16 January 2020 – 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)
Prior to the closure of the Tier 1 (Entrepreneur) route, the main requirement was evidence that an applicant had access to funds for investment in their proposed venture.
The Immigration Rules permitted applicants to rely on their own funds, or alternatively on funds that have recently been transferred to them by third parties. In certain circumstances, the rules also permitted reliance on funds that were still held by a third party at the time of the application.
In this scenario, the applicant (and the Home Office) was relying on the third party’s promise that, if and when the visa is granted, the funds would be made available to the Tier 1 (Entrepreneur) for their venture.
It is still a mystery why the drafters of the Immigration Rules permitted this funding structure at all. If the third party was serious about investing, why not require the funds to be transferred to the prospective Tier 1 (Entrepreneur) prior to the submission of the application?
Nothing is impossible
Lord Justice Davis, giving judgment in the Court of Appeal, doesn’t really address the bonkers nature of the requirement itself. Instead he sticks to the “rules is rules” theme of applications made under the Points Based System:
"The underpinning rationale for the current requirements of the PBS under the Rules is, as I have said, clear. These requirements have been, in a context such as the present, expressly approved as workable and fair in cases such as Durrani and Iqbal (cited above). There is no reason not to apply the reasoning in those cases to paragraph 41-SD(c)(i) of Appendix A and to this particular case, and every reason for doing so. The rules here are specific in their requirements; and the applicant in this case failed to meet those requirements. As paragraph 245DD of the Immigration Rules stipulates, in such circumstances the application will be refused. That, put shortly, is the end of the matter, as I see it."
Davis LJ did not accept that such a declaration could not be obtained:
"I should in any event make clear that I was wholly unpersuaded on the evidence that there was an impossibility of compliance here. It may be that the evidence (including the two witness statements) indicates that the Halifax Bank itself does not, as a matter of its practice, currently choose to provide letters in the required format. But that does not mean at all that it is impossible for the Halifax Bank to do so. Nor does it preclude an applicant or sponsor from going to some other regulated financial institution which does not have such a practice.".
16 January 2020 – 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)
>>> Note on BRP expiry dates of 31/12/2024 (23 January 2020)
It has become apparent that Biometric Residence Permits (BRPs) which do not incorporate the next generation of encryption technology are required by the EU to have a validity date of no later than 31 December 2024. Until 1 January of this year, this issue only affected those granted indefinite leave to remain, and some measures were put in place to ensure those who were granted ILR were aware that their leave would remain extant beyond 31 December 2024.
As 31 December 2024 is less than five years away, individuals granted limited leave to remain for five years are now receiving BRPs with validity dates earlier than the expiry of their leave.
The Home Office's response is as follows:
"We are required by the EU to restrict BRPs which do not incorporate the next generation of encryption technology to a validity date of 31 December 2024, subject to the UK leaving the European Union and the outcome of any Brexit negotiations.
As the UK intends to introduce the new technology in due course, the date restriction affects only cards issued with Leave valid past the date of 31 December 2024.
Any card restricted to 31 December 2024 which is still rightfully held on 01 July 2024 will be replaced free of charge, with the remainder of the leave period initially expected being issued on a new BRP.
This means that anyone who has paid a fee in expectation of receiving a period of leave for longer than the 31 December 2024 date, will still do so but it will be spread over two BRPs.
The date restriction does not change the entitlements of the rightful holder to work, access services/benefits or travel.
Information on how to replace a BRP that is due to expire as a result of this restriction will be updated approximately 6 months prior to 31 December 2024 and applicants affected should consult these web pages at that time for the latest advice"
27 January 2020 – 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 Tier 1 (Exceptional Talent) visa will be rebranded as the “Global Talent” route from 20 February. The science funding agency UK Research and Innovation will be able to endorse applicants for the rejigged route, according to a government press release, which adds that the system will:
"- Provide for a brand new fast-track scheme, managed by UKRI which will enable UK-based research projects that have received recognised prestigious grants and awards, including from the European Space Agency and the Japan Science and Technology Agency, to recruit top global talent, benefitting higher education institutions, research institutes and eligible public sector research establishments. This will enable an individual to be fast-tracked to the visa application stage.
- Double the number of eligible fellowships, such as Marie Skłodowska-Curie Actions, the European Research Council and Human Frontier Science, which also enable individuals to be fast tracked.
- Continue to ensure dependents have full access to the labour market.
- Preserve the route’s flexibility by not requiring an individual to hold an offer of employment before arriving or tying them to one specific job.
- Provide an accelerated path to settlement for all scientists and researchers who are endorsed on the route. - Provide for an exemption from our absences rules for researchers, and their dependants, where they are required overseas for work-related purposes, ensuring they are not penalised when they apply for settlement.".
Details will be available on 30 January, when a statement of changes to the Immigration Rules is due.
Following another paragraph 322(5) case, where an applicant was refused indefinite leave to remain on the basis of dishonesty for disclosing different income to HMRC as opposed to the Home Office, the Upper Tribunal has issued guidance on evidence from accountants purporting to take the blame for those tax discrepancies.
The case of Abbasi (rule 43; para 322(5): accountants’ evidence) [2020] UKUT 27 (IAC) had seemed to be going well for the appellant, Mr Abbasi. Mr Abbasi was initially refused indefinite leave to remain but then won his appeal at the First-tier Tribunal. The tribunal found that Mr Abbasi had acted innocently and had relied on his accountants, who provided a letter claiming to have made a mistake with his tax returns.
The First-tier Tribunal placed significant weight on the accountants’ letter. The Home Office appealed to the Upper Tribunal, but it found in Mr Abbasi’s favour once again. That decision was promulgated in July 2019 and Mr Abbasi was granted indefinite leave to remain by the Home Office in October.
All’s well that ends well, you might say. But then comes the twist: on 16 September 2019, the Upper Tribunal received an email from the accountant who supposedly wrote the letter in support of Mr Abbasi’s claim, stating that she had never heard of Mr Abbasi or ever assisted him, and she had not written, let alone signed, the letter.
The Upper Tribunal then convened a hearing to consider whether it had the power to use rule 43 of the Tribunal Procedure (Upper Tribunal) Rules 2008 to set aside the decision. It concluded that it did have the power to apply rule 43 of its own motion, where the evidence relied upon by the tribunal in an appeal was forged or otherwise bogus.
In practice, though, it could not do so in this case because the appellant had been granted indefinite leave nine days before the Upper Tribunal sent its notice of hearing. The grant of indefinite leave to remain meant that the appeal proceedings had come to an end, and therefore the Upper Tribunal no longer had any jurisdiction. But it is open to the Home Office to revoke Mr Abbasi’s indefinite leave to remain, and I would be surprised if it didn’t.
The Upper Tribunal also concluded that accountants who admit to making a mistake with an appellant’s taxes should attend the hearing to give evidence and explain their error. If they do not, the tribunal is unlikely to be able to place any material weight on letters of this kind.
This is an example of when one applicant’s fraudulent actions results in making life harder for others. From now on, accountants in these cases are likely to be expected to attend hearings in person to give evidence.
Headnote:
1. The Upper Tribunal can apply rule 43 of the Tribunal Procedure (Upper Tribunal) Rules 2008 of its own motion.
2. The use of fraud before the Upper Tribunal constitutes an abuse of process such as to amount to a “procedural irregularity” for the purposes of rule 43(2)(d).
3. In a case involving a decision under paragraph 322(5) of the immigration rules, where an individual relies upon an accountant’s letter admitting fault in the submission of incorrect tax returns to Her Majesty’s Revenue and Customs, the First-tier or Upper Tribunal is unlikely to place any material weight on that letter if the accountant does not attend the hearing to give evidence, by reference to a Statement of Truth, that explains in detail the circumstances in which the error came to be made; the basis and nature of any compensation; and whether the firm’s insurers and/or any relevant regulatory body have been informed. This is particularly so where the letter is clearly perfunctory in nature.
29 January 2020 – 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 Document Reduction Pilot - Appendix FM applications
From the UK BA:
"Following our meeting recently in which we discussed Document Rationalisation, I thought this would be a good time to update you on our Appendix FM project and some of the work that we are doing to reduce the number of unnecessary documents submitted.
Firstly, I promised you some feedback from the settlement Document Reduction pilot in India. The pilot ran for a total of 6 weeks and the main findings were:
· Customers were invited to take part on a voluntary basis and as expected, uptake was quite low. We received a total of 25 applications, however, 6 of these applications were invalid as they did not meet the pilot criteria.
· 35 customers chose not to take part in the pilot. The main reason being - the sponsor or representative collated the supporting documents for them and they were instructed that all the documents must be scanned, there was also a perception amongst these customers that the more documents that are submitted, the stronger the application and greater chance of success.
· Of the 19 valid applications, none were scanned in line with the pilot guidance and therefore could not be assessed by the Decision Makers as part of this pilot.
Whilst at initial look it seems that the pilot was unsuccessful, we weren’t disappointed by this as it actually confirmed our initial thoughts on some of the challenges that we will face around ingrained customer behaviour and perception. It also confirmed that the Appendix FM route is a very complex one and our commercial partners require much more support to identify specific cohorts of FM customers and support with scanning documents in the required order.
Following the India pilot, we have re-focused our efforts and are planning two further settlement initiatives to support document rationalisation.
Auto-email message:
There will be an auto-email message sent to all Appendix FM customers from the online customer journey. The message informs customers that we will no longer accept the unnecessary documents listed and in addition to this we will only accept a maximum of 10 photographs. The benefit of sending this message out from the online customer journey is that it gives customers, sponsors and legal representatives the opportunity to read and understand our requirement before the customer attends their appointment at the VAC.
This auto-email went live on the 26th January 2020 and will initially only be sent to Appendix FM customers attending appointments at one of the VACs in India. This will reviewed before being rolled out more widely.
Document Reduction at the UK scanning hubs:
We will be duplicating the India pilot at the VFS UK scanning hubs. The advantage of doing this in the UK as opposed to overseas is that in the majority of Appendix FM cases, the sponsor or the legal representative will be submitting the documents in person at one of the UK scanning hubs and VFS hub staff will be able to support them through the process. It also means that our staff in Sheffield will be able to provide direct and immediate support to the hub staff with time zones not being a practical barrier to this.
All customers meeting the pilot criteria will be expected to take part – this will not be voluntary basis. The pilot will be launched on the 4th February 2020 at the VFS scanning hub in London with the remaining VFS hubs going live shortly afterwards. I have sent you the notice that will be displayed at the scanning hubs.
From an operational perspective, rest assured that we are working closely with our Decision Makers to analyse the impact of both these initiatives and to ensure that adverse decisions are not made on the basis that these documents have not being submitted. As we’ve discussed, Decision Makers are encouraged to request documents when appropriate and on the rare occasion that they need to see one of these unnecessary documents, they will contact the customer to request it before a decision is made."
The Court of Appeal has given judgment in R (AC (Algeria)) v SSHD [2020] EWCA Civ 36. The case is about “grace periods” in unlawful detention claims.
A grace period, as described by Lord Justice Irwin in his judgment, is
"that period of time allowed to the Secretary of State, once detention has ceased to comply with the Hardial Singh principles, to make suitable arrangements for release.".
The government should think twice about re-introducing a points based immigration system after Brexit, and lower the minimum salary necessary to get a work visa, the Migration Advisory Committee (MAC) has recommended.
In a report published recently, the MAC says that the existing Tier 2 (General) work visa system should be left intact, with employers continuing to sponsor workers with a job offer. By contrast, Tier 1 (Exceptional Talent) visas could be allocated using a points calculation, if the government is really so keen on it.
Key recommendations include:
- Retaining the Tier 2 (General) skilled worker route, because “the combination of skill eligibility and a salary threshold works well for an employer-driven system”.
- Reducing the minimum salary threshold to around £25,600, instead of the £30,000 recommended in the MAC’s last major report.
- Turning Tier 1 (Exceptional Talent) into a points based route for skilled workers without a job offer, since at the moment it “does not work well” anyway = aka Tier 1(General) pre-2011, is not it ?
While the Conservatives have plugged the idea of an “Australia-style points based system” as a radical new departure, the MAC knows that we have been here before. It reviewed the previous use of pure points-based routes in the UK, including the Highly Skilled Migrant Programme, Tier 1 (General), and the early days of Tier 2 (General). The data is extremely limited, making firm conclusions difficult, but “the scraps of information available” suggest that “a sizeable proportion did not end up working in highly-skilled jobs as was intended”.
As such, the MAC cautions, “any changes should not repeat mistakes made in UK systems in the past but draw on best practice from other countries”. Such best practice would “include a cap [on numbers] and the use of the Expression of Interest system”.
The economists try to steer ministers away from interfering with Tier 2, partly because employers think being able to sponsor individual workers from overseas is rather important. Instead, their report says that the place for points is Tier 1, in particular the Exceptional Talent route which “does not work well” and is “failing to meet all its objectives”.
Given these problems, if the Government wants to have a PBS route on entry, it could make sense to re-orient Tier 1 (Exceptional Talent) with the aim of increasing the numbers though the challenge is to do this without significantly affecting quality.
This may be regarded as unfortunate timing, since the government is pushing through unrelated reforms to Tier 1 (Exceptional Talent) on Thursday.
But if the report’s approach were adopted, the resulting mixture of sponsorship and unsponsored migration would reflect how countries with points based immigration systems do things. In Australia, Canada and New Zealand, the MAC calculates, people arriving without a confirmed job offer through points based routes only account for about 40-60% of economic migration. Those nations still use employer sponsorship as well.
The report is expected to be influential in the design of the UK’s post-Brexit immigration system, under which EU citizens will come under the same visa rules as non-EU citizens, but those rules will be made more liberal overall. That includes a lowering of the minimum salary required for a work visa, from £30,000 today to under £26,000 (the exact number depends on a fairly technical calculation). This recommendation is not a surprise, in the sense that the MAC had previously
recommended keeping the threshold at £30,000 and was told to try again.
The post-Brexit dispensation taking shape is expected to “result in a lower level of immigration, a lower rate of growth in population, employment and GDP”. But there is a glaring caveat not reflected in some of the breathless coverage of today’s report. MAC chief Professor Alan Manning writes that “almost all of these estimated impacts at the macro level are small”. In other words, while the end of free movement has real human impacts, the MAC does not think that it has particularly significant economic effects.
The report also reveals that Professor Manning is not being kept on as Chair of the Migration Advisory Committee, despite his desire for a second term. The government is advertising for a replacement.
The MAC's recommendations in full + some of the Legal Centre's comments
"Points-based systems
1. We recommend retaining the existing framework for Tier 2 (General).
2. If government wants to have a PBS route on entry, it should consider modifying Tier 1 (Exceptional Talent) in the following way:
• There should be an overall annual cap on those admitted;
• The route should operate on an expression of interest basis creating a pool of migrants interested in coming to the UK;
• There should be a monthly draw from this pool with those selected invited to submit a full application; - What is this ? A visa lottery ?
• The selection of those invited to apply should be based on those who have the highest number of points in the pool using a points-based system with tradeable points;
• There should also be an absolute minimum number of points;
• Points should be given for characteristics that the Government wants to attract through this route and for whom other routes are not suitable;
• Among the characteristics that the Government might want to consider in assigning points are: Qualifications with a rigorous process to assess the quality of qualifications and not just the level; Age; Extra points for having studied in the UK; Priority areas such as STEM and creative skills - This was called HSMP route a cople of decades ago, do not they remember it ?
• Changes should only be made if data is collected on the outcomes of migrants on this route, with monitoring and evaluation of the route.
3. There should be an immediate pause in the proposed increases to the settlement threshold.
4. We recommend a review of the requirements for settlement, to establish a clearer picture of how it is currently working and possible changes that could be made.
Salary thresholds in Tier 2 (General)
5. Both the occupation specific and general salary thresholds should be based on the relevant distribution of full-time earnings as reported in the Annual Survey of Hours and Earnings (ASHE) and updated annually. The appropriate salary threshold should continue to be the higher of the occupation specific and general threshold.
6. The occupation specific threshold should be the 25th percentile of the full-time annual earnings distribution for that occupation.
7. The general threshold should be set at the 25th percentile of the full-time annual earnings distribution for all Tier 2 (General) eligible occupations.
8. National pay scales should be used as the relevant salary thresholds in 24 occupations in health and education instead of both the occupation specific and general thresholds.
9. If the Government is concerned about the impact of the general threshold on lower-wage medium-skill occupations, we recommend the use of an occupational cap to be set at the 75th percentile. We do not recommend this given the level of the general threshold we propose.
10. There should be more adequate monitoring of how migrants are faring in the UK labour market after entry and ongoing review of the impacts of the recommendations on levels of salary thresholds.
11. The relevant salary thresholds should apply across the UK.
12. There should be a separate pilot visa for ‘remote’ areas of the UK, part of which could be lower salary thresholds for migrants into those areas. This should only be done with a full evaluation to understand its effectiveness and impacts.
13. Salary thresholds should not be pro-rated to allow for part-time work.
14. The Government should consider more flexibility (i.e. prorating salary thresholds) for visa holders switching to part-time work after becoming a parent.
15. Only salary on the main job should be used to determine whether the salary threshold is met. Allowances, equity and employer pension contributions should not be included.
16. The rules on Tier 2 (General) visa holders owning equity in the employer sponsoring them should be reviewed.
17. Occupations on the Shortage Occupation List should not have lower salary thresholds for entry.
18. We recommend a review of whether the SOL is needed after the new immigration system has been fully introduced.
19. National pay scales should be used as the relevant salary thresholds in 24 occupations in health and education instead of both the occupation specific and general thresholds.
20. The salary thresholds for new entrants should be a single ‘reduction’ percentage applied across both the general experienced worker threshold and the occupation specific experienced worker thresholds.
21. The reduction percentage for new entrants should be set at 30 per cent.
22. The definition of a new entrant should be widened to include those are working towards recognised professional qualifications and those who are moving directly into postdoctoral positions.
23. The new entrant rate should apply for five years, an extension from the current three-year entitlement. Any time spent on the new post-study work route should count towards the five years of new entrant threshold eligibility.
24. We recommend adding/removing the following occupations from the list of RQF3+ occupations
• Add: Air-conditioning and refrigeration engineers, Rail and rolling stock builders and repairers, Skilled metal, electrical and electronic trades supervisors, Carpenters and joiners, Glaziers, window fabricators and fitters, Plasterers, Floorers and wall tilers, Painters and decorators, Construction and building trades supervisors, Childminders and related occupations, Teaching assistants and Educational support assistants.
• Remove: Fishing and other elementary agriculture occupations n.e.c. and Waiters and waitresses.
Data issues
25. The Government and ONS should seek to link datasets across government to allow a better understanding of the employment outcomes of migrants, for the purposes of research whilst ensuring confidentiality.
26. The Government should invest in a data set designed to link migrants with subsequent outcomes to be used for the evaluation of all visas.
27. The Home Office should ensure it retains historical data on migration routes in a usable format for future analysis.
28. The Home Office should publish breakdowns of entry clearance visas disaggregated by gender on a regular basis."
30 January 2020 – 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 government should think twice about re-introducing a points based immigration system after Brexit, and lower the minimum salary necessary to get a work visa, the Migration Advisory Committee (MAC) has recommended.
In a report published recently, the MAC says that the existing Tier 2 (General) work visa system should be left intact, with employers continuing to sponsor workers with a job offer. By contrast, Tier 1 (Exceptional Talent) visas could be allocated using a points calculation, if the government is really so keen on it.
Key recommendations include:
- Retaining the Tier 2 (General) skilled worker route, because “the combination of skill eligibility and a salary threshold works well for an employer-driven system”.
- Reducing the minimum salary threshold to around £25,600, instead of the £30,000 recommended in the MAC’s last major report.
- Turning Tier 1 (Exceptional Talent) into a points based route for skilled workers without a job offer, since at the moment it “does not work well” anyway = aka Tier 1(General) pre-2011, is not it ?
Given these problems, if the Government wants to have a PBS route on entry, it could make sense to re-orient Tier 1 (Exceptional Talent) with the aim of increasing the numbers though the challenge is to do this without significantly affecting quality.
This may be regarded as unfortunate timing, since the government is pushing through unrelated reforms to Tier 1 (Exceptional Talent) on Thursday.
But if the report’s approach were adopted, the resulting mixture of sponsorship and unsponsored migration would reflect how countries with points based immigration systems do things. In Australia, Canada and New Zealand, the MAC calculates, people arriving without a confirmed job offer through points based routes only account for about 40-60% of economic migration. Those nations still use employer sponsorship as well.
The report is expected to be influential in the design of the UK’s post-Brexit immigration system, under which EU citizens will come under the same visa rules as non-EU citizens, but those rules will be made more liberal overall. That includes a lowering of the minimum salary required for a work visa, from £30,000 today to under £26,000 (the exact number depends on a fairly technical calculation). This recommendation is not a surprise, in the sense that the MAC had previously recommended keeping the threshold at £30,000 and was told to try again.
The post-Brexit dispensation taking shape is expected to “result in a lower level of immigration, a lower rate of growth in population, employment and GDP”. But there is a glaring caveat not reflected in some of the breathless coverage of today’s report. MAC chief Professor Alan Manning writes that “almost all of these estimated impacts at the macro level are small”. In other words, while the end of free movement has real human impacts, the MAC does not think that it has particularly significant economic effects.
The report also reveals that Professor Manning is not being kept on as Chair of the Migration Advisory Committee, despite his desire for a second term. The government is advertising for a replacement.
The MAC's recommendations in full + Legal Centre's (www.legalcentre.org) comments:
"Points-based systems
1. We recommend retaining the existing framework for Tier 2 (General).
2. If government wants to have a PBS route on entry, it should consider modifying Tier 1 (Exceptional Talent) in the following way:
• There should be an overall annual cap on those admitted;
• The route should operate on an expression of interest basis creating a pool of migrants interested in coming to the UK;
• There should be a monthly draw from this pool with those selected invited to submit a full application; - What is this ? A visa lottery ?
• The selection of those invited to apply should be based on those who have the highest number of points in the pool using a points-based system with tradeable points;
• There should also be an absolute minimum number of points;
• Points should be given for characteristics that the Government wants to attract through this route and for whom other routes are not suitable;
• Among the characteristics that the Government might want to consider in assigning points are: Qualifications with a rigorous process to assess the quality of qualifications and not just the level; Age; Extra points for having studied in the UK; Priority areas such as STEM and creative skills - This was called HSMP route a cople of decades ago, do not they remember it ?
• Changes should only be made if data is collected on the outcomes of migrants on this route, with monitoring and evaluation of the route.
3. There should be an immediate pause in the proposed increases to the settlement threshold.
4. We recommend a review of the requirements for settlement, to establish a clearer picture of how it is currently working and possible changes that could be made.
Salary thresholds in Tier 2 (General)
5. Both the occupation specific and general salary thresholds should be based on the relevant distribution of full-time earnings as reported in the Annual Survey of Hours and Earnings (ASHE) and updated annually. The appropriate salary threshold should continue to be the higher of the occupation specific and general threshold.
6. The occupation specific threshold should be the 25th percentile of the full-time annual earnings distribution for that occupation.
7. The general threshold should be set at the 25th percentile of the full-time annual earnings distribution for all Tier 2 (General) eligible occupations.
8. National pay scales should be used as the relevant salary thresholds in 24 occupations in health and education instead of both the occupation specific and general thresholds.
9. If the Government is concerned about the impact of the general threshold on lower-wage medium-skill occupations, we recommend the use of an occupational cap to be set at the 75th percentile. We do not recommend this given the level of the general threshold we propose.
10. There should be more adequate monitoring of how migrants are faring in the UK labour market after entry and ongoing review of the impacts of the recommendations on levels of salary thresholds.
11. The relevant salary thresholds should apply across the UK.
12. There should be a separate pilot visa for ‘remote’ areas of the UK, part of which could be lower salary thresholds for migrants into those areas. This should only be done with a full evaluation to understand its effectiveness and impacts.
13. Salary thresholds should not be pro-rated to allow for part-time work.
14. The Government should consider more flexibility (i.e. prorating salary thresholds) for visa holders switching to part-time work after becoming a parent.
15. Only salary on the main job should be used to determine whether the salary threshold is met. Allowances, equity and employer pension contributions should not be included.
16. The rules on Tier 2 (General) visa holders owning equity in the employer sponsoring them should be reviewed.
17. Occupations on the Shortage Occupation List should not have lower salary thresholds for entry.
18. We recommend a review of whether the SOL is needed after the new immigration system has been fully introduced.
19. National pay scales should be used as the relevant salary thresholds in 24 occupations in health and education instead of both the occupation specific and general thresholds.
20. The salary thresholds for new entrants should be a single ‘reduction’ percentage applied across both the general experienced worker threshold and the occupation specific experienced worker thresholds.
21. The reduction percentage for new entrants should be set at 30 per cent.
22. The definition of a new entrant should be widened to include those are working towards recognised professional qualifications and those who are moving directly into postdoctoral positions.
23. The new entrant rate should apply for five years, an extension from the current three-year entitlement. Any time spent on the new post-study work route should count towards the five years of new entrant threshold eligibility.
24. We recommend adding/removing the following occupations from the list of RQF3+ occupations
• Add: Air-conditioning and refrigeration engineers, Rail and rolling stock builders and repairers, Skilled metal, electrical and electronic trades supervisors, Carpenters and joiners, Glaziers, window fabricators and fitters, Plasterers, Floorers and wall tilers, Painters and decorators, Construction and building trades supervisors, Childminders and related occupations, Teaching assistants and Educational support assistants.
• Remove: Fishing and other elementary agriculture occupations n.e.c. and Waiters and waitresses.
Data issues
25. The Government and ONS should seek to link datasets across government to allow a better understanding of the employment outcomes of migrants, for the purposes of research whilst ensuring confidentiality.
26. The Government should invest in a data set designed to link migrants with subsequent outcomes to be used for the evaluation of all visas.
27. The Home Office should ensure it retains historical data on migration routes in a usable format for future analysis.
28. The Home Office should publish breakdowns of entry clearance visas disaggregated by gender on a regular basis."
31 January 2020 – 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)
>>> UK Global Talent visa (formerly Tier 1 Exceptional Talent) - an overview
The specifics have now landed via today’s statement of changes to the Immigration Rules (NB: The changes set out in this statement shall take effect on 20 February 2020. In relation to those changes, if any application for endorsement, entry clearance, leave to enter or leave to remain has been made before 20 February 2020, such applications will be decided in accordance with the Immigration Rules in force on 19 February 2020.). At first glance, the changes seem to introduce a new level of impenetrability, with certain terms (e.g. “directly incurred costs”) that will be little understood outside universities and research institutes. So what does it all mean?
What this introduces is a new immigration route within what was Exceptional Talent and is now called Global Talent. This new route will be intrinsically linked to the recruitment regimes of the higher education/research sector and provide an unlimited right to work for up to five years.
What kind of research jobs does this affect?
For clarity, the existing ways of getting a Global Talent (formerly Exceptional Talent) endorsement will remain in place. Those are:
- The “standard” route where an academic/scientist/researcher can ask for peer review of their career under the categories of “promise” or “talent”
- The “accelerated” route for those in receipt of a job offer for a senior role at a UK university or research institution
- A further accelerated route where the person holds a prestigious grant/fellowship (with the list of eligible fellowships to be expanded)
The changes introduce a fourth route covering two types of employees at UK universities and research institutions.
The first is post-doctoral researchers: those at an early stage of their academic career, having just gained their PhD. The second is specialist technologist roles.
This latter group is the most significant, and is a group which the sector has previously identified as being particularly vulnerable to being shut out under a post-Brexit immigration system.
What if you're not a scientist?
The explanatory memo accompanying the statement of changes says that “whilst specific provisions are made for the science and research sector, the Global Talent category is also open to talented and promising applicants within the digital technology and arts and culture (including film and television, fashion design and architecture) sectors”. More on this in a separate post.
Why include technical specialists?
Research sector organisations have consistently argued that salary is not an adequate indication of skill level for jobs in this sector. This is especially true of technical experts within research teams.
Technical experts form a critical part of any research team. They make crucial intellectual contributions to research by providing technical excellence and through maintaining and developing new technologies. The concept here is “Team Science” – that is, it takes the whole team working together, with individuals holding different specialisms and knowledge, to deliver a research project.
Whilst not all such roles require non-UK nationals to fill them, where a skills gap exists it is vital that this is met through an adequate immigration system. Failure to do so would make the delivery of much of the research in the UK impossible.
Under the current Tier 2 work visa system, specialist technician roles would be ineligible for sponsorship due to skill level requirements (RQF level 6 and above). Under the immigration white paper published by Theresa’s May government, skill level requirements would be lowered, bringing such roles within the scope of Tier 2 — but they would likely fail to meet the recommended £30,000 minimum salary. This could result in a critical skills gap.
Bringing these specialist roles under the umbrella of the Global Talent route shelters them from the unknown quantities of a future immigration system.
That said, it is important to note that not all technician/technical roles will be able to access this route. Rather, it is for those with specialist technical expertise and skills which cannot be readily found within the settled workforce.
How will it be easier to recruit for such roles?
The new route works by making eligibility for a Global Talent visa automatic when a researcher or specialist is recruited using certain UK research funding grants. The key concept, as written into the Immigration Rules, is that the hire is part of the “directly incurred costs” of the project.
In the wonderful world of research-speak, this is defined as costs which form an integral part of a grant funding application associated with a UK research project. One such “directly incurred cost” is the payroll costs of the staff necessary to deliver a research project. These staff are recruited by the employer which has the grant funding.
A researcher and/or specialist who is offered a job at a UK university or research institution, and whose job title or name was included within an application for qualifying research funding as a directly incurred cost, will be automatically eligible for a Global Talent visa.
This new category will provide the research sector considerable freedom to recruit the researchers and specialists it needs via the medium of research grant funding, without day-to-day Home Office scrutiny. This is hugely significant, given the context of the current immigration system, but it should not be interpreted as a route which will allow unregulated migration. Far from it.
Which research grants qualify?
There are several notable restrictions on who can access this new route, and how:
- The person must be named or appointed to a role on a successful grant application from a recognised funder
- The person must be employed, hosted or in receipt of a job offer from a UK university, independent research organisation or public sector research establishment
- The research grant must have been awarded under the “peer review” principle
- The minimum value of the grant must be £30,000 and must support a project of at least two years in duration
- The person must have, or be given, a contract of at least two years in duration at the point of application for endorsement, and work at least 50% FTE
The list of recognised funders will be administered by UK Research and Innovation, which oversees a large proportion of the UK’s science and research funding.
This system reflects the direction of travel over the last few years of devolving the decision-making process for certain visa types away from immigration caseworkers and on to expert third parties bodies (as seen recently with the Innovator and Start-up visas).
The concept has now been taken one step further, weaving eligibility for a visa into the sector’s unique method of recruitment and funding. It will be impossible for those working outside the sector to access this endorsement route, and it should shift a lot of recruitment currently undertaken by universities and research institutions out of Tier 2 and into Appendix W.
Those granted entry under this new route will be granted a visa of up to five years with the ability to gain settlement after three years. They will not be tied to their host institution, meaning no restrictions on their ability to move between roles and employers, provided the above rules were met at the outset. The route will also have no arbitrary cap on numbers. Final details on the application process will be released shortly.
In our view, this new route is a fragile gift to the sector — one which will need to be embraced proactively to ensure it is utilised to the full.
The Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 (SI 2020 No. 61) has come into force today, on the Brexit day, 31 January. They create a right of appeal to the Immigration Tribunal for people refused pre-settled or settled status under the EU Settlement Scheme. As the accompanying explanatory note puts it:
"This instrument provides that, where a person makes a valid application for leave under the EUSS, or for an EUSS family or travel permit, on or after exit day, they will have a right of appeal against a decision to:
- refuse the application;
- in the case of an application under the EUSS, grant limited leave to enter or remain (pre-settled status under the scheme) where they believe they should have been granted indefinite leave to enter or remain (settled status under the scheme)."
Note that this only applies to applications “on or after exit day”, but does allow people to appeal a grant of pre-settled status up to full settled status.
There are also appeal rights for various scenarios where settled status is being cancelled or revoked. Appeals go to the First-tier Tribunal (FTT IAC), unless certified as a national security issue for the Special Immigration Appeals Commission.
03 February 2020 – 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)
>>> More on the new Global Talent category immigration route
In brief, the Tier 1 (Exceptional Talent) category is being re-branded.
There no longer will be a cap on how many people can benefit from the new route. Yet it is worth remembering that the cap (max - 2000 applicants per year) for Tier 1 (Exceptional Talent) has never been reached so that seems to have been done more for show than anything else.
The Tier 1 (Exceptional Talent) - historical background
By way of very brief background, the Tier 1 (Exceptional Talent) category was designed to attract exceptionally talented individuals in the fields of science and medicine; engineering; humanities; digital technology and arts and culture. It was divided into two further sub-categories: Exceptional Talent, for those who are already leaders in their field, and Exceptional Promise, for those who have the potential to become leaders.
To be granted leave as a Tier 1 (Exceptional Talent) migrant, a person must first be endorsed by an endorsing body with expertise on the particular topic (for example, applicants in the field of engineering must be endorsed by the Royal Academy of Engineering, while applicants in the field of arts and culture are endorsed by Arts Council England). Once they are endorsed, they can go on to apply for leave to enter or remain within three months.
Unlike most other routes, there is no English language or financial requirement. Those who have been endorsed just need to show that they do not fall foul of the general grounds for refusal to be granted leave on this route.
The differences between Exceptional Talent and Global Talent
Nothing substantially changes for those applying in the fields of digital technology and arts and culture. The only differences at this stage are purely semantic:
- The Tech Nation (Tier 1 Exceptional Talent) application form is now called Tech National Global Talent application form.
- Designated competent bodies are now called endorsing bodies
- When you have to submit a CV, you are now allowed to submit a CV on three sides of A4 (as opposed to the previous two-A4 CV)
For those applying in the fields of science and medicine, engineering and humanities, the route has been expanded. Under the existing Exceptional Talent system, researchers in academic, industry or government research institutions can apply:
- Under the “normal” route, by showing that they met certain criteria such as being active researchers, having a PhD etc. Their respective endorsing bodies would then go on to consider whether to endorse them.
- Under the “accelerated” route, meaning they would be automatically endorsed if:
>They held a specific fellowship award (or held it within the 12 months directly prior to the date of application); or
>They were appointed to eligible senior academic or research positions at UK higher education institutions or research institutes.
All of these routes are still available, but the statement of changes has introduced an additional "fast-track" route. This covers academics, researchers, scientists, research engineers or other skilled research technology/methodology specialists who have a grant or award worth £30,000 or more, covering a minimum period of two years.
UK Research and Innovation has a list of approved organisations, set out in Annex 2 of Appendix W, who can act as “endorsed funders” by employing or hosting the applicants. The applicant, in turn, must be directing a “unique research or innovation project” or be making “critical contributions to research”.
Quicker route to settlement
All applicants endorsed in the fields of science and medicine, engineering and humanities can apply for settlement after three years, regardless of whether they were granted leave under the Exceptional Promise criteria or the Exceptional Talent criteria.
Digital technology, arts and culture applicants endorsed under the Exceptional Promise criteria still need to wait five years to qualify for settlement. Those endorsed in these fields under the Exceptional Talent criteria can also apply for indefinite leave to remain after three years.
Absences for research purposes do not break continuity of residence
When applying for indefinite leave to remain, applicants must usually show that they have not broken the continuity of their residence in the UK by being out of the country for more than 180 days in any 12 months. But applicants endorsed in the fields of science and medicine, engineering and humanities (and their partners, too) can discount absences “linked to their grant of leave (such as a scientist undertaking research overseas)”.
All in all, this is positive news. The Tier 1 (Exceptional Talent) route remains, in all but name, intact, while researchers get more options to move to or stay in the UK. It remains to be seen whether that will be sufficient to attract overseas talent to the UK.
04 February 2020 – 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)
>>> Free movement continues past Brexit day, but only until the 31st December 2020
The UK is no longer a member of the European Union. Yet the Free Movement of EU nationals and their Family Members continues until at least 31 December 2020. Articles 126 and 127 of the Brexit divorce deal say:
"There shall be a transition or implementation period, which shall… end on 31 December 2020… Unless otherwise provided in this Agreement, Union law shall be applicable to and in the United Kingdom during the transition period."
The transition period during which free movement continues can be extended until either 31 December 2021 or 31 December 2022, but this must be agreed by 1 July 2020. The UK legislation that implements the divorce deal says that British ministers cannot agree to an extension, although that section could be repealed if the government changed its mind.
People who move to the UK during the transition period can also apply to stay on afterwards, using the EU Settlement Scheme. This means they must be living in the UK by 31 December 2020, with the deadline for applications being 30 June 2021.
Finally, European Temporary Leave to Remain is out the window. It was only relevant if there had been no Brexit deal, and there is a deal. The plan — a rather optimistic plan — is for a new immigration system to be up and running by 1 January 2021, under which all new European arrivals will be expected to apply for visas to live and work in the UK just as non-EU citizens do today.
Case law, for those who are not lawyers, 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 on 31 December 2020. UK courts will not be bound by future Court of Justice decisions after IP completion day and will not generally 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 the end of transition if they want. The same goes for post-transition EU legislation. 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. The EU cases 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 the end of transition? This will apply when interpreting retained EU law, unless the government decides that it should not. The 2020 Act contains controversial provisions allowing the government to pass regulations dictating to courts how and when to apply retained EU case law. It remains to be seen how frequently this “broad and constitutionally significant” power will be exercised, and what areas of the law the government will target.
Even in the absence of such regulations, the Supreme Court can depart from 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.
06 February 2020 – 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 Home Office should release more details about a “cryptic” computer programme that scores visa applicants as high, medium and low risk, the immigration inspector has recommended.
David Bolt says that while applicants labelled high risk are not being automatically refused visas, officials should “demystify” the tool to allay concerns about racial bias.
Mr Bolt’s latest inspection report notes that the Home Office’s Visas and Citizenship directorate has been using a computerised streaming tool since 2015. It scores visa applicants as Red (high risk), Amber (medium risk) or Green (low risk).
The inspector says that among the factors that influence ratings are:
"the nationality of the applicant, all immigration harm data collected globally by Immigration Enforcement over the preceding 12 months and attributable to particular cohorts of applicants, attributes from local risk profiles (for example, the applicant’s occupation, sponsor), and any other relevant information (such as age, reason for travel, travel history)."
07 February 2020 – 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)
Despite Shamima Begum was born in the UK and was a British citizen, the Court found that she was also a citizen of Bangladesh and so would not be made stateless by being stripped of her British citizenship, the Special Immigration Appeals Commission has held. The main SIAC judgment is Shamima Begum v Secretary of State for the Home Department (SC/163/2019), while there is also a brief High Court judgment refusing a linked application for judicial review: [2020] EWHC 74 (Admin).
How many Shamima Begums are out there? Since 2002 the government has amended and re-amended nationality law to make deprivation of citizenship easier. Since 2010 there has been a sharp increase in use of this amended and expanded legal power. Some 120+ people have been deprived of the British citizenship...
12 February 2020 – 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 a pointed reminder, perhaps, to those in government threatening to “update” the Human Rights Act, Lady Hale began her Supreme Court judgment in the case of R (Jalloh) v SSHD [2020] UKSC 4 thus:
"The right to physical liberty was highly prized and protected by the common law long before the United Kingdom became party to the European Convention on Human Rights.".
The case concerned a claim made by Mr Jalloh – his name apparently misspelled in the court below as Jollah – that, as a result of a nightly curfew between 11pm and 7am imposed under immigration powers for over two years, he had been falsely imprisoned, and was entitled to damages as a result.
As summarised by Lady Hale:
"This case is about the meaning of imprisonment at common law and whether it should, or should not, now be aligned with the concept of deprivation of liberty in article 5 of the ECHR.".
The Secretary of State had argued in the Court of Appeal that a curfew amounted to voluntary compliance with a request to remain in a particular physical place.
This argument was about as successful as the August 1991 "Putch" the USSR, and it was perhaps surprising to see the Secretary of State giving it another go.
In response to these rehashed arguments, the Supreme Court held that
"24. The essence of imprisonment is being made to stay in a particular place by another person. The methods which might be used to keep a person there are many and various. They could be physical barriers, such as locks and bars. They could be physical people, such as guards who would physically prevent the person leaving if he tried to do so. They could also be threats, whether of force or of legal process…
25. In this case there is no doubt that the defendant defined the place where the claimant was to stay between the hours of 11.00 pm and 7.00 am. There was no suggestion that he could go somewhere else during those hours without the defendant’s permission.".
Lady Hale betrayed some of the irritation on display in the courts below with the position taken by the Secretary of State:
"The idea that the claimant was a free agent, able to come and go as he pleased, is completely unreal.".
An interesting feature of the judgment is the court’s treatment of the argument that the concept of imprisonment in the tort of false imprisonment should now be aligned with the concept of deprivation of liberty within the meaning of Article 5 ECHR.
In response, the Supreme Court hold that the protections under the common law in cases such as this are greater than those afforded by human rights legislation.
Lady Hale characterised the state’s case on this point as:
"asking this Court… not to develop the law but to make it take a retrograde step: to restrict the classic understanding of imprisonment at common law to the very different and much more nuanced concept of deprivation of liberty under the ECHR.".
The current incumbents of Downing Street have made clear their intention – via the Conservative manifesto – to “update” the Human Rights Act. The Attorney General, Geoffrey Cox, was heard this morning at the Institute for Government putting some flesh on this idea:
"We will update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security, and effective government.".
What this decision indicates is that judges believe themselves able to protect the rights of individuals even without the aid of the Human Rights Act. Striding out purposefully from the pavilion to bat for the common law, the court holds that there is
"every reason for the common law to continue to protect those whom is [sic] has protected for centuries against unlawful imprisonment.".
In what is likely to be one of her final Supreme Court judgments before retirement, it feels somehow right that Lady Hale is still sending shots across the bows of those who wrongly believe that human rights in this country began with the European Convention.
14 February 2020 – 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 confirmed that in order to benefit from the Surinder Singh principle, the family involved must have genuinely resided in another EU country and have created or fortified their family life there. In Kaur & Ors v Secretary of State for the Home Department [2020] EWCA Civ 98 it rejected the argument that, as a result of the Court of Justice decision in C-202/13 McCarthy No.2, anyone with a residence card from another member state is entitled to have their family come and live with them in the United Kingdom.
The facts of this case are not attractive. Mr Singh and Mrs Kaur had previously been married but divorced in 2004. The following year Mr Singh married a Polish national, obtained residence rights in the UK and became a British citizen in 2012. In 2013 he divorced his Polish wife and re-married Mrs Kaur. The couple went to live in Bulgaria with their children for 19 days in 2017 and Mr Singh obtained a residence permit. Then the family returned to the UK.
The couple sought to rely on the Surinder Singh principle to get residence rights for Mrs Kaur and their children. That principle allows EU citizens to obtain residence rights for family members in their home country if they move elsewhere in the EU and then return. The idea is to ensure that EU citizens are not discouraged from moving to other European countries.
To prevent abuse, the residence abroad must be genuine and in some way create or fortify family life.
At their initial appeal the First-tier Tribunal, perhaps unsurprisingly, found that the residence in Bulgaria was not genuine and there was no attempt to develop a family life there. Nonetheless, it allowed the appeal on the ground that, following the decision in McCarthy No.2, any EU citizen with a residence card must be permitted to enter with their family members.
The Upper Tribunal rejected that argument and the Court of Appeal was equally dismissive, ruling that McCarthy No. 2 was concerned with the procedural requirements on entry and not the substantive rules for residence rights:
"There is in my judgment no basis for thinking that the CJEU in McCarthy (No. 2) intended to overrule the decision in O v Minister voor Immigratie, Integratie en Asiel. It did not say so and the two cases were dealing with very different issues. O v Minister voor Immigratie, Integratie en Asiel is referred to repeatedly in the McCarthy (No. 2) judgment (see [31], [34], [36], [54] and [62]), at one point being cited as “settled case law”, while at [62] the CJEU even referred to [60] of the judgment in O v Minister voor Immigratie, Integratie en Asiel as confirming that residence permits issued on the basis of EU law declare and do not create rights. It added that “the fact remains that … the member states are, in principle, required to recognise a residence card issued under article 10 of Directive 2004/38, for the purposes of entry into their territory without a visa”, going on to say at [63] and [64] that the United Kingdom was entitled to verify the correctness of the data appearing on the Spanish residence permit in that case, although it could not impose further conditions on entry additional to those provided for by EU law."
Having reach that conclusion it was inevitable that the appeal would be dismissed as a result of the First-tier Tribunal’s findings that the period of residence in Bulgaria was not genuine.
>>> Can a Tier 2(General) migrant's working hours and salary be reduced despite the salary being above the relevant Code of Practice threhsold ?
Apparently, it cannot be reduced, according to the recent confirmation from the Home Office:
"If a migrant’s hours are reduced and hence their salary is reduced from the salary stated on the migrant's Certificate of Sponsorship, this would be a breach of the guidance, despite the migrant's earning in excess of the relevant Code of Practice".
19 February 2020 – 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 Public Law Project has a new briefing on EU citizens’ rights during the transition period. It says:
"The main takeaway is that throughout the transition period, until 31 December 2020, almost all EU rules will continue to apply in the UK. The jurisdiction of the Court of Justice of the European Union will continue until the end of the transition period. The four freedom: the freedoms of movement, services, capital and goods will continue until the end of the transition period. This means the UK will remain part of the customs union and [single] market until 31 December 2020 and British citizens will continue to be able to move freely around the EU and vice versa.
More importantly EU nationals and their family members in the UK throughout the transition period should not be asked for proof of settled or pre-settled status to access healthcare, to rent property or to gain employment until 1 January 2021. An EU, EEA or Swiss passport or national identity card, or a residence card issued by the Home Office if someone is the family member of an EU, EEA or Swiss citizen, is sufficient to show that someone is lawfully in the UK and lawfully entitled to work and rent property until the end of the transition period.".
The Brexit transition period ends on 31 December 2020, unless extended by mutual agreement.
19 February 2020 – 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 government has released a few more details of what it calls a “points based system” for immigration to the UK after Brexit. To balance out the impending end of free movement of workers from the European Union, it would allow employers to sponsor migrant workers at lower salaries and skill levels than they can today, but with almost no provision for visas for people working in jobs that do not require A-level qualifications or higher.
Today’s proposals are solely to do with economic migration: family migration, asylum and students are unaffected. They are — very optimistically — supposed to come into effect from January 2021.
Skilled workers
The system would introduce a limited element of flexibility in sponsored work visas (currently branded Tier 2, although the language of “tiers” is virtually absent from the policy paper).
Sponsored workers would still need a job offer, English language skills and to be working at a certain skill level. That skill level would be reduced level 6 (degree) to level 3 (A-level), as was the case under the December 2018 white paper.
There will still be a minimum salary required for a work visa. The headline salary threshold has been reduced to £25,600, in line with the Migration Advisory Committee’s recent recommendation. But it will no longer be the absolute minimum: some workers earning between £20,480 and £25,600 would still be able to get a visa, but only if they are highly qualified or working in shortage jobs.
So in effect, the minimum salary for a UK work visa will be £20,480 for people working in jobs on the Shortage Occupation List or who have PhDs in science, technology, engineering or mathematics. It will be £23,040 for people with a PhD outside these subjects but nevertheless “relevant to the job”. For people with none of these characteristics, the minimum will be the headline £25,600.
What of the May-era white paper proposal to scrap the annual cap on these work visas? That does reappear, although the word used is “suspend” rather than “abolish”. The Resident Labour Market Test will also go.
The paper adds:
"...here will continue to be different arrangements for a small number of occupations where the salary threshold will be based on published pay scales. We will set the requirements for new entrants 30% lower than the rate for experienced workers in any occupation and only use the base salary (and not the allowances or pension contributions) to determine whether the salary threshold is met."
Lower-skilled workers
There will be no visa route for “lower-skilled” workers. This is a change from the 2018 white paper, which had grudgingly proposed a system of 12-month work visas for people who do not meet the skills threshold outlined above. This would have been “for a transitional period after the UK’s exit from the EU”.
The Johnson government no longer considers this necessary. This is primarily an ideological decision:
"UK businesses will need to adapt and adjust to the end of free movement, and we will not seek to recreate the outcomes from free movement within the points-based system. As such, it is important that employers move away from a reliance on the UK’s immigration system as an alternative to investment in staff retention, productivity, and wider investment in technology and automation."
In the meantime, businesses are told to make do with the existing pool of lower-skilled workers. This includes the millions of existing EU residents who have secured their right to remain post-Brexit under the EU Settlement Scheme. They will “provide employers with flexibility to meet labour market demands”.
The paper also says that “we have committed to expanding the pilot scheme for seasonal workers in agriculture which will be quadrupled in size to 10,000 places”. So there will be visas for strawberry pickers, but not for care home workers.
Highly skilled workers
The Migration Advisory Committee had also said that the Tier 1 (Exceptional Talent) visa could be made points-based. Unsurprisingly, since the government introduced unrelated reforms to Exceptional Talent just days later, this recommendation is not followed.
Instead, the paper proposes adding a new “unsponsored route” for the highly skilled alongside Exceptional Talent, with eligibility determined by personal characteristics.
"Example characteristics for which points could be awarded include academic qualifications, age and relevant work experience."
This would be much more Australia-style.
But in light of past experience — the MAC pointed out that the Home Office itself had come to loathe points-based visas like Tier 1 (General) — the paper says that “this route will take longer to implement”. It adds that “we want to learn from previous experience of similar schemes in the UK that have highlighted certain challenges. The scheme will need to be designed to make sure it adds value and does not undermine the skilled worker route or create opportunities for abuse”. It may be doubted whether it will ever come to pass.
What next?
The most telling line of this paper is that “The Home Office will publish further detail on the points-based system in due course”. Further detail is practically overdue already: these broad brush strokes must now be translated into detailed Immigration Rules and procedures in time for January 2021.
The Rules themselves are due for a general rewrite in line with Law Commission recommendations; the policy paper says that the government will be responding to these recommendations “shortly”.
20 February 2020 – 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 the case of Tahir Yaseen v Secretary of State for the Home Department [2020] EWCA Civ 157, the Court of Appeal has reiterated that refusals on the ground of character or conduct require a balancing exercise, taking into account both positive and negative considerations.
The appellant, Mr Yaseen, made an application for indefinite leave to remain on the basis of his ten-year lawful residence in the UK. His application was refused on character grounds, due to a tax issue.
There are, however, two main differences between this case and others we have seen so far:
- Mr Yaseen did not declare different incomes to HMRC and the Home Office. Rather, he did not submit three years worth of tax returns at all until after he submitted his application for indefinite leave and was called for an interview by the Home Office.
- The Home Office refused the application relying not only on paragraph 322(5), but also on paragraph 276B(ii), which applies to indefinite leave to remain on the ground of ten years’ lawful residence in the UK.
Paragraph 276B(ii) ended up being the “winning” paragraph from the Home Office point of view. It reads:
"276B. The requirements to be met by an applicant for indefinite leave to remain on the ground of long residence… are that:
…
(ii) having regard to the public interest there are no reasons why it would be undesirable for him to be given indefinite leave to remain on the ground of long residence, taking into account his:
…
(c) personal history, including character, conduct…
Paragraph 322(5) says:
Grounds on which leave to remain and variation of leave to enter or remain in the United Kingdom should normally be refused…
(5) the undesirability of permitting the person to remain… in the light of his conduct… character or dissociations…
It is difficult to see the difference between the two. But the Court of Appeal agreed with the lower tribunals and the Secretary of State that a refusal under paragraph 322(5) requires a finding of dishonesty, while a refusal under paragraph 276B doesn’t. Similarly, it agreed that the case law on tax discrepancies does not apply to refusals under paragraph 276B.
The court found, however, that before a refusal under paragraph 276B can be made, the decision-maker should conduct a balancing exercise taking into account both positive and negative factors relating to the applicant’s character. It decided that the First-tier Tribunal had failed to do so, and therefore remitted the case for the tribunal to reconsider.
As mentioned before, it is difficult to follow the logic behind setting two different tests for paragraphs which read so much alike. All it does, it seems, is lower the bar for the Home Office. Officials can now rely on paragraph 276B instead of 322(5), without having to make a finding of dishonesty.
People applying under the long residence rules who know there may be issues with their taxes would be well advised to submit “counter” evidence of their good character.
24 February 2020 – 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)
26 February 2020 – 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)
Another unsuccessful reported appeal to assist the Ukrainian refugee who claimed asylum in the UK years after entering illegally and first travelling through a number of safe EU countries (where that refugee could claim asylum in the first place).
This reported case that would perhaps have been more effective and appropriate as a passive-aggressive Post-it note stuck on the office kettle at Tribunal HQ:
"Permission should not be granted on the grounds as pleaded if there is, quite apart from the grounds, a reason why the appeal would fail"
That’s the whole headnote. All of it. From OK (PTA; alternative findings) Ukraine [2020] UKUT 44 (IAC).
Notably the determination is written by one D O’Callaghan, formerly of Landmark Chambers and much missed at the immigration bar, who heard the case alongside President Lane. The determination is sound, naturally, but why on earth was it selected for reporting when so many other more interesting and important cases are not?
27 February 2020 – 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)
Ronnie Latayan came to the UK from the Philippines on a visit visa in 2004 and has been here ever since, through multiple unsuccessful applications for further leave to remain. Now 46, Ms Latayan lives with her mother, a naturalised British citizen with an Irish partner.
In Latayan v Secretary of State for the Home Department [2020] EWCA Civ 191, the Court of Appeal heard Ms Latayan’s appeal against her latest Home Office refusal. She had applied for an EEA residence card, arguing that she was a dependent of her mother’s partner. Ms Latayan described him as her “stepfather” and said that he sent her money in the Philippines between 1998 and 2004.
The Court of Appeal had to decide whether Ms Latayan came under Regulation 7(1)(b)(ii) of the EEA Regulations 2006. To do so, she would have to be a “direct descendant” of her stepfather.
Despite her not being his biological or adopted child, counsel for Ms Latayan made the “spirited argument” that a “de facto” or “real-world” parental relationship existed here. But Lord Justice Peter Jackson, giving several reasons, found otherwise:
"a step-child of an EU citizen (meaning a child of a person who is in a relationship with an EU citizen, not being a marriage or a civil partnership) is not a direct descendant of the citizen within the meaning of the Regulations.
A second ground of appeal was rejected as “no more than a disagreement with the [First-Tier Tribunal’s] assessment of evidence”, and the appeal dismissed.
The Supreme Court has found in the case of DN (Rwanda) v Secretary of State for the Home Department [2020] UKSC 7 that the detention of a Rwandan man facing deportation was unlawful because the deportation order on which detention was based was itself unlawful. In this case the deportation order was unlawful because it was made under a piece of secondary legislation which was, unusually, subsequently declared unlawful by the Court of Appeal. DN (Rwanda) has wider application, enabling claims for damages for unlawful detention in other cases where a deportation order was unlawfully made.
28 February 2020 – 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 number of people with pending asylum cases has risen by almost 50% in just the last 12 months, new Home Office figures show.
Over 56,000 asylum seekers and their dependants were awaiting an initial decision or further review at the end of 2019, compared to 38,000 at the end of 2018. That represents a 47% increase year on year.
The number of people waiting just for an initial decision now stands at over 51,000. That figure has been rising steadily since the beginning of 2015, and has more than tripled over the period.
Even more troublingly, 2019 saw a 75% increase in the number of people waiting more than six months for an initial decision. There were 17,000 asylum seekers in that position in December 2018, rising to 29,000 in December 2019.
Yet another hilarious bit of spin in the Home Office’s “fact sheet” on yesterday’s immigration statistics:
"…the UK continues to be a desirable location for the brightest and best around the world…
The number of highly skilled visas issued [in 2019] has increased by 7% to 5,664.
The majority of these (59%) were to entrepreneurs, coming to start businesses in the UK"
It is true that 5,664 Tier 1 visas were issued in the calendar year 2019 (if you include dependants and not just main applicants). Of those, 3,342 (59%) were granted in the Tier 1 (Entrepreneur) category.
That’s right: the Home Office is lauding the success of a visa that it abolished in March 2019. Most of the 3,342 Tier 1 (Entrepreneur) visas issued in 2019 came after the route closed to new applicants, the result of applications filed before 29 March 2019 still making their way through the system.
The direct replacement for Tier 1 (Entrepreneur) was the Innovator visa. It was, by the Home Office’s own admission, designed to reduce the number of overseas entrepreneurs getting UK visas. In that noble aim the department has admirably succeeded: the combined number of entrepreneur-type visa applications has fallen off a cliff after Innovator replaced Entrepreneur.
Put another way: in the last quarter of 2018, the Home Office issued 894 Tier 1 (Entrepreneur) visas, including dependants. In the last quarter of 2019, it granted just 66 Innovator visas.
02 March 2020 – 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)
03 March 2020 – 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 OA v Secretary of State for Education [2020] EWHC 276 (Admin), the High Court has ruled that the student loan regulations unlawfully discriminated against migrant victims of domestic violence and abuse. The rules required three years’ lawful residence in the UK to qualify for a student loan but failed to take account the possibility that domestic abuse victims would be less likely to have this because of an abusive partner stopping them from sorting out their immigration status. Since women are more likely to suffer from domestic abuse, the three-year lawful residence rule discriminated against women and was therefore in breach of the Human Rights Act 1998.
Prior to the case being heard, and in response to OA’s lobbying, the government changed the regulations. The rules now take account of victims of domestic violence in deciding eligibility for student loans. But, perplexingly, the government continued to defend its decision to refuse the loan in this case.
Fortunately, Mr Justice Nicol stepped in. OA will be able to continue her studies without waiting for the new regulations to come into force.
OA is a Nigerian citizen who has lived in the United Kingdom since 2011. She obtained indefinite leave to remain as a victim of domestic abuse and was accepted onto a Biomedical Science course at university. But the Student Loan Company refused to give her a loan because she did not have three years’ lawful residence. Without the loan, OA would have had to give up on her degree.
The break in lawful residence occurred during a period in which OA’s controlling partner had all her residence documents, including her passport. This is not an unusual scenario: as she told the High Court, “one of the forms that domestic abuse can take is the control of travel documentation, meaning that abused spouses (predominantly women) are liable to have gaps in their leave to remain in the UK”.
OA challenged the decision, arguing that the three-year lawful residence rule indirectly discriminated against women. Evidence from the Home Office showed that the vast majority of those granted indefinite leave to remain as victims of domestic abuse are women. Women are therefore much more likely than men to be denied access to university education as a result of the rule.
Mr Justice Nicol identified this result as discriminatory, rejecting the usual government defence that the discrimination was justified on the grounds of cost and administrative convenience. Interestingly, he also dismissed the argument that the relatively quick access to indefinite leave to remain available for victims of domestic violence could compensate for the discriminatory effect of the three-year rule:
"The relative advantage of speedier access to ILR did not eliminate the disadvantage of the discriminatory requirement of having 3 years ordinary and lawful residence.
In conclusion, I find that the Defendant has failed to justify the discrimination against the Claimant. It follows that there has been a breach of the Claimant’s rights under Article 14 of the [European Convention on Human Rights] when read with [Article 2 of the First Protocol]."
The ramifications of the judgment itself are likely to be small because OA had already convinced the government to change its policy, but the decision is still a pleasing example of the High Court conducting a robust review of indirect discrimination.
The Home Office has updated its policy guidance on immigration bail, with a couple of changes to note.
First, asylum seekers who have exhausted their appeal rights will no longer automatically be subject to study restrictions.
Second, the Home Office will now have five working days to decide whether someone who is not detained should be granted bail accommodation under Schedule 10 of the Immigration Act 2016. For certain groups, such as homeless people or pregnant women, officials will make “reasonable efforts” to ensure a decision within two working days.
Accommodation delays are still a big issue. Lengthy delays responding to accommodation requests, often after bail has been granted “in principle” by an immigration judge, has kept hundreds in detention for prolonged periods.
While time limits for considering accommodation requests are a welcome change, the Home Office may be missing the point by focusing solely on non-detained people. There’s no reason why these provisions couldn’t apply to those inside detention as well.
04 March 2020 – 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 has dismissed a judicial review of the restricted leave policy. This policy governs the grant of leave to remain in the UK to people who the Home Office wishes to remove but cannot because it would breach the European Convention on Human Rights.
The restricted leave policy states that indefinite leave to remain will only be granted in exceptional circumstances, even after long periods of residence in the UK. Instead, it requires officials to grant short periods of leave to remain with highly restrictive conditions. The intention of the policy is to prevent serious foreign national criminals, like convicted terrorists, from integrating into UK society while they await removal.
While that might sound like a reasonable idea, in practice it means that many people whose undesirable conduct may have taken place decades ago are stuck in limbo.
The official headnote
"(i) A decision of the Secretary of State not to grant indefinite leave to remain to a person subject to the restricted leave policy (“the RL policy”) does not normally engage Article 8 of the European Convention on Human Rights. However, Article 8 may be engaged by a decision to refuse to grant indefinite leave to remain where, for example, the poor state of an individual’s mental and physical health is such that regular, repeated grants of restricted leave are capable of having a distinct and acute impact on the health of the individual concerned.
(ii) Once Article 8 is engaged by a decision to refuse indefinite leave to remain under the RL policy, the import of Article 8 will be inherently fact-specific, and must be considered in light of the criteria set out in MS (India) and MT (Tunisia) v Secretary of State for the Home Department [2017] EWCA Civ 1190. The views of the Secretary of State attract weight, given her institutional competence on matters relating to the public interest and the United Kingdom’s reputation as a guardian of the international rule of law.
(iii) To obtain indefinite leave to remain under the Immigration Rules on the basis of long (partially unlawful) residence in cases involving no suitability concerns, paragraph 276ADE(1)(iii), taken with paragraph 276DE, requires a total of 30 years’ residence. A person who satisfies paragraph 276ADE(1)(iii) following 20 years’ residence is merely entitled to 30 months’ limited leave to remain on the ten year route to settlement.
(iv) Paragraph 16 of Schedule 3 to the Equality Act 2010 disapplies the prohibition against disability discrimination contained in section 29 of the Act in relation to a decision to grant restricted leave that is taken in connection with a decision to refuse an application for a more beneficial category of leave in the circumstances set out in paragraph 16(3).
(v) To the extent that paragraph 16 of Schedule 3 to the Equality Act 2010 disapplies the prohibition against discrimination on grounds of disability, there is a corresponding modification to the public sector equality duty imposed on the Secretary of State by section 149 of the Act."
09 March 2020 – 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 Bill has been introduced to the House of recently. It is expected to be similar to the one introduced in 2018 by then Home Secretary Sajid Javid, which ultimately lapsed when the Johnson government took power and secured a general election.
The revived bill was foreshadowed in the December 2019 Queen’s Speech, published after the Conservative victory in that election. The main elements are an end to free movement of EU citizens — which would otherwise be preserved in UK law despite Brexit — and a legislative guarantee of the special rights of Irish citizens.
The draft law is said to “pave the way” for a points based immigration system, although the press release also refers to that being implemented through changes to the Immigration Rules later in the year.
The 2020 version of the bill has been presented not by the Home Secretary, Priti Patel, but by her deputy, Kevin Foster. Patel may be a little busy trying to salvage her political career, but has tweeted in support of the bill.
The Home Office has been engaged in some light rebranding ahead of the bill’s publication. Foster is no longer merely the Immigration Minister, but the Minister for Future Borders and Immigration. Tier 2 (General) is now the General work visa (Tier 2): https://www.gov.uk/tier-2-general, while Tier 4 (General) is now the General student visa (Tier 4): https://www.gov.uk/tier-4-general-visa.
The case of R (Suliman) v Secretary of State for the Home Department [2020] EWHC 326 (Admin) is a welcome reminder to the Home Office that there may be an array of reasons for a victim of domestic abuse not to tell the authorities.
Mr Suliman is a Sudanese citizen who applied for indefinite leave to remain on the basis that he had been a victim of domestic abuse. The Home Office refused his application. Quoting the High Court:
"After summarising some of the evidence which [Mr Suliman] had submitted the decision maker said, ‘… nowhere in these notes is any explanation given for these injuries in that your wife caused them.’. In effect, therefore, the Secretary of State whilst accepting that the Claimant had attended hospital with injuries that are consistent with his account, refused to conclude that the Claimant’s wife caused them. [paragraph 20]"
The High Court found, however, that the refusal was unlawful because it failed to address the reasons given by Mr Suliman as to why he didn’t report the abuse:
"the Secretary of State did not address or deal with the reasons explained by the Claimant why he was reluctant to tell the police or the medical authorities. These were, variously, his own sense of shame; ‘cowardness’; his residual love for his wife despite her behaviour; and his fear of losing her or getting her into trouble. If the Secretary of State was going to deal with matters fairly then this evidence needed to be confronted and a conclusion reached. [25] "
It is also gratifying to see that Mr Justice Julian Knowles found those explanations plausible:
"I am bound to say that these explanations all strike me as being inherently plausible and the fairly typical response of an abused partner in a relationship. They provide at least an equally convincing explanation for why the Claimant said nothing at the time as the one reached by the Secretary of State, ie, that he had not been assaulted by his wife. Fairness required the Secretary of State to address it.[25]"
The judge therefore quashed the refusal of indefinite leave to remain.
Interestingly, the Home Office also said that Mr Suliman technically didn’t qualify for the domestic abuse settlement scheme within the Immigration Rules because he had never been granted leave as a partner under Appendix FM of the Rules. Instead, his leave to remain was under Part 8 of the Immigration Rules, which preceded Appendix FM.
The Home Office did, however, go on to accept that Mr Suliman had been granted leave as a partner and considered his application outside the Rules. Any other conclusion would have gone against the spirit of the immigration system’s approach to domestic abuse, which is to enable migrants in the UK to escape an abusive relationship without endangering their immigration status.
>>> Removing Afghan Sikhs does not breach their Article 3 rights: A.S.N. and Others v The Netherlands (application nos. 68377/17 and 530/18)
The Sikh community in Afghanistan used to be a sizeable religious minority within that country, but the effect of persecution over the past 30 years has meant that 99% have now emigrated. The United Nations and other international observers estimate that there may be only 1,000 Sikhs left in Afghanistan, primarily in Kabul.
Nevertheless, the European Court of Human Rights has ruled that there is no general risk of torture or inhuman or degrading treatment for Afghan Sikhs, and that there would be no breach of Article 3 of the human rights convention by removing a Sikh family to Afghanistan. The case is A.S.N. and Others v The Netherlands (application nos. 68377/17 and 530/18).
10 March 2020 – 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 staff guidance on calculating the 5 year continuous period in the UK requirement for an applicant.
This version:
• adds the Global Talent category to the list of immigration categories covered by this instruction
• adds an exemption for Global Talent and Tier 1 (Exceptional Talent) applicants in certain sectors who have had absences linked to their endorsement (such as conducting research overseas)
• adds minor clarifications and corrections
It replaces the Indefinite leave to remain: calculating continuous period in UK modernised guidance version 19.0 which has been withdrawn and archived.
>>> Knowledge of language and life in the UK - Updated Guidance Version 24.0
Update: Clarified the list of people who do not need to meet the KoLL requirement.
"The following categories of people do not need to meet the KoLL requirement:
- victims of domestic violence
- foreign and Commonwealth citizens on discharge from HM Forces (including Gurkhas)
- highly skilled migrants applying under the terms of the Highly Skilled Migrant Programme (HSMP) judicial review, and their dependants
- bereaved spouses, civil partners, unmarried partners or - same-sex partners of people present and settled in the UK
parents, grandparents and other dependent relatives of people present and settled in the UK, applying under paragraph 317 of the Immigration Rules, even if they are aged between 18 and 64
- adult dependent relatives, under Appendix FM of the Immigration Rules, even if they are aged between 18 and 64
retired persons of independent means
- people applying for ILR as a refugee
- people applying for ILR on the basis of discretionary leave "
Full guidance on the policy for applications by the family of people who have UK visas under the points-based system (PBS dependants) and Appendix W workers.
The High Court has held that the Home Office trying to apply its “deport first, appeal later” policy to EU citizens is incompatible with European Union law. The case is Hafeez v Secretary of State for the Home Department & Anor [2020] EWHC 437 (Admin)
In Hafeez, the High Court considered what test applies when deciding whether to certify a case. Are EU citizens protected by EU law (as one would expect) or does domestic law (in this case, the Human Right Act) apply?
This will be a helpful decision for EU citizens facing deportation from the UK and those representing them. It makes it clear that EU law applies to all stages of the deportation process.
The Home Office can still certify cases and deport EU nationals before their appeals have concluded. However it needs to apply EU law when doing so.
At the moment the test for certification is whether the person would face a real risk of serious irreversible harm if removed before the appeal is concluded. This test is based on the Human Rights Act and the person’s right to private and family life.
Now the test for certification is more stringent. The Home Office must demonstrate that:
"The personal conduct of the individual concerned represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society;
Removal prior to conclusion of the appeal process is necessary on grounds of public policy, public security or public health;
The objective to be achieved by removing the person before conclusion of their appeal cannot be achieved by a less onerous method; and
The burden imposed by removal is not disproportionate to the benefits secured."
The decision must be based exclusively on the personal conduct of the individual concerned. Considerations of general prevention are not permitted. Previous criminal convictions cannot, in themselves, constitute grounds for removal.
This is a much more difficult test for the Home Office to meet. As a result, use of the “deport first, appeal later” power is likely to be used less frequently, and only in the most serious cases.
11 March 2020 – 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 Home Office has finally updated its guidance on Surinder Singh cases to remove all reference to a “centre of life” test. This follows the case of ZA (Reg 9. EEA Regs; abuse of rights) Afghanistan [2019] UKUT 281 (IAC) in which the Upper Tribunal found that the test was made-up nonsense and incompatible with EU law.
Surinder Singh is an immigration route that allows British citizens who have moved to another EU country to return with non-European family members, bypassing the strict rules on UK family visas that apply to people who have not exercised free movement rights. The Home Office has always hated what it sees as a backdoor, and from 2014 demanded proof that Brits trying to avail of Surinder Singh had moved the centre of their life to the EU country in question. That this was clearly incompatible with the EU law on the subject did not bother officials.
With the Upper Tribunal finally saying so explicitly, the Home Office has bowed to reality and stripped the centre of life test from its decision-making manual. The document now states:
"Any previous references to a ‘centre of life’ requirement are no longer relevant following the determination in the case of ZA (Afghanistan) (UKUT 281 2019)."
The precise legal status of the Surinder Singh route now that the UK is no longer formally a member of the European Union is complicated, to say the least. But for the time being it remains open and can be applied for until the 31st December 2020.
11 March 2020 - Part 2 – 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 Immigration Health Surcharge is to increase from £400 to £624 in October 2020, the government has announced.
The rise was confirmed during the Budget, which Chancellor Rishi Sunak presented to Parliament today. An accompanying policy costings document states:
"This measure increases the Immigration Health Surcharge from the current level of £400 per year to £624 per year for each surcharge liable non-EEA temporary migrant (including dependants). The measure also increases the discounted rate for students, their dependents and those on the Youth Mobility Scheme from £300 to £470. The surcharge will also be set at £470 for all children under the age of 18.
This will be implemented in October 2020 and expanded to include future EEA temporary migrants at the increased rate from January 2021."
The Conservatives had promised to increase the surcharge to this level during the 2019 general election campaign, so it is not news in that sense, but the timing of the increase was not previously known.
Migrants already pay for the NHS through their taxes, so what the surcharge really represents is a tax on UK visas. It is levied in addition to headline visa application fees. These do not appear to be rising in 2020/21 — but the health surcharge hike will push up the total cost of many visas anyway.
13 March 2020 - Part 2 – 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 Surinder Singh route allows British citizens who have moved to another European Economic Area country or Switzerland to return with non-European family members, bypassing the strict rules on UK family visas that apply to people who have not exercised free movement rights.
The clock is ticking on Surinder Singh. The amendments confirm that, to use this route, the UK citizen needs to be resident abroad and exercising free movement rights before the end of the transition period. This is the quite specific time of 23:00 GMT on 31 December 2020. The previous version of the rules was not particularly clear on this.
The upshot is that people availing of the Surinder Singh route can return to the UK any time before on 29 March 2022 at — you guessed it — 23:00 GMT, so long as the relationship existed pre-Brexit. If the relationship was established during the transition period, the cut-off is 23:00 GMT on 31 December 2020.
Absences
Paragraphs 18 to 19A of the Immigration Rules provide that those outside the UK with indefinite leave to remain may resume their UK residence so long as they were not absent for more than two years, as well as satisfying some other requirements. What was not confirmed up to this point was how that rule will be squared with the promise that people with EU settled status — which legally speaking is a form of indefinite leave to remain — can retain it for up to five years rather than two.
Appendix EU now explicitly states that paragraphs 18 and 19A will not apply to those granted settled status under the Settlement Scheme.
McCarthy cases
Up until 2012, the UK treated dual British/EU citizens the same way as other EU citizens. That is, dual nationals could still rely on EU free movement rights to bring family members in, avoiding the stricter immigration system that applies to Brits.
This changed after the Court of Justice case of C-434/09 McCarthy. It established that dual nationals living in the country of their nationality who have never exercised free movement cannot rely on EU free movement rights. That ruled out bring their family members into the home member state under the more lenient EU law system.
Following the McCarthy case, the UK amended the Immigration (European Economic Area) Regulations to so that EU citizens who were also British citizens could not rely on free movement rights. But transitional provisions were put in place to protect family members of dual nationals who had already come in under the old system. Specifically, those who applied for residence documents before either 16 July or 16 October 2012 (depending on the type of document).
This scenario is so niche that it was unintentionally omitted from the EU Settlement Scheme rules. It therefore did not allow for family members covered under these transitional provisions to be able to transfer over to settled status using the Scheme.
The changes now allow these family members to get settled (or pre-settled) status. It is not clear whether they will need to apply on a paper form, like other people with complicated cases, or whether they can use the online EU Settlement Scheme process.
Expired documents for durable partners and dependent relatives
Basically, if you are a durable partner or a dependent relative you first need to obtain one of these relevant documents from the Home Office before applying for pre-settled or settled status. You need to have applied for the document before 1 January 2021. You then have until 30 June 2021 to apply to the Settlement Scheme. We would recommend applying for both as soon as possible.
Yesterdays’s changes relate to relevant documents that have expired. They ensures that if a durable partner or dependent relative has an expired relevant document it will not be an obstacle to relying on the corresponding period of residence. That is so long as, before it expired, they applied for a further relevant document based on the same family relationship and the document was issued before the settlement scheme application is decided.
It is still important for durable partners and dependent relatives to keep note of the expiration date of these documents and to obtain a new one or apply to the Settlement Scheme before they expire.
Tier 2
The salary threshold in the eligibility criteria for indefinite leave to remain under Tier 2 will not increase annually following the recommendation of the Migration Advisory Committee. As a result, it will remain at £35,800 for all applications submitted on or after 6 April 2019 (paragraph 245HF(vi)(3)).
Archaeologists are now on the Shortage Occupation List after being accidentally left out.
Youth mobility scheme
The quota for Tier 5 (Youth Mobility Scheme) visas for Australians, New Zealanders and Canadians has been reduced by 1,000 each for 2020/21. These quotas are set by looking at how many Brits went to these countries on the equivalent working holiday visa last year. Fewer Brits going to Australia means fewer Australians allowed into the UK the following year, essentially.
Permit free festival list
This has been updated. No longer included for 2020/21 are Africa Utopia, Cornwall International Male Choral Festival and Manchester International Festival. Newly added are Edinburgh International Book Festival and London International Festival of Theatre. This may prove academic in the age of coronavirus.
Other changes
⦁ Applications can now be refused where an individual has been or would be excluded from refugee or humanitarian protection, or Article 33(2) of the Refugee Convention applies or would do so, as they are a danger to the security of the UK, or applies as, having been convicted of a particularly serious crime, they are a danger to the community.
⦁ Leave to enter granted by virtue of having arrived with an entry clearance granted under Appendix EU (Family Permit) can now be cancelled where there has been a material change in circumstances since the family permit was granted. A cancellation decision on those grounds can be challenged by way of administrative review.
IHS fee increase
It was announced in the Budget that the immigration health surcharge will increase from £400 per year to £624 per year for adults and £470 for children under the age of 18. The discounted rate for students, their dependants and those on the Youth Mobility Scheme will increase from £300 to £470. This will take effect from October 2020.
>>> Correspondence between ILPA and Trinity College London SELT re change in SELT
Following the recent change to the list of approved English language test providers, ILPA wrote to UKVI and Trinity College London to seek clarification. We are yet to hear from UKVI but we will update members when we hear further.
"New SELT providers will be going live over the coming months and customers should keep referring to the list for any updates. On December 16th 2019, Trinity College London was delighted to announce that it had again been awarded a Home Office concession agreement that will enable it to expand current provision of UK Visas and Immigration (UKVI) approved Secure English Language Tests (SELTs) in the UK. For more information please see our website. The date that we start in the new concession is to be confirmed however our tests continue to be approved for UKVI applications.
Please see the current list of approved test centres from 10th March 2020 here. This shows Trinity College London SELT centres are approved until July 2020. These are the current transitional arrangements in place which will be updated in due course as SELT providers (including Trinity), transition into a new UKVI Secure English Language Testing service."
>>> Correspondence from Business Helpdesk re copy bank statements and sponsor licence applications
From the Business Helpdesk:
Q: Will be possible for a lawyer to certify a statement from the bank if they view it via the online portal and print it from that?
A: A certified printout of an online statement can usually be accepted
Q: Is ot OK to adopt that approach for any document generated from an online portal ?
A: Yes, that is correct. Print outs of such documents are considered copies, so provided these are properly certified they would usually be accepted.
EU citizens do not have to prove that they have a “genuine chance of being engaged” in order to retain worker status under European Union law, the Upper Tribunal has held. The case is KH v Bury MBC and SSWP [2020] UKUT 50 (AAC).
17 March 2020 - Part 2 – 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)
>>> Long waits for visa documents may give rise to compensation: https://www.bailii.org/ew/cases/EWCA/Civ/2020/329.html
The Home Office may have to pay compensation in the case of major blunders, the Court of Appeal has said in a significant new ruling, Hasson v Secretary of State for the Home Department [2020] EWCA Civ 329.
Challenging an impressive new low by the Home Office, Mr Hasson sought compensation after being left waiting 25 months for a biometric residence permit (BRP) confirming his right to live and work in the UK.
On 20 May 2016, the Home Office sent the Mauritian citizen a letter confirming he had been granted leave to remain in the UK until 20 November 2018, promising his BRP would be sent within seven working days.
After years of chasing, Mr Hasson finally received his BRP on 19 June 2018, with five months left to run. Without the BRP, Mr Hasson had been unable to work and had accrued significant amounts of debt.
What does this mean for suing the Home Office?
While a significant ruling, as it may expand Home Office accountability, it’s important to remember that the Court of Appeal was only being asked to decide on a very narrow legal and procedural point: namely whether Mr Hasson’s case appeared strong enough to even proceed to a full hearing.
The decision was in Mr Hasson’s favour but the claim must now return to the Upper Tribunal to consider the facts of exactly what happened in more detail.
Until we know the outcome of that full hearing, it’s impossible to say for sure whether this is an outlying decision or part of a broader trend of holding the Home Office to account for its unacceptable delays.
18 March 2020 - Part 2 – 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)
Paragraph 7.8 explains the process to account for the recent declaration of incompatibility in relation to the position where a child's biological father is not the same as their father for the purposes of nationality law because the mother was married at the time of birth.
7.5 Certain applications for British citizenship are subject to the requirement to be of good character. The British Nationality Act 1981 (Remedial) Order 2019, which came into force on 25 July 2019, removed this requirement from routes where applicants were born to an unmarried British father before 1 July 2006 or to a British mother before 1 January 1983. This was as a result of court rulings which found that such a provision in the 1981 Act was incompatible with the European Convention on Human Rights.
7.6 These Regulations are concerned with applications under section 4F of the 1981 Act for registration as a British citizen made on the basis that the applicant would have been entitled to be registered under paragraph 4 or 5 of Schedule 2 to that Act if the applicant’s mother had been married to his or her natural father at the time of their birth. These are routes which make provision for those who are stateless to register as British citizens. An individual who made such an application before the British Nationality Act 1981 (Remedial) Order 2019 came into force on 25 July 2019 and whose application was refused on the basis that they were not of good character may wish to make a new application now that the good character test has been removed by the Order. These Regulations remove the fee that would otherwise have been payable for a repeated application of this kind. This amendment is made in response to a recommendation made by the Joint Committee on Human Rights in their report ‘Proposal for a draft British Nationality Act 1981 (Remedial) Order 2018’, published on 31 May 2018 (see in particular paragraph 64). Applications for registration under section 4C and sections 4G to 4I are already free and a fee exception is therefore not required for these routes.
7.7 Children born on or after 1 July 2006 to British fathers. A child cannot acquire British citizenship through their biological father if, at the time of their birth, their mother was married to or in an opposite sex civil partnership with another man. This is because, under section 50(9A) of the 1981 Act, the child’s father, for the purposes of provisions of that Act which confer British citizenship based on the status of a child’s father, is the mother’s husband or opposite sex civil partner at the time of the birth.
7.8 In a recent High Court judgment section 50(9A) of the 1981 Act was found to be incompatible with Article 14 of the European Convention of Human Rights when read in conjunction with Article 8 in this context, as such a child does not have an entitlement to be registered as a British Citizen. A child in these circumstances can apply to be registered as a British Citizen at the Home Secretary’s discretion under section 3(1) of the 1981 Act and whilst the government considers what appropriate action to take in light of the declaration of incompatibility, these Regulations provide for such a child to be able to make an application for registration without the payment of a fee.
19 March 2020 - Part 2 – 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)
Uddin v Secretary of State for the Home Department [2020] EWCA Civ 338 is an important case in which the outgoing Senior President of Tribunals provides the judges who serve in his Immigration and Asylum Chamber with very strong guidance on mixed credibility findings and the assessment of family life.
In the case of MS (Pakistan) v Secretary of State for the Home Department [2020] UKSC 9, handed down today, the Supreme Court has confirmed that the immigration tribunal can and must decide for itself whether an appellant was a victim of trafficking. The tribunal is not bound by decisions of the National Referral Mechanism (NRM) which is primarily responsible for assessing trafficking cases, nor even limited to finding public law errors in NRM decisions in order to go behind them.
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>>> If something is required by the Immigration Rules, it must be possible, appeal judges declare: https://www.bailii.org/ew/cases/EWCA/Civ/2019/2293.html
Prior to the closure of the Tier 1 (Entrepreneur) route, the main requirement was evidence that an applicant had access to funds for investment in their proposed venture.
The Immigration Rules permitted applicants to rely on their own funds, or alternatively on funds that have recently been transferred to them by third parties. In certain circumstances, the rules also permitted reliance on funds that were still held by a third party at the time of the application.
In this scenario, the applicant (and the Home Office) was relying on the third party’s promise that, if and when the visa is granted, the funds would be made available to the Tier 1 (Entrepreneur) for their venture.
It is still a mystery why the drafters of the Immigration Rules permitted this funding structure at all. If the third party was serious about investing, why not require the funds to be transferred to the prospective Tier 1 (Entrepreneur) prior to the submission of the application?
Nothing is impossible
Lord Justice Davis, giving judgment in the Court of Appeal, doesn’t really address the bonkers nature of the requirement itself. Instead he sticks to the “rules is rules” theme of applications made under the Points Based System:
"The underpinning rationale for the current requirements of the PBS under the Rules is, as I have said, clear. These requirements have been, in a context such as the present, expressly approved as workable and fair in cases such as Durrani and Iqbal (cited above). There is no reason not to apply the reasoning in those cases to paragraph 41-SD(c)(i) of Appendix A and to this particular case, and every reason for doing so. The rules here are specific in their requirements; and the applicant in this case failed to meet those requirements. As paragraph 245DD of the Immigration Rules stipulates, in such circumstances the application will be refused. That, put shortly, is the end of the matter, as I see it."
Davis LJ did not accept that such a declaration could not be obtained:
"I should in any event make clear that I was wholly unpersuaded on the evidence that there was an impossibility of compliance here. It may be that the evidence (including the two witness statements) indicates that the Halifax Bank itself does not, as a matter of its practice, currently choose to provide letters in the required format. But that does not mean at all that it is impossible for the Halifax Bank to do so. Nor does it preclude an applicant or sponsor from going to some other regulated financial institution which does not have such a practice.".
>>> Note on BRP expiry dates of 31/12/2024 (23 January 2020)
It has become apparent that Biometric Residence Permits (BRPs) which do not incorporate the next generation of encryption technology are required by the EU to have a validity date of no later than 31 December 2024. Until 1 January of this year, this issue only affected those granted indefinite leave to remain, and some measures were put in place to ensure those who were granted ILR were aware that their leave would remain extant beyond 31 December 2024.
As 31 December 2024 is less than five years away, individuals granted limited leave to remain for five years are now receiving BRPs with validity dates earlier than the expiry of their leave.
The Home Office's response is as follows:
"We are required by the EU to restrict BRPs which do not incorporate the next generation of encryption technology to a validity date of 31 December 2024, subject to the UK leaving the European Union and the outcome of any Brexit negotiations.
As the UK intends to introduce the new technology in due course, the date restriction affects only cards issued with Leave valid past the date of 31 December 2024.
Any card restricted to 31 December 2024 which is still rightfully held on 01 July 2024 will be replaced free of charge, with the remainder of the leave period initially expected being issued on a new BRP.
This means that anyone who has paid a fee in expectation of receiving a period of leave for longer than the 31 December 2024 date, will still do so but it will be spread over two BRPs.
The date restriction does not change the entitlements of the rightful holder to work, access services/benefits or travel.
Information on how to replace a BRP that is due to expire as a result of this restriction will be updated approximately 6 months prior to 31 December 2024 and applicants affected should consult these web pages at that time for the latest advice"
>>> New Knowledge of Life in the UK (KOLL) guidance (23 January 2020): https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwjG4_O895vnAhWL8eAKHVDrARUQFjAAegQIBBAC&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/834967/KoLL-v22.0-ext.pdf&usg=AOvVaw0POSRclro-tmXOZQF-qjx9
The guidance has been changed to reflect the changes to the Immigration Rules and Nationality Regulations on 17 December 2019.
>>> Tier 1 (Exceptional Talent) visa to be re-named in February 2020: https://www.gov.uk/government/news/boost-for-uk-science-with-unlimited-visa-offer-to-worlds-brightest-and-best
The Tier 1 (Exceptional Talent) visa will be rebranded as the “Global Talent” route from 20 February. The science funding agency UK Research and Innovation will be able to endorse applicants for the rejigged route, according to a government press release, which adds that the system will:
"- Provide for a brand new fast-track scheme, managed by UKRI which will enable UK-based research projects that have received recognised prestigious grants and awards, including from the European Space Agency and the Japan Science and Technology Agency, to recruit top global talent, benefitting higher education institutions, research institutes and eligible public sector research establishments. This will enable an individual to be fast-tracked to the visa application stage.
- Double the number of eligible fellowships, such as Marie Skłodowska-Curie Actions, the European Research Council and Human Frontier Science, which also enable individuals to be fast tracked.
- Continue to ensure dependents have full access to the labour market.
- Preserve the route’s flexibility by not requiring an individual to hold an offer of employment before arriving or tying them to one specific job.
- Provide an accelerated path to settlement for all scientists and researchers who are endorsed on the route.
- Provide for an exemption from our absences rules for researchers, and their dependants, where they are required overseas for work-related purposes, ensuring they are not penalised when they apply for settlement.".
Details will be available on 30 January, when a statement of changes to the Immigration Rules is due.
>>> Accountants taking the blame for tax discrepancies should give evidence in person: https://www.bailii.org/uk/cases/UKUT/IAC/2020/27.html
Following another paragraph 322(5) case, where an applicant was refused indefinite leave to remain on the basis of dishonesty for disclosing different income to HMRC as opposed to the Home Office, the Upper Tribunal has issued guidance on evidence from accountants purporting to take the blame for those tax discrepancies.
The case of Abbasi (rule 43; para 322(5): accountants’ evidence) [2020] UKUT 27 (IAC) had seemed to be going well for the appellant, Mr Abbasi. Mr Abbasi was initially refused indefinite leave to remain but then won his appeal at the First-tier Tribunal. The tribunal found that Mr Abbasi had acted innocently and had relied on his accountants, who provided a letter claiming to have made a mistake with his tax returns.
The First-tier Tribunal placed significant weight on the accountants’ letter. The Home Office appealed to the Upper Tribunal, but it found in Mr Abbasi’s favour once again. That decision was promulgated in July 2019 and Mr Abbasi was granted indefinite leave to remain by the Home Office in October.
All’s well that ends well, you might say. But then comes the twist: on 16 September 2019, the Upper Tribunal received an email from the accountant who supposedly wrote the letter in support of Mr Abbasi’s claim, stating that she had never heard of Mr Abbasi or ever assisted him, and she had not written, let alone signed, the letter.
The Upper Tribunal then convened a hearing to consider whether it had the power to use rule 43 of the Tribunal Procedure (Upper Tribunal) Rules 2008 to set aside the decision. It concluded that it did have the power to apply rule 43 of its own motion, where the evidence relied upon by the tribunal in an appeal was forged or otherwise bogus.
In practice, though, it could not do so in this case because the appellant had been granted indefinite leave nine days before the Upper Tribunal sent its notice of hearing. The grant of indefinite leave to remain meant that the appeal proceedings had come to an end, and therefore the Upper Tribunal no longer had any jurisdiction. But it is open to the Home Office to revoke Mr Abbasi’s indefinite leave to remain, and I would be surprised if it didn’t.
The Upper Tribunal also concluded that accountants who admit to making a mistake with an appellant’s taxes should attend the hearing to give evidence and explain their error. If they do not, the tribunal is unlikely to be able to place any material weight on letters of this kind.
This is an example of when one applicant’s fraudulent actions results in making life harder for others. From now on, accountants in these cases are likely to be expected to attend hearings in person to give evidence.
Headnote:
1. The Upper Tribunal can apply rule 43 of the Tribunal Procedure (Upper Tribunal) Rules 2008 of its own motion.
2. The use of fraud before the Upper Tribunal constitutes an abuse of process such as to amount to a “procedural irregularity” for the purposes of rule 43(2)(d).
3. In a case involving a decision under paragraph 322(5) of the immigration rules, where an individual relies upon an accountant’s letter admitting fault in the submission of incorrect tax returns to Her Majesty’s Revenue and Customs, the First-tier or Upper Tribunal is unlikely to place any material weight on that letter if the accountant does not attend the hearing to give evidence, by reference to a Statement of Truth, that explains in detail the circumstances in which the error came to be made; the basis and nature of any compensation; and whether the firm’s insurers and/or any relevant regulatory body have been informed. This is particularly so where the letter is clearly perfunctory in nature.
>>> UKVI Document Reduction Pilot - Appendix FM applications
From the UK BA:
"Following our meeting recently in which we discussed Document Rationalisation, I thought this would be a good time to update you on our Appendix FM project and some of the work that we are doing to reduce the number of unnecessary documents submitted.
Firstly, I promised you some feedback from the settlement Document Reduction pilot in India. The pilot ran for a total of 6 weeks and the main findings were:
· Customers were invited to take part on a voluntary basis and as expected, uptake was quite low. We received a total of 25 applications, however, 6 of these applications were invalid as they did not meet the pilot criteria.
· 35 customers chose not to take part in the pilot. The main reason being - the sponsor or representative collated the supporting documents for them and they were instructed that all the documents must be scanned, there was also a perception amongst these customers that the more documents that are submitted, the stronger the application and greater chance of success.
· Of the 19 valid applications, none were scanned in line with the pilot guidance and therefore could not be assessed by the Decision Makers as part of this pilot.
Whilst at initial look it seems that the pilot was unsuccessful, we weren’t disappointed by this as it actually confirmed our initial thoughts on some of the challenges that we will face around ingrained customer behaviour and perception. It also confirmed that the Appendix FM route is a very complex one and our commercial partners require much more support to identify specific cohorts of FM customers and support with scanning documents in the required order.
Following the India pilot, we have re-focused our efforts and are planning two further settlement initiatives to support document rationalisation.
Auto-email message:
There will be an auto-email message sent to all Appendix FM customers from the online customer journey. The message informs customers that we will no longer accept the unnecessary documents listed and in addition to this we will only accept a maximum of 10 photographs. The benefit of sending this message out from the online customer journey is that it gives customers, sponsors and legal representatives the opportunity to read and understand our requirement before the customer attends their appointment at the VAC.
This auto-email went live on the 26th January 2020 and will initially only be sent to Appendix FM customers attending appointments at one of the VACs in India. This will reviewed before being rolled out more widely.
Document Reduction at the UK scanning hubs:
We will be duplicating the India pilot at the VFS UK scanning hubs. The advantage of doing this in the UK as opposed to overseas is that in the majority of Appendix FM cases, the sponsor or the legal representative will be submitting the documents in person at one of the UK scanning hubs and VFS hub staff will be able to support them through the process. It also means that our staff in Sheffield will be able to provide direct and immediate support to the hub staff with time zones not being a practical barrier to this.
All customers meeting the pilot criteria will be expected to take part – this will not be voluntary basis. The pilot will be launched on the 4th February 2020 at the VFS scanning hub in London with the remaining VFS hubs going live shortly afterwards. I have sent you the notice that will be displayed at the scanning hubs.
From an operational perspective, rest assured that we are working closely with our Decision Makers to analyse the impact of both these initiatives and to ensure that adverse decisions are not made on the basis that these documents have not being submitted. As we’ve discussed, Decision Makers are encouraged to request documents when appropriate and on the rare occasion that they need to see one of these unnecessary documents, they will contact the customer to request it before a decision is made."
>>> Home Office can detain migrants for up to five weeks after law requires that they be released: https://www.bailii.org/ew/cases/EWCA/Civ/2020/36.html
The Court of Appeal has given judgment in R (AC (Algeria)) v SSHD [2020] EWCA Civ 36. The case is about “grace periods” in unlawful detention claims.
A grace period, as described by Lord Justice Irwin in his judgment, is
"that period of time allowed to the Secretary of State, once detention has ceased to comply with the Hardial Singh principles, to make suitable arrangements for release.".
>>> Government advised not to bother with points based attempt for migrants with job offers: https://www.gov.uk/government/publications/migration-advisory-committee-mac-report-points-based-system-and-salary-thresholds
The government should think twice about re-introducing a points based immigration system after Brexit, and lower the minimum salary necessary to get a work visa, the Migration Advisory Committee (MAC) has recommended.
In a report published recently, the MAC says that the existing Tier 2 (General) work visa system should be left intact, with employers continuing to sponsor workers with a job offer. By contrast, Tier 1 (Exceptional Talent) visas could be allocated using a points calculation, if the government is really so keen on it.
Key recommendations include:
- Retaining the Tier 2 (General) skilled worker route, because “the combination of skill eligibility and a salary threshold works well for an employer-driven system”.
- Reducing the minimum salary threshold to around £25,600, instead of the £30,000 recommended in the MAC’s last major report.
- Turning Tier 1 (Exceptional Talent) into a points based route for skilled workers without a job offer, since at the moment it “does not work well” anyway = aka Tier 1(General) pre-2011, is not it ?
While the Conservatives have plugged the idea of an “Australia-style points based system” as a radical new departure, the MAC knows that we have been here before. It reviewed the previous use of pure points-based routes in the UK, including the Highly Skilled Migrant Programme, Tier 1 (General), and the early days of Tier 2 (General). The data is extremely limited, making firm conclusions difficult, but “the scraps of information available” suggest that “a sizeable proportion did not end up working in highly-skilled jobs as was intended”.
As such, the MAC cautions, “any changes should not repeat mistakes made in UK systems in the past but draw on best practice from other countries”. Such best practice would “include a cap [on numbers] and the use of the Expression of Interest system”.
The economists try to steer ministers away from interfering with Tier 2, partly because employers think being able to sponsor individual workers from overseas is rather important. Instead, their report says that the place for points is Tier 1, in particular the Exceptional Talent route which “does not work well” and is “failing to meet all its objectives”.
Given these problems, if the Government wants to have a PBS route on entry, it could make sense to re-orient Tier 1 (Exceptional Talent) with the aim of increasing the numbers though the challenge is to do this without significantly affecting quality.
This may be regarded as unfortunate timing, since the government is pushing through unrelated reforms to Tier 1 (Exceptional Talent) on Thursday.
But if the report’s approach were adopted, the resulting mixture of sponsorship and unsponsored migration would reflect how countries with points based immigration systems do things. In Australia, Canada and New Zealand, the MAC calculates, people arriving without a confirmed job offer through points based routes only account for about 40-60% of economic migration. Those nations still use employer sponsorship as well.
The report is expected to be influential in the design of the UK’s post-Brexit immigration system, under which EU citizens will come under the same visa rules as non-EU citizens, but those rules will be made more liberal overall. That includes a lowering of the minimum salary required for a work visa, from £30,000 today to under £26,000 (the exact number depends on a fairly technical calculation). This recommendation is not a surprise, in the sense that the MAC had previously
recommended keeping the threshold at £30,000 and was told to try again.
The post-Brexit dispensation taking shape is expected to “result in a lower level of immigration, a lower rate of growth in population, employment and GDP”. But there is a glaring caveat not reflected in some of the breathless coverage of today’s report. MAC chief Professor Alan Manning writes that “almost all of these estimated impacts at the macro level are small”. In other words, while the end of free movement has real human impacts, the MAC does not think that it has particularly significant economic effects.
The report also reveals that Professor Manning is not being kept on as Chair of the Migration Advisory Committee, despite his desire for a second term. The government is advertising for a replacement.
The MAC's recommendations in full + some of the Legal Centre's comments
"Points-based systems
1. We recommend retaining the existing framework for Tier 2 (General).
2. If government wants to have a PBS route on entry, it should consider modifying Tier 1 (Exceptional Talent) in the following way:
• There should be an overall annual cap on those admitted;
• The route should operate on an expression of interest basis creating a pool of migrants interested in coming to the UK;
• There should be a monthly draw from this pool with those selected invited to submit a full application; - What is this ? A visa lottery ?
• The selection of those invited to apply should be based on those who have the highest number of points in the pool using a points-based system with tradeable points;
• There should also be an absolute minimum number of points;
• Points should be given for characteristics that the Government wants to attract through this route and for whom other routes are not suitable;
• Among the characteristics that the Government might want to consider in assigning points are: Qualifications with a rigorous process to assess the quality of qualifications and not just the level; Age; Extra points for having studied in the UK; Priority areas such as STEM and creative skills - This was called HSMP route a cople of decades ago, do not they remember it ?
• Changes should only be made if data is collected on the outcomes of migrants on this route, with monitoring and evaluation of the route.
3. There should be an immediate pause in the proposed increases to the settlement threshold.
4. We recommend a review of the requirements for settlement, to establish a clearer picture of how it is currently working and possible changes that could be made.
Salary thresholds in Tier 2 (General)
5. Both the occupation specific and general salary thresholds should be based on the relevant distribution of full-time earnings as reported in the Annual Survey of Hours and Earnings (ASHE) and updated annually. The appropriate salary threshold should continue to be the higher of the occupation specific and general threshold.
6. The occupation specific threshold should be the 25th percentile of the full-time annual earnings distribution for that occupation.
7. The general threshold should be set at the 25th percentile of the full-time annual earnings distribution for all Tier 2 (General) eligible occupations.
8. National pay scales should be used as the relevant salary thresholds in 24 occupations in health and education instead of both the occupation specific and general thresholds.
9. If the Government is concerned about the impact of the general threshold on lower-wage medium-skill occupations, we recommend the use of an occupational cap to be set at the 75th percentile. We do not recommend this given the level of the general threshold we propose.
10. There should be more adequate monitoring of how migrants are faring in the UK labour market after entry and ongoing review of the impacts of the recommendations on levels of salary thresholds.
11. The relevant salary thresholds should apply across the UK.
12. There should be a separate pilot visa for ‘remote’ areas of the UK, part of which could be lower salary thresholds for migrants into those areas. This should only be done with a full evaluation to understand its effectiveness and impacts.
13. Salary thresholds should not be pro-rated to allow for part-time work.
14. The Government should consider more flexibility (i.e. prorating salary thresholds) for visa holders switching to part-time work after becoming a parent.
15. Only salary on the main job should be used to determine whether the salary threshold is met. Allowances, equity and employer pension contributions should not be included.
16. The rules on Tier 2 (General) visa holders owning equity in the employer sponsoring them should be reviewed.
17. Occupations on the Shortage Occupation List should not have lower salary thresholds for entry.
18. We recommend a review of whether the SOL is needed after the new immigration system has been fully introduced.
19. National pay scales should be used as the relevant salary thresholds in 24 occupations in health and education instead of both the occupation specific and general thresholds.
20. The salary thresholds for new entrants should be a single ‘reduction’ percentage applied across both the general experienced worker threshold and the occupation specific experienced worker thresholds.
21. The reduction percentage for new entrants should be set at 30 per cent.
22. The definition of a new entrant should be widened to include those are working towards recognised professional qualifications and those who are moving directly into postdoctoral positions.
23. The new entrant rate should apply for five years, an extension from the current three-year entitlement. Any time spent on the new post-study work route should count towards the five years of new entrant threshold eligibility.
24. We recommend adding/removing the following occupations from the list of RQF3+ occupations
• Add: Air-conditioning and refrigeration engineers, Rail and rolling stock builders and repairers, Skilled metal, electrical and electronic trades supervisors, Carpenters and joiners, Glaziers, window fabricators and fitters, Plasterers, Floorers and wall tilers, Painters and decorators, Construction and building trades supervisors, Childminders and related occupations, Teaching assistants and Educational support assistants.
• Remove: Fishing and other elementary agriculture occupations n.e.c. and Waiters and waitresses.
Data issues
25. The Government and ONS should seek to link datasets across government to allow a better understanding of the employment outcomes of migrants, for the purposes of research whilst ensuring confidentiality.
26. The Government should invest in a data set designed to link migrants with subsequent outcomes to be used for the evaluation of all visas.
27. The Home Office should ensure it retains historical data on migration routes in a usable format for future analysis.
28. The Home Office should publish breakdowns of entry clearance visas disaggregated by gender on a regular basis."
>>> Government advised not to bother with points based attempt for migrants with job offers: https://www.gov.uk/government/publications/migration-advisory-committee-mac-report-points-based-system-and-salary-thresholds
The government should think twice about re-introducing a points based immigration system after Brexit, and lower the minimum salary necessary to get a work visa, the Migration Advisory Committee (MAC) has recommended.
In a report published recently, the MAC says that the existing Tier 2 (General) work visa system should be left intact, with employers continuing to sponsor workers with a job offer. By contrast, Tier 1 (Exceptional Talent) visas could be allocated using a points calculation, if the government is really so keen on it.
Key recommendations include:
- Retaining the Tier 2 (General) skilled worker route, because “the combination of skill eligibility and a salary threshold works well for an employer-driven system”.
- Reducing the minimum salary threshold to around £25,600, instead of the £30,000 recommended in the MAC’s last major report.
- Turning Tier 1 (Exceptional Talent) into a points based route for skilled workers without a job offer, since at the moment it “does not work well” anyway = aka Tier 1(General) pre-2011, is not it ?
Given these problems, if the Government wants to have a PBS route on entry, it could make sense to re-orient Tier 1 (Exceptional Talent) with the aim of increasing the numbers though the challenge is to do this without significantly affecting quality.
This may be regarded as unfortunate timing, since the government is pushing through unrelated reforms to Tier 1 (Exceptional Talent) on Thursday.
But if the report’s approach were adopted, the resulting mixture of sponsorship and unsponsored migration would reflect how countries with points based immigration systems do things. In Australia, Canada and New Zealand, the MAC calculates, people arriving without a confirmed job offer through points based routes only account for about 40-60% of economic migration. Those nations still use employer sponsorship as well.
The report is expected to be influential in the design of the UK’s post-Brexit immigration system, under which EU citizens will come under the same visa rules as non-EU citizens, but those rules will be made more liberal overall. That includes a lowering of the minimum salary required for a work visa, from £30,000 today to under £26,000 (the exact number depends on a fairly technical calculation). This recommendation is not a surprise, in the sense that the MAC had previously recommended keeping the threshold at £30,000 and was told to try again.
The post-Brexit dispensation taking shape is expected to “result in a lower level of immigration, a lower rate of growth in population, employment and GDP”. But there is a glaring caveat not reflected in some of the breathless coverage of today’s report. MAC chief Professor Alan Manning writes that “almost all of these estimated impacts at the macro level are small”. In other words, while the end of free movement has real human impacts, the MAC does not think that it has particularly significant economic effects.
The report also reveals that Professor Manning is not being kept on as Chair of the Migration Advisory Committee, despite his desire for a second term. The government is advertising for a replacement.
The MAC's recommendations in full + Legal Centre's (www.legalcentre.org) comments:
"Points-based systems
1. We recommend retaining the existing framework for Tier 2 (General).
2. If government wants to have a PBS route on entry, it should consider modifying Tier 1 (Exceptional Talent) in the following way:
• There should be an overall annual cap on those admitted;
• The route should operate on an expression of interest basis creating a pool of migrants interested in coming to the UK;
• There should be a monthly draw from this pool with those selected invited to submit a full application; - What is this ? A visa lottery ?
• The selection of those invited to apply should be based on those who have the highest number of points in the pool using a points-based system with tradeable points;
• There should also be an absolute minimum number of points;
• Points should be given for characteristics that the Government wants to attract through this route and for whom other routes are not suitable;
• Among the characteristics that the Government might want to consider in assigning points are: Qualifications with a rigorous process to assess the quality of qualifications and not just the level; Age; Extra points for having studied in the UK; Priority areas such as STEM and creative skills - This was called HSMP route a cople of decades ago, do not they remember it ?
• Changes should only be made if data is collected on the outcomes of migrants on this route, with monitoring and evaluation of the route.
3. There should be an immediate pause in the proposed increases to the settlement threshold.
4. We recommend a review of the requirements for settlement, to establish a clearer picture of how it is currently working and possible changes that could be made.
Salary thresholds in Tier 2 (General)
5. Both the occupation specific and general salary thresholds should be based on the relevant distribution of full-time earnings as reported in the Annual Survey of Hours and Earnings (ASHE) and updated annually. The appropriate salary threshold should continue to be the higher of the occupation specific and general threshold.
6. The occupation specific threshold should be the 25th percentile of the full-time annual earnings distribution for that occupation.
7. The general threshold should be set at the 25th percentile of the full-time annual earnings distribution for all Tier 2 (General) eligible occupations.
8. National pay scales should be used as the relevant salary thresholds in 24 occupations in health and education instead of both the occupation specific and general thresholds.
9. If the Government is concerned about the impact of the general threshold on lower-wage medium-skill occupations, we recommend the use of an occupational cap to be set at the 75th percentile. We do not recommend this given the level of the general threshold we propose.
10. There should be more adequate monitoring of how migrants are faring in the UK labour market after entry and ongoing review of the impacts of the recommendations on levels of salary thresholds.
11. The relevant salary thresholds should apply across the UK.
12. There should be a separate pilot visa for ‘remote’ areas of the UK, part of which could be lower salary thresholds for migrants into those areas. This should only be done with a full evaluation to understand its effectiveness and impacts.
13. Salary thresholds should not be pro-rated to allow for part-time work.
14. The Government should consider more flexibility (i.e. prorating salary thresholds) for visa holders switching to part-time work after becoming a parent.
15. Only salary on the main job should be used to determine whether the salary threshold is met. Allowances, equity and employer pension contributions should not be included.
16. The rules on Tier 2 (General) visa holders owning equity in the employer sponsoring them should be reviewed.
17. Occupations on the Shortage Occupation List should not have lower salary thresholds for entry.
18. We recommend a review of whether the SOL is needed after the new immigration system has been fully introduced.
19. National pay scales should be used as the relevant salary thresholds in 24 occupations in health and education instead of both the occupation specific and general thresholds.
20. The salary thresholds for new entrants should be a single ‘reduction’ percentage applied across both the general experienced worker threshold and the occupation specific experienced worker thresholds.
21. The reduction percentage for new entrants should be set at 30 per cent.
22. The definition of a new entrant should be widened to include those are working towards recognised professional qualifications and those who are moving directly into postdoctoral positions.
23. The new entrant rate should apply for five years, an extension from the current three-year entitlement. Any time spent on the new post-study work route should count towards the five years of new entrant threshold eligibility.
24. We recommend adding/removing the following occupations from the list of RQF3+ occupations
• Add: Air-conditioning and refrigeration engineers, Rail and rolling stock builders and repairers, Skilled metal, electrical and electronic trades supervisors, Carpenters and joiners, Glaziers, window fabricators and fitters, Plasterers, Floorers and wall tilers, Painters and decorators, Construction and building trades supervisors, Childminders and related occupations, Teaching assistants and Educational support assistants.
• Remove: Fishing and other elementary agriculture occupations n.e.c. and Waiters and waitresses.
Data issues
25. The Government and ONS should seek to link datasets across government to allow a better understanding of the employment outcomes of migrants, for the purposes of research whilst ensuring confidentiality.
26. The Government should invest in a data set designed to link migrants with subsequent outcomes to be used for the evaluation of all visas.
27. The Home Office should ensure it retains historical data on migration routes in a usable format for future analysis.
28. The Home Office should publish breakdowns of entry clearance visas disaggregated by gender on a regular basis."
>>> UK Global Talent visa (formerly Tier 1 Exceptional Talent) - an overview
The new immigration category has been announced via the Statement of Changes here: https://www.gov.uk/government/publications/statement-of-changes-to-the-immigration-rules-hc-56-30-january-2020
The specifics have now landed via today’s statement of changes to the Immigration Rules (NB: The changes set out in this statement shall take effect on 20 February 2020. In relation to those changes, if any application for endorsement, entry clearance, leave to enter or leave to remain has been made before 20 February 2020, such applications will be decided in accordance with the Immigration Rules in force on 19 February 2020.). At first glance, the changes seem to introduce a new level of impenetrability, with certain terms (e.g. “directly incurred costs”) that will be little understood outside universities and research institutes. So what does it all mean?
What this introduces is a new immigration route within what was Exceptional Talent and is now called Global Talent. This new route will be intrinsically linked to the recruitment regimes of the higher education/research sector and provide an unlimited right to work for up to five years.
What kind of research jobs does this affect?
For clarity, the existing ways of getting a Global Talent (formerly Exceptional Talent) endorsement will remain in place. Those are:
- The “standard” route where an academic/scientist/researcher can ask for peer review of their career under the categories of “promise” or “talent”
- The “accelerated” route for those in receipt of a job offer for a senior role at a UK university or research institution
- A further accelerated route where the person holds a prestigious grant/fellowship (with the list of eligible fellowships to be expanded)
The changes introduce a fourth route covering two types of employees at UK universities and research institutions.
The first is post-doctoral researchers: those at an early stage of their academic career, having just gained their PhD. The second is specialist technologist roles.
This latter group is the most significant, and is a group which the sector has previously identified as being particularly vulnerable to being shut out under a post-Brexit immigration system.
What if you're not a scientist?
The explanatory memo accompanying the statement of changes says that “whilst specific provisions are made for the science and research sector, the Global Talent category is also open to talented and promising applicants within the digital technology and arts and culture (including film and television, fashion design and architecture) sectors”. More on this in a separate post.
Why include technical specialists?
Research sector organisations have consistently argued that salary is not an adequate indication of skill level for jobs in this sector. This is especially true of technical experts within research teams.
Technical experts form a critical part of any research team. They make crucial intellectual contributions to research by providing technical excellence and through maintaining and developing new technologies. The concept here is “Team Science” – that is, it takes the whole team working together, with individuals holding different specialisms and knowledge, to deliver a research project.
Whilst not all such roles require non-UK nationals to fill them, where a skills gap exists it is vital that this is met through an adequate immigration system. Failure to do so would make the delivery of much of the research in the UK impossible.
Under the current Tier 2 work visa system, specialist technician roles would be ineligible for sponsorship due to skill level requirements (RQF level 6 and above). Under the immigration white paper published by Theresa’s May government, skill level requirements would be lowered, bringing such roles within the scope of Tier 2 — but they would likely fail to meet the recommended £30,000 minimum salary. This could result in a critical skills gap.
Bringing these specialist roles under the umbrella of the Global Talent route shelters them from the unknown quantities of a future immigration system.
That said, it is important to note that not all technician/technical roles will be able to access this route. Rather, it is for those with specialist technical expertise and skills which cannot be readily found within the settled workforce.
How will it be easier to recruit for such roles?
The new route works by making eligibility for a Global Talent visa automatic when a researcher or specialist is recruited using certain UK research funding grants. The key concept, as written into the Immigration Rules, is that the hire is part of the “directly incurred costs” of the project.
In the wonderful world of research-speak, this is defined as costs which form an integral part of a grant funding application associated with a UK research project. One such “directly incurred cost” is the payroll costs of the staff necessary to deliver a research project. These staff are recruited by the employer which has the grant funding.
A researcher and/or specialist who is offered a job at a UK university or research institution, and whose job title or name was included within an application for qualifying research funding as a directly incurred cost, will be automatically eligible for a Global Talent visa.
This new category will provide the research sector considerable freedom to recruit the researchers and specialists it needs via the medium of research grant funding, without day-to-day Home Office scrutiny. This is hugely significant, given the context of the current immigration system, but it should not be interpreted as a route which will allow unregulated migration. Far from it.
Which research grants qualify?
There are several notable restrictions on who can access this new route, and how:
- The person must be named or appointed to a role on a successful grant application from a recognised funder
- The person must be employed, hosted or in receipt of a job offer from a UK university, independent research organisation or public sector research establishment
- The research grant must have been awarded under the “peer review” principle
- The minimum value of the grant must be £30,000 and must support a project of at least two years in duration
- The person must have, or be given, a contract of at least two years in duration at the point of application for endorsement, and work at least 50% FTE
The list of recognised funders will be administered by UK Research and Innovation, which oversees a large proportion of the UK’s science and research funding.
This system reflects the direction of travel over the last few years of devolving the decision-making process for certain visa types away from immigration caseworkers and on to expert third parties bodies (as seen recently with the Innovator and Start-up visas).
The concept has now been taken one step further, weaving eligibility for a visa into the sector’s unique method of recruitment and funding. It will be impossible for those working outside the sector to access this endorsement route, and it should shift a lot of recruitment currently undertaken by universities and research institutions out of Tier 2 and into Appendix W.
Those granted entry under this new route will be granted a visa of up to five years with the ability to gain settlement after three years. They will not be tied to their host institution, meaning no restrictions on their ability to move between roles and employers, provided the above rules were met at the outset. The route will also have no arbitrary cap on numbers. Final details on the application process will be released shortly.
In our view, this new route is a fragile gift to the sector — one which will need to be embraced proactively to ensure it is utilised to the full.
>>> EU Settlement Scheme appeal rights introduced: https://www.legislation.gov.uk/uksi/2020/61/contents/made
The Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 (SI 2020 No. 61) has come into force today, on the Brexit day, 31 January. They create a right of appeal to the Immigration Tribunal for people refused pre-settled or settled status under the EU Settlement Scheme. As the accompanying explanatory note puts it:
"This instrument provides that, where a person makes a valid application for leave under the EUSS, or for an EUSS family or travel permit, on or after exit day, they will have a right of appeal against a decision to:
- refuse the application;
- in the case of an application under the EUSS, grant limited leave to enter or remain (pre-settled status under the scheme) where they believe they should have been granted indefinite leave to enter or remain (settled status under the scheme)."
Note that this only applies to applications “on or after exit day”, but does allow people to appeal a grant of pre-settled status up to full settled status.
There are also appeal rights for various scenarios where settled status is being cancelled or revoked. Appeals go to the First-tier Tribunal (FTT IAC), unless certified as a national security issue for the Special Immigration Appeals Commission.
>>> More on the new Global Talent category immigration route
In brief, the Tier 1 (Exceptional Talent) category is being re-branded.
There no longer will be a cap on how many people can benefit from the new route. Yet it is worth remembering that the cap (max - 2000 applicants per year) for Tier 1 (Exceptional Talent) has never been reached so that seems to have been done more for show than anything else.
The Tier 1 (Exceptional Talent) - historical background
By way of very brief background, the Tier 1 (Exceptional Talent) category was designed to attract exceptionally talented individuals in the fields of science and medicine; engineering; humanities; digital technology and arts and culture. It was divided into two further sub-categories: Exceptional Talent, for those who are already leaders in their field, and Exceptional Promise, for those who have the potential to become leaders.
To be granted leave as a Tier 1 (Exceptional Talent) migrant, a person must first be endorsed by an endorsing body with expertise on the particular topic (for example, applicants in the field of engineering must be endorsed by the Royal Academy of Engineering, while applicants in the field of arts and culture are endorsed by Arts Council England). Once they are endorsed, they can go on to apply for leave to enter or remain within three months.
Unlike most other routes, there is no English language or financial requirement. Those who have been endorsed just need to show that they do not fall foul of the general grounds for refusal to be granted leave on this route.
The differences between Exceptional Talent and Global Talent
Nothing substantially changes for those applying in the fields of digital technology and arts and culture. The only differences at this stage are purely semantic:
- The Tech Nation (Tier 1 Exceptional Talent) application form is now called Tech National Global Talent application form.
- Designated competent bodies are now called endorsing bodies
- When you have to submit a CV, you are now allowed to submit a CV on three sides of A4 (as opposed to the previous two-A4 CV)
For those applying in the fields of science and medicine, engineering and humanities, the route has been expanded. Under the existing Exceptional Talent system, researchers in academic, industry or government research institutions can apply:
- Under the “normal” route, by showing that they met certain criteria such as being active researchers, having a PhD etc. Their respective endorsing bodies would then go on to consider whether to endorse them.
- Under the “accelerated” route, meaning they would be automatically endorsed if:
>They held a specific fellowship award (or held it within the 12 months directly prior to the date of application); or
>They were appointed to eligible senior academic or research positions at UK higher education institutions or research institutes.
All of these routes are still available, but the statement of changes has introduced an additional "fast-track" route. This covers academics, researchers, scientists, research engineers or other skilled research technology/methodology specialists who have a grant or award worth £30,000 or more, covering a minimum period of two years.
UK Research and Innovation has a list of approved organisations, set out in Annex 2 of Appendix W, who can act as “endorsed funders” by employing or hosting the applicants. The applicant, in turn, must be directing a “unique research or innovation project” or be making “critical contributions to research”.
Quicker route to settlement
All applicants endorsed in the fields of science and medicine, engineering and humanities can apply for settlement after three years, regardless of whether they were granted leave under the Exceptional Promise criteria or the Exceptional Talent criteria.
Digital technology, arts and culture applicants endorsed under the Exceptional Promise criteria still need to wait five years to qualify for settlement. Those endorsed in these fields under the Exceptional Talent criteria can also apply for indefinite leave to remain after three years.
Absences for research purposes do not break continuity of residence
When applying for indefinite leave to remain, applicants must usually show that they have not broken the continuity of their residence in the UK by being out of the country for more than 180 days in any 12 months. But applicants endorsed in the fields of science and medicine, engineering and humanities (and their partners, too) can discount absences “linked to their grant of leave (such as a scientist undertaking research overseas)”.
All in all, this is positive news. The Tier 1 (Exceptional Talent) route remains, in all but name, intact, while researchers get more options to move to or stay in the UK. It remains to be seen whether that will be sufficient to attract overseas talent to the UK.
>>> Free movement continues past Brexit day, but only until the 31st December 2020
The UK is no longer a member of the European Union. Yet the Free Movement of EU nationals and their Family Members continues until at least 31 December 2020. Articles 126 and 127 of the Brexit divorce deal say:
"There shall be a transition or implementation period, which shall… end on 31 December 2020… Unless otherwise provided in this Agreement, Union law shall be applicable to and in the United Kingdom during the transition period."
The transition period during which free movement continues can be extended until either 31 December 2021 or 31 December 2022, but this must be agreed by 1 July 2020. The UK legislation that implements the divorce deal says that British ministers cannot agree to an extension, although that section could be repealed if the government changed its mind.
People who move to the UK during the transition period can also apply to stay on afterwards, using the EU Settlement Scheme. This means they must be living in the UK by 31 December 2020, with the deadline for applications being 30 June 2021.
Finally, European Temporary Leave to Remain is out the window. It was only relevant if there had been no Brexit deal, and there is a deal. The plan — a rather optimistic plan — is for a new immigration system to be up and running by 1 January 2021, under which all new European arrivals will be expected to apply for visas to live and work in the UK just as non-EU citizens do today.
You can get professional advice on any of the above issues from the Legal Centre 24/7, via https://legalcentre.org/Initial-Consultation.html
>>> EU case law after Brexit
Case law, for those who are not lawyers, 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 on 31 December 2020. UK courts will not be bound by future Court of Justice decisions after IP completion day and will not generally 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 the end of transition if they want. The same goes for post-transition EU legislation. 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. The EU cases 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 the end of transition? This will apply when interpreting retained EU law, unless the government decides that it should not. The 2020 Act contains controversial provisions allowing the government to pass regulations dictating to courts how and when to apply retained EU case law. It remains to be seen how frequently this “broad and constitutionally significant” power will be exercised, and what areas of the law the government will target.
Even in the absence of such regulations, the Supreme Court can depart from 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.
>>> Public must be told how controversial visa streaming tool works, immigration inspector says: https://www.gov.uk/government/news/inspection-report-published-an-inspection-of-the-home-offices-network-consolidation-programme-and-the-onshoring-of-visa-processing-and-decision-ma?utm_source=a3e3a451-1160-4738-b7dc-8d82a1e33783&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
The Home Office should release more details about a “cryptic” computer programme that scores visa applicants as high, medium and low risk, the immigration inspector has recommended.
David Bolt says that while applicants labelled high risk are not being automatically refused visas, officials should “demystify” the tool to allay concerns about racial bias.
Mr Bolt’s latest inspection report notes that the Home Office’s Visas and Citizenship directorate has been using a computerised streaming tool since 2015. It scores visa applicants as Red (high risk), Amber (medium risk) or Green (low risk).
The inspector says that among the factors that influence ratings are:
"the nationality of the applicant, all immigration harm data collected globally by Immigration Enforcement over the preceding 12 months and attributable to particular cohorts of applicants, attributes from local risk profiles (for example, the applicant’s occupation, sponsor), and any other relevant information (such as age, reason for travel, travel history)."
>>> Shamima Begum loses statelessness argument against citizenship deprivation: https://www.judiciary.uk/judgments/shamima-begum-v-the-secretary-of-state-for-the-home-department/
Despite Shamima Begum was born in the UK and was a British citizen, the Court found that she was also a citizen of Bangladesh and so would not be made stateless by being stripped of her British citizenship, the Special Immigration Appeals Commission has held. The main SIAC judgment is Shamima Begum v Secretary of State for the Home Department (SC/163/2019), while there is also a brief High Court judgment refusing a linked application for judicial review: [2020] EWHC 74 (Admin).
How many Shamima Begums are out there? Since 2002 the government has amended and re-amended nationality law to make deprivation of citizenship easier. Since 2010 there has been a sharp increase in use of this amended and expanded legal power. Some 120+ people have been deprived of the British citizenship...
>>> Unlawful “curfew” amounted to false imprisonment at common law, Supreme Court confirms: https://www.bailii.org/uk/cases/UKSC/2020/4.html
In a pointed reminder, perhaps, to those in government threatening to “update” the Human Rights Act, Lady Hale began her Supreme Court judgment in the case of R (Jalloh) v SSHD [2020] UKSC 4 thus:
"The right to physical liberty was highly prized and protected by the common law long before the United Kingdom became party to the European Convention on Human Rights.".
The case concerned a claim made by Mr Jalloh – his name apparently misspelled in the court below as Jollah – that, as a result of a nightly curfew between 11pm and 7am imposed under immigration powers for over two years, he had been falsely imprisoned, and was entitled to damages as a result.
As summarised by Lady Hale:
"This case is about the meaning of imprisonment at common law and whether it should, or should not, now be aligned with the concept of deprivation of liberty in article 5 of the ECHR.".
The Secretary of State had argued in the Court of Appeal that a curfew amounted to voluntary compliance with a request to remain in a particular physical place.
This argument was about as successful as the August 1991 "Putch" the USSR, and it was perhaps surprising to see the Secretary of State giving it another go.
In response to these rehashed arguments, the Supreme Court held that
"24. The essence of imprisonment is being made to stay in a particular place by another person. The methods which might be used to keep a person there are many and various. They could be physical barriers, such as locks and bars. They could be physical people, such as guards who would physically prevent the person leaving if he tried to do so. They could also be threats, whether of force or of legal process…
25. In this case there is no doubt that the defendant defined the place where the claimant was to stay between the hours of 11.00 pm and 7.00 am. There was no suggestion that he could go somewhere else during those hours without the defendant’s permission.".
Lady Hale betrayed some of the irritation on display in the courts below with the position taken by the Secretary of State:
"The idea that the claimant was a free agent, able to come and go as he pleased, is completely unreal.".
An interesting feature of the judgment is the court’s treatment of the argument that the concept of imprisonment in the tort of false imprisonment should now be aligned with the concept of deprivation of liberty within the meaning of Article 5 ECHR.
In response, the Supreme Court hold that the protections under the common law in cases such as this are greater than those afforded by human rights legislation.
Lady Hale characterised the state’s case on this point as:
"asking this Court… not to develop the law but to make it take a retrograde step: to restrict the classic understanding of imprisonment at common law to the very different and much more nuanced concept of deprivation of liberty under the ECHR.".
The current incumbents of Downing Street have made clear their intention – via the Conservative manifesto – to “update” the Human Rights Act. The Attorney General, Geoffrey Cox, was heard this morning at the Institute for Government putting some flesh on this idea:
"We will update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security, and effective government.".
What this decision indicates is that judges believe themselves able to protect the rights of individuals even without the aid of the Human Rights Act. Striding out purposefully from the pavilion to bat for the common law, the court holds that there is
"every reason for the common law to continue to protect those whom is [sic] has protected for centuries against unlawful imprisonment.".
In what is likely to be one of her final Supreme Court judgments before retirement, it feels somehow right that Lady Hale is still sending shots across the bows of those who wrongly believe that human rights in this country began with the European Convention.
>>> Surinder Singh route still requires genuine residence abroad: https://www.bailii.org/ew/cases/EWCA/Civ/2020/98.html
The Court of Appeal has confirmed that in order to benefit from the Surinder Singh principle, the family involved must have genuinely resided in another EU country and have created or fortified their family life there. In Kaur & Ors v Secretary of State for the Home Department [2020] EWCA Civ 98 it rejected the argument that, as a result of the Court of Justice decision in C-202/13 McCarthy No.2, anyone with a residence card from another member state is entitled to have their family come and live with them in the United Kingdom.
The facts of this case are not attractive. Mr Singh and Mrs Kaur had previously been married but divorced in 2004. The following year Mr Singh married a Polish national, obtained residence rights in the UK and became a British citizen in 2012. In 2013 he divorced his Polish wife and re-married Mrs Kaur. The couple went to live in Bulgaria with their children for 19 days in 2017 and Mr Singh obtained a residence permit. Then the family returned to the UK.
The couple sought to rely on the Surinder Singh principle to get residence rights for Mrs Kaur and their children. That principle allows EU citizens to obtain residence rights for family members in their home country if they move elsewhere in the EU and then return. The idea is to ensure that EU citizens are not discouraged from moving to other European countries.
To prevent abuse, the residence abroad must be genuine and in some way create or fortify family life.
At their initial appeal the First-tier Tribunal, perhaps unsurprisingly, found that the residence in Bulgaria was not genuine and there was no attempt to develop a family life there. Nonetheless, it allowed the appeal on the ground that, following the decision in McCarthy No.2, any EU citizen with a residence card must be permitted to enter with their family members.
The Upper Tribunal rejected that argument and the Court of Appeal was equally dismissive, ruling that McCarthy No. 2 was concerned with the procedural requirements on entry and not the substantive rules for residence rights:
"There is in my judgment no basis for thinking that the CJEU in McCarthy (No. 2) intended to overrule the decision in O v Minister voor Immigratie, Integratie en Asiel. It did not say so and the two cases were dealing with very different issues. O v Minister voor Immigratie, Integratie en Asiel is referred to repeatedly in the McCarthy (No. 2) judgment (see [31], [34], [36], [54] and [62]), at one point being cited as “settled case law”, while at [62] the CJEU even referred to [60] of the judgment in O v Minister voor Immigratie, Integratie en Asiel as confirming that residence permits issued on the basis of EU law declare and do not create rights. It added that “the fact remains that … the member states are, in principle, required to recognise a residence card issued under article 10 of Directive 2004/38, for the purposes of entry into their territory without a visa”, going on to say at [63] and [64] that the United Kingdom was entitled to verify the correctness of the data appearing on the Spanish residence permit in that case, although it could not impose further conditions on entry additional to those provided for by EU law."
Having reach that conclusion it was inevitable that the appeal would be dismissed as a result of the First-tier Tribunal’s findings that the period of residence in Bulgaria was not genuine.
>>> Can a Tier 2(General) migrant's working hours and salary be reduced despite the salary being above the relevant Code of Practice threhsold ?
Apparently, it cannot be reduced, according to the recent confirmation from the Home Office:
"If a migrant’s hours are reduced and hence their salary is reduced from the salary stated on the migrant's Certificate of Sponsorship, this would be a breach of the guidance, despite the migrant's earning in excess of the relevant Code of Practice".
>>> EU citizens’ rights during the Brexit transition period: https://publiclawproject.org.uk/latest/eu-citizens-rights-during-the-transition-period/
The Public Law Project has a new briefing on EU citizens’ rights during the transition period. It says:
"The main takeaway is that throughout the transition period, until 31 December 2020, almost all EU rules will continue to apply in the UK. The jurisdiction of the Court of Justice of the European Union will continue until the end of the transition period. The four freedom: the freedoms of movement, services, capital and goods will continue until the end of the transition period. This means the UK will remain part of the customs union and [single] market until 31 December 2020 and British citizens will continue to be able to move freely around the EU and vice versa.
More importantly EU nationals and their family members in the UK throughout the transition period should not be asked for proof of settled or pre-settled status to access healthcare, to rent property or to gain employment until 1 January 2021. An EU, EEA or Swiss passport or national identity card, or a residence card issued by the Home Office if someone is the family member of an EU, EEA or Swiss citizen, is sufficient to show that someone is lawfully in the UK and lawfully entitled to work and rent property until the end of the transition period.".
The Brexit transition period ends on 31 December 2020, unless extended by mutual agreement.
Important Update:
>>> Government introduces a new immigration Points Based System (PBS): https://www.gov.uk/government/news/home-secretary-announces-new-uk-points-based-immigration-system
The government has released a few more details of what it calls a “points based system” for immigration to the UK after Brexit. To balance out the impending end of free movement of workers from the European Union, it would allow employers to sponsor migrant workers at lower salaries and skill levels than they can today, but with almost no provision for visas for people working in jobs that do not require A-level qualifications or higher.
Today’s proposals are solely to do with economic migration: family migration, asylum and students are unaffected. They are — very optimistically — supposed to come into effect from January 2021.
Skilled workers
The system would introduce a limited element of flexibility in sponsored work visas (currently branded Tier 2, although the language of “tiers” is virtually absent from the policy paper).
Sponsored workers would still need a job offer, English language skills and to be working at a certain skill level. That skill level would be reduced level 6 (degree) to level 3 (A-level), as was the case under the December 2018 white paper.
There will still be a minimum salary required for a work visa. The headline salary threshold has been reduced to £25,600, in line with the Migration Advisory Committee’s recent recommendation. But it will no longer be the absolute minimum: some workers earning between £20,480 and £25,600 would still be able to get a visa, but only if they are highly qualified or working in shortage jobs.
So in effect, the minimum salary for a UK work visa will be £20,480 for people working in jobs on the Shortage Occupation List or who have PhDs in science, technology, engineering or mathematics. It will be £23,040 for people with a PhD outside these subjects but nevertheless “relevant to the job”. For people with none of these characteristics, the minimum will be the headline £25,600.
What of the May-era white paper proposal to scrap the annual cap on these work visas? That does reappear, although the word used is “suspend” rather than “abolish”. The Resident Labour Market Test will also go.
The paper adds:
"...here will continue to be different arrangements for a small number of occupations where the salary threshold will be based on published pay scales. We will set the requirements for new entrants 30% lower than the rate for experienced workers in any occupation and only use the base salary (and not the allowances or pension contributions) to determine whether the salary threshold is met."
Lower-skilled workers
There will be no visa route for “lower-skilled” workers. This is a change from the 2018 white paper, which had grudgingly proposed a system of 12-month work visas for people who do not meet the skills threshold outlined above. This would have been “for a transitional period after the UK’s exit from the EU”.
The Johnson government no longer considers this necessary. This is primarily an ideological decision:
"UK businesses will need to adapt and adjust to the end of free movement, and we will not seek to recreate the outcomes from free movement within the points-based system. As such, it is important that employers move away from a reliance on the UK’s immigration system as an alternative to investment in staff retention, productivity, and wider investment in technology and automation."
In the meantime, businesses are told to make do with the existing pool of lower-skilled workers. This includes the millions of existing EU residents who have secured their right to remain post-Brexit under the EU Settlement Scheme. They will “provide employers with flexibility to meet labour market demands”.
The paper also says that “we have committed to expanding the pilot scheme for seasonal workers in agriculture which will be quadrupled in size to 10,000 places”. So there will be visas for strawberry pickers, but not for care home workers.
Highly skilled workers
The Migration Advisory Committee had also said that the Tier 1 (Exceptional Talent) visa could be made points-based. Unsurprisingly, since the government introduced unrelated reforms to Exceptional Talent just days later, this recommendation is not followed.
Instead, the paper proposes adding a new “unsponsored route” for the highly skilled alongside Exceptional Talent, with eligibility determined by personal characteristics.
"Example characteristics for which points could be awarded include academic qualifications, age and relevant work experience."
This would be much more Australia-style.
But in light of past experience — the MAC pointed out that the Home Office itself had come to loathe points-based visas like Tier 1 (General) — the paper says that “this route will take longer to implement”. It adds that “we want to learn from previous experience of similar schemes in the UK that have highlighted certain challenges. The scheme will need to be designed to make sure it adds value and does not undermine the skilled worker route or create opportunities for abuse”. It may be doubted whether it will ever come to pass.
What next?
The most telling line of this paper is that “The Home Office will publish further detail on the points-based system in due course”. Further detail is practically overdue already: these broad brush strokes must now be translated into detailed Immigration Rules and procedures in time for January 2021.
The Rules themselves are due for a general rewrite in line with Law Commission recommendations; the policy paper says that the government will be responding to these recommendations “shortly”.
Court of Appeal lowers the bar for refusing tax discrepancy cases: https://www.bailii.org/ew/cases/EWCA/Civ/2020/157.html
In the case of Tahir Yaseen v Secretary of State for the Home Department [2020] EWCA Civ 157, the Court of Appeal has reiterated that refusals on the ground of character or conduct require a balancing exercise, taking into account both positive and negative considerations.
The appellant, Mr Yaseen, made an application for indefinite leave to remain on the basis of his ten-year lawful residence in the UK. His application was refused on character grounds, due to a tax issue.
There are, however, two main differences between this case and others we have seen so far:
- Mr Yaseen did not declare different incomes to HMRC and the Home Office. Rather, he did not submit three years worth of tax returns at all until after he submitted his application for indefinite leave and was called for an interview by the Home Office.
- The Home Office refused the application relying not only on paragraph 322(5), but also on paragraph 276B(ii), which applies to indefinite leave to remain on the ground of ten years’ lawful residence in the UK.
Paragraph 276B(ii) ended up being the “winning” paragraph from the Home Office point of view. It reads:
"276B. The requirements to be met by an applicant for indefinite leave to remain on the ground of long residence… are that:
…
(ii) having regard to the public interest there are no reasons why it would be undesirable for him to be given indefinite leave to remain on the ground of long residence, taking into account his:
…
(c) personal history, including character, conduct…
Paragraph 322(5) says:
Grounds on which leave to remain and variation of leave to enter or remain in the United Kingdom should normally be refused…
(5) the undesirability of permitting the person to remain… in the light of his conduct… character or dissociations…
It is difficult to see the difference between the two. But the Court of Appeal agreed with the lower tribunals and the Secretary of State that a refusal under paragraph 322(5) requires a finding of dishonesty, while a refusal under paragraph 276B doesn’t. Similarly, it agreed that the case law on tax discrepancies does not apply to refusals under paragraph 276B.
The court found, however, that before a refusal under paragraph 276B can be made, the decision-maker should conduct a balancing exercise taking into account both positive and negative factors relating to the applicant’s character. It decided that the First-tier Tribunal had failed to do so, and therefore remitted the case for the tribunal to reconsider.
As mentioned before, it is difficult to follow the logic behind setting two different tests for paragraphs which read so much alike. All it does, it seems, is lower the bar for the Home Office. Officials can now rely on paragraph 276B instead of 322(5), without having to make a finding of dishonesty.
People applying under the long residence rules who know there may be issues with their taxes would be well advised to submit “counter” evidence of their good character.
>>> Global Talent Guidance: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwjD7NKLiOjnAhUfBGMBHbPbC2IQFjAAegQIBBAC&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/867038/Global_Talent_Policy_-_02.20.pdf&usg=AOvVaw2h0ZQJMp2ezEqs11pc6u_k
>>> Tier 2 and 5: Guidance for Sponsors. Now contains a whopping 205 pages: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwiiz7qniOjnAhXMDWMBHWTrDasQFjAAegQIAxAC&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/842588/2019-10-25_Tier-2-5-sponsor-guidance_Oct-2019_v1.0.pdf&usg=AOvVaw0NIq-7b77YbtV-NWHJ7ViN
>>> European Economic Area nationals: qualified persons -Guidance: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=3&cad=rja&uact=8&ved=2ahUKEwiqwKvDiOjnAhUR8uAKHZFJC_QQFjACegQIAhAC&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/759064/eea-qualified-persons-v6.0ext.pdf&usg=AOvVaw0HbqxqaGbkFj7CXxALs7GN
>>> Permission should not be granted on the grounds as pleaded if there is, quite apart from the grounds, a reason why the appeal would fail: https://www.bailii.org/uk/cases/UKUT/IAC/2020/44.html
Another unsuccessful reported appeal to assist the Ukrainian refugee who claimed asylum in the UK years after entering illegally and first travelling through a number of safe EU countries (where that refugee could claim asylum in the first place).
This reported case that would perhaps have been more effective and appropriate as a passive-aggressive Post-it note stuck on the office kettle at Tribunal HQ:
"Permission should not be granted on the grounds as pleaded if there is, quite apart from the grounds, a reason why the appeal would fail"
That’s the whole headnote. All of it. From OK (PTA; alternative findings) Ukraine [2020] UKUT 44 (IAC).
Notably the determination is written by one D O’Callaghan, formerly of Landmark Chambers and much missed at the immigration bar, who heard the case alongside President Lane. The determination is sound, naturally, but why on earth was it selected for reporting when so many other more interesting and important cases are not?
>>> Adult step-children of EU citizens don’t qualify for family member residence cards: https://www.bailii.org/ew/cases/EWCA/Civ/2020/191.html
Ronnie Latayan came to the UK from the Philippines on a visit visa in 2004 and has been here ever since, through multiple unsuccessful applications for further leave to remain. Now 46, Ms Latayan lives with her mother, a naturalised British citizen with an Irish partner.
In Latayan v Secretary of State for the Home Department [2020] EWCA Civ 191, the Court of Appeal heard Ms Latayan’s appeal against her latest Home Office refusal. She had applied for an EEA residence card, arguing that she was a dependent of her mother’s partner. Ms Latayan described him as her “stepfather” and said that he sent her money in the Philippines between 1998 and 2004.
The Court of Appeal had to decide whether Ms Latayan came under Regulation 7(1)(b)(ii) of the EEA Regulations 2006. To do so, she would have to be a “direct descendant” of her stepfather.
Despite her not being his biological or adopted child, counsel for Ms Latayan made the “spirited argument” that a “de facto” or “real-world” parental relationship existed here. But Lord Justice Peter Jackson, giving several reasons, found otherwise:
"a step-child of an EU citizen (meaning a child of a person who is in a relationship with an EU citizen, not being a marriage or a civil partnership) is not a direct descendant of the citizen within the meaning of the Regulations.
A second ground of appeal was rejected as “no more than a disagreement with the [First-Tier Tribunal’s] assessment of evidence”, and the appeal dismissed.
>>> Supreme Court: detention is unlawful if based on unlawful deportation order: https://www.bailii.org/uk/cases/UKSC/2020/7.html
The Supreme Court has found in the case of DN (Rwanda) v Secretary of State for the Home Department [2020] UKSC 7 that the detention of a Rwandan man facing deportation was unlawful because the deportation order on which detention was based was itself unlawful. In this case the deportation order was unlawful because it was made under a piece of secondary legislation which was, unusually, subsequently declared unlawful by the Court of Appeal. DN (Rwanda) has wider application, enabling claims for damages for unlawful detention in other cases where a deportation order was unlawfully made.
>>> Asylum backlog continues to rise: https://www.gov.uk/government/statistical-data-sets/asylum-and-resettlement-datasets
The number of people with pending asylum cases has risen by almost 50% in just the last 12 months, new Home Office figures show.
Over 56,000 asylum seekers and their dependants were awaiting an initial decision or further review at the end of 2019, compared to 38,000 at the end of 2018. That represents a 47% increase year on year.
The number of people waiting just for an initial decision now stands at over 51,000. That figure has been rising steadily since the beginning of 2015, and has more than tripled over the period.
Even more troublingly, 2019 saw a 75% increase in the number of people waiting more than six months for an initial decision. There were 17,000 asylum seekers in that position in December 2018, rising to 29,000 in December 2019.
>>> Home Office brags about success of entrepreneur visa it abolished a year ago: https://homeofficemedia.blog.gov.uk/2020/02/27/media-factsheet-immigration-statistics-february-2020/
Yet another hilarious bit of spin in the Home Office’s “fact sheet” on yesterday’s immigration statistics:
"…the UK continues to be a desirable location for the brightest and best around the world…
The number of highly skilled visas issued [in 2019] has increased by 7% to 5,664.
The majority of these (59%) were to entrepreneurs, coming to start businesses in the UK"
It is true that 5,664 Tier 1 visas were issued in the calendar year 2019 (if you include dependants and not just main applicants). Of those, 3,342 (59%) were granted in the Tier 1 (Entrepreneur) category.
That’s right: the Home Office is lauding the success of a visa that it abolished in March 2019. Most of the 3,342 Tier 1 (Entrepreneur) visas issued in 2019 came after the route closed to new applicants, the result of applications filed before 29 March 2019 still making their way through the system.
The direct replacement for Tier 1 (Entrepreneur) was the Innovator visa. It was, by the Home Office’s own admission, designed to reduce the number of overseas entrepreneurs getting UK visas. In that noble aim the department has admirably succeeded: the combined number of entrepreneur-type visa applications has fallen off a cliff after Innovator replaced Entrepreneur.
Put another way: in the last quarter of 2018, the Home Office issued 894 Tier 1 (Entrepreneur) visas, including dependants. In the last quarter of 2019, it granted just 66 Innovator visas.
>>> Immigration Skills Charge updated Guidance: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=2ahUKEwjE4fiO0PvnAhVNRBoKHQVFDxgQFjAAegQIAhAC&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/867716/immigration-skills-charge-v2.0ext.pdf&usg=AOvVaw3LHNs5jSTJS6yon9qk2yOa
>>> Free Movement Rights: direct family members of European Economic Area (EEA) nationals Guidance: https://www.google.co.uk/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwiXyObH0PvnAhUMdxoKHUtTA84QFjAAegQIAxAC&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/867664/free-movement-rights-direct-family-members-of-EEA-nationals-v9.0ext.pdf&usg=AOvVaw3m8BetrzfCyPc6scIL-t1V
>>> Free Movement Rights: retained rightsof residence Guidance: https://www.google.co.uk/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&cad=rja&uact=8&ved=2ahUKEwjO0ubX0PvnAhUSLBoKHasmDiQQFjABegQIDBAG&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/778709/family-members-of-EEA-nationals-who-have-retained-the-right-of-residence-v4.0ext.pdf&usg=AOvVaw1MOBV9e3Ls5euUfwCf8cC2
>>> Migrant victim of domestic abuse successfully campaigns for change to student loan rules: https://www.bailii.org/ew/cases/EWHC/Admin/2020/276.html
In OA v Secretary of State for Education [2020] EWHC 276 (Admin), the High Court has ruled that the student loan regulations unlawfully discriminated against migrant victims of domestic violence and abuse. The rules required three years’ lawful residence in the UK to qualify for a student loan but failed to take account the possibility that domestic abuse victims would be less likely to have this because of an abusive partner stopping them from sorting out their immigration status. Since women are more likely to suffer from domestic abuse, the three-year lawful residence rule discriminated against women and was therefore in breach of the Human Rights Act 1998.
Prior to the case being heard, and in response to OA’s lobbying, the government changed the regulations. The rules now take account of victims of domestic violence in deciding eligibility for student loans. But, perplexingly, the government continued to defend its decision to refuse the loan in this case.
Fortunately, Mr Justice Nicol stepped in. OA will be able to continue her studies without waiting for the new regulations to come into force.
OA is a Nigerian citizen who has lived in the United Kingdom since 2011. She obtained indefinite leave to remain as a victim of domestic abuse and was accepted onto a Biomedical Science course at university. But the Student Loan Company refused to give her a loan because she did not have three years’ lawful residence. Without the loan, OA would have had to give up on her degree.
The break in lawful residence occurred during a period in which OA’s controlling partner had all her residence documents, including her passport. This is not an unusual scenario: as she told the High Court, “one of the forms that domestic abuse can take is the control of travel documentation, meaning that abused spouses (predominantly women) are liable to have gaps in their leave to remain in the UK”.
OA challenged the decision, arguing that the three-year lawful residence rule indirectly discriminated against women. Evidence from the Home Office showed that the vast majority of those granted indefinite leave to remain as victims of domestic abuse are women. Women are therefore much more likely than men to be denied access to university education as a result of the rule.
Mr Justice Nicol identified this result as discriminatory, rejecting the usual government defence that the discrimination was justified on the grounds of cost and administrative convenience. Interestingly, he also dismissed the argument that the relatively quick access to indefinite leave to remain available for victims of domestic violence could compensate for the discriminatory effect of the three-year rule:
"The relative advantage of speedier access to ILR did not eliminate the disadvantage of the discriminatory requirement of having 3 years ordinary and lawful residence.
In conclusion, I find that the Defendant has failed to justify the discrimination against the Claimant. It follows that there has been a breach of the Claimant’s rights under Article 14 of the [European Convention on Human Rights] when read with [Article 2 of the First Protocol]."
The ramifications of the judgment itself are likely to be small because OA had already convinced the government to change its policy, but the decision is still a pleasing example of the High Court conducting a robust review of indirect discrimination.
>>> Immigration bail policy updated: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/869352/Immigration-bail-v5.0ext.pdf
The Home Office has updated its policy guidance on immigration bail, with a couple of changes to note.
First, asylum seekers who have exhausted their appeal rights will no longer automatically be subject to study restrictions.
Second, the Home Office will now have five working days to decide whether someone who is not detained should be granted bail accommodation under Schedule 10 of the Immigration Act 2016. For certain groups, such as homeless people or pregnant women, officials will make “reasonable efforts” to ensure a decision within two working days.
Accommodation delays are still a big issue. Lengthy delays responding to accommodation requests, often after bail has been granted “in principle” by an immigration judge, has kept hundreds in detention for prolonged periods.
While time limits for considering accommodation requests are a welcome change, the Home Office may be missing the point by focusing solely on non-detained people. There’s no reason why these provisions couldn’t apply to those inside detention as well.
>>> Judicial review challenge to restricted leave policy fails: https://www.bailii.org/uk/cases/UKUT/IAC/2019/414.html
The Upper Tribunal has dismissed a judicial review of the restricted leave policy. This policy governs the grant of leave to remain in the UK to people who the Home Office wishes to remove but cannot because it would breach the European Convention on Human Rights.
The restricted leave policy states that indefinite leave to remain will only be granted in exceptional circumstances, even after long periods of residence in the UK. Instead, it requires officials to grant short periods of leave to remain with highly restrictive conditions. The intention of the policy is to prevent serious foreign national criminals, like convicted terrorists, from integrating into UK society while they await removal.
While that might sound like a reasonable idea, in practice it means that many people whose undesirable conduct may have taken place decades ago are stuck in limbo.
The official headnote
"(i) A decision of the Secretary of State not to grant indefinite leave to remain to a person subject to the restricted leave policy (“the RL policy”) does not normally engage Article 8 of the European Convention on Human Rights. However, Article 8 may be engaged by a decision to refuse to grant indefinite leave to remain where, for example, the poor state of an individual’s mental and physical health is such that regular, repeated grants of restricted leave are capable of having a distinct and acute impact on the health of the individual concerned.
(ii) Once Article 8 is engaged by a decision to refuse indefinite leave to remain under the RL policy, the import of Article 8 will be inherently fact-specific, and must be considered in light of the criteria set out in MS (India) and MT (Tunisia) v Secretary of State for the Home Department [2017] EWCA Civ 1190. The views of the Secretary of State attract weight, given her institutional competence on matters relating to the public interest and the United Kingdom’s reputation as a guardian of the international rule of law.
(iii) To obtain indefinite leave to remain under the Immigration Rules on the basis of long (partially unlawful) residence in cases involving no suitability concerns, paragraph 276ADE(1)(iii), taken with paragraph 276DE, requires a total of 30 years’ residence. A person who satisfies paragraph 276ADE(1)(iii) following 20 years’ residence is merely entitled to 30 months’ limited leave to remain on the ten year route to settlement.
(iv) Paragraph 16 of Schedule 3 to the Equality Act 2010 disapplies the prohibition against disability discrimination contained in section 29 of the Act in relation to a decision to grant restricted leave that is taken in connection with a decision to refuse an application for a more beneficial category of leave in the circumstances set out in paragraph 16(3).
(v) To the extent that paragraph 16 of Schedule 3 to the Equality Act 2010 disapplies the prohibition against discrimination on grounds of disability, there is a corresponding modification to the public sector equality duty imposed on the Secretary of State by section 149 of the Act."
>>> Government publishes Immigration Bill 2.0: https://www.gov.uk/government/news/landmark-immigration-bill-to-end-free-movement-introduced-to-parliament?utm_source=382549e7-d2ed-4f12-b579-c28d4e18e665&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
An Immigration Bill has been introduced to the House of recently. It is expected to be similar to the one introduced in 2018 by then Home Secretary Sajid Javid, which ultimately lapsed when the Johnson government took power and secured a general election.
The revived bill was foreshadowed in the December 2019 Queen’s Speech, published after the Conservative victory in that election. The main elements are an end to free movement of EU citizens — which would otherwise be preserved in UK law despite Brexit — and a legislative guarantee of the special rights of Irish citizens.
The draft law is said to “pave the way” for a points based immigration system, although the press release also refers to that being implemented through changes to the Immigration Rules later in the year.
The 2020 version of the bill has been presented not by the Home Secretary, Priti Patel, but by her deputy, Kevin Foster. Patel may be a little busy trying to salvage her political career, but has tweeted in support of the bill.
The Home Office has been engaged in some light rebranding ahead of the bill’s publication. Foster is no longer merely the Immigration Minister, but the Minister for Future Borders and Immigration. Tier 2 (General) is now the General work visa (Tier 2): https://www.gov.uk/tier-2-general, while Tier 4 (General) is now the General student visa (Tier 4): https://www.gov.uk/tier-4-general-visa.
>>> Sudanese man unlawfully refused indefinite leave to remain after domestic abuse: https://www.bailii.org/ew/cases/EWHC/Admin/2020/326.html
The case of R (Suliman) v Secretary of State for the Home Department [2020] EWHC 326 (Admin) is a welcome reminder to the Home Office that there may be an array of reasons for a victim of domestic abuse not to tell the authorities.
Mr Suliman is a Sudanese citizen who applied for indefinite leave to remain on the basis that he had been a victim of domestic abuse. The Home Office refused his application. Quoting the High Court:
"After summarising some of the evidence which [Mr Suliman] had submitted the decision maker said, ‘… nowhere in these notes is any explanation given for these injuries in that your wife caused them.’. In effect, therefore, the Secretary of State whilst accepting that the Claimant had attended hospital with injuries that are consistent with his account, refused to conclude that the Claimant’s wife caused them. [paragraph 20]"
The High Court found, however, that the refusal was unlawful because it failed to address the reasons given by Mr Suliman as to why he didn’t report the abuse:
"the Secretary of State did not address or deal with the reasons explained by the Claimant why he was reluctant to tell the police or the medical authorities. These were, variously, his own sense of shame; ‘cowardness’; his residual love for his wife despite her behaviour; and his fear of losing her or getting her into trouble. If the Secretary of State was going to deal with matters fairly then this evidence needed to be confronted and a conclusion reached. [25] "
It is also gratifying to see that Mr Justice Julian Knowles found those explanations plausible:
"I am bound to say that these explanations all strike me as being inherently plausible and the fairly typical response of an abused partner in a relationship. They provide at least an equally convincing explanation for why the Claimant said nothing at the time as the one reached by the Secretary of State, ie, that he had not been assaulted by his wife. Fairness required the Secretary of State to address it.[25]"
The judge therefore quashed the refusal of indefinite leave to remain.
Interestingly, the Home Office also said that Mr Suliman technically didn’t qualify for the domestic abuse settlement scheme within the Immigration Rules because he had never been granted leave as a partner under Appendix FM of the Rules. Instead, his leave to remain was under Part 8 of the Immigration Rules, which preceded Appendix FM.
The Home Office did, however, go on to accept that Mr Suliman had been granted leave as a partner and considered his application outside the Rules. Any other conclusion would have gone against the spirit of the immigration system’s approach to domestic abuse, which is to enable migrants in the UK to escape an abusive relationship without endangering their immigration status.
>>> Removing Afghan Sikhs does not breach their Article 3 rights: A.S.N. and Others v The Netherlands (application nos. 68377/17 and 530/18)
The Sikh community in Afghanistan used to be a sizeable religious minority within that country, but the effect of persecution over the past 30 years has meant that 99% have now emigrated. The United Nations and other international observers estimate that there may be only 1,000 Sikhs left in Afghanistan, primarily in Kabul.
Nevertheless, the European Court of Human Rights has ruled that there is no general risk of torture or inhuman or degrading treatment for Afghan Sikhs, and that there would be no breach of Article 3 of the human rights convention by removing a Sikh family to Afghanistan. The case is A.S.N. and Others v The Netherlands (application nos. 68377/17 and 530/18).
>>> Indefinite leave to remain: calculating continuous period in UK: https://www.gov.uk/government/publications/indefinite-leave-to-remain-calculating-continuous-period-in-uk
Immigration staff guidance on calculating the 5 year continuous period in the UK requirement for an applicant.
This version:
• adds the Global Talent category to the list of immigration categories covered by this instruction
• adds an exemption for Global Talent and Tier 1 (Exceptional Talent) applicants in certain sectors who have had absences linked to their endorsement (such as conducting research overseas)
• adds minor clarifications and corrections
It replaces the Indefinite leave to remain: calculating continuous period in UK modernised guidance version 19.0 which has been withdrawn and archived.
>>> Knowledge of language and life in the UK - Updated Guidance Version 24.0
Update: Clarified the list of people who do not need to meet the KoLL requirement.
"The following categories of people do not need to meet the KoLL requirement:
- victims of domestic violence
- foreign and Commonwealth citizens on discharge from HM Forces (including Gurkhas)
- highly skilled migrants applying under the terms of the Highly Skilled Migrant Programme (HSMP) judicial review, and their dependants
- bereaved spouses, civil partners, unmarried partners or - same-sex partners of people present and settled in the UK
parents, grandparents and other dependent relatives of people present and settled in the UK, applying under paragraph 317 of the Immigration Rules, even if they are aged between 18 and 64
- adult dependent relatives, under Appendix FM of the Immigration Rules, even if they are aged between 18 and 64
retired persons of independent means
- people applying for ILR as a refugee
- people applying for ILR on the basis of discretionary leave "
>>> English language requirements: skilled workers: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwiGsICBwY_oAhVE5eAKHVEWDBEQFjAAegQIAhAC&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/870839/english-language-v17.0ext.pdf&usg=AOvVaw3jDZBtDhx41wWmglYqv7k3
Update: Changes made to reflect the introduction of the Global Talent category into the Immigration Rules on 20 February.
>>> Guidance for dependants of UK visa applicants (Tiers 1, 2, 4, 5 and Appendix W): https://www.gov.uk/government/publications/guidance-for-dependants-of-uk-visa-applicants-tiers-1-2-4-5
Full guidance on the policy for applications by the family of people who have UK visas under the points-based system (PBS dependants) and Appendix W workers.
>>> EU citizens are protected by EU law, High Court reminds government: https://www.bailii.org/ew/cases/EWHC/Admin/2020/437.html
The High Court has held that the Home Office trying to apply its “deport first, appeal later” policy to EU citizens is incompatible with European Union law. The case is Hafeez v Secretary of State for the Home Department & Anor [2020] EWHC 437 (Admin)
In Hafeez, the High Court considered what test applies when deciding whether to certify a case. Are EU citizens protected by EU law (as one would expect) or does domestic law (in this case, the Human Right Act) apply?
This will be a helpful decision for EU citizens facing deportation from the UK and those representing them. It makes it clear that EU law applies to all stages of the deportation process.
The Home Office can still certify cases and deport EU nationals before their appeals have concluded. However it needs to apply EU law when doing so.
At the moment the test for certification is whether the person would face a real risk of serious irreversible harm if removed before the appeal is concluded. This test is based on the Human Rights Act and the person’s right to private and family life.
Now the test for certification is more stringent. The Home Office must demonstrate that:
"The personal conduct of the individual concerned represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society;
Removal prior to conclusion of the appeal process is necessary on grounds of public policy, public security or public health;
The objective to be achieved by removing the person before conclusion of their appeal cannot be achieved by a less onerous method; and
The burden imposed by removal is not disproportionate to the benefits secured."
The decision must be based exclusively on the personal conduct of the individual concerned. Considerations of general prevention are not permitted. Previous criminal convictions cannot, in themselves, constitute grounds for removal.
This is a much more difficult test for the Home Office to meet. As a result, use of the “deport first, appeal later” power is likely to be used less frequently, and only in the most serious cases.
>>> Guidance on examining identity documents: https://www.gov.uk/government/publications/recognising-fraudulent-identity-documents
A guide on how to detect basic forgeries in identity documents.
>>> Finally, the Home Office abandons “centre of life” test in Surinder Singh cases: https://www.gov.uk/government/publications/free-movement-rights-family-members-of-british-citizens
The Home Office has finally updated its guidance on Surinder Singh cases to remove all reference to a “centre of life” test. This follows the case of ZA (Reg 9. EEA Regs; abuse of rights) Afghanistan [2019] UKUT 281 (IAC) in which the Upper Tribunal found that the test was made-up nonsense and incompatible with EU law.
Surinder Singh is an immigration route that allows British citizens who have moved to another EU country to return with non-European family members, bypassing the strict rules on UK family visas that apply to people who have not exercised free movement rights. The Home Office has always hated what it sees as a backdoor, and from 2014 demanded proof that Brits trying to avail of Surinder Singh had moved the centre of their life to the EU country in question. That this was clearly incompatible with the EU law on the subject did not bother officials.
With the Upper Tribunal finally saying so explicitly, the Home Office has bowed to reality and stripped the centre of life test from its decision-making manual. The document now states:
"Any previous references to a ‘centre of life’ requirement are no longer relevant following the determination in the case of ZA (Afghanistan) (UKUT 281 2019)."
The precise legal status of the Surinder Singh route now that the UK is no longer formally a member of the European Union is complicated, to say the least. But for the time being it remains open and can be applied for until the 31st December 2020.
>>> Immigration Health Surcharge (IHS) rising to £624 in October 2020: https://www.gov.uk/government/publications/budget-2020-documents
The Immigration Health Surcharge is to increase from £400 to £624 in October 2020, the government has announced.
The rise was confirmed during the Budget, which Chancellor Rishi Sunak presented to Parliament today. An accompanying policy costings document states:
"This measure increases the Immigration Health Surcharge from the current level of £400 per year to £624 per year for each surcharge liable non-EEA temporary migrant (including dependants). The measure also increases the discounted rate for students, their dependents and those on the Youth Mobility Scheme from £300 to £470. The surcharge will also be set at £470 for all children under the age of 18.
This will be implemented in October 2020 and expanded to include future EEA temporary migrants at the increased rate from January 2021."
The Conservatives had promised to increase the surcharge to this level during the 2019 general election campaign, so it is not news in that sense, but the timing of the increase was not previously known.
Migrants already pay for the NHS through their taxes, so what the surcharge really represents is a tax on UK visas. It is levied in addition to headline visa application fees. These do not appear to be rising in 2020/21 — but the health surcharge hike will push up the total cost of many visas anyway.
>>> Statement of Changes to the Immigration Rules (HC 120); IHS fee increase from October: https://www.gov.uk/government/publications/statement-of-changes-to-the-immigration-rules-hc-120-12-march-2020
Surinder Singh cases
The Surinder Singh route allows British citizens who have moved to another European Economic Area country or Switzerland to return with non-European family members, bypassing the strict rules on UK family visas that apply to people who have not exercised free movement rights.
The clock is ticking on Surinder Singh. The amendments confirm that, to use this route, the UK citizen needs to be resident abroad and exercising free movement rights before the end of the transition period. This is the quite specific time of 23:00 GMT on 31 December 2020. The previous version of the rules was not particularly clear on this.
The upshot is that people availing of the Surinder Singh route can return to the UK any time before on 29 March 2022 at — you guessed it — 23:00 GMT, so long as the relationship existed pre-Brexit. If the relationship was established during the transition period, the cut-off is 23:00 GMT on 31 December 2020.
Absences
Paragraphs 18 to 19A of the Immigration Rules provide that those outside the UK with indefinite leave to remain may resume their UK residence so long as they were not absent for more than two years, as well as satisfying some other requirements. What was not confirmed up to this point was how that rule will be squared with the promise that people with EU settled status — which legally speaking is a form of indefinite leave to remain — can retain it for up to five years rather than two.
Appendix EU now explicitly states that paragraphs 18 and 19A will not apply to those granted settled status under the Settlement Scheme.
McCarthy cases
Up until 2012, the UK treated dual British/EU citizens the same way as other EU citizens. That is, dual nationals could still rely on EU free movement rights to bring family members in, avoiding the stricter immigration system that applies to Brits.
This changed after the Court of Justice case of C-434/09 McCarthy. It established that dual nationals living in the country of their nationality who have never exercised free movement cannot rely on EU free movement rights. That ruled out bring their family members into the home member state under the more lenient EU law system.
Following the McCarthy case, the UK amended the Immigration (European Economic Area) Regulations to so that EU citizens who were also British citizens could not rely on free movement rights. But transitional provisions were put in place to protect family members of dual nationals who had already come in under the old system. Specifically, those who applied for residence documents before either 16 July or 16 October 2012 (depending on the type of document).
This scenario is so niche that it was unintentionally omitted from the EU Settlement Scheme rules. It therefore did not allow for family members covered under these transitional provisions to be able to transfer over to settled status using the Scheme.
The changes now allow these family members to get settled (or pre-settled) status. It is not clear whether they will need to apply on a paper form, like other people with complicated cases, or whether they can use the online EU Settlement Scheme process.
Expired documents for durable partners and dependent relatives
Basically, if you are a durable partner or a dependent relative you first need to obtain one of these relevant documents from the Home Office before applying for pre-settled or settled status. You need to have applied for the document before 1 January 2021. You then have until 30 June 2021 to apply to the Settlement Scheme. We would recommend applying for both as soon as possible.
Yesterdays’s changes relate to relevant documents that have expired. They ensures that if a durable partner or dependent relative has an expired relevant document it will not be an obstacle to relying on the corresponding period of residence. That is so long as, before it expired, they applied for a further relevant document based on the same family relationship and the document was issued before the settlement scheme application is decided.
It is still important for durable partners and dependent relatives to keep note of the expiration date of these documents and to obtain a new one or apply to the Settlement Scheme before they expire.
Tier 2
The salary threshold in the eligibility criteria for indefinite leave to remain under Tier 2 will not increase annually following the recommendation of the Migration Advisory Committee. As a result, it will remain at £35,800 for all applications submitted on or after 6 April 2019 (paragraph 245HF(vi)(3)).
Archaeologists are now on the Shortage Occupation List after being accidentally left out.
Youth mobility scheme
The quota for Tier 5 (Youth Mobility Scheme) visas for Australians, New Zealanders and Canadians has been reduced by 1,000 each for 2020/21. These quotas are set by looking at how many Brits went to these countries on the equivalent working holiday visa last year. Fewer Brits going to Australia means fewer Australians allowed into the UK the following year, essentially.
Permit free festival list
This has been updated. No longer included for 2020/21 are Africa Utopia, Cornwall International Male Choral Festival and Manchester International Festival. Newly added are Edinburgh International Book Festival and London International Festival of Theatre. This may prove academic in the age of coronavirus.
Other changes
⦁ Applications can now be refused where an individual has been or would be excluded from refugee or humanitarian protection, or Article 33(2) of the Refugee Convention applies or would do so, as they are a danger to the security of the UK, or applies as, having been convicted of a particularly serious crime, they are a danger to the community.
⦁ Leave to enter granted by virtue of having arrived with an entry clearance granted under Appendix EU (Family Permit) can now be cancelled where there has been a material change in circumstances since the family permit was granted. A cancellation decision on those grounds can be challenged by way of administrative review.
IHS fee increase
It was announced in the Budget that the immigration health surcharge will increase from £400 per year to £624 per year for adults and £470 for children under the age of 18. The discounted rate for students, their dependants and those on the Youth Mobility Scheme will increase from £300 to £470. This will take effect from October 2020.
>>> Correspondence between ILPA and Trinity College London SELT re change in SELT
Following the recent change to the list of approved English language test providers, ILPA wrote to UKVI and Trinity College London to seek clarification. We are yet to hear from UKVI but we will update members when we hear further.
"New SELT providers will be going live over the coming months and customers should keep referring to the list for any updates. On December 16th 2019, Trinity College London was delighted to announce that it had again been awarded a Home Office concession agreement that will enable it to expand current provision of UK Visas and Immigration (UKVI) approved Secure English Language Tests (SELTs) in the UK. For more information please see our website. The date that we start in the new concession is to be confirmed however our tests continue to be approved for UKVI applications.
Please see the current list of approved test centres from 10th March 2020 here. This shows Trinity College London SELT centres are approved until July 2020. These are the current transitional arrangements in place which will be updated in due course as SELT providers (including Trinity), transition into a new UKVI Secure English Language Testing service."
>>> Correspondence from Business Helpdesk re copy bank statements and sponsor licence applications
From the Business Helpdesk:
Q: Will be possible for a lawyer to certify a statement from the bank if they view it via the online portal and print it from that?
A: A certified printout of an online statement can usually be accepted
Q: Is ot OK to adopt that approach for any document generated from an online portal ?
A: Yes, that is correct. Print outs of such documents are considered copies, so provided these are properly certified they would usually be accepted.
>>> “Genuine chance of being engaged” test for retaining EU worker status found unlawful: https://cpag.org.uk/sites/default/files/files/resource/CH-2389-2016 - 14.02.20.pdf
EU citizens do not have to prove that they have a “genuine chance of being engaged” in order to retain worker status under European Union law, the Upper Tribunal has held. The case is KH v Bury MBC and SSWP [2020] UKUT 50 (AAC).
>>> Long waits for visa documents may give rise to compensation: https://www.bailii.org/ew/cases/EWCA/Civ/2020/329.html
The Home Office may have to pay compensation in the case of major blunders, the Court of Appeal has said in a significant new ruling, Hasson v Secretary of State for the Home Department [2020] EWCA Civ 329.
Challenging an impressive new low by the Home Office, Mr Hasson sought compensation after being left waiting 25 months for a biometric residence permit (BRP) confirming his right to live and work in the UK.
On 20 May 2016, the Home Office sent the Mauritian citizen a letter confirming he had been granted leave to remain in the UK until 20 November 2018, promising his BRP would be sent within seven working days.
After years of chasing, Mr Hasson finally received his BRP on 19 June 2018, with five months left to run. Without the BRP, Mr Hasson had been unable to work and had accrued significant amounts of debt.
What does this mean for suing the Home Office?
While a significant ruling, as it may expand Home Office accountability, it’s important to remember that the Court of Appeal was only being asked to decide on a very narrow legal and procedural point: namely whether Mr Hasson’s case appeared strong enough to even proceed to a full hearing.
The decision was in Mr Hasson’s favour but the claim must now return to the Upper Tribunal to consider the facts of exactly what happened in more detail.
Until we know the outcome of that full hearing, it’s impossible to say for sure whether this is an outlying decision or part of a broader trend of holding the Home Office to account for its unacceptable delays.
>>> Nationality law update in the Immigration and Nationality (Fees) (Amendment) (No. 2) Regulations 2020: http://www.legislation.gov.uk/uksi/2020/294/contents/made
Important points:
Paragraph 7.8 explains the process to account for the recent declaration of incompatibility in relation to the position where a child's biological father is not the same as their father for the purposes of nationality law because the mother was married at the time of birth.
7.5 Certain applications for British citizenship are subject to the requirement to be of good character. The British Nationality Act 1981 (Remedial) Order 2019, which came into force on 25 July 2019, removed this requirement from routes where applicants were born to an unmarried British father before 1 July 2006 or to a British mother before 1 January 1983. This was as a result of court rulings which found that such a provision in the 1981 Act was incompatible with the European Convention on Human Rights.
7.6 These Regulations are concerned with applications under section 4F of the 1981 Act for registration as a British citizen made on the basis that the applicant would have been entitled to be registered under paragraph 4 or 5 of Schedule 2 to that Act if the applicant’s mother had been married to his or her natural father at the time of their birth. These are routes which make provision for those who are stateless to register as British citizens. An individual who made such an application before the British Nationality Act 1981 (Remedial) Order 2019 came into force on 25 July 2019 and whose application was refused on the basis that they were not of good character may wish to make a new application now that the good character test has been removed by the Order. These Regulations remove the fee that would otherwise have been payable for a repeated application of this kind. This amendment is made in response to a recommendation made by the Joint Committee on Human Rights in their report ‘Proposal for a draft British Nationality Act 1981 (Remedial) Order 2018’, published on 31 May 2018 (see in particular paragraph 64). Applications for registration under section 4C and sections 4G to 4I are already free and a fee exception is therefore not required for these routes.
7.7 Children born on or after 1 July 2006 to British fathers. A child cannot acquire British citizenship through their biological father if, at the time of their birth, their mother was married to or in an opposite sex civil partnership with another man. This is because, under section 50(9A) of the 1981 Act, the child’s father, for the purposes of provisions of that Act which confer British citizenship based on the status of a child’s father, is the mother’s husband or opposite sex civil partner at the time of the birth.
7.8 In a recent High Court judgment section 50(9A) of the 1981 Act was found to be incompatible with Article 14 of the European Convention of Human Rights when read in conjunction with Article 8 in this context, as such a child does not have an entitlement to be registered as a British Citizen. A child in these circumstances can apply to be registered as a British Citizen at the Home Secretary’s discretion under section 3(1) of the 1981 Act and whilst the government considers what appropriate action to take in light of the declaration of incompatibility, these Regulations provide for such a child to be able to make an application for registration without the payment of a fee.
>>> Family life: substance over form: https://www.bailii.org/ew/cases/EWCA/Civ/2020/338.html
Uddin v Secretary of State for the Home Department [2020] EWCA Civ 338 is an important case in which the outgoing Senior President of Tribunals provides the judges who serve in his Immigration and Asylum Chamber with very strong guidance on mixed credibility findings and the assessment of family life.
>>> Supreme Court says immigration tribunal can decide for itself if appellant was trafficked: https://www.bailii.org/uk/cases/UKSC/2020/9.html
In the case of MS (Pakistan) v Secretary of State for the Home Department [2020] UKSC 9, handed down today, the Supreme Court has confirmed that the immigration tribunal can and must decide for itself whether an appellant was a victim of trafficking. The tribunal is not bound by decisions of the National Referral Mechanism (NRM) which is primarily responsible for assessing trafficking cases, nor even limited to finding public law errors in NRM decisions in order to go behind them.