failing to comply with the rules.
The case concerned an unaccompanied child from Afghanistan who sought asylum in Belgium. He was housed at the Broechem reception centre, where he became involved in a brawl. The child was arrested by the police but released the following day with no further action.
Nevertheless, the director of the Broechem reception centre imposed a 15-day exclusion from the centre as a punishment. During this time the child spent several nights sleeping in public parks in Brussels as well as finding friends to stay with.
EU law provides for sanctions to be imposed on asylum seekers who break the rules at a reception centre. The Reception Conditions Directive states:
“Member States may determine sanctions applicable to serious breaches of the rules of the accommodation centres as well as to seriously violent behaviour.”
The court ruled that reduction or withdrawal of housing and other support from an asylum seeker might be an appropriate sanction within the meaning of the rule, even though it is not explicitly mentioned:
“it is appropriate to note, first, that a measure for reduction or withdrawal of material reception conditions in respect of an applicant on account of serious breaches of the rules of the accommodation centres or seriously violent behaviour constitutes, in the light of the aim and the detrimental consequences thereof for the applicant, a ‘sanction’ in the ordinary meaning of that word and, secondly, that that provision is included in Chapter III of the directive, which is dedicated to the reduction and withdrawal of such conditions. It follows that the sanctions envisaged in the directive may, in principle, concern material reception conditions.”
But the court clarified that any sanction imposed must be proportionate and not result in a violation of the asylum seeker’s dignity:
“… any sanction within the meaning of Article 20(4) thereof must be objective, impartial, reasoned and proportionate to the particular situation of the applicant and must, under all circumstances, ensure access to health care and a dignified standard of living for the applicant.”
The total withdrawal of material support, as was imposed by the Belgian authorities in this case, did not comply with EU law because it necessarily violated the child’s dignity:
“A sanction that is imposed exclusively on the basis of one of the reasons mentioned in Article 20(4) of Directive 2013/33 and consists in the withdrawal, even if only a temporary one, of the full set of material reception conditions or of material reception conditions relating to housing, food or clothing would be irreconcilable with the requirement, arising from the third sentence of Article 20(5) of the directive, to ensure a dignified standard of living for the applicant, since it would preclude the applicant from being allowed to meet his or her most basic needs such as those mentioned in the previous paragraph.”
Having decided the case against the Belgian government, the court went on to emphasise the importance of taking into account both the vulnerability of an unaccompanied child asylum seeker and their best interests:
“Moreover, according to Article 23(1) of Directive 2013/33 the best interests of the child are a primary consideration for Member States when implementing the provisions of the directive that involve minors.”
This case is a great result and vindication for the child’s lawyers, although perhaps little consolation for the child that it has taken three years for a court to rule that it was unlawful to make him street homeless. The Court of Justice relies heavily on national courts to ensure that EU law is respected and it is disappointing that the Belgian court that originally considered the matter was not prepared to find that imposing such a severe sanction on a child was disproportionate.
18 November 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)
>>> Home Office withdraws appeal in case on s 50(9A) BNA 1981
The Secretary of State has withdrawn her appeal against the decision of the Administrative court in R(ota K, a child by her litigation friend) v SSHD [2018] EWHC 1834 (Admin).
The case concerned paternity of a child for the purposes of acquiring British citizenship. K’s passport was withdrawn and she was informed that she was not ‘British’ even though she could prove by DNA that her father is British. Section 50(9A) of the British Nationality Act 1981 says that if a woman is married at the time of a child’s birth, for the purposes of British nationality law, her husband will be deemed to be the father, even if there is irrefutable proof that another man is the biological father.
On K’s application for judicial review, the Administrative Court declared that section 50(9A) of the British Nationality Act 1981 (the BNA) is incompatible with Article 14 ECHR, read with Article 8 ECHR because it discriminates unlawfully against children whose mothers are married to a man other than the child’s father when the child is born. An affected child will not be entitled to British nationality through the biological father but could apply to be registered at the ‘discretion’ of the Home Secretary, at a fee currently of over a thousand pounds (£1012) and, if aged over 10 years subject to a requirement to be of ‘good character’. The judge concluded that although ‘certainty’ under the law was a legitimate aim, the aims did not justify such a fee nor the risks associated with the discretion whether to grant citizenship rather than a right to claim it as the child of a British citizen.
The Secretary of State appealed. Permission was granted on the basis that it was arguable that the judge had failed to consider the wider impact of her conclusions on, for example, children born through surrogacy. However, the appeal was later withdrawn with the effect that the declaration made by the court below remains in place. The question is – what next for children who have been discriminated against in this way?
In Johnson [2016] UKSC 56, the Supreme Court declared that a provision of the BNA which imposed the ‘good character’ requirement on children required to register as British solely as a consequence of their mother’s marital status as the time of the birth was similarly incompatible with article 14 taken with article 8 as it was discriminatory. In making the declaration the court observed [38]:
“… where a person has not automatically acquired citizenship at birth, it is reasonable to expect him to apply for it, even if he is entitled to be registered if he does so. This avoids the risk of inconvenient results and provides everyone with clarity and certainty. But it is not reasonable to impose the additional hurdle of a good character test upon persons who would, but for their parents’ marital status, have automatically acquired citizenship at birth, as this produces the discriminatory result that a person will be deprived of citizenship status because of an accident of birth which is no fault of his.”
As a consequence of the court’s declaration, the Home Secretary placed a remedial order before parliament. Any remedial process necessarily takes some time (although in this case much time has been lost as a consequence of the Home Secretary’s withdrawn appeal) and indeed the Secretary of State has a wide discretion whether to take remedial steps by way of a remedial order or draft amended legislation or indeed may elect to do nothing. So, what are affected children to do in the mean time?
Next steps
Children who may be caught by s 50(9A), for instance by the denial of passports or citizenship are advised to seek expert advice. There are good grounds to argue that the Secretary of State cannot lawfully charge the £1012 fee for registration in such cases. The issue of the ‘good character’ requirement is somewhat more complex.
The latest version states the following changes: "The words ‘(except where entry is being granted as a fiancé, fiancée or proposed civil partner)’ have been deleted from the end of the first paragraph in Decision to grant entry clearance or leave to remain as a partner on a 5 or 10-year route".
"Amendments have been made to reflect the changes to Appendix EU made in Statement of Changes in Immigration Rules: HC 170, laid on 24 October 2019, mainly in respect of provision for the operation of the EU Settlement Scheme in the event that the UK leaves the European Union without a deal."
• the definition of a sham marriage
• offences relating to sham marriages
• prosecuting authorities for criminal offences in relation to sham marriages
• Crown Prosecution Service (CPS) suggested good practice and scenarios for potential suspects and charges
• planned visits to a designated register office
• European Economic Area (EEA) removal options
The latest version states the following changes:
"Revised to include up to date definition of sham marriage, update of links to legislation and other guidance products and removal of items no longer required"
19 November 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 PBS dependant child of a Tier 4 general holder switch to a Tier 4 Child in the UK?
The answer is “No” as on the basis of para:
"245ZZC. Requirements for leave to remain
(b) The applicant must have, or have last been granted, entry clearance, leave to enter or leave to remain as a Tier 4 migrant"
fails, as a PBS dependant child does not have leave as a Tier 4 migrant.
However, there are no restrictions against a PBS dependant from studying.
Комментарии
>>> UKVI update: Judicial reviews and injunctions: https://www.google.co.uk/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwj6tfaTut3kAhUGExoKHeO6DJsQFjAAegQIAhAC&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/709719/chapter-60-judicial-reviews_v15.0.pdf&usg=AOvVaw0oVkp9IsTwaFCtIGAKt2N3
Guidance on arranging removals for officers dealing with immigration enforcement matters within the UK.
Changes from last version of this guidance
New paragraph in section Third country and non-suspensive appeal (NSA) cases to clarify that a second notice period must be given if, after an asylum claim is certified, a subsequent human rights claim is separately certified.
Section heading level adjusted for ‘Third country and non-suspensive appeal (NSA) cases’ and ‘Special arrangements (including charter flights)’ to show they are not part of section Cases where the removal window should not be used.
>> Upper Tribunal: no reason to change Sudan country guidance: https://www.bailii.org/uk/cases/UKUT/IAC/2019/282.html
The Upper Tribunal in AAR & AA (Non-Arab Darfuris – return) Sudan [2019] UKUT 282 (IAC) has rejected a Home Office attempt to resume returns of non-Arab Darfuris to Sudan. The tribunal upheld its previous guidance, reaffirming the position that all non-Arab Darfuris are at risk of persecution in Sudan, and internal relocation to Khartoum is not an option.
The tribunal allowed both appeals on asylum grounds, ignoring previous adverse credibility findings relating to the appellants’ accounts of treatment in Sudan. This is because non-Arab Darfuri asylum claims are based solely on ethnicity. Once this ground has been made out, everything else is irrelevant and they should be granted refugee status on that issue alone.
>> Immigration Bill back on as the Supreme Court recalls Parliament
Earlier today the Supreme Court handed down its judgment on whether the Prime Minister suspending Parliament for five weeks at a crucial time in the Brexit saga was legal.
So the Immigration Bill is back. Prorogation, the particular form of suspension used, meant that it and most other pending legislation died on the vine and would have to start from scratch when Parliament returned. The effect of the Supreme Court finding that the prorogation was never legally valid is that these bills are actually alive and kicking, according to assorted experts on parliamentary procedure.
The main purpose of the bill is to formally end the free movement rights of EU citizens. However, even if the bill is passed any time soon, this element will not be implemented for some time. After much fuss about nothing over the summer, the government has confirmed that free movement rules will remain largely in place until at least 2021.
The bill also guarantees the unique rights of Irish citizens, explicitly exempting them from the need to have leave to enter or remain in the UK.
>> > The current Home Office guidance on permission to work and volunteer for asylum seekers: https://www.gov.uk/government/publications/handling-applications-for-permission-to-take-employment-instruction
Changes since the last version of the guidance:
• updated to include reference to criminality and delay when considering permission to work applications
• improved guidance on applying for permission to work to provide clarity for claimants on what is expected
• updated information about the difference between working for a voluntary organisation and volunteering to make clearer that asylum seekers are able to volunteer
• new guidance template applied, and section and paragraph numbering removed in line with guidance requirements
The new section on volunteering is considerably clearer than the old version.
>> > Court of Justice finds that self-employed women have maternity rights: http://curia.europa.eu/juris/document/document.jsf;jsessionid=0A5397EAB01B564BCBF0A908AA87FB76?text=&docid=217904&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=15295724
The Court of Justice of the European Union has had to find that self-employed EU citizens retain rights of residence during their maternity period. Why on earth the government of the United Kingdom tried to argue they did not is one of those mysteries to which we’ll probably never know the answer. Particularly when the outcome of the case — C 544/18 HMRC v Dakneviciute — seemed legally inevitable and Brexit has highlighted the need for security of residence rights for women.
>>> Possible upcoming changes in the UK Visa Application process:
The Home Office has recently said that they would like to move away from requiring biometrics and document uploading for every stage once a document has been viewed once in a previous application
>> > Appellant can remain in UK to pursue EEA appeal even if lodged abroad:
Of course, if the appellant can get back in. The case is Isufaj (PTA decisions/reasons; EEA reg. 37 appeals) [2019] UKUT 283 (IAC). There is no right of admission but if admitted the appeal can be pursued from within the UK. Why the case gets reported for that when it was uncontentious — and some would say obvious — is a bit of a mystery. The other point on which the case is reported could be dealt with by an internal memo. The official headnote:
“(1) Judges deciding applications for permission to appeal should ensure that, as a general matter, there is no apparent contradiction between the decision on the application and what is said in the “reasons for decision” section of the document that records the decision and the reasons for it. As was said in Safi and others (permission to appeal decisions) [2018] UKUT 388 (IAC), a decision on a permission application must be capable of being under-stood by the Tribunal’s administrative staff, the parties and by the court or tribunal to which the appeal lies. In the event of such an apparent contradiction or other uncertainty, the par-ties can expect the Upper Tribunal to treat the decision as the crucial element.
(2) Although regulation 37(1) of the Immigration (European Economic Area) Regulations 2016 provides that a person may not appeal under regulation 36 whilst he or she is in the United Kingdom, where the decision in question falls within regulation 37(1)(a) to (g), once the appeal is instituted by a person who is then outside the United Kingdom, there is no statutory prohibition on the appeal continuing if the person concerned thereafter is physically present in the United Kingdom. It will, however, be for the Secretary of State to decide whether to give that person temporary admission for the purpose of attending an appeal hearing, since regulation 41 does not apply to such cases.”
>>> 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=2ahUKEwjhmsTV6O7kAhWQmBQKHSiyBz0QFjAAegQIARAB&url=https://www.gov.uk/government/publications/family-life-as-a-partner-or-parent-private-life-and-exceptional-circumstance&usg=AOvVaw0kB700rK_YDFGDFnWYSliZ
How UK Visas and Immigration staff consider claims on the basis of family life, private life, or exceptional circumstances.
"Changes from last version of this guidance
Minor update to amend LTR requirements to mirror rules."
>>> UKVI update: Nationality policy: Naturalisation as a British citizen by discretion: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwi6p76r6O7kAhUPmRQKHTuPCIQQFjAAegQIABAC&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/792970/naturalisation-as-a-british-citizen-by-discretion-v3.0ext.pdf&usg=AOvVaw1P6RBdxCJenOCkAjqy5UjX
Guidance on applications for naturalisation as a British citizen.
"Changes from last version of this guidance
Temporary admission has been replaced by immigration bail. Changed “temporary admission” to “immigration bail”.
Clarified that spouses and civil partners of British citizens in the armed forces should be considered under the criteria for spouses and civil partners of Crown servants."
>>> The status of EU immigration and asylum law after Brexit
The government’s stated aim is to leave the EU, with or without a deal, on 31 October 2019. If there is a deal, there will be a transitional period. During this time nothing will change and EU law will continue. Under the deal negotiated by Theresa May, that period would last until 31 December 2020. The period under any deal negotiated by Boris Johnson is likely to be the same or similar.
The more pertinent question, given that very little progress has been made towards concluding a deal, is what happens if there is a no-deal Brexit?
The UK will leave the EU by automatic operation of law on 31 October 2019. The Benn Act requires the Prime Minister (whoever that may be at the time) to seek an extension from the EU to 31 January 2020 if a deal has not been approved by Parliament before 19 October 2019.
Boris Johnson has suggested he will not comply with this Act. In any case, complying with the Act would not prevent no deal; merely delay it until January.
So what exactly is the status of EU immigration and asylum law in the UK after no deal?
EU free movement law after Brexit
The date the UK leaves the EU is referred to in Brexit legislation as “exit day”. Various things happen automatically on exit day.
Firstly, under section 2 of the European Union (Withdrawal) Act 2018, all UK legislation derived from EU law continues to have effect. This includes, for example, the Immigration (EEA) Regulations 2016 — the legislation that implements EU free movement law in the UK.
Directly effective EU rights, including those in the Free Movement Directive, also become part of UK law automatically on exit day (under section 4 of the Act). Where the EU legislation concerned is a directive, as is the case with much of the detail of free movement law, only rights which have been recognised by the Court of Justice of the EU prior to exit day become part of UK law. The supremacy of EU law continues in relation to pre-Brexit law so, as is the case now, where the 2016 Regulations and rights recognised under the Free Movement Directive are in conflict, the directive prevails (needless to say, the supremacy of EU law does not apply to post-Brexit UK law). As such, very little changes overnight on exit day.
That being said, from exit day onwards all this “retained EU law” can be changed in future by the UK Parliament, without any limits being imposed by EU law. So we will have to keep track of any amendments made.
What we already know is that on exit day the 2016 Regulations will be amended by legislation passed back in March 2019 by Theresa May’s government. One of the main ones is to abolish the rules on deporting EU citizens and replace them with a system more favourable to the Home Office.
Other changes will be made by the Immigration and Social Security Co-Ordination (EU Withdrawal) Bill. This bill has been revived recently following the Supreme Court’s decision to quash the prorogation of Parliament. Schedule 1 contains a list of EU immigration laws that would be repealed once that bill is passed and comes into force, which includes the 2016 Regulations.
EU asylum law after Brexit
Due to the Common European Asylum System, Brexit will also affect those claiming asylum in the UK.
Asylum law is based on a variety of international, European Union and domestic legislation. The international law — the Refugee Convention and the European Convention on Human Rights (ECHR) — will not be affected by Brexit. Despite the name, the ECHR is not an EU treaty. Domestic legal provisions — such as the asylum section of the Immigration Rules — will also remain substantially unchanged.
The EU law — namely the Qualification Directive and Procedures Directive — and EU-derived domestic law such as the Refugee of Persons in Need of International Protection (Qualification) Regulation 2006 which implement the Qualification Directive in the UK will become retained EU law on exit day in the same way as the 2016 Regulations.
The Qualification Directive and the UK regulations implementing them outline the criteria for determining asylum clams. However, as they are based on international treaties such as the Refugee Convention and ECHR which will remain unchanged by Brexit, the underlying law is unlikely to change substantially even if they are repealed after Brexit.
Some asylum legislation has already been earmarked for immediate repeal on exit day by those March 2019 regulations mentioned earlier. Anything which is not included in these regulations will become retained EU law and remain in place, until amended or repealed after Brexit.
An important example of legislation which will be repealed on exit day is the Dublin III Regulation. This is the piece of EU law which allows the UK to return asylum seekers to an EU country they passed through on their way to the UK. It is marked down for immediate repeal because it is meaningless without cooperation of other EU member states. Under transitional provisions, some parts of the Regulation will continue to apply to requests for family reunion which have been made, but not decided, before Brexit. However, for most purposes, the Regulation will no longer be part of UK law.
For a full list of the asylum-related EU legislation which will be revoked on exit day see here: http://www.legislation.gov.uk/uksi/2019/745/schedule/1/part/2/made Again, there may be more such changes in future, but anything not explicitly repealed is kept in force.
EU case law after Brexit
Case law refers to the decisions of courts and tribunals interpreting and applying legislation and common law rules. It often clarifies the meaning or effect of legal provisions and is frequently used by lawyers to support a particular interpretation or application of the law. Such cases set precedents that become part of the law, meaning that the same issue does not need to be litigated over and over again.
The Court of Justice of the European Union interprets and applies EU law. Its judgments are binding on UK courts (and, despite its habitual reluctance, the UK government).
This will end after Brexit. UK courts will not be bound by future Court of Justice decisions after exit day and will not be able to refer questions of EU law to that court.
UK courts “may have regard” to Court of Justice case law handed down after Brexit (and post-Brexit EU legislation, in fact) if they want. But they do not have to. It is essentially up to UK judges to decide if, and to what extent, certain provisions of EU law are to apply in the UK after Brexit. So to know which new EU cases are relevant to UK immigration law, we will have to keep an eye on the UK case law. They will not be automatically relevant, as they are now.
If a helpful Court of Justice case is handed down, lawyers can highlight this and seek to persuade the UK court or tribunal to follow it; in the same way that a Scottish lawyer might highlight a non-binding decision of an English court with a view to having it followed in the Scottish courts (or vice versa).
What about Court of Justice case law from before Brexit? This will apply when interpreting retained EU law, and all lower courts are required to follow it.
However, the Supreme Court can depart from this pre-Brexit case law if it wishes. This can be done in the same way that the Supreme Court can depart from its own case law i.e. when in the circumstances of the case “it would be right for it to do so”. For instance, when adhering to a previous decision “would produce serious anomalies” or other “plainly unsatisfactory” results; when there has been “a fundamental change in circumstances”; or when there is experience showing that the previous decision has resulted in “unforeseen serious injustice” (see Austin v Mayor and Burgesses of the London Borough of Southwark [2010] UKSC 28 at paragraphs 24 to 26 for further details). The test for departing from Court of Justice case law after Brexit will be the same.
>>> Restricted Certificates of Sponsorship (RCoS) applications made by 5 October can invoke the new Shortage Occupation List
The Immigration Rules are due to change on 6 October 2019, as heralded by statement of changes HC 2631. One particularly notable change will be the amendment of the Shortage Occupation List, with many roles being added to the list and some removed.
One advantage of a role being on the Shortage Occupation List is that no Resident Labour Market Test is required when advertising it. Generally, if an employer wants to sponsor a non-European worker for a Tier 2 work visa, they must first advertise the vacancy and demonstrate that there were no suitable settled workers. Roles on the shortage list do not come with this requirement, significantly lessening the administrative burden for sponsors.
Another big advantage of a role being on the list is to do with ‘Restricted Certificates of Sponsorship’ (RCoS). With some exceptions, an RCoS is required if an employer wants to sponsor a worker who requires entry clearance and is coming from abroad (or a dependent of a Tier 4 migrant who requires leave to remain and is switching to Tier 2). There is a monthly quota for RCoS, and a sponsor needs to submit an application by the 5th of each month to be considered in that month’s allocation. Roles on the shortage list get a boosting in the scoring system used to award RCoS — again making it better for employers to have the role being recruited for including on the list.
The shortage list is to expand on 6 October. Sponsors have to make their October RCoS applications by the 5th of October with a decision normally around the 12th.
A sponsor can therefore apply for a role which they know will be on the shortage list from 6 October, even though it isn’t when they actually apply. They do not have to wait until November to rely on the new list. So all’s well that ends well.
>>> How much does the Sopra Steria VIP biometric enrolment around London cost ?
From the Home Office, September 2019:
“The total cost of the requested VIP service for one person for post code in London is £ 5525.00”.
Other areas in the UK could be more expensive.
>>> CJEU: Child self-sufficient if supported by parent working without work permit: http://curia.europa.eu/juris/document/document.jsf?text=&docid=218484&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=1619761
The Court of Justice of the European Union has found that a child is self-sufficient in EU law even if supported only by the earnings of a parent who is working without permission to do so. The case is C 93/18 Bajratari.
The case involved an Albanian family living in Northern Ireland where the father and husband had held a residence card enabling him to work. He had ceased to meet the requirements for that card but it had not been revoked and he had carried on working. He continued to do so even after it did eventually expire.
The Court of Justice held:
“...a Union citizen minor has sufficient resources not to become an unreasonable burden on the social assistance system of the host Member State during his period of residence, despite his resources being derived from income obtained from the unlawful employment of his father, a third-country national without a residence card and work permit.”.
>>> Did you know that, when it comes to determining settled status eligibility of non-EU spouses of EU citizens, the Home Office considers the beginning of the marriage as the beginning of the residency, completely disregarding time previously spent lawfully residing in the UK?
Unfortunately, that is how it works. The EU Settlement Scheme considers the qualifying time of a non-EU spouse to begin once the family relationship with their EU citizen sponsor is established (i.e. at the point of marriage).
This mirrors the way the non-EU spouse would be treated under the Free Movement Directive / EEA Regulations; the journey to permanent residence begins at the point of marriage. Under EU law, the non-EU citizen cannot derive any residence rights until they be-come a family member.
The EU Settlement Scheme takes the same approach, disregarding a person’s lawful UK residence (for example, time spent as a Tier 2 worker) before they became a family member. Surprisingly, this does not offend current EU law principles.
MAJOR UPDATES - VARIOUS UK BA GUIDANCES
>>> EU Settlement Scheme caseworker guidance: https://www.gov.uk/government/publications/eu-settlement-scheme-caseworker-guidance
"Changes from last version of this guidance
Amendments have been made to reflect the changes to Appendix EU made in Statement of Changes in Immigration Rules: HC 2631, laid on 9 September 2019.
A new section has been added on multiple applications."
>>> EU Settlement Scheme: family and travel permits: https://www.gov.uk/government/publications/eu-settlement-scheme-family-permits
Guidance for entry clearance officers on how to assess and decide applications for EU Settlement Scheme family and travel permits made under Appendix EU (Family Permit) of the Immigration Rules.
This guidance is updated to include:
• the EUSS travel permit
• new eligibility requirements for EUSS family permit applications where the relevant EEA citizen is an Irish citizen or a relevant naturalised British citizen
• the requirement to evidence parental dependency for an EUSS family permit where the relevant EEA citizen is under 18
• new suitability provisions in Appendix EU (Family Permit)"
>>> UKVI update: Applying for a UK visa: approved English language tests (1 October 2019): https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=3&cad=rja&uact=8&ved=2ahUKEwjEvb-70oDlAhVABGMBHYwsASkQFjACegQIAhAC&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/823155/Approved_Secure_English_Language_Tests_and_Test_Centres_-_Website.pdf&usg=AOvVaw0MFoUhjI5Og0PcYs9bDjgT and https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwjN9M7L0oDlAhWxAWMBHYeXCPkQFjAAegQIAhAC&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/834327/2019-10-01_-_Approved_secure_English_language_tests.pdf&usg=AOvVaw3gSCUnzKtTX1m9tWfwd7Go
Added the approved secure English language tests. Updated the list of approved tests and providers.
>>> UKVI update: Knowledge of language and life in the UK (1 October 2019): https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwjKlYDk0oDlAhXWA2MBHfVBBJsQFjAAegQIABAC&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/834967/KoLL-v22.0-ext.pdf&usg=AOvVaw0POSRclro-tmXOZQF-qjx9
Changes to reflect the changes to the Immigration Rules and Nationality Regulations which went live on 1 October 2019."
>>> UKVI update: Indefinite leave to remain: calculating continuous period in UK (1 October 2019): https://www.gov.uk/government/publications/indefinite-leave-to-remain-calculating-continuous-period-in-uk
Changes from last version of this guidance
This version:
• adds the exemption for Tier 2 (General) applicants in PhD occupations who have conducted research overseas
• adds minor clarifications and corrections"
>>> Tier 1 (Exceptional Talent)
https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwiFxK2i04DlAhUeA2MBHT5bCTQQFjAAegQIABAC&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/791803/T1__ET__Guidance_03_2019.pdf&usg=AOvVaw15Nip7m74-CxuwRzyBjZ_
- and
https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwici_PJ04DlAhWNnhQKHWxABSEQFjAAegQIABAC&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/835472/tier-1-exceptional-talent-v19.0ext.pdf&usg=AOvVaw1HTQG7u0b-wDe6TklU-4dw
Policy and Guidance update to address the changes in the Rules from 01 October 2019
>>> English language requirement:family members under Part 8, Appendix FM and Appendix Armed Forces: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwjX0aT104DlAhUeA2MBHT5bCTQQFjAAegQIARAC&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/826360/IDI-English-language-req-v3.0ext.pdf&usg=AOvVaw3ozR6C2L0sGBDKEyn9HXCR
Changes from last version of this guidance
To reflect the Statement of Changes to the Immigration Rules HC published on 01 October 2019 for the removal of Appendix O: Approved English language tests to the Immigration Rules.
>>> Tier 1 (Investor) of the Points Based System - Policy Guidance: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwjG6bCX1IDlAhUMWxoKHRGFBk4QFjAAegQIARAC&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/790207/Tier_1__Investor__Policy_Guidance_29_March_release_0319.pdf&usg=AOvVaw1ySFFrs2FDaEsbTN4U-saJ
>>> Tier1 (Entrepreneur) Guidance: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwjA1PSu1IDlAhURUhoKHdWlCpwQFjAAegQIABAC&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/789580/Tier_1__Entrepreneur__Policy_Guidance_-_0319.pdf&usg=AOvVaw2ctMSyprG8I9axAe5f40tn
>>> DNA Policy Guidance: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwio-4bN1IDlAhWdDWMBHbwBAhAQFjAAegQIABAC&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/835508/DNA-v3.0ext.pdf&usg=AOvVaw3dazl4yIxoLq8H81VEMMdq
Changes from last version of this guidance
Page 7, the last paragraph was reworded to reflect that it may not always be possible for both parents to provide DNA samples.
Page 17, additional letter templates have been added.
Page 22, a new section has been added on retaining DNA evidence.
>>> Sole responsibility (Children) UK BA Guidance: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/263240/child_gen.pdf
>>> High Court upholds immigration control exemption to personal data rights: https://www.bailii.org/ew/cases/EWHC/Admin/2019/2562.html
Campaigners have lost a High Court case challenging the “immigration exemption” to personal data rights. The judgment is R (Open Rights Group & the3million) v Secretary of State for the Home Department [2019] EWHC 2562 (Admin).
>>> New Shortage Occupation List – Appendix K - has been published: https://www.gov.uk/guidance/immigration-rules/immigration-rules-appendix-k-shortage-occupation-list
>>> 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=2ahUKEwi-zf23s4rlAhWIA2MBHZ2LCw8QFjAAegQIARAC&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/825737/tier-4-guidance-v47.0-ext.pdf&usg=AOvVaw1O8sr4WJx1MRvQkY26QpF9
>>> Court of Appeal clarified the important points on human rights in immigration cases:
https://www.bailii.org/ew/cases/EWCA/Civ/2019/1630.html
In GM (Sri Lanka) v Secretary of State for the Home Department [2019] EWCA Civ 1630, handed down on Friday, the Court of Appeal provides a helpful summary of where we currently stand with private and family life cases under Article 8 of the European Convention on Human Rights.
The court outlines six “general observations” about the proportionality test, firing a few warning shots at both the Home Office and at those who seek to rely on private and family life to stay in the UK:
1. The Immigration Rules and section 117B must be construed to ensure consistency with Article 8.
2. The Home Office is entitled to outline the weight to be applied to various factors in the proportionality assessment. Courts and tribunals must accord “considerable weight” to the policy of the Home Office, including the policy weightings set out in section 117B. However, to ensure consistency with the Human Rights Act 1998, this section must have injected into it a limited degree of flexibility so that its application always leads to an end result consistent with Article 8.
3. The test for an assessment outside the Immigration Rules is whether a “fair balance” is struck between competing public and private interests. This is a proportionality test. References in the Rules and Home Office policy to a case having to be “exceptional” before leave to remain can be granted must be construed as not imposing any incremental requirement over and above that arising out of the application of an Article 8 proportionality test, for instance that there be some highly unusual or unique factor or feature.
4. The proportionality test is to be applied on the circumstances of the individual case. The facts must be evaluated in a “real world” sense.
5. There is a requirement for proper evidence. Mere assertion by an applicant as to his/her personal circumstances will not necessarily be accepted as adequate if unsupported by documentary evidence.
6. The list of relevant factors to be considered in a proportionality assessment is “not closed”. There is in principle no limit to the factors which might, in a given case, be relevant to an evaluation under Article 8, which is a fact sensitive exercise.
The Home Office is reminded that the correct test is proportionality, not exceptionality. The correct question is not whether there are any exceptional circumstances, but whether a fair balance has been struck between the competing interests. Officials are also reminded the policy outlined in section 117B is not necessarily sacrosanct.
The appellant are reminded that cases will always be fact specific. Proper evidence of why the Home Office decision disproportionately interferes with the person’s right to private and family life is therefore needed. Mere assertion will not get you very far. Expert reports — from country of origin experts about the conditions likely to be faced on return, or from a psychologist or psychiatrist about the impact of return on any children or vulnerable adults involved — are invaluable. They help to discharge the obligation to provide “proper evidence”. They are, however, expensive so cannot be obtained by everyone.
>>> UKVI Update: 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=2ahUKEwi1mePlopHlAhVGCxoKHc92B-EQFjAAegQIARAC&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/836921/2019.06.05_-_MAAP_guidance_FINAL1.pdf&usg=AOvVaw2l4NERpRe3TJ-zMuskbAFT
New version of guidance on how to apply to come to the UK as a Tier 2 skilled worker or to extend your stay.
>>> UKVI update: new guidance on refusals for false representation: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwiey6KRo5HlAhUBzhoKHQj6CU8QFjAAegQIAhAC&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/837104/false-representation-v1.0ext.pdf&usg=AOvVaw1zjmkszLbapWerqCiCx29n
The guidance states:
“This is the first edition of this guidance. False representation and deception were previously covered in amalgamated guidance on the general grounds for refusal.”
>>> UKVI update: English language requirement guidance for Tiers 1 and 2: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwjfn4e9o5HlAhUMxoUKHcqWAroQFjAAegQIARAC&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/793097/english-language-v15.0.pdf&usg=AOvVaw21o5sVDX3YvIFpemRUcaW5
Changes made to reflect the removal of Appendix O from the Immigration Rules and changes to the English Language requirements for doctors, dentists, nurses and midwives applying under Tier 2 (General).
Namely,
“Doctors, dentists, nurses and midwives applying under Tier 2 (General) are exempt from having to meet the English language requirements for visa purposes where they have passed a valid English language test which is accepted by a health professional regulatory body. These are:
• General Medical Council
• General Dental Council
• Nursing and Midwifery Council
Where an applicant is applying for leave in association with a certificate of sponsorship in one of the following SOC codes:
• 2211 – Medical Practitioners
• 2215 – Dental Practitioners
• 2231 – Nurses; and
• 2232 – Midwives
You do not need to make any assessment of their English language as this will have been undertaken by their regulatory body as part of their registration.”
>>> Brexit threat to refugee family reunion rights
If and when Brexit happens, the UK will no longer take part in the “Dublin” system for transferring asylum seekers from one EU member country to another better placed to handle the asylum claim. A parliamentary committee says today that this will mean “the loss of a safe, legal route for the reunification of separated refugee families in Europe”.
The House of Lords EU Committee says that it is “particularly concerned about a potential reduction in the reunion rights of vulnerable unaccompanied children”.
Its report on Brexit: refugee protection and asylum policy: https://publications.parliament.uk/pa/ld201719/ldselect/ldeucom/428/42802.htm warns that the sudden end to the Dublin system that would occur under a no deal exit would leave asylum seekers waiting for transfer to the UK in “legal limbo”.
>>> New judicial review and injunctions policy: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwiw3Nnk8pvlAhWKFxQKHdHaCJ0QFjAAegQIABAC&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/831851/chapter-60-judicial-reviews_v19.0.pdf&usg=AOvVaw3SDLOyiTj-x1q-fmyRnIGD
There are two amendments to version 19.
There is a change in the section on “The notice period” at the 1st para at page 14, where under the two bullet points the HO has added: “These notice periods apply to all persons notified of a removal window, whether that is a window of 3 months or a limited notice of removal.”
There is additional wording that has been added by the Home Office at the request of Medical Justice as a consequence of their challenge to the removal windows policy. This relates to certified third country cases. Where there is a subsequent certification of a human rights claim a further notice period is triggered of at least 5 working days. The additional wording is at the end of the 3rd para at p.21 and states: “This applies whether or not the person has previously been served with notice of a removal window (and whether or not the removal window is still open), a limited notice of removal, or notice of removal directions.”.
>>> Immigration announcements in the Queen’s Speech
The main elements of the Bill are:
• Ending the free movement of EU citizens under UK law.
• The power to align the treatment of EU citizens arriving after January 2021 with non-EU citizens, and to maintain the treatment of EU citizens resident in the UK before exit day.
• Clarifying the immigration status of Irish citizens in the UK once the free movement rules are removed from UK law.
• Confirming the deadline for applications to be made under the EU Settlement Scheme.
• Giving EU citizens and their family members who apply a right of appeal against EU Settlement Scheme decisions.
• The power to make changes to the current rules for access to benefits and social security coordination for EU nationals.
A right of appeal for EU citizens denied settled status would certainly be welcome. At the moment the only real remedy is administrative review.
The Bill is also said to be “paving the way for a new points-based immigration system”. Priti Patel told the Mail on Sunday over the weekend that migrants will be incentivized to work outside London and the South-East under this system.
The government separately plans to legislate for tougher sentences for foreign criminals who re-enter the UK in breach of a deportation order. A Foreign National Offenders Bill would “increase the maximum penalty for foreign national offenders who return to the UK in breach of a deportation order”. The briefing does not say by how much, or whether this is really a big problem.
Finally, a Windrush Compensation Scheme (Expenditure) Bill is planned to put the existing system of compensation for wronged Commonwealth citizens on a statutory footing.
This Queen’s Speech is a bit of a pantomime, in the sense that the government has a majority of minus 45 and almost no chance of passing any of this legislation as things stand. But it is quite possible that a general election in the coming months would see the government gain a majority and press on with the measures announced in the speech.
>>>Plague of incorrect Biometric Residence Permits causes havoc across education sector
The Tier 4 students have been hit with a plague of incorrectly printed Biometric Residence Permits (“BRPs”) this year. From incorrectly spelt names to incorrect statements of working rights, it is common for sponsors to spot a handful of incorrect BRPs each year. However, one university reports that over 500 incorrect BRPs were issued to its students this autumn.
Institutions are being advised that the BRP errors team have a four-week delay on processing corrections, leaving thousands of students with incorrect working restrictions, or no ability to work, during this time.
Many sponsors wrongly believe that the duty to report an incorrect visa rests solely with the student. This is partly correct in that Points Based System migrants also have a duty to report an incorrect BRP within 14 days of receiving the document. Yet in line with the paragraph 2.9 of the Tier 4 sponsor guidance, a sponsor has a duty to notify the Home Office if “it becomes aware that any of the students it is sponsoring has been granted leave with the incorrect conditions of stay, for instance if they have mistakenly been granted permission to work”.
Despite there being a positive obligation on sponsors to report incorrect BRPs, the Home Office, rather unhelpfully, never saw fit to include an option to report the issue under the “drop downs” available on the online sponsor management system.
Until now. The sheer volume of incorrectly issued BRPs this year has led to the following message appearing on the sponsor management system:
“A new migrant activity reporting option has been introduced to SMS. Under ‘Change in student circumstances’ you can now report when a student has been granted incorrect conditions of leave, for instance work permissions, as set out at paragraph 2.9 of the ‘Sponsorship Duties’ guidance document. Please accept our apologies for this omission to date.”
>>> USA New Customer Journey – Appointment Management System (AMS) update
From the VFS:
“As of 10 October, we have introduced VFS Global’s Appointment Management System (AMS) in the USA.
Some of you may be familiar with the system from other Regions. With AMS, your customers will be able to schedule an appointment, upload supporting documents and purchase value added services on the VFS Global shopping cart directly. This will offer the customer a streamlined online application process.
Because AMS is integrated with AccessUK, we encourage you to use AccessUK instead of Visa4UK here onwards. If you apply with Visa4UK, you will no longer have the option to purchase any services online. The AccessUK portal can be located on the Gov.UK website.
AMS introduces the opportunity for the customer to self-upload documents as a free-to-use option. From 04 November, assisted scanning packages will be available for sale online if the customer so chooses to have the documents scanned at the Scan Hub. We will send out another announcement with those service prices and inclusions as we get closer to the date.”.
>>> UKVI update: using the ‘EU Exit: ID Document Check’ app – iPhone at last: https://www.gov.uk/…/using-the-eu-exit-id-document-check-ap…
From the UK BA:
‘The ‘ID Document Check’ beta app is now available for iPhone 8 and newer models. The app will be available on the iPhone 7 and 7 Plus shortly following an upcoming iOS software update.You’ll need:iPhone 8 or 8 Plus or newer modeliOS 13.1 or newer - to find the software version installed, go to Settings > General, then Aboutat least 120MB of storage space to install the appto be connected to 3G, 4G or WiFiThe app will need access to your phone’s camera. If the app does not request access, please enable access in your settings.’
>>> New EUSS administrative review guidance: https://www.google.com/url…
The document states the following change:
“Following a change to the Immigration Rules the time limit for bringing an application for administrative review is now 7 days where the person is in immigration detention on the date they receive notice of their decision.”
>>> New curtailment guidance: https://www.google.com/url…
This guidance includes a new section on curtailing leave obtained under the EU settlement scheme on pages 24-25.
>>> UKVI update: prosecution under section 2: failure to produce immigration document: https://www.google.com/url…
The document notes the following changes:
• New template
• Updated links
• Housekeeping changes
>>> The Home Office has just published a statement of changes to the Immigration Rules: https://www.gov.uk/government/publications/statement-of-changes-to-the-immigration-rules-hc-170-24-october-2019
EXPLANATORY MEMORANDUM TO THE STATEMENT OF CHANGES IN IMMIGRATION RULES PRESENTED TO PARLIAMENT ON 24 OCTOBER 2019 (HC 170): https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwjeiabcs7XlAhViAGMBHb7ECSYQFjAAegQIARAB&url=https://www.gov.uk/government/publications/statement-of-changes-to-the-immigration-rules-hc-170-24-october-2019&usg=AOvVaw2jeYTAMfM-I4fYbmVXYT8d
Important points:
EU Settlement Scheme
7.6 The changes amend the Immigration Rules for the EUSS, contained in Part 1 of Appendix EU, in two main ways, for a ‘no deal’ Brexit:
• To reflect the fact that applications by certain categories of family members who, after Brexit, join EEA citizens resident here before Brexit will need to be able to rely on residence in the UK and Islands, which began after Brexit; and
• To reflect the policy published on 6 December 2018 (and updated on 28 March 2019)4 about the deadline by when applications by such family members will need to be made:
- by 29 March 2022, where the relationship existed before Brexit and continues to exist when the application is made, in the case of spouses, civil partners, durable partners, children, parents and grandparents, and of children born overseas after Brexit; and
- by 31 December 2020, where the relationship as a spouse, civil partner or durable partner was formed after Brexit and continues to exist when the application is made, or from other dependent relatives.
7.7 The deadline in a ‘no deal’ scenario for applications by existing family members overseas at Brexit, who wish to rely on pre-exit residence in the UK and Islands in applying for status under the EUSS, will be 31 December 2020 (which will also be the deadline, in that scenario, for applications by those in the UK at Brexit), with scope in any case for a late application by a person with reasonable grounds for missing the deadline. Otherwise, they may be able to return to the UK by 29 March 2022 and apply then, based on post-exit residence, for status under the scheme.
7.8 The changes also amend the Immigration Rules for the EUSS family permit, contained in Appendix EU (Family Permit), to reflect the fact that, after a ‘no deal’ Brexit, there will need to be scope for relevant non-EEA national family members to apply for an EUSS family permit to join an EEA citizen here with EUSS status, where the relevant family relationship was formed after Brexit as well as where it was formed before.
European Temporary Leave to Remain Scheme
7.9 The changes introduce the Immigration Rules for the European Temporary Leave to Remain Scheme, in Part 2 of Appendix EU, which will become operative on a ‘no deal’
Brexit. The scheme will enable EEA citizens, and their close family members, moving to the UK after a ‘no deal’ Brexit and before the start of the new points-based immigration system from January 2021, to obtain a UK immigration status so that they can continue to work or study here as they do now, for a temporary period. It will provide EEA citizens who move to the UK after a ‘no deal’ Brexit, and their employers, with greater certainty during that transitional period, and will ensure that they have a secure UK immigration status before the introduction of the new system.
7.10 The main features of the Euro TLR scheme will be as follows:
• Applications will be made within the UK, will be free of charge and will involve a simple online process and identity, security and criminality checks;
• EEA citizens applying under the scheme by 31 December 2020 will, if their application is successful, be granted a period of 36 months’ limited leave to remain in the UK, running from the date the leave is granted;
• Non-EEA national close family members (spouses, partners and children under the age of 18) who are in the UK lawfully (other than as a visitor) may, from 4 December 2019, apply for Euro TLR and, if their application is successful, they will
be granted limited leave to remain for the remaining duration of the Euro TLR held by the relevant EEA citizen. From 1 January 2021, EEA citizen close family members will be able to apply for Euro TLR on that basis;
• Euro TLR will not be extendable. Euro TLR holders wishing to stay in the UK after their Euro TLR leave expires will need to make a further application and qualify under the new points-based immigration system. If they do, and this is in a route
under the new system which leads to settlement (indefinite leave to remain) in the UK, their period of Euro TLR will count towards the qualifying residence period for settlement under that route;
• Where an individual who holds Euro TLR does not meet the requisite criteria under the new points-based immigration system or otherwise have a right to remain in the UK, they will be expected to leave the UK when their Euro TLR expires; and
• An applicant refused Euro TLR on the basis of an application made from 4 December 2019 will be able to apply under Appendix AR (EU) for an administrative review of that decision.
Criminality rules
7.4 It is appropriate that, in a ‘no deal’ scenario, when we leave the EU, we better protect the public by applying UK conduct and criminality thresholds in considering the refusal of entry, deportation and exclusion of EEA citizens and their family members, and when considering the cancellation and curtailment of leave granted to EEA citizens and their family members. In particular, the UK criminality thresholds provide that such decisions may be made where this is conducive to the public good. The changes therefore:
• Apply current UK conduct and criminality thresholds to EEA citizens and their family members moving to the UK after Brexit, and to Turkish workers, business persons and their family members whose applications for leave under the European Communities Association Agreement (ECAA) are decided after Brexit. This is reflected in changes to Part 9 of the Immigration Rules (general grounds for refusal), and in the suitability provisions for Euro TLR, set out in Part 2 of Appendix EU;
• Apply those thresholds to the post-exit conduct of EU citizens living in the UK immediately before Brexit or who have EUSS leave, and their family members, and of Turkish workers, business persons and their family members granted leave
under the ECAA before exit, and to their pre-exit conduct where their conduct after exit results in a sentence of imprisonment. This is reflected in changes to Part 9 of the Immigration Rules, and to the suitability provisions for the EUSS, set out in Part 1 of Appendix EU, and for the EUSS family permit, set out in
Appendix EU (Family Permit). Otherwise, their pre-exit conduct will continue to be considered under the EU law public policy tests (in the case of EU citizens, Turkish workers and their family members), or applying UK criminality thresholds subject to the ECAA standstill provision (in the case of Turkish business persons and their family members); and
• Apply various provisions in Part 9 of the Immigration Rules in order to ensure that, for Turkish workers, business persons and their family members, applications for entry clearance or limited leave by virtue of the ECAA can be refused, and limited leave granted by virtue of the ECAA can be cancelled or curtailed, on the grounds of conduct committed after exit day, or before exit day where the relevant person has received a sentence of imprisonment based on postexit conduct or did not have entry clearance or limited leave by virtue of the ECAA immediately before exit day. This reflects amendments made to the ECAA
by the Nationality, Immigration and Asylum Regulations 2019 (S.1. 2019/745) and the Immigration (Amendment) (EU Exit) Regulations 2019.
7.5 In line with the citizens’ rights agreements reached with the other (non-EU) EEA countries (Iceland, Liechtenstein and Norway) and with Switzerland, the pre-exit conduct of citizens of those countries and their family members resident in the UK
before Brexit will continue in all cases to be considered under the EU law public policy tests.
>>> Court of Appeal reopens possibility of asylum for Ukrainian draft evaders: https://www.bailii.org/ew/cases/EWCA/Civ/2019/1756.html
The Court of Appeal has now found that the Upper Tribunal erred in law in its consideration of the objective evidence and documents fundamental to the claim. The case is PK (Ukraine) v Secretary of State for the Home Department [2019] EWCA Civ 1756.
Draft evasion penalties needs “proper analysis
”The main issue raised in the Court of Appeal was whether a punishment for draft evasion must reach minimum severity in order for a draft evader to be considered as a refugee for the Convention reasons. The discrepancy between Upper Tribunal’s approach and the Secretary of State’s guidance addressing the question of “minimum severity” was also argued.
Background evidence on the situation in Ukraine included an Amnesty International report, Breaking Bodies, a US State Department report, and a third review by the UN human rights watchdog. The Court of Appeal accepted that the Upper Tribunal failed satisfactorily to engage with these documents (having criticized the First-tier Tribunal for the exact same error).
Sir Rupert Jackson also held that “whether a draft evader facing a non-custodial punishment for failing to serve in an army which regularly commits acts contrary to IHL is entitled to refugee status” was a question of “overarching importance”. The issue had “not received proper analysis” from the tribunal.
Therefore, the appeal was allowed and the case was remitted to the Upper Tribunal.
>>> Tribunal finds “centre of life” integration and intention tests irrelevant in Surinder Singh cases:
The Upper Tribunal has finally, some six years after the test was introduced into domestic regulations, taken a good, hard look at the “centre of life” test applied by the Home Office to Surinder Singh cases.
The new case is ZA (Reg 9. EEA Regs; abuse of rights) Afghanistan [2019] UKUT 281 (IAC). Unsurprisingly the tribunal finds there is no basis for the centre of life test at all in EU law and it is not to be applied when judges assess Surinder Singh cases. The determination goes through cases including Surinder Singh itself, Akrich, O and B, Emsland Stärke (on abuse of rights) and the following helpful guidance is given at paragraph 75:
“(i) Where an EU national of one state (“the home member state”) has exercised the right of freedom of movement to take up work or self-employment in another EU state (“the host state”) , his or her family members have a derivative right to enter the member state if the exercise of Treaty rights in the host state was genuine;
(ii) “genuine” must be interpreted in the sense that it was real, substantive, or effective [not in the sense of the opposite of false or untrue or for that matter, tainted by dishonesty];
(iii) An analysis of “genuine” residence cannot involve the consideration of the motives of the persons who moved except in the limited sense of what they intended to [do] in the host member state
(iv) Whether family life was established and/or strengthened, requires a qualitative assessment which will be fact-specific; the burden of doing so lies on the appellant;
(v) There must in fact have been an exercise of Treaty rights; any work or self-employment must have been “genuine and effective” and not marginal or ancillary;
(vi) The assessment of whether a stay in the host state was genuine does not involve an assessment of the intentions of the parties over and above a consideration of whether what they intended to do was in fact to exercise Treaty rights;
(vii) There is no requirement for the EU national or his family to have integrated into the host member state, nor for the sole place of residence to be in the host state; there is no requirement to have severed ties with the home member state; albeit that these factors may, to a limited degree, be relevant to the qualitative assessment of whether the exercise of Treaty rights was genuine;
(viii) The requirement to have transferred the centre of one’s life to the host member state is not a requirement of EU law, nor is it endorsed by the CJEU;
(ix) If it is alleged that the stay in the host member state was such that reg. 9 (4) applies, the burden is on the Secretary of State to show that there was an abuse of rights.”
The big question is whether the Home Office will amend the EEA Regulations to get rid of the offending centre of life test and other irrelevant considerations. Probably not. Ministers and civil servants seem hell bent on preventing family members of British citizens from living in the UK wherever possible. Applications will continue to be refused by immigration officials on a legally incorrect basis but those with the resources to appeal ought to be able to get a significant number of such cases overturned at the tribunal.
>>> New Long Residence guidance: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwjC6rzA68PlAhViAGMBHc7UCOcQFjAAegQIABAC&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/605764/long-residence-v15_0.pdf&usg=AOvVaw34mIA-4uU9yX5WSSPhU_Jw
The document states:
"Changes from last version of this guidance
• Events that break continuous residence: reference to ‘31st October 2016’ deleted and replaced with ‘24 November 2016’
• Time spent outside the UK : reference to ‘6th October 2016’ deleted and replaced with ‘24 November 2016’
• Breaks in lawful residence : amendment to first and last bullet point in second paragraph
• Applications made before 24 November 2016 amendment to first and last bullet point in second paragraph"
>>> New guidance documents for Tier 2, Tier 4; new endorsing bodies for innovator and start-up visas
Tier 2 sponsor guidance and RCOS allocation data
New Tier 2 sponsor guidance was published.
Guidance for sponsors: a long list of changes is at pages 13-19 : https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwiY4ozW7MPlAhUPCRoKHfcoBNQQFjAAegQIABAC&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/823766/Appendix_D_07-2019.pdf&usg=AOvVaw07jjj8PNonNlIhxE9EaXL_
Appendix A: The document lists the following changes:
• Table 5 (additional information to sponsor migrants in digital technology shortage occupations), and other references to digital technology occupations, have been deleted following changes to the Immigration Rules on 6 October 2019 – see ‘Digital technology shortage occupations’ below for further information
• cover page and contents page added
• a number of clarifications and minor drafting and formatting amendments
• links updated or corrected
Appendix
• Part 1b: clarification of the circumstances in which a Tier 2 or Tier 5 sponsor is required to check the migrant’s date of entry to the UK
• Part 2g-h: updated to include reference to the GOV.UK ‘Teaching Vacancies’ online job-search service
• Part 4b and 4d: text stating that it is not necessary to retain evidence of qualifications or relevant professional registration for contractual service suppliers or independent professionals deleted, as this did not accurately reflect the Immigration Rules or sponsor guidance
• other minor housekeeping changes
Tier 4 guidance: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwjnsN7-7MPlAhVOyhoKHdFLDwwQFjAAegQIABAC&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/836519/tier-4-guidance-v48.0-ext.pdf&usg=AOvVaw3zVLiHj6zNyRaj1aYbDuzx
The document lists the following changes:
• Links have been updated throughout the document to make it easier for students and sponsors to navigate
• Additional guidance has been included to make it clear that students may be asked to attend more than one credibility interview
• Additional guidance has been included to clarify that when an applicant is switching into the student route from another points-based system route the new course must start within 28 days of the expiry of their permission to stay.
• The reference to the applicant’s legal guardian being named on the birth certificate has been removed as this isn’t applicable and ensures the guidance is consistent with the Immigration Rules.
• A clarification has been made to confirm that the period before the course starts is considered to be outside of term-time and therefore students who are permitted to work are able to so on a fulltime basis during this period.
• References to Tier 1 (Graduate Entrepreneur) have been removed following the closure of this route. These have been replaced with ‘Start-Up migrant’. Additionally, guidance has been added that confirms that these applicants can undertake self-employed work whilst awaiting a decision on their application.
• The exemptions to academic progression have been updated to clarify that Tier 4 students studying a PhD or doctoral qualification are able to apply for leave to remain from within the UK where they are extending in order to continue studying the course they had undertaken in their last grant of leave.
New endorsing bodies for innovator and start-up visas
The updated lists can be accessed on the government website here (innovator): https://www.gov.uk/government/publications/endorsing-bodies-innovator/innovator-endorsing-bodies and here (start-up): https://www.gov.uk/government/publications/endorsing-bodies-start-up/start-up
>>> Home Office admits double counting in the EU settlement statistics
The Home Office has confirmed that it counts repeat applications to the EU Settlement Scheme as new applications. It appears that thousands of repeat applications from EU citizens already granted pre-settled status have been counted towards the total number of applications. This makes Home Office statistics unreliable and raises questions over the integrity of its reporting.
What should the Home Office do now?
Firstly, it should confirm whether the system allows only one repeat application, or multiple.
Secondly, the number of repeat applications needs to be reported separately from new applications. Re-applications and re-applicants also need to be separated in the statistics if multiple applications are allowed. Repeat applications are to be expected from pre-settled status holders, but multiple applications are not.
Thirdly, and most importantly, re-application outcomes need to be reported separately and scrutinized. Should a repeat application outcome be anything but a grant of settled status, it would raise questions over the Home Office assurances that nobody is being refused on eligibility grounds.
As Madeleine Sumption, director of the Migration Observatory at Oxford University, says in the Financial Times: “the longer we don’t have that data, the more meaningless the statistics will become”.
>>> Detainees with indefinite leave to remain not entitled to Home Office accommodation: https://www.bailii.org/ew/cases/EWHC/Admin/2019/2709.html
An immigration detainee who has indefinite leave to remain must apply to their local council for housing benefit rather than for a bail address or asylum support provided by the Home Office. R (AT (Guinea))) v Secretary of State for the Home Department [2019] EWHC 2709 (Admin) is about the interaction between mainstream benefits for people not subject to immigration control, and support for those in the immigration system. AT unusually fell into both groups; he had previously been granted indefinite leave to remain but had claimed asylum when the Home Office tried to deport him.
Entitlement to mainstream benefits
AT was granted bail in principle by the First-tier Tribunal on three occasions. As is often the case, the judge was happy for AT to be released into the community, but wanted him discharged to a stable address. Unfortunately, AT was not able to provide that for himself, so he applied to the Home Office for asylum accommodation under section 95 of the Immigration and Asylum Act 1999.
When rejected, he appealed that decision to the asylum support arm of the First-tier Tribunal. The appeal was dismissed on the ground that he was not “destitute” within the meaning of the legislation because he could apply for support from his local authority.
Nigel Poole QC, sitting as a deputy High Court judge, agreed with the specialist social support judge:
“The Claimant was, until 22 January 2019, a person with indefinite leave to remain. Accordingly, whilst the appeal against his deportation order was pending, he was not under “immigration control” for the purposes of the 1999 Act, and therefore he was not excluded from eligibility to benefits under s.115 of the 1999 Act. Those benefits included housing benefit. Thus, the Claimant was, at all relevant times, not excluded from eligibility for housing benefit and other social security benefits. As such he had the means of obtaining adequate accommodation upon his release from detention, were that to occur. Under s.95(3)(a) of the 1999 Act he was not destitute. Accordingly, he was not entitled to the provision of support under that section.”
For the same reasons, the judge also concluded that AT was not entitled to bail accommodation under Schedule 10 of the Immigration Act 2016:
"For the avoidance of doubt, it is clear in my judgement that Schedule 10 did not apply at the earlier date of 16 May 2018. At that time the Claimant was granted bail on condition of being offered schedule 10 accommodation. He was however entitled to benefits and so would have been able to support himself at an address if one had been specified. Further, since no specific address was identified in the bail application or grant of bail, it is difficult to see how Schedule 10 would be engaged, notwithstanding the reference to it in the condition for bail granted by the First-tier Tribunal."
The judge was also quite critical of AT for having failed to make proper enquiries about local authority support:
“I have seen little evidence that the Claimant took steps to secure benefits or accommodation support to which he was entitled. Some correspondence has been provided from after the First-Tier Tribunal’s decision that s.95 did not apply, but there is generally a lack of evidence of timely or sustained engagement with the local authority or other authorities and agencies. It was not argued before me that the Claimant would not have been granted benefits or which he was potentially entitled. I have not been provided with evidence that the Secretary of State obstructed the Claimant from seeking benefits and support to which he was potentially entitled.”
As a result, Nigel Poole QC rejected AT’s claim that the Home Office had behaved irrationally when refusing to provide him with accommodation.
He also rejected AT’s separate claim that he had been unlawfully detained despite the serious delays in obtaining travel documents from the Guinean authorities highlighted by AT’s representatives. In this case, travel documents were authorised in “early 2019” but had not been provided by the time of the hearing in September.
Home Office support as a last resort
This case seems to suggest that having indefinite leave to remain makes it more difficult to obtain a bail address. AT was granted accommodation as a failed asylum seeker quickly once his asylum appeal had been refused and a deportation order made against him. However, we know from other cases (such as DM (Tanzania) that the process of obtaining bail accommodation from the Home Office is incredibly slow. It appears that AT did not appreciate the need to apply for housing benefit and that he could have applied for a grant of bail conditional on the local authority providing him with housing support.
The important lesson to take away from this judgment is that the High Court will not look kindly on claims brought by people who blame the Home Office for failing to provide bail accommodation before they have exhausted other types of social assistance.
>>> Tier 1(Investor) 1M warning/reminder !
The government increased the minimum investment threshold under the Tier 1 (Investor) scheme from £1 million to £2 million back in November 2014.
Existing Tier 1 (Investor) visa holders did not need to increase the level of their investment. They were able to apply for ILR and as the qualifying period is five years, most £1m investors will have qualified by now. But not all.
There are still those with limited leave, who have had to keep on extending their visa, on the basis of a £1m investment. Usually the reason they have not qualified for ILR by now is because:
• they have had excessive absences from the UK in the qualifying period for ILR (more than 180 days per year, or, since January 2018, 180 days in any 12-month period); and/or
• their English is not at an acceptable level; and/or
• they are under 65 and are unable to pass the Life in the UK test
During the course of this year — most recently in the October 2019 statement of changes the Home Office has made a number of further changes to the route.
The effect of all the recent changes means that many investors who entered the route before 29 March 2019 will not be able to secure further leave or ILR beyond a certain date, unless they make changes to their investment portfolio and/or increase the level of their qualifying investment. The steps needed differ depending on when an applicant entered the route and the type of investments they have made.
Deadlines
An investor who needs to extend their stay relying on a £1m investment will need to file their application before 6 April 2020.
To extend after that date, they would have to increase their investment to at least £2m.
An investor relying on £1m in an ILR application will need to file that application before 6 April 2022.
If they can’t file it by then because they don’t meet the requirements, they will need to increase the investment to at least £2m before applying.
Importantly, increasing the investment is not enough. They will only be able to qualify for ILR when they have also clocked up the relevant qualifying period starting from the date they increased their investment: five years if £2m, three years if £5m, two years if £10m). Time already spent under the route just won’t count anymore.
These changes mean that £1m investors need to map out their future plans carefully.
The UK Government Bonds
Those whose investments include government bonds (or gilts as they are also known) face another potential complication. As part of the general tightening up of the route, government bonds were removed as a qualifying investment for a new Tier 1 (Investor) visa from March 2019.
In order to succeed, extension applications where the investment still includes government bonds must be made before 6 April 2023. ILR applications relying on government bonds must be made before 6 April 2025.
This doesn’t just refer to £1m investors, but to anyone who entered the route before 29 March 2019.
Applications filed after the above dates that rely on government bonds held after those dates will be refused. For the application to be successful, the investment must be moved out of government bonds and into share capital or loan capital in active and trading UK registered companies (regarded generally as a higher risk form of investment).
Conclusion
The Home Office guidance for Tier 1 Investors (last updated on 1 October 2019) contains this nifty chart which demonstrates how complicated they’ve made things for investors intending to apply for ILR – see page 35 here: https://www.gov.uk/government/publications/guidance-on-application-for-uk-visa-as-tier-1-investor
Anyone still relies on investments under the old £1m rules, and/or who is relying on government bonds, should map out now the steps they’ll need to take in order to qualify for ILR (including extending their stay where needed).
This is likely to involve a number of changes such as limiting absences, improving English, increasing investment funds and/or changing the type of investment.
>>> Home Office Fact sheet: Graduate Immigration Route – Further update: https://homeofficemedia.blog.gov.uk/2019/10/14/fact-sheet-graduate-immigration-route/
On 11 September 2019 the UK Government announced the creation of a new immigration route which will enable international students to remain in the UK for two years after they have completed their studies.
Key Points:
• The Graduate Immigration Route will be available to international students who have completed a degree at undergraduate level or above at a Higher Education Provider with a track record of compliance and who have a valid Tier 4 visa at the time of application.
• Successful applicants on this route will be able to stay and work, or look for work, in the UK at any skill level for a maximum period of two years. Graduates will be able to switch into skilled work once they have found a suitable job.
• The new route will be launched in the summer of 2021, meaning that any eligible student who graduates in the summer of 2021 or after will be able to apply for the route. This includes students who have already started their courses. Universities will also be able attract students starting in the 2020/21 academic year on the basis that they will benefit.
• The launch of the route demonstrates the government’s support for our education sector, and commitment to the International Education Strategy, which sets out our ambition to increase education exports to £35 billion and the number of international higher education students to 600,000 by 2030.
• The graduate immigration route will require a new application.
• It will include the payment of a visa fee and the Immigration Health Surcharge. The exact fee will be set out in due course.
• Those who graduate and whose Tier 4 leave expires before the route is introduced will not be eligible, however, most of these students will have had no expectation of benefitting from such a route when they applied to study in the UK.
Statistics:
• In the year ending June 2019, the number of sponsored student visa applications rose 9% to 236,679. This included an 11% increase for the higher education sector to 201,919.
Frequently asked questions:
Why can’t it be implemented sooner?
It takes time to develop a new immigration route and ensure the framework is in place for it to successfully operate. Introducing the route in the summer of 2021 will mean that all students who graduate in the summer of 2021 or after will benefit, regardless of when they started their course. This route was announced in September 2019 to ensure that universities and stakeholders could promote the route when attracting prospective students. It will enable students to decide where to study, knowing they have the option of staying in the UK to work after completing their studies.
Will students who are already here be able to benefit?
Any student who successfully completes their degree-level course at a qualifying institution in the summer of 2021 or after will be eligible. This includes students who are already studying. Those whose Tier 4 leave expires before the route is introduced will not be eligible for it, however, most of these students will have had no expectation of benefitting from such a route when they applied to study in the UK. These students can still benefit from the generous provisions which allow them to switch in the skilled work route on favourable terms.
Will universities be expected to act as sponsors for those students on the graduate immigration visa after they have graduated?
Individuals applying for the Graduate Immigration Route will not need a sponsor. Tier 4 sponsors will not need to fulfil any sponsorship duties for their students if they switch onto the Graduate Immigration Route and students will not need a Certificate of Sponsorship (CoS) to apply under this route. Tier 4 sponsors, however, will continue to be responsible for their students while they are studying.
Will this route count towards settlement?
The route is non-extendable and does not count towards settlement. However, graduates who find an appropriate job and meet the requirements will be able to switch into skilled work, which is a route to settlement.
>>> Any overstaying technically breaks long residence, Court of Session agrees: https://www.bailii.org/scot/cases/ScotCS/2019/2019_CSOH_81.pdf
The controversial English Court of Appeal long residence case of Ahmed has now been endorsed north of the border by the Court of Session in Mbomson v Secretary of State for the Home Department [2019] CSOH 81. Lord Malcolm’s decision is short: although not bound by the Court of Appeal’s decision, his lordship is nevertheless persuaded by it and accordingly endorses it.
What was the decision in Ahmed and now Mbomson? The courts have interpreted the sloppily drafted Immigration Rules on long residence to hold that any period of overstaying, no matter how small, will break “continuous lawful residence” for the purposes of a 10-year long residence application. Residence is broken, in this context, regardless of whether or not it was absolved by the granting of a subsequent application.
The rules do not permit a grant of leave on long residence grounds where there has been a break in continuous lawful residence through overstaying, but the guidance clearly allows caseworkers to exercise discretion in disregarding certain periods of overstaying. See page 16:
“Gaps in lawful residence
You may grant the application if an applicant:
• has short gaps in lawful residence through making previous applications out of time by no more than 28 calendar days where those gaps end before 24 November 2016
• has short gaps in lawful residence on or after 24 November 2016 but leave was granted in accordance with paragraph 39E of the Immigration Rules
• meets all the other requirements for lawful residence”
It is clear from the above that applications where there is past overstaying can be granted, and that the Home Office is not concerned about the kinds of overstaying listed.
The next section of the document says:
“Any decision to exercise discretion and not refuse the application on these grounds must be authorised by a senior caseworker at senior executive officer (SEO) grade or above.
When granting leave in these circumstances, the applicant must be granted leave outside the rules for the same duration and conditions that would have applied had they been granted leave under the rules.”
So any period of overstaying should indeed normally lead to a refusal, as per the Rules and the interpretation of both the English and Scottish courts, but that such applications can (and should if eligible) nevertheless be granted outside of the Immigration Rules rather than under paragraph 276B.
It seems to be the only logical way of reconciling the otherwise harsh Immigration Rules on the one hand and the relatively generous policy on the other.
If one thing is clear, it’s that the Home Office needs to get its collective finger out and set the record straight.
>>> Start-up and Innovator visas: Guidance for endorsing bodies: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwjgjYzG1trlAhVBxoUKHb6ZAHYQFjAAegQIAxAC&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/834100/Endorsing_body_guidance_V._10-19.pdf&usg=AOvVaw0QHFuCMWwBS4fhgOaSP9Tb
>>> UK ancestry guidance update: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwjLldHb19rlAhVw1-AKHTjfDt4QFjAAegQIBBAC&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/845201/uk-ancestry-v17.0-ext.pdf&usg=AOvVaw3Y96eNgJSusK_vQkXk4MZr
This resource can be accessed aove. There are substantial changes to this document which are listed on pages 4-8.
>>> I got married in my national Embassy in the UK. Will my marriage be accepted by the Home Office ?
Under the Marriage Act 1994 it is only possible for an embassy to be listed as an approved building (https://www.gov.uk/government/publications/civil-marriages-and-partnerships-approved-premises-list) for a civil marriage in the UK if the premises are regularly available to the public for use for the solemnization of marriages or the formation of civil partnerships, and public access to any proceedings in approved premises must be permitted without charge.
Currently, no diplomatic premises in the UK are approved for marriage or civil partnership.
>>> New NHS visa announced: https://news.sky.com/story/general-election-boris-johnson-to-target-two-of-the-most-contentious-issues-of-the-campaign-11857046
The UK Government is planning to introduce a “NHS visa” as part of their proposals for an Australian style points based immigration system should they win the general election.
The aim is to ensure that the NHS is able to source overseas doctors and nurses once EU free movement comes to an end post-Brexit. From today’s media reports we know that the visa will cost £464, half the normal fee. The visa process will be fast-tracked — decisions will be made within two weeks — and NHS workers applying through this route will have access to some form of payment system to repay the immigration health surcharge in instalments via their salary once in the UK.
It sounds promising. The reduced fee is certainly a positive step and hopefully a sign that the government accepts that the current immigration system has become exorbitantly expensive. The fast-track processing is less exciting, as most non-settlement visas can already be processed via a priority service within a week for a fee of around £250. What will be interesting is whether this enhanced processing is offered free of charge for NHS workers, or if in the small print there will be hidden costs attached — fees to book appointments or scan documents, for instance — which visa applicants often get stung by.
The fact that NHS workers have to pay the £400 per year NHS surcharge in the first place is laughable. At the very least they should get some form of John Lewis-style employee discount. A repayment system will still mean a nurse losing £2,000 from their salary over several years, on top of the up-front visa fee.
Exempting them from the charge altogether would show a real intent to broaden the UK’s appeal to foreign medical professionals.
The announcement shines a tiny bit more light on the government’s overall plans for the immigration system. The Home Secretary, Priti Patel, has said that the new visa route is “part of our plan for an Australian-style, points-based immigration system that allows us to control numbers while remaining open to vital professions like nurses”. We still do not know whether this antipodean vision will be in addition to, or a replacement for, our current points based system. The indications are that this new visa will be outside the Tier 2 work visa apparatus — which raises the question of whether our current sponsorship system will be maintained.
Again, though, this is another example of politicians claiming that a points based system will allow them to control net migration, when the evidence, and the UK’s own recent history, shows that this reasoning is flawed. With ministers unable to say whether the Conservatives want immigration to go up or down, honest answers on why we need an Australian points based system are way overdue.
>>> Confirmed: children with foreign stepfathers are being unlawfully denied citizenship
The Home Office has dropped its appeal against a judgment that children whose mother is married to someone other than their father are being unlawfully discriminated against by British nationality legislation.
In July 2018, the High Court ruled that part of the British Nationality Act 1981 is incompatible with Article 8 of the European Convention on Human Rights. The case was K (A Child) v Secretary of State for the Home Department [2018] EWHC 1834 (Admin).
The provision in question was section 50(9A). It states that:
For the purposes of this Act, a child’s father is –
“(a) the husband, at the time of the child’s birth, of the woman who gives birth to the child…”
This can prevent a child’s biological father from being recognised as the child’s legal father for the purpose of passing on his British citizenship. In K’s case, the Home Office tore up her British passport, saying that she wasn’t legally a citizen — even though she could prove that her biological father was British. The effect of section 50(9A) was her mother’s new husband was treated as her father, denying K citizenship.
The High Court found that:
“the scheme of section 50(9A) of the BNA 1981 as the Defendant currently reads and applies it breaches the Claimant’s right under Article 14 ECHR read with Article 8, to enjoy equal access to the ability to acquire her biological father’s nationality which she would enjoy if her mother had not been married to a man other than her biological father at the time of her birth.”
The Home Office initially appealed. But Law Lane Solicitors, representing K, now say that the appeal has been abandoned.
The government is expected to take remedial action to change the law. That was what happened after the Supreme Court made a declaration of incompatibility about a different element of nationality law in Johnson [2016] UKSC 56. But this could take some time: Johnson was handed down in October 2016, and the resulting remedial order not made until July 2019.
What can children caught by section 50(9A) do in the meantime? They can apply for registration as British at the Home Office’s discretion, but this costs over £1,000 and involves a good character test.
There’s a decent argument that such a fee would be unlawful: the Home Office has already conceded in Williams [2017] EWCA Civ 98 that the power to charge a nationality or immigration fee may not be exercised incompatibly with the European Convention on Human Rights (see paragraph 30). Victims of the Windrush scandal did not have to pay for citizenship: the Home Secretary could do the same for children currently being denied citizenship unlawfully.
Challenging the good character test in such cases would be more complicated, as unlike the fee it is required by primary legislation. All the same, families where a child is being denied automatic citizenship because their mother has remarried should seek advice on their options.
>>> I do not have a current passport. Can I still use my expired passport in the immigration application ?
The answer is “depending on the application type”. In line with para 34(b)(ii) of the UK Immigration Rules:
(b) Proof of identity for the purpose of this paragraph means:
…
(ii) if the applicant does not have a valid passport or national identity card, their most recent passport or (except a PBS applicant) their most recent national identity card; or
…
>>> Can I travel while my EU Settled Status (EUSS) application is pending ?
The answer is “Yes”.
“The EUSS caseworker guidance : https://www.gov.uk/government/publications/eu-settlement-scheme-caseworker-guidancestates that:
“An application made under Appendix EU will not be treated as automatically withdrawn if the applicant travels outside the Common Travel Area before the application has been decided.”
>>> Court of Appeal revisits human rights in immigration appeals: https://www.bailii.org/ew/cases/EWCA/Civ/2019/1925.html
The case of interest is Lal v Secretary of State for the Home Department [2019] EWCA Civ 1925.
In this case, Ms Lal had been here as a student since 2011 and her leave was due to expire in 2015. Four months prior, she married Mr Wilmhurst, a British citizen, and applied to stay in the UK under Appendix FM of the Immigration Rules.
Refused over doubt about the marriage
The sole reason for refusal was because the Home Office didn’t believe the marriage was genuine and subsisting. We don’t know the reasoning for sure, but one would be astonished if a major part of the reasoning was not the 40-year age difference between the couple and the timing of the marriage.
Such refusals are pretty straightforward to nail down, for the most part. At the First-tier Tribunal, three of Mr Wilmhurst’s four children gave evidence. They all agreed that Mr Wilmhurst was indeed in a genuine relationship.
It did not help.
Insurmountable obstacles to family life
Complicating matters, Ms Lal seems to have accepted that that she had to show “insurmountable obstacles to family life continuing outside the UK”. It looks like she conceded that the requirements of paragraph EX.1 of Appendix FM had to be met despite this never being raised in the refusal letter.
The Court of Appeal was quick to raise an eyebrow and had “doubt” whether meeting EX.1 was actually an issue but, as courts do, they still went on to write a treatise about it.
Indian climate an insurmountable obstacle?
At the First-tier Tribunal, evidence was led that Mr Wilmhurst — who is in his 70s — would not be able to cope with the heat in India and that meant there were insurmountable obstacles. The First-tier Tribunal agreed. The Upper Tribunal did not.
Judge Storey in the Upper Tribunal was pretty annoyed at all this. Whilst he agreed the marriage was genuine, he did not think an inability to cope with heat was insurmountable:
“…[the] judge was required to undertake… an objective assessment of whether Mr KW could in fact cope with the heat and whether a difficulty of this kind would pose an insurmountable obstacle… Difficulty [in] coping with heat is not in itself a serious hardship in a country where there is air conditioning and available urban environments built to protect people against the heat.”
The Court of Appeal allowed permission on the question of whether the “insurmountable obstacles” test was subjective or objective.
An objective test, but still a test
The court outlined the Supreme Court’s decision in Agyarko v SSHD [2017] UKSC 11. In Agyarko, Lady Hale held that the test was to be applied in a way which was “practical and realistic” and said:
“The test cannot… be… subjective… To treat it as such would substantially dilute the intended stringency of the test and give an unfair and perverse advantage to an applicant whose partner is less resolute or committed to their relationship over one whose partner is ready to endure greater hardship to enable them to stay together.”
But, the Court of Appeal said, it was not enough to base a conclusion on the Upper Tribunal’s “sweeping statement” about air conditioning. The facts had to be explored thoroughly; where in India could the couple live; what were the average temperatures; could the heat be mitigated by air conditioning; were there any cooler places to live? There was nothing fundamentally wrong with a finding that a person’s sensitivity to heat was an insurmountable obstacle, but evidence was required.
Relationship formed while immigration status precarious
The other very interesting takeaway from the judgment was a critical look at the Upper Tribunal’s reasoning on the relationship being formed whilst Ms Lal’s immigration status was precarious.
Section 117B of the Nationality, Immigration and Asylum Act 2002 says that
“(4) Little weight should be given to—
(a) a private life, or
(b) a relationship formed with a qualifying partner,
that is established by a person at a time when the person is in the United Kingdom unlawfully.
(5) Little weight should be given to a private life established by a person at a time when the person’s immigration status is precarious.”
The Upper Tribunal judge thought that this “required him to attach little weight to a couple’s relationship when that relationship has been entered into at a time when the applicant’s immigration status is precarious”.
This, the Court of Appeal said, was wrong. Nowhere in section 117B does it say that little weight must be given to a relationship formed with a qualifying partner when a person’s immigration status is precarious (as distinct to unlawful).
Rather, it is open to courts and tribunals to give such weight to the relationship as is appropriate:
“Clearly there are degrees of precariousness in a person’s situation ranging from, at one extreme, someone who is in the country in breach of immigration laws and is liable to removal through to someone who has been present lawfully in the country for some years and is on a pathway to settled status (such as the five or ten year partner route in the UK) but does not yet have indefinite leave to remain. It would be unreasonable to attach equal weight to family relationships established by individuals in such different legal situations and there is no “settled jurisprudence” which requires this. Rather, the Jeunesse case makes clear that a person’s immigration status may greatly affect the weight to be given to their right to respect for family life.”
Ultimately, all of this discussion was academic as Ms Lal and Mr Wilmhurst were now parents to a British child; section 117B(6) was therefore engaged. The Upper Tribunal’s decision was set aside, and it is up to the Home Office to reconsider matters.
Once again, there is nothing here which is brand new but it is useful as a reminder that even in cases where there are not children, paragraph EX.1(b) is still very much arguable (even though a lot of the time it feels like the Home Office is mindlessly rejecting these cases!). The key is to take the time to properly explain, particularise and provide supporting evidence of a claim.
>>> Complete withdrawal of asylum support breaches EU law: http://curia.europa.eu/juris/document/document.jsf?text=&docid=220532&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=1470078
The Court of Justice of the European Union has ruled that it is unlawful to completely withdraw all housing and financial support from an asylum seeker, even if they have breached the rules of an accommodation centre. In Case C-233/18 Haqbin v Federaal Agentschap voor de opvang van asielzoekers, the court sharply rebuked Belgium for imposing a total withdrawal of support on a child asylum seeker for failing to comply with the rules.
The case concerned an unaccompanied child from Afghanistan who sought asylum in Belgium. He was housed at the Broechem reception centre, where he became involved in a brawl. The child was arrested by the police but released the following day with no further action.
Nevertheless, the director of the Broechem reception centre imposed a 15-day exclusion from the centre as a punishment. During this time the child spent several nights sleeping in public parks in Brussels as well as finding friends to stay with.
EU law provides for sanctions to be imposed on asylum seekers who break the rules at a reception centre. The Reception Conditions Directive states:
“Member States may determine sanctions applicable to serious breaches of the rules of the accommodation centres as well as to seriously violent behaviour.”
The court ruled that reduction or withdrawal of housing and other support from an asylum seeker might be an appropriate sanction within the meaning of the rule, even though it is not explicitly mentioned:
“it is appropriate to note, first, that a measure for reduction or withdrawal of material reception conditions in respect of an applicant on account of serious breaches of the rules of the accommodation centres or seriously violent behaviour constitutes, in the light of the aim and the detrimental consequences thereof for the applicant, a ‘sanction’ in the ordinary meaning of that word and, secondly, that that provision is included in Chapter III of the directive, which is dedicated to the reduction and withdrawal of such conditions. It follows that the sanctions envisaged in the directive may, in principle, concern material reception conditions.”
But the court clarified that any sanction imposed must be proportionate and not result in a violation of the asylum seeker’s dignity:
“… any sanction within the meaning of Article 20(4) thereof must be objective, impartial, reasoned and proportionate to the particular situation of the applicant and must, under all circumstances, ensure access to health care and a dignified standard of living for the applicant.”
The total withdrawal of material support, as was imposed by the Belgian authorities in this case, did not comply with EU law because it necessarily violated the child’s dignity:
“A sanction that is imposed exclusively on the basis of one of the reasons mentioned in Article 20(4) of Directive 2013/33 and consists in the withdrawal, even if only a temporary one, of the full set of material reception conditions or of material reception conditions relating to housing, food or clothing would be irreconcilable with the requirement, arising from the third sentence of Article 20(5) of the directive, to ensure a dignified standard of living for the applicant, since it would preclude the applicant from being allowed to meet his or her most basic needs such as those mentioned in the previous paragraph.”
Having decided the case against the Belgian government, the court went on to emphasise the importance of taking into account both the vulnerability of an unaccompanied child asylum seeker and their best interests:
“Moreover, according to Article 23(1) of Directive 2013/33 the best interests of the child are a primary consideration for Member States when implementing the provisions of the directive that involve minors.”
This case is a great result and vindication for the child’s lawyers, although perhaps little consolation for the child that it has taken three years for a court to rule that it was unlawful to make him street homeless. The Court of Justice relies heavily on national courts to ensure that EU law is respected and it is disappointing that the Belgian court that originally considered the matter was not prepared to find that imposing such a severe sanction on a child was disproportionate.
>>> Indefinite Leave to Enter (ILE) on-line application form for children to come into the UK can be found here: https://visas-immigration.service.gov.uk/other-ooc
>>> Useful successful case on long separation in case of the Entry Clearance as unmarried partners: https://www.bailii.org/uk/cases/UKAITUR/2016/OA065352014.html
>>> Home Office withdraws appeal in case on s 50(9A) BNA 1981
The Secretary of State has withdrawn her appeal against the decision of the Administrative court in R(ota K, a child by her litigation friend) v SSHD [2018] EWHC 1834 (Admin).
The case concerned paternity of a child for the purposes of acquiring British citizenship. K’s passport was withdrawn and she was informed that she was not ‘British’ even though she could prove by DNA that her father is British. Section 50(9A) of the British Nationality Act 1981 says that if a woman is married at the time of a child’s birth, for the purposes of British nationality law, her husband will be deemed to be the father, even if there is irrefutable proof that another man is the biological father.
On K’s application for judicial review, the Administrative Court declared that section 50(9A) of the British Nationality Act 1981 (the BNA) is incompatible with Article 14 ECHR, read with Article 8 ECHR because it discriminates unlawfully against children whose mothers are married to a man other than the child’s father when the child is born. An affected child will not be entitled to British nationality through the biological father but could apply to be registered at the ‘discretion’ of the Home Secretary, at a fee currently of over a thousand pounds (£1012) and, if aged over 10 years subject to a requirement to be of ‘good character’. The judge concluded that although ‘certainty’ under the law was a legitimate aim, the aims did not justify such a fee nor the risks associated with the discretion whether to grant citizenship rather than a right to claim it as the child of a British citizen.
The Secretary of State appealed. Permission was granted on the basis that it was arguable that the judge had failed to consider the wider impact of her conclusions on, for example, children born through surrogacy. However, the appeal was later withdrawn with the effect that the declaration made by the court below remains in place. The question is – what next for children who have been discriminated against in this way?
In Johnson [2016] UKSC 56, the Supreme Court declared that a provision of the BNA which imposed the ‘good character’ requirement on children required to register as British solely as a consequence of their mother’s marital status as the time of the birth was similarly incompatible with article 14 taken with article 8 as it was discriminatory. In making the declaration the court observed [38]:
“… where a person has not automatically acquired citizenship at birth, it is reasonable to expect him to apply for it, even if he is entitled to be registered if he does so. This avoids the risk of inconvenient results and provides everyone with clarity and certainty. But it is not reasonable to impose the additional hurdle of a good character test upon persons who would, but for their parents’ marital status, have automatically acquired citizenship at birth, as this produces the discriminatory result that a person will be deprived of citizenship status because of an accident of birth which is no fault of his.”
As a consequence of the court’s declaration, the Home Secretary placed a remedial order before parliament. Any remedial process necessarily takes some time (although in this case much time has been lost as a consequence of the Home Secretary’s withdrawn appeal) and indeed the Secretary of State has a wide discretion whether to take remedial steps by way of a remedial order or draft amended legislation or indeed may elect to do nothing. So, what are affected children to do in the mean time?
Next steps
Children who may be caught by s 50(9A), for instance by the denial of passports or citizenship are advised to seek expert advice. There are good grounds to argue that the Secretary of State cannot lawfully charge the £1012 fee for registration in such cases. The issue of the ‘good character’ requirement is somewhat more complex.
>>> Family life, private life and exceptional circumstances: https://www.gov.uk/government/publications/family-life-as-a-partner-or-parent-private-life-and-exceptional-circumstance
The latest version states the following changes: "The words ‘(except where entry is being granted as a fiancé, fiancée or proposed civil partner)’ have been deleted from the end of the first paragraph in Decision to grant entry clearance or leave to remain as a partner on a 5 or 10-year route".
>>> Guidance update: EU Settlement Scheme: EU, other EEA and Swiss citizens and their family members: https://www.gov.uk/government/publications/eu-settlement-scheme-caseworker-guidance
The document states the following changes:
"Amendments have been made to reflect the changes to Appendix EU made in Statement of Changes in Immigration Rules: HC 170, laid on 24 October 2019, mainly in respect of provision for the operation of the EU Settlement Scheme in the event that the UK leaves the European Union without a deal."
>>> UKVI guidance update: Criminal investigation: sham marriage: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwi1laPVy_PlAhXKx4UKHZmYCPgQFjAAegQIBRAC&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/846190/criminal-investigations-sham-marriage-v2.0-ext.pdf&usg=AOvVaw3faIZyHJ20N4vrUVfx8mnY
This document includes information about:
• the definition of a sham marriage
• offences relating to sham marriages
• prosecuting authorities for criminal offences in relation to sham marriages
• Crown Prosecution Service (CPS) suggested good practice and scenarios for potential suspects and charges
• planned visits to a designated register office
• European Economic Area (EEA) removal options
The latest version states the following changes:
"Revised to include up to date definition of sham marriage, update of links to legislation and other guidance products and removal of items no longer required"
>>> Can a PBS dependant child of a Tier 4 general holder switch to a Tier 4 Child in the UK?
The answer is “No” as on the basis of para:
"245ZZC. Requirements for leave to remain
(b) The applicant must have, or have last been granted, entry clearance, leave to enter or leave to remain as a Tier 4 migrant"
fails, as a PBS dependant child does not have leave as a Tier 4 migrant.
However, there are no restrictions against a PBS dependant from studying.