20 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)
>>> Closure of USCIS Application Support Centres across the USA
Note from UKVI:
"I hope this email finds you safe and well during this difficult time.
As such, standard UK visa service will be unavailable to US customers for the duration of the closure. At this time and subject to change, that date is April 01. In the interim, VFS PAC locations across the US (bar SFO and Seattle) currently remain open for business and walk-in fees will be waived by VFS for customers seeking service.
Moving forward, we will send you updates on service changes as they happen."
In Mujahid [2020] UKUT 85 (IAC), President Lane holds that where a person applies to the Home Office for indefinite leave to remain and is refused indefinite leave but granted limited leave instead, that decision is not a refusal of a human rights claim as defined at section 82 of the Nationality, Immigration and Asylum Act 2002. Therefore there is no statutory right of appeal against the decision.
The headnote:
(1) A person (C) in the United Kingdom who makes a human rights claim is asserting that C (or someone connected with C) has, for whatever reason, a right recognised by the ECHR, which is of such a kind that removing C from, or requiring C to leave, would be a violation of that right.
(2) The refusal of a human rights claim under section 82(1)(b) of the Nationality, Immigration and Asylum Act 2002 involves the Secretary of State taking the stance that she is not obliged by section 6 of the Human Rights Act 1998 to respond to the claim by granting C leave.
(2) Accordingly, the Secretary of State does not decide to refuse a human rights claim when, in response to it, she grants C limited leave by reference to C’s family life with a particular family member, even though C had sought indefinite leave by reference to long residence in the United Kingdom.
The EU Settlement Scheme statistics for February 2020 are out. They show 300 refusals. We’re told by the Home Office that the increase is mainly due to refusals for eligibility, not over criminality.
The two core reasons, the Home Office says, for the jump in refusals are:
- Failing to provide eligibility evidence, either at the application stage or in reply to requests from the Settlement Resolution Centre.
- Non-EEA/Swiss family members failing to evidence their relationship to the EEA/Swiss sponsor. This could include failing to provide a marriage certificate or not possessing the relevant document as a dependent relative.
Officials say that they made every attempt to obtain the necessary evidence before refusing applications, and that decisions to refuse were not taken lightly and signed off at a high level.
This update is the one to be aware of. Changes to DNA policy guidance as follows:
Page 6, reference to DNA profile not revealing certain characteristics of a person who provides a DNA sample for testing.
Page 7, guidance on who is entitled to see the results of a DNA test.
Page 8, reference to funding the costs of witnesses
Page 12, new sub-section on accreditation held by DNA testing laboratories.
Page 12-14, updated guidance on collecting the DNA samples covering situations when the Home Office is in the possession of the applicant’s identification document and handling children aged under 16.
Page 15, new section to replace DNA: Unavailability of a family member with DNA: Other biological relationships
Page 16-18, advice on DNA test results and checking the authenticity of a DNA test report with the DNA testing laboratory.
Page 20, template amended to inform applicants on how to obtain a DNA test and that we will verify the report with the DNA testing laboratory.
Page 21, template to refer suspicious DNA test reports to laboratories Page 22, model letters on suitably accredited laboratories.
Page 23-24, model letters on disregarding DNA evidence where the identity of a person who has provided a DNA sample cannot be verified
Page 25, information on essential information.
The guidance was first introduced at the end of 2018 following a scandal over unlawful demands for visa applicants to take DNA tests to prove family relationships.
23 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)
>>> Coronavirus and UK Immigration Update
First Tier Tribunal
The Fisrt Tier Tribunal (FTT IAC) is currently processing the adjournment of cases from Wednesday, the 25th March, onwards, and notifying lawyers and appellants of the same.
Subject Access Requests (SARS)
These can now only be made by email and only electronic records will be provided.
From the UK BA:
"With immediate effect, following the Government’s recent advice, we have instructed all staff to work from home if they can.
This means we can only process SARS made online and provide data held in electronic records (no Home Office Files can be processed). We are not able to process postal requests or correspondence until further notice.
Message from Sopra Steria - biometrics enrollments are still operational - yet follow the web-site
"It is important we share updates as quick as possible and given the recent announcements by HM Government I am writing to explain how these changes may affect our services and what we are doing to meet these unprecedented challenges.
We continue to monitor the well-being of our agents; to support the safety of applicants using our centres and to assess the performance of our operations to deliver appointment availability by minimizing any potential disruption to our service. As part of these regular daily reviews we are updating our UKVCAS website with important information on a daily basis regarding appointment capacity, which may include sites closures across our network for defined periods."
24 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)
>>> Can I apply for Settlement under the Long Residence/10 Year lawful residence Rules retrospectively ?
The answer is apparently, "Yes".
Under the paragraph 276B of the Rules once an applicant has accumulated the 10 years of lawful residence, and then left the UK, it no longer matters how long the applicant was absent from the UK.
So, it is possible to return into the UK after literary years of absence from the UK and apply for Settlement retrospectively.
25 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)
Visas extended to 31 May for individuals who are currently unable to return home at the end of their visa.
>>> Correspondence from UKVI re reporting sponsored migrants working from home:
"... (The UK Border Agency) can confirm that sponsoring employers will not have to report a change of location for all sponsored migrants working from home.
The court found that the time spent in prison does not positively count toward the ten-year residence period required to benefit from enhanced legal protection against deportation as an EU citizen.
In Nimo (appeals: duty of disclosure : Ghana) [2020] UKUT 88 (IAC) the Upper Tribunal, consisting of Mr Justice Lane and Mr Ockelton, has held that the duty of candour applying to parties in judicial review proceedings does not apply in statutory appeals and there is no obligation in marriage of convenience cases for the Home Office to disclose Form ICD.4605, which sets out the interviewer’s comments:
" (1) In an immigration appeal, the Secretary of State’s duty of disclosure is not knowingly to mislead: CM (EM country guidance; disclosure) Zimbabwe CG [2013] UKUT 59, citing R v SSHD ex parte Kerrouche No 1[1997] Imm AR 610.
(2) The Upper Tribunal was wrong to hold in Miah (interviewer’s comments; disclosure; fairness) [2014] UKUT 515 that, in every appeal involving an alleged marriage of convenience, the interviewer’s comments in the Secretary of State’s form ICD.4605 must be disclosed to the appellant and the Tribunal. No such general requirement is imposed by the respondent’s duty of disclosure or by rule 24 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014."
Life in the UK Test centres will be closed in line with official requirements of the UK Government from 21 March until 13 April 2020 as a precautionary measure against coronavirus (COVID-19) to help protect the health of test takers and staff .
If you have booked a test to take place during this period, your test booking will be rescheduled automatically to a date after 13 April 2020.
If you are booking a new test, test dates are still available from 13 April 2020".
26 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 Home Office has accepted the need to simplify the “complex and confusing” Immigration Rules and says that the work is already underway. The department says that “we have already begun the process of reviewing, simplifying and consolidating the Rules”.
The Law Commission’s report, published in January 2020, made 41 recommendations for redrafting the “overly complex and unworkable” regulations at the heart of the UK immigration system. The Home Office says that it is accepting 24 of them and partially accepting the other 17.
In terms of overall structure, the department’s proposal is broadly in line with the Law Commission’s. The simplified Rules would start with rules that apply across the board, such as how to make a valid visa application and the general grounds for refusal, followed by the rules specific to each visa.
The document includes some examples of how these route-specific rules could be drafted. The examples retain the much-derided system of “alphabet soup”, whereby the Rules are not numbered 1, 2, 3 etc but by letters indicating the section and then numbers:
"Validity requirements for Parent of a Child Student
PC.1.1. An applicant seeking to come to the UK as the Parent of a Child Student must have obtained permission to do so before their arrival in the UK.
PC.1.2. An applicant who is in the UK at the date of application must have, or have last been granted, permission to come to or stay in the UK as the Parent of a Child Student."
This is despite the Home Office purporting to accept recommendation 14: “paragraphs should be numbered in a numerical sequence”.
The Law Commission also suggested, somewhat tentatively in the end, that there could also be separate “booklets” gathering together all the rules that apply to a particular visa. In other words, bringing together the general and specific rules into one document. The Home Office response to this is balanced:
"We will continue to explore the idea of a booklet for each category of application… We think that the booklet approach, alongside the consolidated Rules, may cause confusion and risks material becoming inconsistent."
The department has accepted the idea of a simplification committee. The external stakeholders to be invited are almost all lawyers.
“Our aim”, says Foster, “is to complete this overhaul by January 2021”.
He also writes in the foreword: “For far too long, users have struggled to understand the confusing and complex Immigration Rules”. The minister is to be commended for his candour, given that his party has been in charge of the Rules for almost a decade.
27 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)
30 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)
If you already have an existing appointment, you do not have to do anything. UKVCAS will automatically reschedule your appointment. Initially appointments will be rescheduled for 6 weeks ahead of your original appointment. Please monitor your UKVCAS account to find out when your new appointment has been scheduled for.
If you can’t make the rescheduled appointment, you can cancel this online and receive a full refund. However, you will not be able to rebook until the online booking system reopens.
Alternatively, you can wait until the online booking system reopens when you will be able to see all available appointments.
Please regularly check this website for updates on the service status.
New Customers
New customers are being asked to register your account as normal at our website. You will receive a prompt to register, from the ‘Book your Appointment’ link on the UKVI pages of GOV.UK.
Please regularly check this website for further updates on the service status.
Impact on Visa Applications
UKVI has now issued guidance that all foreign nationals whose permission to stay in the UK expired from 24th January 2020 may access a visa extension until 31st May 2020 therefore you will not be disadvantaged in any way due to the COVID-19 crisis.
>>> UK BA Coronavirus immigration update
The Home Office points out the following:
- Applicants are advised to use Email when communicating with the Coronavirus Immigration Team, as that is where they have greater resources as staff can work from home. This way they can prioritize the helpline for the most vulnerable individuals.
- Leave to remain extensions - the Home Office will be issuing specific further guidance for the applications during the COVID19 period
- Right to work checks can be conducted via Skype - the Guidance is yet to be published
- The requirement to enrol biometrics within 45 days has been waived and this will be confirmed in guidance
- Where an application is submitted without SELT or a Life in the UK test, the application won't be rejected as invalid. Again, there will be guidance on this issue. Applications can be made in order to protect 3C leave, and the UK BA will put the application on hold until they are able to do so
31 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 case of MY (refusal of human rights claim) Pakistan [2020] UKUT 89 (IAC) represents yet another cutback in the rights of migrant victims of domestic abuse, and in appeal rights more generally. The Upper Tribunal has ruled that the Home Office can simply refuse to engage with a human rights claim which is not made in the particular way the department wants it made.
When refusing to engage with a human rights claim submitted in the “wrong” format, the Home Office is not refusing that claim, and therefore there is no right of appeal. Some migrants will have to make very difficult decisions as a result.
01 April 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)
Doctors, nurses and paramedics with visas due to expire before 1 October 2020 will have them automatically extended for one year.
As part of the national effort to combat coronavirus, doctors, nurses and paramedics will automatically have their visas extended, free of charge, for one year.
The extension, announced today (31 March) by the Home Secretary Priti Patel, will apply to around 2,800 migrant doctors, nurses and paramedics, employed by the NHS whose visa is due to expire before 1 October.
The extension will also apply to their family members, demonstrating how valued overseas NHS staff are to the UK.
By giving them the peace of mind that they do not need to apply for a visa extension, this will allow those at the front line – working around the clock in hospitals to treat the most seriously ill – to focus fully on combating coronavirus and saving lives.
To get more doctors and nurses on the front line, the Home Office has also lifted the restriction on the amount of hours student nurses and doctors can work in the NHS.
On top of these changes, pre-registered overseas nurses who are currently required to sit their first skills test within 3 months and to pass the test within 8 months, will now have this deadline extended to the end of the year as well.
This will give overseas nurses more time to pass their exams, whilst they spend the immediate term working on the front line.
Home Secretary Priti Patel said:
"Doctors, nurses and paramedics from all over the world are playing a leading role in the NHS’s efforts to tackle coronavirus and save lives. We owe them a great deal of gratitude for all that they do.
I don’t want them distracted by the visa process. That is why I have automatically extended their visas – free of charge – for a further year.
The extension to NHS visas will be automatic, there will be no fee attached and it will be exempt from the Immigration Health Surcharge.
Trainee doctors and nurses will also not be limited by the number of hours they can work in the NHS during term time."
UK Visas and Immigration (UKVI) have temporarily closed Service and Support Centres (SSCs) because of coronavirus (COVID-19).
These centres (do not mix them up with Sopra Steria) dealt with the limited face-to-face application such as FLR(FP)/Human Rights/Legalization
NB: With other types You still need to lodge your immigration application (online) in time/lodge a valid application to preserve your immigration status. The biometrics enrolment is being deferred to a leter date.
No sooner is the last batch of immigration judges through the door than the authorities are seeking to recruit more. Around 40 new judges were named to the immigration and asylum chamber of the First-tier Tribunal over the last few months, but the Judicial Appointments Commission is now seeking another 14.
Most of the positions are based in England and Wales, but there is one vacancy in Scotland. Applicants must have worked as a lawyer for at least five years, and are expected to have some kind of judicial or quasi-judicial experience.
2 April 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 is now collating its guidance for those affected by changes to UK immigration and borders due to coronavirus on a dedicated page.
>>> Update on EU settlement scheme application procedures - paper application forms
To request a paper application form for the EUSS, you need to submit a query via the online enquiry form at https://eu-settled-status-enquiries.service.gov.uk/start ensuring you provide the following information relating to the applicant:
-Full Name (as shown on identity document)
-Address
-Date of Birth
-Nationality
-Telephone number
-Postal address
-Email address
-Details of your representative (name, email, phone number if applicable)
-Reference number of any previous residence document issued to you
The Home Office cannot accept any documents by post at this time, but all documents already sent will be returned as quickly as possible. Applications can still be made online using the “EU Exit ID Document check app”.
>>> Correspondence from UKVI re sponsor licence applications and submission sheets - digital copies
The Coronavirus Immigration Team has confirmed that original documents are not required for sponsor submission sheets and sponsor licence applications. They can be sent as scanned .pdf files via email. Digital signatures are also acceptable at present for submission sheets.
>>> What happens when a variation application is invalid?
This was the question answered by the Upper Tribunal in R (Bajracharya) v Secretary of State for the Home Department (para. 34 – variation – validity) [2019] UKUT 417 (IAC).
Mr Bajracharya made an application to remain in the UK on the basis of his private and family life. He provided his biometric information as required. Before a decision was made on this first application, he made a second application, this time for indefinite leave to remain (ILR).
A person can have only one application for leave to remain outstanding at any given time. An application submitted whilst an earlier application is still pending is treated as a variation.
But Mr Bajracharya did not provide his biometric information as part of the ILR application, meaning that this application was invalid.
The question for the Upper Tribunal was: what happens to the underlying private and family life application? Does the underlying application survive the invalidation of the variation application?
The competing arguments
The Home Office position was that Mr Bajracharya had ended up with no valid application.
The department argued that the ILR application was valid at the time of submission. This is supported by two previous cases which held that an application is not retrospectively invalidated by failure to fulfil a future obligation (such as to post a passport or provide biometric information). The application is invalid from the date of that failure, not from the outset.
The ILR application was therefore valid, at least at first. This valid variation subsumed the previous application. When Mr Bajracharya failed to provide his biometrics, the sole outstanding application was invalidated. There was, by this point, no previous application in existence for him to fall back on.
Mr Bajracharya argued that defects in an attempt to vary an application do not infect the underlying application. The variation was invalid, but the initial application remained valid and pending.
A difference in wording
The Upper Tribunal agreed with Mr Bajracharya. It relied on a distinction between the wording of the rules on initial applications and variation applications.
As a result, Mr Bajracharya’s application for judicial review was successful and the case returned to the Home Office to make a decision on the outstanding private and family life application.
The official headnote
(1) Paragraph 34 [A-F] of the Immigration Rules is to be construed by the application of the ordinary principles of statutory construction, which start from the natural meaning of the words in their context.
(2) Paragraph 34 requires applicants to make an application for leave to remain in accordance with the provisions of 34.
(3) If a second application is submitted when the first application is outstanding, the second application will be treated as a variation of the first application [34BB(2)].
(4) If the variation does not comply with the requirements in paragraph 34 “the variation will be invalid and will not be considered” (paragraph 34E). Invalidity does not extend to the original application.
03 April 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)
Due to coronavirus (COVID-19), you’ll have 6 months to book your citizenship ceremony after receiving an invitation from the Home Office. Any delays caused by COVID-19 will not affect decisions around your application.
>>> Migrant and self-employed workers and the COVID19 - the Home Office response
From the Home Office
Migrant workers
The Government has made provisions to allow employers to retain employees during interruption to commercial activity because of the pandemic. Employers can apply for support from the Government that can assist with these current difficulties. Employees whose leave in the UK is subject to conditions that they have no recourse to public funds may be able to secure assistance (subject to meeting all requirements) through-
1) Sta***ory Sick Pay
2) Contributory-based Employment and Support Allowance
3) Support provided to employers through the Coronavirus Job Retention Scheme
4) Some other work related benefits.
Self-employed migrants
Migrants who are registered as self employed and have made tax returns in the past few years may be able to apply for a grant through the self-employed income support scheme or in accessing other support.
Use this form if you are in the UK and you want to update, replace or transfer your biometric residence permit (BRP) or your biometric residence card (BRC).
(1) Fairness means fairness to both sides: it does not mean favouring the appellant at the expense of the respondent.
(2) Tribunals must ensure appellants have a fair hearing, but they should not be intimidated by unjustified withdrawal of representatives.
(3) Unless unfairness has resulted in there being no proper consideration of their case at all, appellants who allege procedural unfairness may find it difficult to have a decision set aside, without showing that they may have suffered prejudice through inability to present a better case.
04 April 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)
>>> COVID19 and the Home Office clarification for the following immigration issues:
- Tier 2
If you cannot pay the salaries of sponsored employees because you’ve temporarily reduced or ceased trading
You can temporarily reduce the pay of your sponsored employees to 80% of their salary or £2,500 per month, whichever is the lower.
Any reductions must be part of a company-wide policy to avoid redundancies and in which all workers are treated the same.
These reductions must be temporary, and the employee’s pay must return to at least previous levels once these arrangements have ended
- Tier 1 Entrepreneur
If you are on a Tier 1 Entrepreneur visa and your business has been disrupted
You no longer need to employ at least 2 people for 12 consecutive months each. The 12 month period you are required to employ someone for can be made up of multiple employees across different months.
Time when your employees were furloughed will not count towards the 12 month period.
If have not been able to employ staff for 12 months in total by the time your visa expires, you will be allowed to temporarily extend your stay to give you time to meet the requirement.
- Changes to the current restrictions on the number of hours you can work or volunteer
There is no longer a limit on the number of hours you can work or volunteer each week if you work for the NHS as a doctor, nurse of paramedic and you are a:
tier 4 student
tier 2 worker and your NHS job is a second job
visiting academic researcher
holder of a short-term visa and are permitted to volunteer
>>> BRPs expiring on 31 December 2024 where leave has been granted for a longer period
The Home Office says that:
The Home Office will introduce a new UK format BRP next year which will not have restricted validity, and will therefore reflect the period of leave granted, or be valid for 10 years (five years for children) where indefinite leave is granted.
For those who have a limited validity BRP they are revising the notification of grant of leave and the BRP carrier letter to explain the difference in the date of expiry of leave and date of validity of the BRP card.
They will update right to work and right to rent guidance to ensure that employers and landlords are also aware of this issue.
They will provide advice on GOV.UK to reassure anyone with a short-dated BRP that it does not affect their immigration status and they do not need to do anything now. By early 2024, before these BRPs start to expire, they will publish details of what needs to be done to obtain a free replacement BRP or to use digital status.
These applications must now be submitted online. Apply online if you already have leave granted on the basis of your family or private life and your financial circumstances change.
08 April 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)
>>> Ten-minute asylum interview enough to meet ECHR obligations before removal: https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-201870%22]}
In Asady and Others v Slovakia (application no. 24917/15) the European Court of Human Rights has delivered another judgment that will gratify governments seeking to use summary removal to get rid of asylum seekers. The decision continues the court’s retreat over the interpretation of Article 4 of the Fourth Protocol to the European Convention on Human Rights (ECHR), which is meant to prohibit mass expulsions.
The issue in Asady was a factual dispute between a group of Afghans and the Slovak government. The Afghan men complained that when encountered by Slovak police near the Ukraine/Slovakia border, the police had ignored their requests to claim asylum. After a perfunctory series of interviews they claimed to have been removed to Ukraine within 24 hours of entering Slovakia.
The Slovaks asserted that in fact each individual had been provided a full opportunity to claim asylum at an interview with an interpreter but had chosen not to. Therefore the immediate group removal was acceptable because each person had been considered as an individual. In an appeal at domestic level, the Slovak border police directorate found in favour of the police.
At the European Court of Human Rights, the Slovak police were once again vindicated. The majority, in a court split 4-3, were happy to accept that a ten-minute interview would be sufficient for the police to explain the asylum system to each person and to check whether there were any reasons not to proceed with removal to Ukraine. Experienced practitioners might doubt whether they would be able to achieve this in ten minutes through an interpreter, but the Strasbourg court clearly has greater faith in the Slovak police. The majority also noted that the applicants had not provided any details about their asylum claims at any later stage.
Judge Lemmens (who also recently dissented in defence of Afghan asylum seekers in another recent case) joined Judges Keller and Schembri Orland in a dissenting opinion. They identified problems with the evidence provided by the Slovak police: most importantly, the recorded interview times frequently overlapped, but there was only one interpreter present. They also observed that many of the men had subsequently been granted asylum in other countries, casting doubt on Slovakia’s claim that they were not asylum seekers.
Significantly, the dissenting opinion also tries to confine the applicability of the Grand Chamber decision in N.D. and N.T. v Spain by noting its very extreme facts. In a plea to future constitutions of the court, the judges state:
"It is vital that the limited scope of the Grand Chamber’s judgment in N.D. and N.T. v. Spain be respecte0d. An overly broad interpretation of the judgment would damage the “broad consensus within the international community” concerning compliance with “the Convention guarantees, and in particular … the obligation of non-refoulement” (see N.D. and N.T. v. Spain, cited above, § 232)."
This case is another depressing footnote in the story of how Europe has sought to make itself inhospitable to irregular migrants. But the level and strength of dissent illustrates that these issues remain open for argument before the Strasbourg court.
10 April 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)
Under the new immigration system planned to kick in from January 2021, the minimum skill level needed to be sponsored for a general work visa will be reduced from RQF level 6 to RQF level 3. This means that jobs which are considered to be A-level standard can be sponsored, instead of the Bachelor’s degree qualifications which are required now.
The 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 from level 6 (degree) to level 3 (A-level), as was also the case under the December 2018 white paper proposals.
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 about the 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:
"There 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 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 Government proposes adding a new “unsponsored route” for the highly skilled alongside Tier 1 (Global Talent), with eligibility determined by personal characteristics:
"Example characteristics for which points could be awarded include academic qualifications, age and relevant work experience."
But in light of bitter experience — the MAC pointed out that the Home Office itself had come to loathe truly 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 now?
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”.
What a moment for the Home Office to update its guidance on the new immigration system to reiterate:
"There will not be an immigration route specifically for those who do not meet the skills or salary threshold for the skilled worker route."
Basically, in the midst of the COVID-19 crisis, the Home Office felt it necessary to state that care workers, nurses, hospital porters, cleaners, logistics personnel, postal workers etc will not be able to apply for a UK work visa from January. The only “low-skilled” workers that the government envisages letting in are agricultural labourers.
15 April 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)
>>> COVID19 and Immigration update
If you’re applying to stay in the UK long-term
You can apply from the UK to switch to a long-term UK visa until 31 May 2020. This includes applications where you would usually need to apply for a visa from your home country.
You’ll need to meet the requirements of the route you are applying for and pay the UK application fee.
This includes those whose leave has already been automatically extended to 31 March 2020.
You can apply online. The terms of your leave will remain the same until your application is decided.
If you’ve applied for a Tier 4 visa and are waiting for a decision on your application
You can start your course or studies before your visa application has been decided if:
- your sponsor is a Tier 4 sponsor
- you have been given a confirmation of acceptance for studies (CAS)
- you submitted your application before your current visa expired and you show your sponsor evidence of this
- the course you start is the same as the one listed on your CAS
- you have a valid Academic Technology Approval Scheme (ATAS) certificate if required
If your application is eventually rejected as invalid or refused you must stop your course or studies.
If you’ve applied for a Tier 2 or 5 visa and are waiting for a decision on your application
You can start work before your visa application has been decided if:
- you have been assigned a Certificate of Sponsorship (CoS)
- you submitted your application before your current visa expired and you show your sponsor evidence of this
- the job you start is the same as the one listed on your CoS
If your application is eventually rejected as invalid or refused your sponsor will stop sponsoring you and you must stop working for them.
>>> Deportation of Royal Marine with 14 years’ service upheld on appeal: https://www.bailii.org/ew/cases/EWCA/Civ/2020/505.html
In LE (St Vincent and the Grenadines) v SSHD [2020] EWCA Civ 505 the Court of Appeal upheld a decision to deport a Royal Marine who had fought for this country in Iraq and Afghanistan over a 14-year career in the armed forces.
On 28 October 2016, the appellant was convicted of dishonestly making false representations. He tricked an elderly vulnerable woman into allowing him access to her bank account and emptied it of £20,000 to £30,000 for his own use. He was sentenced to 2 years imprisonment.
The Court of Appeal upheld the decision to remove the Appellant.
23 April 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 reprimanded an immigration judge for granting an adjournment during the cross-examination of an appellant. In WA (Role and duties of judge) Egypt [2020] UKUT 127 (IAC), the President and Vice President of the Upper Tribunal provide guidance on how tribunal judges should manage hearings:
"During the course of taking evidence, a judge’s role has to be merely supervisory. In dealing with representatives, and in assessing their submissions, the judge is entitled to take a role as interventionist and active as he considers appropriate. But while evidence is being taken, he should limit himself to making sure that the evidence is given as well as may be. He should be alert to the witness’s welfare; he should check that there are no obvious problems with interpretation. He will ensure that there are no undue interventions from the other side, reminding representatives, if necessary, that they will have an opportunity in due course to ask their questions. … If there are any questions which are manifestly unfair, he might simply direct that they be not asked, or if already asked, not answered."
This explanation of the judicial function was triggered by First-tier Tribunal judge Peter Hollingworth deciding to adjourn a hearing during the cross-examination of the appellant to allow the appellant to prepare a new witness statement dealing with the Presenting Officer’s questions. The circumstances in which the adjournment decision came to be made are unclear; the judge recorded that the appellant’s lawyer had applied for one, but this was denied by counsel before the Upper Tribunal.
The Home Office argued that the adjournment “gave the claimant an opportunity to improve his case at a point where questions and cross-examination were getting difficult”.
Having reviewed the case, the Upper Tribunal concluded that the adjournment was inappropriate and unnecessary. The Presenting Officer was simply asking the appellant to clarify an aspect of his account in the usual way. The tribunal also identified an error of law in the determination itself, and for that reason remitted the appeal to the First-tier Tribunal.
The official headnote
1. During the taking of evidence a judge’s role is merely supervisory.
2. If something happens during a hearing that disrupts the normal course of taking evidence it is essential that the judge records what happened and why; who said what; and what decision the judge made and on what basis.
24 April 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 R (Samson Bello) v Secretary of State for the Home Department [2020] EWHC 950 (Admin), the High Court has refused to release a man at high risk of COVID-19 complications from immigration detention.
Instead, Mr Justice Chamberlain ordered a rolled-up hearing to take place on 27 April 2020. At that hearing the judge will consider the important issue of whether underlying health conditions, or “comorbidities”, indicating a higher risk of developing complications from COVID-19 should be recognised as Level 3 evidence under the Adults at Risk policy.
Once the Home Office accepts that a detainee has Level 3 evidence, it will only keep him or her in detention if removal will take place in the immediate future or there are significant public protection concerns. The resolution of this question will have huge implications for the use of detention during the coronavirus crisis.
Chamberlain J’s preliminary view is as follows:
"As to [Mr Bello’s] vulnerability to COVID-19, there is a real question of interpretation as to whether every person identified as vulnerable by reason of comorbidities ipso facto falls to be categorised as a level 3 risk. That turns on whether it can be said of such a person that continued detention would be “likely to cause harm”. I see some force in Mr Buley’s suggestion that the answer to that question is yes, but I do not think the answer is obvious. The word “likely” can mean different things in different contexts."
27 April 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)
Two important (but completely different) points arise from the Upper Tribunal’s decision in MH (review; slip rule; church witnesses) Iran [2020] UKUT 125 (IAC), one concerning religious conversion cases and the other concerning clerical errors in a written decision.
“Expert” evidence on religious conversion
The first is quite a significant watering down of the Court of Session’s decision in TF and MA v Secretary of State for the Home Department [2018] CSIH 58, one of the few important immigration decisions to be decided north of the border. That case opened the door to fellow church-goers giving “expert evidence” on an asylum seeker’s conversion to a religion that would see them persecuted if returned to their country of origin.
On this point, the Upper Tribunal differed from the Court of Session. It referred to the Supreme Court’s decision in Kennedy v Cordia (Services) LLP (Scotland) [2016] UKSC 6 which said that a true “expert” would be backed up by a “reliable body of knowledge or experience to underpin the expert’s evidence”. By contrast, the tribunal held:
"The position in respect of an individual’s conversion to Christianity is to be distinguished from these paradigms. There is no recognised methodology by which the genuineness of an individual’s conversion from one faith to another can be measured, nor can that question properly be categorised as belonging to a field of knowledge or science…Their evidence on this issue (described by Lord Glennie as “Category 3” evidence) should not, in our judgment, be described either as expert evidence or even as “a species of expert evidence”, as was submitted by leading counsel for the appellants in TF & MA: [41] refers. To describe such evidence as expert evidence risks elevating the significance of that evidence unduly. "
The upshot was that the evidence of church-goers was potentially significant but not expert evidence and therefore could not be given the same weight as expert evidence. The weight to be given to that evidence is a matter for the judge deciding the case.
Slip rule: Katsonga overturned
The second important point was overruling the older Upper Tribunal case of Katsonga (“Slip Rule”; FtT’s general powers) [2016] UKUT 228 (IAC). The “slip rule” refers to Rule 31 of the First-tier Tribunal Procedure Rules:
"Clerical mistakes and accidental slips or omissions
31. The Tribunal may at any time correct any clerical mistake or other accidental slip or omission in a decision, direction or any document produced by it, by –
(a) providing notification of the amended decision or direction, or a copy of the amended document, to all parties; and
(b) making any necessary amendment to any information published in relation to the decision, direction or document."
The Katsonga tribunal said that the slip rule could not be used to “reverse the effect of a decision” of the tribunal.
In MH, the judge had made clear that he disbelieved the appellant’s account of converting to Christianity but ended the decision by saying the appeal was allowed. There was no doubt that this was an obvious error but the question was how to fix this. The effect of Katsonga was that the tribunal could not use the slip rule to correct that mistake. This raised a lot of eyebrows at the time, especially because Rule 31 allows “any” amendment to fix an “accidental slip”.
Realising the error of its ways, the Upper Tribunal has changed tack. It agreed with the Home Office contention that:
"The obvious typographical error in the judge’s decision was plainly amenable to such correction and Katsonga [2016] UKUT 228 (IAC) was wrongly decided insofar as it suggested otherwise."
The upshot is that where a judge has made a typographical error, the most convenient way of fixing that is by using the slip rule. This saves the hassle and expense of making an application for permission to appeal (and going through the motions of an Upper Tribunal hearing when it was obvious the judge had made a mistake). By doing this, the Upper Tribunal isn’t reversing the effect of a decision (as had been thought in Katsonga) but just giving effect to the decision which the judge intended to pronounce.
The official headnote
"(i) Part 4 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 contains a ‘toolkit’ of powers, the proper use of which saves time and expense and furthers the overriding objective.
(ii) A judge of the FtT who is minded to grant permission to appeal on the basis of a seemingly obvious error of law should consider whether, instead, to review the decision under appeal pursuant to rule 35.
(iii) A decision which contains a clerical mistake or other accidental slip or omission may be corrected by the FtT under rule 31 (the ‘slip rule’). Where a decision concludes by stating an outcome which is clearly at odds with the intention of the judge, the FtT may correct such an error under rule 31, if necessary by invoking rule 36 so as to treat an application for permission to appeal as an application under rule 31. Insofar as Katsonga [2016] UKUT 228 (IAC) held otherwise, it should no longer be followed.
(iv) Written and oral evidence given by ‘church witnesses’ is potentially significant in cases of Christian conversion (see TF & MA v SSHD [2018] CSIH 58). Such evidence is not aptly characterised as expert evidence, nor is it necessarily deserving of particular weight, and the weight to be attached to such evidence is for the judicial fact-finder."
28 April 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)
What happens when you enter the UK as a visitor and then apply to remain here so that you can stay with your British family members BEFORE* the visitor visa expires ?
What if plans change after entering the UK? What if, as the expiry of the visit visa approaches, a doctor advises against travel for medical reasons? What if there is a risk that the financial requirement for a spouse visa won’t be met and the person will not be able to return?
What if the person has never lived in their country of nationality (where they would need to apply from), having been born and raised in another country?
What if applying from abroad would be disruptive and not in the best interests of the applicant’s British child? Is it reasonable to expect that child to leave the UK?
May be the Home Office will be sympathetic to a change of circumstances, some may think ? The answer is "NO!".
In the recent case of Younas (section 117B(6)(b); Chikwamba; Zambrano) Pakistan [2020] UKUT 129 (IAC) the Upper Tribunal answers all of these questions, all in favour of the Home Office.
The official headnote
(1) An appellant in an Article 8 human rights appeal who argues that there is no public interest in removal because after leaving the UK he or she will be granted entry clearance must, in all cases, address the relevant considerations in Part 5A of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) including section 117B(1), which stipulates that “the maintenance of effective immigration controls is in the public interest”. Reliance on Chikwamba v SSHD [2008] UKHL 40 does not obviate the need to do this.
(2) Section 117B(6)(b) of the 2002 Act requires a court or tribunal to assume that the child in question will leave the UK: Secretary of State for the Home Department v AB (Jamaica) & Anor [2019] EWCA Civ 661 and JG (s 117B(6): “reasonable to leave” UK) Turkey [2019] UKUT 72 (IAC). However, once that assumption has been made, the court or tribunal must move from the hypothetical to the real: paragraph 19 of KO (Nigeria) & Ors v Secretary of State for the Home Department [2018] UKSC 53. The length of time a child is likely to be outside the UK is part of the real world factual circumstances in which a child will find herself and is relevant to deciding, for the purpose of section 117B(6)(b), whether it would be unreasonable to expect the child to leave the UK.
(3) The assessment of whether a child, as a result of being compelled to leave the territory of the European Union, will be a deprived of his or her genuine enjoyment of the rights conferred by Article 20 TFEU in accordance with Ruiz Zambrano v Office national de l’emploi (Case C-34/09) falls to be assessed by considering the actual facts (including how long a child is likely to be outside the territory of the Union), rather than theoretical possibilities.
*It is really strange, how some of the UK Immigration Rules are created. Just imagine: had Ms Younas overstayed, and been able to access the exception in paragraph EX.1, she would have met the rules. But because she applied whilst in the UK as a visitor, her application was refused. Why do the Immigration Rules encourage overstaying?
28 April 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)
What happens when you enter the UK as a visitor and then apply to remain here so that you can stay with your British family members BEFORE* the visitor visa expires ?
What if plans change after entering the UK? What if, as the expiry of the visit visa approaches, a doctor advises against travel for medical reasons? What if there is a risk that the financial requirement for a spouse visa won’t be met and the person will not be able to return?
What if the person has never lived in their country of nationality (where they would need to apply from), having been born and raised in another country?
What if applying from abroad would be disruptive and not in the best interests of the applicant’s British child? Is it reasonable to expect that child to leave the UK?
May be the Home Office will be sympathetic to a change of circumstances, some may think ? The answer is "NO!".
In the recent case of Younas (section 117B(6)(b); Chikwamba; Zambrano) Pakistan [2020] UKUT 129 (IAC) the Upper Tribunal answers all of these questions, all in favour of the Home Office.
The official headnote
(1) An appellant in an Article 8 human rights appeal who argues that there is no public interest in removal because after leaving the UK he or she will be granted entry clearance must, in all cases, address the relevant considerations in Part 5A of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) including section 117B(1), which stipulates that “the maintenance of effective immigration controls is in the public interest”. Reliance on Chikwamba v SSHD [2008] UKHL 40 does not obviate the need to do this.
(2) Section 117B(6)(b) of the 2002 Act requires a court or tribunal to assume that the child in question will leave the UK: Secretary of State for the Home Department v AB (Jamaica) & Anor [2019] EWCA Civ 661 and JG (s 117B(6): “reasonable to leave” UK) Turkey [2019] UKUT 72 (IAC). However, once that assumption has been made, the court or tribunal must move from the hypothetical to the real: paragraph 19 of KO (Nigeria) & Ors v Secretary of State for the Home Department [2018] UKSC 53. The length of time a child is likely to be outside the UK is part of the real world factual circumstances in which a child will find herself and is relevant to deciding, for the purpose of section 117B(6)(b), whether it would be unreasonable to expect the child to leave the UK.
(3) The assessment of whether a child, as a result of being compelled to leave the territory of the European Union, will be a deprived of his or her genuine enjoyment of the rights conferred by Article 20 TFEU in accordance with Ruiz Zambrano v Office national de l’emploi (Case C-34/09) falls to be assessed by considering the actual facts (including how long a child is likely to be outside the territory of the Union), rather than theoretical possibilities.
*It is really strange, how some of the UK Immigration Rules are created. Just imagine: had Ms Younas overstayed, and been able to access the exception in paragraph EX.1, she would have met the rules. But because she applied whilst in the UK as a visitor, her application was refused. Why do the Immigration Rules encourage overstaying?
29 April 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)
If your 30 day visa to work, study or join family has expired
If your 30 day visa to travel to the UK for work, study or to join family has expired, or is about to expire, you can request a replacement visa with revised validity dates free of charge until the end of this year.
In R (Habte) v Secretary of State for the Home Department [2020] EWHC 967 (Admin), the High Court has decided that conducting a substantive asylum interview does not amount to assuming responsibility for the asylum claim under Article 17(1) of the Dublin Regulation.
The situation arose because the Home Office, apparently accidentally, conducted a substantive asylum interview of Mr Habte while it was going through the Dublin III procedure to remove him to Italy. The interview lasted four hours and involved 126 questions. Mr Habte might understandably have got the impression that the UK authorities had decided to consider his asylum claim here rather than removing him to Italy.
When directions were set to remove him to Italy, he challenged the decision by judicial review, arguing that the UK had assumed responsibility for his claim under Article 17(1) of the Dublin III Regulation.
01 May 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)
>>> COVID19 & UK Immigration Update
Amendments to Home Office policy on automatic NHS extensions
The Home Secretary wrote to the House of Commons Home Affairs Committee to set out that it was partially extending its policy on automatic NHS extensions to other types of staff. The press release states:
"Frontline workers, including midwives, radiographers, social workers and pharmacists, with visas due to expire before 1 October 2020 will receive an automatic one-year extension. It will apply to those working both in the NHS and independent sector and include their family members.
...Any NHS workers who have paid for an unresolved application will be offered the option of a refund.
The Home Secretary has also confirmed family members and dependants of healthcare workers who sadly pass away as result of contracting the virus will be offered immediate indefinite leave to remain."
The High Court has rejected an argument that the regulations making it difficult for Europeans with pre-settled status to access most public funds are discriminatory on the ground of nationality. The case is Fratila and Tanase v SSWP [2020] EWHC 998 (Admin).
Mr Justice Swift found that although the Social Security (Income-related Benefits) (Updating and Amendment) (EU Exit) Regulations 2019 do not constitute direct discrimination, they do amount to indirect discrimination. But he held that this discrimination was justified, and thus not unlawful.
>>> "Individuals with pre-settled status under the EUSS will be considered 'settled workers' following the end of the transition period.", Gabi Monk, Head of Euro and Settlement and EU Settled Status Customer Resolution Centre confirms
06 May 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 abandonment of an ongoing appeal seems to be a hot topic for the Upper Tribunal recently, with the case of Ammari (EEA appeals – abandonment) [2020] UKUT 124 (IAC) following on the heels of MSU and Aziz.
This time the facts concern an appeal against a refusal by the Home Office to issue a permanent residence card, based on a retained right of residence, and brought under the EEA Regulations (in this case the Immigration (European Economic Area) Regulations 2016).
After lodging the appeal the appellant, Mr Ammari applied for and was granted “settled status” under the EU Settlement Scheme, a form of indefinite leave to remain (ILR).
Meantime the First-tier Tribunal, unaware of the grant of ILR, had considered and refused Mr Ammari’s appeal against the refusal to grant a residence card. Mr Ammari was granted permission to appeal to the Upper Tribunal, where the abandonment issue reared its head.
At the Upper Tribunal the Home Office conceded that the First-tier judge had erred in refusing the appeal, but that this was immaterial since the grant of ILR served to abandon the appeal.
Not so, said the Upper Tribunal, based on two key aspects.
No abandonment in EEA Regulations appeals
Firstly, it noted that appeals concerning “EEA decisions” (such as the refusal of a residence card) were brought under the relevant EEA Regulations; primarily either the 2006 Regulations or the 2016 Regulations which replaced them, and not section 82 of the Nationality, Immigration and Asylum Act 2002.
Secondly, that since the drastic culling of the permitted grounds of appeal brought about by the Immigration Act 2014 (albeit with a myriad of savings and transitional provisions), it was not possible to cite EU law rights in an appeal under section 82 of the 2002 Act.
Prior to the 2014 Act changes, it was possible to appeal against an immigration decision, for example a decision to remove someone from the UK, but cite EU law rights in the grounds of appeal. In this way the appeal would be under the 2002 Act, but still invoke EU law rights.
The tribunal confirms that in an EU law appeal under the 2002 Act, there were two separate mechanisms for the appeal becoming abandoned if leave to remain was granted during the appeal. One was under section 104 of the 2002 Act, while there were also separate provisions within the EEA Regulations for abandonment of a section 82 appeal if a resident document was issued under those regulations.
Both of these mechanisms have now fallen away, because after the 2014 Act, the only way to assert EU law rights in an appellate process was through an appeal brought under the EEA Regulations. Neither the 2006 or 2016 Regulations contain a mechanism for an appeal brought under them to be statutorily abandoned if an appellant is granted leave to remain.
Critically, whilst both sets of regulations contain a list of provisions within the 2002 Act that can be “read across” as if applying equally to appeals brought under the regulations, section 104 (on abandonment) is not one of them. The case of Munday (EEA decision: grounds of appeal) [2019] UKUT 91 (IAC) has more details on this legislative device.
The upshot is that Mr Ammari getting ILR did not mean that his appeal against the earlier refusal was abandoned. The Upper Tribunal proceeded to decide the case in his favour.
The official headnote
i. Under the 2000 and 2006 EEA Regulations there was provision for appeals brought under section 82(1) of the Nationality, Immigration and Asylum Act 2002 to be treated as abandoned where an appellant was issued with documentation confirming a right to reside in the United Kingdom under EU law. Following the changes to the 2002 Act brought about by the Immigration Act 2014 that abandonment provision was revoked and never replaced.
ii. There has never been provision under any of the EEA Regulations for an appeal against an EEA decision brought under those Regulations to be treated as abandoned following a grant of leave to remain or the issuance of specified documentation confirming a right to reside in the United Kingdom under EU law.
iii. It follows that a grant of leave to remain following an application under the EU Settlement Scheme does not result in an appeal against an EEA decision brought under the 2016 EEA Regulations being treated as abandoned.
On 30 April 2020 the Home Office published an updated policy on the Dublin III Regulation which has some significant changes for family reunification cases. The new policy includes updates on Article 9, Article 13.2 (entry and/or stay), Article 17.2 (discretionary clauses), working with local authorities in response to a take charge request involving unaccompanied minors, and on timescales.
07 May 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)
>>> Lengthy absences from the UK can put EU pre-settled status at risk
For most people, the EU Settlement Scheme has largely lived up to its government billing as generous and straightforward, but confusion over permitted absences is likely to cause some European residents trouble down the line.
People with pre-settled status, in particular, need to be aware of the absence rules. If they are outside the UK for more than six months in any 12-month period during the five years it takes to qualify for full settled status, they will generally have to start the five years all over again. And if they return after 31 December 2020, they may lose the right to upgrade to settled status entirely.
Absences and the EU Settlement Scheme
The starting point is that EU citizens and their family members will qualify for settled status after completing “a continuous qualifying period of five years of residence” in the UK. Those living in the UK for less than five years qualify for pre-settled status instead, and can upgrade to settled status once they reach five years.
A “continuous qualifying period” is defined in Appendix EU of the Immigration Rules (the legal source of the Settlement Scheme) as being a period of residence that began before 11pm on 31 December 2020 and which has not been broken by one of the following:
- Absence(s) from the UK exceeding a total of six months in any 12-month period, subject to some exceptions discussed below
- A prison sentence
- A deportation, exclusion or removal decision or order (in very general terms)
How to calculate absences
Firstly, it’s worth noting that the six-month cap is not limited to a single lengthy period outside the UK. It also applies to multiple trips totalling six months together.
Secondly, the rules refer to absence(s) during “any 12-month period”. In other words, the Home Office will not just be looking at travel during a calendar year. It instead considers a “rolling” period of 12 months, which “resets” with every trip. This means applicants who travel frequently will need to keep a very close eye on their travel.
Thirdly, such absences are only relevant to the “qualifying period” relied upon. Once the five-year qualifying period is complete, an applicant will only lose the right to apply for settled status if they spend five years or more outside the UK (a so-called “supervening event”).
The above seems clear. What is less straightforward is how exactly such absences are calculated. So when Appendix EU sets a six-month limit on absences, how many days is that?
What constitutes a “month” is not defined anywhere in Appendix EU, the Immigration Rules overall or in the pre-Brexit provisions for EU citizens, the Immigration (European Economic Area) Regulations 2016.
But other kinds of application may provide a clue. For the purposes of long residence applications for indefinite leave to remain, Home Office guidance defines a month as “30 calendar days”. This means that six months equals 180 days (the same limit applied to indefinite leave applications in the Tier 2 (General) and Tier 1 (Investor) categories). This is of course slightly less than half a year, which would be 182.5 days exactly.
It is advisable, therefoe, for anyone who’s not yet reached 180 days to play it safe and avoid exceeding that limit. But I can’t really imagine an application failing at 182 days, subject to any further clarification on this point.
When counting days, remember that only a whole day’s absence from the UK will count. So if you leave the UK on 2 March and return on 3 March, this won’t count as an absence. If you return on 4 March instead, it would be one day’s absence only.
Finally, it’s worth noting that at present there’s no need to actually list the exact dates of travel as part of a Settlement Scheme application. The applicant simply needs to self-certify they’ve spent no more than six months outside the UK in any 12-month period.
This suggests a more relaxed approach to absences than the Home Office adopts in other types of settlement. That said, the Home Office will have a record of travel where eGates have been used at airports and where travel has been stamped in a passport, meaning that honesty is always the best policy.
Exceptions to the six-month rule
There is some allowance for periods longer than six months in very narrowly defined circumstances. These include periods of absence on compulsory military service, a Crown service posting (or as a partner or child accompanying such a person) or time “spent working in the UK marine area”.
In addition, applicants are permitted “a single period of absence” that does not exceed 12 months and which is “for an important reason, such as pregnancy, childbirth, serious illness, study, vocational training or an overseas posting”. These are examples only. This means other situations may also qualify as an “important reason”: for example, caring for a terminally ill parent.
What about frequent travel for the work-related reasons ? It is difficult to see how this falls within one of the permitted exceptions as it’s repeat travel rather than “a single period of absence”. There is simply no generic allowance for “compelling occupational reasons” or travel that is an “unavoidable consequence” of the applicant’s career (as permitted in naturalisation applications, for example).
Evidence of the reasons for the absence will of course be required in all cases. This could take the form of hospital records, an employer’s letter or university confirmation of a study abroad requirement, for example.
What happens if one has exceeded or is going to exceed the limit?
Absence(s) of more than six months that don’t fall within one of the exceptions will break a person’s “continuous qualifying period”. This means that the person has to begin a new five-year continuous qualifying period from the date they return to the UK to get settled status.
But, for the moment at least, it does not mean the applicant needs to leave the UK or that the person’s pre-settled status comes to an end. In fact, pre-settled status only lapses through two years of absence from the UK. This is according to the EU Settlement Scheme website, probably reflecting section 13(4)(a) of the Immigration (Leave to Enter and Remain) Order 2000:
"where the holder has stayed outside the United Kingdom for a continuous period of more than two years… any leave then remaining (where the leave is limited) shall thereupon lapse."
But there are two very important caveats. First, a person who has broken their continuous residence period will still need to reapply for pre-settled status when they return to ensure that they can ultimately upgrade to settled status. That is because pre-settled status can’t be renewed or extended, so an interruption will leave the person short of the five years they need to qualify with no way of making up the time.
The second important caveat is that the settled status clock cannot be restarted after 31 December 2020. That is because of how a “continuous qualifying period” is defined in Appendix EU: it has to begin before 11pm on that date. If someone with pre-settled status exceeds the permitted absences and returns to the UK after 31 December 2020, they will be unable to restart the settled status clock at all.
Someone in this situation would have to rely on the exceptions discussed above to argue that their continuous qualifying period had not been interrupted by the lengthy absence. It is possible that Home Office caseworkers will be sympathetic to absences related to coronavirus, or that it will make a new general exception making allowances for the pandemic. It is understood that the department is considering something along these lines. But if no announcement is made, the rules as written suggest that pre-settled status holders who return to the UK later than the end of this year will be in trouble if they have been gone for more than six months.
Possible sources of confusion
The Settlement Scheme is awash with various time periods that applicants need to consider, so to sum up:
- EU citizens and their family member qualify for settled status after a “continuous qualifying period” of five years’ UK residence
- A “continuous qualifying period” is broken by absence(s) of more than six months in any rolling 12-month period (unless that absence falls within one of the above exceptions)
- Pre-settled status lasts for five years max. If a holder of pre-settled status breaks their continuous residence but returns to the UK before 31 December 2020, they must apply for a new grant of pre-settled status to allow them to complete the “continuous qualifying period” of five years required for settled status
- Pre-settled status is only lost through two years of absence from the UK, but this is a red herring, for the reasons explained above
- The right to upgrade from pre-settled status to settled status is lost if the continuous qualifying period is broken and the person returns to the UK after 31 December 2020
- Once someone has already completed a “continuous qualifying period” of five years, they can spend up to five years outside the UK without losing the right to apply for settled status
All in all, absences may not be fatal to a settlement application or a person’s right to stay in the UK long term, but they certainly need to be approached carefully with a full understanding of the risks involved.
08 May 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 High Court has ruled that the government must make it easier for migrants to access the welfare system if they are about to become destitute. In an oral ruling delivered yesterday, Lord Justice Bean and Mr Justice Chamberlain found that Home Office policy on no recourse to public funds is in breach of Article 3 of the European Convention on Human Rights.
A detailed judgment and order will follow, which will set out the steps the Home Office needs to take to comply with the judges’ ruling.
The case concerns the default no recourse condition imposed on migrants on a ten-year route to settlement. According to the oral judgment, caseworkers will in future have to lift the condition when the person “is not currently destitute but will imminently become so without access to public funds. The court made clear that the Home Office will still be able to impose the no resource condition “in the normal run of cases".
The no recourse to public funds issue has become particularly pressing during the coronavirus pandemic, which has seen many migrants thrown out of work and unable to get benefits. But the judges said they were not ordering any immediate change to Home Office policy. The court will decide on the exact terms of the order at a later date.
15 May 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)
Interesting precedent when the asylum appeal was accidentally dismissed by a "slip of the pen", that is, when the judge wrote "appeal dismissed" rather than "appeal allowed" (wrong cut and past button ?).
The European Commission has formally accused the UK government of breaching EU law on free movement of people. Brussels today launched “infringement proceedings” against the UK, the process used to force EU member countries to comply with their legal obligations.
The UK is no longer a member of the European Union, but the Commission points out that EU free movement law continues to apply here until the end of the post-Brexit transition period.
>>> Immigration Bill will return to the Parliament on 18 May for the 2nd reading
The second reading is when MPs have their first chance to properly debate the principle of a draft law. The Immigration Bill would put an end to EU free movement rights — although existing residents are largely protected by the EU Settlement Scheme — and is expected to pass easily given the government’s large majority in the House of Commons.
18 May 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 decided to make it more difficult for European residents to become British citizens. EU citizens with settled status who apply for naturalisation now have to provide evidence that they have been living in the UK legally, according an update to government nationality policy released on 15 May.
One of the requirements for naturalisation as a British citizen is to have lived in the UK for five years (or three years if married to a British citizen). Time living here in breach of UK immigration law doesn’t count. The Home Office has long taken the view that EU citizens physically present in the UK but who do not have a right of residence under EU law are in breach of UK immigration law. Unknowingly lacking a right to reside is surprisingly common — many people without comprehensive sickness insurance were caught out by this in the past.
Because of Brexit, European residents and their family members have been offered immigration status under UK law (instead of EU law). Getting the new “settled status” does not require proof of a previous right to reside — it is mostly based on simple presence in the UK.
But when people with settled status come to apply for citizenship, the Home Office is now saying that the right to reside issue must be dealt with in their application. Simply having settled status is not enough, in this context. Settled status will serve as proof of being free of immigration time restrictions (another of the naturalisation requirements) but will not do in terms of showing that the person’s period of residence in the UK was in accordance with immigration law.
The updated guidance says:
"An EEA or Swiss citizen or their family members who have a 5 years’ continuous qualifying period of residence in the UK and Islands when they apply to the EU Settlement Scheme will be eligible for settled status… However, this grant of settled status (also know as indefinite leave to enter or remain) will not confirm that they were here lawfully under the EEA Regulations during that time, as defined by the British Nationality Act 1981 as this is not a requirement of the EU Settlement Scheme. You may therefore need to request further information from the applicant to demonstrate this."
The EEA Regulations contain the detailed rules on how EU free movement law operates in the UK.
The guidance goes on to tell officials:
"You must assess whether the individual has been here lawfully during their 3 or 5 year residential period prior to pre-settled status or settled status, by considering on the balance of probabilities whether they were here:
as a qualified person (such as a worker, student, self-employed, selfsufficient, retired or incapacitated person)
as the family member of such a person.
Evidence of this can include API data or documents previously submitted to satisfy their lawful residence. Where appropriate, you must also be satisfied that the person was lawfully in the UK, with comprehensive sickness insurance (CSI)."
Later on, the document does suggest that there is discretion to overlook some technical breaches of the EEA Regulations:
"Following the introduction of the EU Settlement Scheme you may increasingly see applications from EEA or Swiss nationals who have not fully complied with additional requirements under the EEA regulations, such as having comprehensive sickness insurance where they needed it, and who may therefore have been in breach of immigration law. When considering such applications you should take into account all the facts surrounding such a breach and make a full assess[m]ent about whether discretion should be exercised in their favour."
On exercising discretion, the policy suggests that being in breach of the EEA Regulations is not as bad as entering the UK illegally or overstaying on a visa. But Europeans — assuming they are aware of their precise legal status in the first place — will have to “provide sufficient evidence to justify discretion being exercised in their favour”. The effect will be to make it more difficult for EU citizens to become British than if settled status were simply accepted as evidence of lawful residence.
By contrast, if the person has previously secured a permanent residence card, that will — unlike settled status — serve as proof of five years’ lawful residence.
The issue will also affect citizens of Norway, Iceland, Liechtenstein and Switzerland.
Concession for workers joining a construction vessel operating in UK territorial waters.
This guidance explains the terms of the concession for non-European Economic Area (EEA) nationals who are joining vessels engaged in the construction and maintenance of offshore wind projects in UK territorial waters.
21 May 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)
>>> People born in Northern Ireland get improved family reunion rights
The DeSouza case raised complex issues of citizenship, identity and implementation of the Good Friday Agreement, but at the heart of the case was an immigration matter and a family who have faced a brutal uphill struggle to live together in the UK, like so many others. Last week, the bravery and perseverance of Emma and Jake DeSouza paid off when they achieved a rare concession from the Home Office, which will have significant impacts for families like them.
The DeSouza litigation
The facts of DeSouza may be known to some. The case was centred on an application by Jake, a US citizen married to Irish citizen Emma, for permission to live in the UK — relying on European Union law. Their application was refused by the Home Office because Emma was born in Northern Ireland. She was therefore considered a dual British and Irish national and excluded under the finding in Case C-434/09 McCarthy.
Emma contends that she is an Irish national only and that this right is protected by the Good Friday Agreement, which allows for the people of Northern Ireland to identify themselves and be accepted as Irish or British or both. The subsequent appeal was successful in the First-tier Tribunal but overturned in the Upper Tribunal. It raised issues of incompatibility between Home Office policy, the application of the British Nationality Act and the Good Friday Agreement.
The political campaign
A vocal campaign led by Emma and Jake gained momentum. Political support followed, with the Irish government, Westminster politicians and parties in Northern Ireland speaking out in support of the case. The joint committee of the Northern Ireland Human Rights Commission and the Irish Human Rights and Equality Commission also supported the case.
In January 2020, the New Decade, New Approach deal for the restoration of the NI devolved institutions made specific immigration commitments on the right to family reunion for the people of Northern Ireland “underpinned by the birthright of all the people of Northern Ireland to identify themselves and be accepted as Irish or British, or both, as they may so choose.”
Many felt that these commitments were a form of peace offering from the UK government, hoping to address the immigration issues at the core of DeSouza, while avoiding the more awkward issues of imposed British citizenship and compliance with the Good Friday Agreement. This proved accurate when the political commitment were translated into law through a statement of changes to the Immigration Rules in May 2020.
The family reunion concession
The changes can be summarised as follows:
- The definition of a “relevant EEA citizen” under Appendix EU will be amended to include a “relevant person of Northern Ireland”
- A relevant person of Northern Ireland is, in turn, defined in line with the “people of Northern Ireland” under the Good Friday Agreement
- A relevant person of Northern Ireland is therefore a British citizen, an Irish citizen or a dual British and Irish citizen who was born in Northern Ireland (and at the time of their birth had at least one parent who was a British citizen; or an Irish citizen; or a dual British and Irish citizen; or who was otherwise entitled to reside in Northern Ireland without any restriction on their period of residence)
- This will mean that qualifying family members of the people of Northern Ireland will be able to apply for immigration status under the EU Settlement Scheme. Family members will be eligible to apply regardless of whether their family member is British, Irish or a dual Irish/British national;
- This will also apply to a qualifying person of Northern Ireland living in England, Scotland and Wales.
- The changes will take effect on 24 August 2020. As the EU Settlement Scheme is open for a limited period, applications must be made before the deadline (currently 30 June 2021).
These changes address the underlying immigration issue by allowing Irish citizens born in Northern Ireland to use the EU Settlement Scheme. It also expands the scheme’s coverage to British and dual British/Irish nationals born in Northern Ireland. This respects the principle of equality of treatment under the Good Friday Agreement and ends the need for renunciation of British citizenship by British and dual British/Irish nationals who want to exercise EU family reunion rights.
There are limitations to this concession. Since the scheme will not open until August, there are questions over what qualifying family members who have visas expiring before that date should do. The scheme is also time limited to the end of the EU Settlement Scheme, meaning this is a very brief window of opportunity. It is also not clear what provision will be made for people who renounced British citizenship due to the previous policy, often on Home Office advice.
Politics trumps law
The changes have been hailed as a victory for Emma and Jake, and welcomed by figures such as Taoiseach Leo Varadkar and institutions such as the Northern Ireland Human Rights Commission. Emma and Jake have today confirmed that they will not be proceeding to the Court of Appeal:
"We had hoped our legal challenge could help right that wrong and force the British Government to amend statute to fall in line with its international obligations. But legally, with this concession from the Home Office, we regrettably cannot proceed. This disappointment, however, should not overshadow what is an unbridled win worth celebrating- families have and will continue to be reunited thanks to these changes and everyone in Northern Ireland will benefit from the government’s recognition of the rights provided under the Good Friday Agreement."
The couple say that while these changes address the immigration issue at the centre of their case, they will continue to campaign on the broader issues raised: full implementation of the Good Friday Agreement and amendment of the British Nationality Act 1981.
The impact of these changes on families who would otherwise be separated by the UK Immigration Rules can’t be overstated. They have — if only for a brief period — accessible, free and fair family reunion rights.
So the people born in (or with family born in) Northern Ireland can now take advantage of this rare opportunity. The fact that British citizens and dual British/Irish citizens born in Northern Ireland will now have access to broader family reunion rights than their counterparts born in Great Britain should also highlight the inhumanity of the UK Immigration Rules — as well as the ability of the Home Office to provide better, when it wants to.
>>> Immigration application fee destitution policy found unlawful
The Upper Tribunal has found that the Home Office’s policy for waiving the immigration application fee for destitute immigrants — the fees can add up to thousands of pounds for a family — is unlawful and needs to be widened. The judgment is Liggison v Secretary of State for the Home Department JR/2249/2019. The case was clearly considered an important one at the Home Office.
The family of five at the heart of the case would have had to pay fees of £7,665, including the Immigration Health Surcharge. They were unlawfully resident (although of course the point of the application was to become lawfully resident) and had no source of income; they simply could not afford to pay the fees. This meant they were locked out of lawful status by the cost of entry.
The Home Office’s original position, until 2012, was that no exceptions at all would be made to the absolute requirement to pay an application fee. Having lost a case called Omar and then subsequent litigation as well, the Home Office introduced a very limited policy on when fees might be waived. Under this policy, an applicant would need to prove that he or she would become destitute if the fee were to be paid.
The family involved in this case could prove they could not afford the fees but they could not prove they would be destitute. This was because they were accommodated and supported by friends and family members who would continue to support them come what may.
What next?
The Home Office sought and was granted permission to appeal to the Court of Appeal. This means that the old policy will probably continue to be applied by the Home Office, at least unless the appeal is abandoned (which is possible given that the policy in question is such a mess) or an outcome from the Court of Appeal is known, which could take months or even years. So, in the short term, there is no immediate change.
If the outcome of this case sticks, it means an unknown number of people have had their applications for fee waivers rejected on the basis of an unlawful policy. There is an argument that if they subsequently somehow managed to pay the fee they might be entitled to a refund. This seems pretty dubious given that actually finding the money seems a fortiori proof that they could somehow afford it.
25 May 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 Health Surcharge to be waived for NHS and social care workers
A public announcement should follow shortly.
The surcharge — not actually a payment for using the NHS but a tax on visas collected at the point of application — is currently £400 a year but is due to rise to £624 in October 2020.
Комментарии
>>> Closure of USCIS Application Support Centres across the USA
Note from UKVI:
"I hope this email finds you safe and well during this difficult time.
As you already may be aware, USCIS has taken the move to suspend operations across their Application Support Center network, in an effort to limit the spread of COVID19. Full detail can be found here:
https://www.uscis.gov/about-us/uscis-response-coronavirus-disease-2019-covid-19
As such, standard UK visa service will be unavailable to US customers for the duration of the closure. At this time and subject to change, that date is April 01. In the interim, VFS PAC locations across the US (bar SFO and Seattle) currently remain open for business and walk-in fees will be waived by VFS for customers seeking service.
Moving forward, we will send you updates on service changes as they happen."
>>> Grant of limited instead of indefinite leave does not generate human rights appeal:https://www.bailii.org/uk/cases/UKUT/IAC/2020/85.html
In Mujahid [2020] UKUT 85 (IAC), President Lane holds that where a person applies to the Home Office for indefinite leave to remain and is refused indefinite leave but granted limited leave instead, that decision is not a refusal of a human rights claim as defined at section 82 of the Nationality, Immigration and Asylum Act 2002. Therefore there is no statutory right of appeal against the decision.
The headnote:
(1) A person (C) in the United Kingdom who makes a human rights claim is asserting that C (or someone connected with C) has, for whatever reason, a right recognised by the ECHR, which is of such a kind that removing C from, or requiring C to leave, would be a violation of that right.
(2) The refusal of a human rights claim under section 82(1)(b) of the Nationality, Immigration and Asylum Act 2002 involves the Secretary of State taking the stance that she is not obliged by section 6 of the Human Rights Act 1998 to respond to the claim by granting C leave.
(2) Accordingly, the Secretary of State does not decide to refuse a human rights claim when, in response to it, she grants C limited leave by reference to C’s family life with a particular family member, even though C had sought indefinite leave by reference to long residence in the United Kingdom.
>>> 300 people turned down by EU Settlement Scheme in February 2020: https://www.gov.uk/government/statistics/eu-settlement-scheme-statistics-february-2020
The EU Settlement Scheme statistics for February 2020 are out. They show 300 refusals. We’re told by the Home Office that the increase is mainly due to refusals for eligibility, not over criminality.
The two core reasons, the Home Office says, for the jump in refusals are:
- Failing to provide eligibility evidence, either at the application stage or in reply to requests from the Settlement Resolution Centre.
- Non-EEA/Swiss family members failing to evidence their relationship to the EEA/Swiss sponsor. This could include failing to provide a marriage certificate or not possessing the relevant document as a dependent relative.
Officials say that they made every attempt to obtain the necessary evidence before refusing applications, and that decisions to refuse were not taken lightly and signed off at a high level.
>>> Substantial update to immigration policy on DNA evidence: https://www.gov.uk/government/publications/dna-policy
This update is the one to be aware of. Changes to DNA policy guidance as follows:
Page 6, reference to DNA profile not revealing certain characteristics of a person who provides a DNA sample for testing.
Page 7, guidance on who is entitled to see the results of a DNA test.
Page 8, reference to funding the costs of witnesses
Page 12, new sub-section on accreditation held by DNA testing laboratories.
Page 12-14, updated guidance on collecting the DNA samples covering situations when the Home Office is in the possession of the applicant’s identification document and handling children aged under 16.
Page 15, new section to replace DNA: Unavailability of a family member with DNA: Other biological relationships
Page 16-18, advice on DNA test results and checking the authenticity of a DNA test report with the DNA testing laboratory.
Page 20, template amended to inform applicants on how to obtain a DNA test and that we will verify the report with the DNA testing laboratory.
Page 21, template to refer suspicious DNA test reports to laboratories Page 22, model letters on suitably accredited laboratories.
Page 23-24, model letters on disregarding DNA evidence where the identity of a person who has provided a DNA sample cannot be verified
Page 25, information on essential information.
The guidance was first introduced at the end of 2018 following a scandal over unlawful demands for visa applicants to take DNA tests to prove family relationships.
>>> Coronavirus and UK Immigration Update
First Tier Tribunal
The Fisrt Tier Tribunal (FTT IAC) is currently processing the adjournment of cases from Wednesday, the 25th March, onwards, and notifying lawyers and appellants of the same.
Subject Access Requests (SARS)
These can now only be made by email and only electronic records will be provided.
From the UK BA:
"With immediate effect, following the Government’s recent advice, we have instructed all staff to work from home if they can.
This means we can only process SARS made online and provide data held in electronic records (no Home Office Files can be processed). We are not able to process postal requests or correspondence until further notice.
VFS
VFS Global updates can be found here:
https://www.vfsglobal.com/en/individuals/covid-19-customer-advisories.html
Message from Sopra Steria - biometrics enrollments are still operational - yet follow the web-site
"It is important we share updates as quick as possible and given the recent announcements by HM Government I am writing to explain how these changes may affect our services and what we are doing to meet these unprecedented challenges.
We continue to monitor the well-being of our agents; to support the safety of applicants using our centres and to assess the performance of our operations to deliver appointment availability by minimizing any potential disruption to our service. As part of these regular daily reviews we are updating our UKVCAS website with important information on a daily basis regarding appointment capacity, which may include sites closures across our network for defined periods."
>>> Can I apply for Settlement under the Long Residence/10 Year lawful residence Rules retrospectively ?
The answer is apparently, "Yes".
Under the paragraph 276B of the Rules once an applicant has accumulated the 10 years of lawful residence, and then left the UK, it no longer matters how long the applicant was absent from the UK.
So, it is possible to return into the UK after literary years of absence from the UK and apply for Settlement retrospectively.
>>> Homd Office COVID19 Policy update: https://www.gov.uk/government/news/visas-extended-for-those-currently-unable-to-return-home-due-to-covid-19
Visas extended to 31 May for individuals who are currently unable to return home at the end of their visa.
>>> Correspondence from UKVI re reporting sponsored migrants working from home:
"... (The UK Border Agency) can confirm that sponsoring employers will not have to report a change of location for all sponsored migrants working from home.
>>> Prison time doesn’t count as “residence” in establishing enhanced EU law protection against deportation: https://www.bailii.org/ew/cases/EWCA/Civ/2020/406.html
The court found that the time spent in prison does not positively count toward the ten-year residence period required to benefit from enhanced legal protection against deportation as an EU citizen.
>>> Upper Tribunal says no duty of candour on Home Office in statutory appeals: https://www.bailii.org/uk/cases/UKUT/IAC/2020/88.html
In Nimo (appeals: duty of disclosure : Ghana) [2020] UKUT 88 (IAC) the Upper Tribunal, consisting of Mr Justice Lane and Mr Ockelton, has held that the duty of candour applying to parties in judicial review proceedings does not apply in statutory appeals and there is no obligation in marriage of convenience cases for the Home Office to disclose Form ICD.4605, which sets out the interviewer’s comments:
" (1) In an immigration appeal, the Secretary of State’s duty of disclosure is not knowingly to mislead: CM (EM country guidance; disclosure) Zimbabwe CG [2013] UKUT 59, citing R v SSHD ex parte Kerrouche No 1[1997] Imm AR 610.
(2) The Upper Tribunal was wrong to hold in Miah (interviewer’s comments; disclosure; fairness) [2014] UKUT 515 that, in every appeal involving an alleged marriage of convenience, the interviewer’s comments in the Secretary of State’s form ICD.4605 must be disclosed to the appellant and the Tribunal. No such general requirement is imposed by the respondent’s duty of disclosure or by rule 24 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014."
"COVID-19: Important Information for Candidates
Life in the UK Test centres will be closed in line with official requirements of the UK Government from 21 March until 13 April 2020 as a precautionary measure against coronavirus (COVID-19) to help protect the health of test takers and staff .
If you have booked a test to take place during this period, your test booking will be rescheduled automatically to a date after 13 April 2020.
If you are booking a new test, test dates are still available from 13 April 2020".
>>> Home Office aims to completely rewrite “confusing” Immigration Rules by January 2021: https://www.gov.uk/government/publications/simplifying-the-immigration-rules-a-response
The Home Office has accepted the need to simplify the “complex and confusing” Immigration Rules and says that the work is already underway. The department says that “we have already begun the process of reviewing, simplifying and consolidating the Rules”.
The Law Commission’s report, published in January 2020, made 41 recommendations for redrafting the “overly complex and unworkable” regulations at the heart of the UK immigration system. The Home Office says that it is accepting 24 of them and partially accepting the other 17.
In terms of overall structure, the department’s proposal is broadly in line with the Law Commission’s. The simplified Rules would start with rules that apply across the board, such as how to make a valid visa application and the general grounds for refusal, followed by the rules specific to each visa.
The document includes some examples of how these route-specific rules could be drafted. The examples retain the much-derided system of “alphabet soup”, whereby the Rules are not numbered 1, 2, 3 etc but by letters indicating the section and then numbers:
"Validity requirements for Parent of a Child Student
PC.1.1. An applicant seeking to come to the UK as the Parent of a Child Student must have obtained permission to do so before their arrival in the UK.
PC.1.2. An applicant who is in the UK at the date of application must have, or have last been granted, permission to come to or stay in the UK as the Parent of a Child Student."
This is despite the Home Office purporting to accept recommendation 14: “paragraphs should be numbered in a numerical sequence”.
The Law Commission also suggested, somewhat tentatively in the end, that there could also be separate “booklets” gathering together all the rules that apply to a particular visa. In other words, bringing together the general and specific rules into one document. The Home Office response to this is balanced:
"We will continue to explore the idea of a booklet for each category of application… We think that the booklet approach, alongside the consolidated Rules, may cause confusion and risks material becoming inconsistent."
The department has accepted the idea of a simplification committee. The external stakeholders to be invited are almost all lawyers.
“Our aim”, says Foster, “is to complete this overhaul by January 2021”.
He also writes in the foreword: “For far too long, users have struggled to understand the confusing and complex Immigration Rules”. The minister is to be commended for his candour, given that his party has been in charge of the Rules for almost a decade.
>>> Visa decision waiting times: applications outside the UK: https://www.gov.uk/guidance/visa-decision-waiting-times-applications-outside-the-uk?utm_source=432f08ee-18e7-46aa-81ec-9b9f255ebe04&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
Due to the operational impact of the coronavirus (COVID-19), most of the UK’s visa applications centres are currently closed. All visa decision waiting times will be delayed until further notice.
The ‘priority service’ and ‘super priority service’ are suspended for applications made outside the UK.
>>> The UKVCAS service - Sopra Steeria UK biometrics enrolments suspended: https://www.ukvcas.co.uk/flash-message-detail?flashmessageId=950
How Does this Affect Me?
Customers with Existing Appointments
If you already have an existing appointment, you do not have to do anything. UKVCAS will automatically reschedule your appointment. Initially appointments will be rescheduled for 6 weeks ahead of your original appointment. Please monitor your UKVCAS account to find out when your new appointment has been scheduled for.
If you can’t make the rescheduled appointment, you can cancel this online and receive a full refund. However, you will not be able to rebook until the online booking system reopens.
Alternatively, you can wait until the online booking system reopens when you will be able to see all available appointments.
Please regularly check this website for updates on the service status.
New Customers
New customers are being asked to register your account as normal at our website. You will receive a prompt to register, from the ‘Book your Appointment’ link on the UKVI pages of GOV.UK.
Please regularly check this website for further updates on the service status.
Impact on Visa Applications
UKVI has now issued guidance that all foreign nationals whose permission to stay in the UK expired from 24th January 2020 may access a visa extension until 31st May 2020 therefore you will not be disadvantaged in any way due to the COVID-19 crisis.
>>> UK BA Coronavirus immigration update
The Home Office points out the following:
- Applicants are advised to use Email when communicating with the Coronavirus Immigration Team, as that is where they have greater resources as staff can work from home. This way they can prioritize the helpline for the most vulnerable individuals.
- Leave to remain extensions - the Home Office will be issuing specific further guidance for the applications during the COVID19 period
- Right to work checks can be conducted via Skype - the Guidance is yet to be published
- The requirement to enrol biometrics within 45 days has been waived and this will be confirmed in guidance
- Where an application is submitted without SELT or a Life in the UK test, the application won't be rejected as invalid. Again, there will be guidance on this issue. Applications can be made in order to protect 3C leave, and the UK BA will put the application on hold until they are able to do so
>>> Home Office can ignore human rights claims attached to normal immigration applications: https://www.bailii.org/uk/cases/UKUT/IAC/2020/89.html
The case of MY (refusal of human rights claim) Pakistan [2020] UKUT 89 (IAC) represents yet another cutback in the rights of migrant victims of domestic abuse, and in appeal rights more generally. The Upper Tribunal has ruled that the Home Office can simply refuse to engage with a human rights claim which is not made in the particular way the department wants it made.
When refusing to engage with a human rights claim submitted in the “wrong” format, the Home Office is not refusing that claim, and therefore there is no right of appeal. Some migrants will have to make very difficult decisions as a result.
>>> Coronavirus (COVID-19): right to work checks: https://www.gov.uk/guidance/coronavirus-covid-19-right-to-work-checks
>>> Start-up and Innovator visa endorsing bodies: guidance - https://www.gov.uk/government/publications/start-up-and-innovator-endorsing-bodies-guidance
>>> NHS front line workers visas extended so they can focus on fighting coronavirus: https://www.gov.uk/government/news/nhs-frontline-workers-visas-extended-so-they-can-focus-on-fighting-coronavirus?utm_source=d0e814b3-bfad-4cde-9280-ff8e8b6f44ba&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
Doctors, nurses and paramedics with visas due to expire before 1 October 2020 will have them automatically extended for one year.
As part of the national effort to combat coronavirus, doctors, nurses and paramedics will automatically have their visas extended, free of charge, for one year.
The extension, announced today (31 March) by the Home Secretary Priti Patel, will apply to around 2,800 migrant doctors, nurses and paramedics, employed by the NHS whose visa is due to expire before 1 October.
The extension will also apply to their family members, demonstrating how valued overseas NHS staff are to the UK.
By giving them the peace of mind that they do not need to apply for a visa extension, this will allow those at the front line – working around the clock in hospitals to treat the most seriously ill – to focus fully on combating coronavirus and saving lives.
To get more doctors and nurses on the front line, the Home Office has also lifted the restriction on the amount of hours student nurses and doctors can work in the NHS.
On top of these changes, pre-registered overseas nurses who are currently required to sit their first skills test within 3 months and to pass the test within 8 months, will now have this deadline extended to the end of the year as well.
This will give overseas nurses more time to pass their exams, whilst they spend the immediate term working on the front line.
Home Secretary Priti Patel said:
"Doctors, nurses and paramedics from all over the world are playing a leading role in the NHS’s efforts to tackle coronavirus and save lives. We owe them a great deal of gratitude for all that they do.
I don’t want them distracted by the visa process. That is why I have automatically extended their visas – free of charge – for a further year.
The extension to NHS visas will be automatic, there will be no fee attached and it will be exempt from the Immigration Health Surcharge.
Trainee doctors and nurses will also not be limited by the number of hours they can work in the NHS during term time."
>>> Visas and immigration Service and Support Centres: https://www.gov.uk/visas-and-immigration-service-and-support-centres
UK Visas and Immigration (UKVI) have temporarily closed Service and Support Centres (SSCs) because of coronavirus (COVID-19).
These centres (do not mix them up with Sopra Steria) dealt with the limited face-to-face application such as FLR(FP)/Human Rights/Legalization
NB: With other types You still need to lodge your immigration application (online) in time/lodge a valid application to preserve your immigration status. The biometrics enrolment is being deferred to a leter date.
>>> Recruitment opens for 14 new immigration judges: https://apply.judicialappointments.digital/vacancy/OPwPPwNPeiNz4VmnFbNU/
No sooner is the last batch of immigration judges through the door than the authorities are seeking to recruit more. Around 40 new judges were named to the immigration and asylum chamber of the First-tier Tribunal over the last few months, but the Judicial Appointments Commission is now seeking another 14.
Most of the positions are based in England and Wales, but there is one vacancy in Scotland. Applicants must have worked as a lawyer for at least five years, and are expected to have some kind of judicial or quasi-judicial experience.
The salary is £112,542.
>>> New centralised Home Office webpage about COVID19 and the Immigration: https://www.gov.uk/government/collections/coronavirus-covid-19-immigration-and-borders
The Home Office is now collating its guidance for those affected by changes to UK immigration and borders due to coronavirus on a dedicated page.
>>> Update on EU settlement scheme application procedures - paper application forms
To request a paper application form for the EUSS, you need to submit a query via the online enquiry form at https://eu-settled-status-enquiries.service.gov.uk/start ensuring you provide the following information relating to the applicant:
-Full Name (as shown on identity document)
-Address
-Date of Birth
-Nationality
-Telephone number
-Postal address
-Email address
-Details of your representative (name, email, phone number if applicable)
-Reference number of any previous residence document issued to you
The Home Office cannot accept any documents by post at this time, but all documents already sent will be returned as quickly as possible. Applications can still be made online using the “EU Exit ID Document check app”.
>>> Correspondence from UKVI re sponsor licence applications and submission sheets - digital copies
The Coronavirus Immigration Team has confirmed that original documents are not required for sponsor submission sheets and sponsor licence applications. They can be sent as scanned .pdf files via email. Digital signatures are also acceptable at present for submission sheets.
>>> What happens when a variation application is invalid?
See https://tribunalsdecisions.service.gov.uk/utiac/2019-ukut-417
This was the question answered by the Upper Tribunal in R (Bajracharya) v Secretary of State for the Home Department (para. 34 – variation – validity) [2019] UKUT 417 (IAC).
Mr Bajracharya made an application to remain in the UK on the basis of his private and family life. He provided his biometric information as required. Before a decision was made on this first application, he made a second application, this time for indefinite leave to remain (ILR).
A person can have only one application for leave to remain outstanding at any given time. An application submitted whilst an earlier application is still pending is treated as a variation.
But Mr Bajracharya did not provide his biometric information as part of the ILR application, meaning that this application was invalid.
The question for the Upper Tribunal was: what happens to the underlying private and family life application? Does the underlying application survive the invalidation of the variation application?
The competing arguments
The Home Office position was that Mr Bajracharya had ended up with no valid application.
The department argued that the ILR application was valid at the time of submission. This is supported by two previous cases which held that an application is not retrospectively invalidated by failure to fulfil a future obligation (such as to post a passport or provide biometric information). The application is invalid from the date of that failure, not from the outset.
The ILR application was therefore valid, at least at first. This valid variation subsumed the previous application. When Mr Bajracharya failed to provide his biometrics, the sole outstanding application was invalidated. There was, by this point, no previous application in existence for him to fall back on.
Mr Bajracharya argued that defects in an attempt to vary an application do not infect the underlying application. The variation was invalid, but the initial application remained valid and pending.
A difference in wording
The Upper Tribunal agreed with Mr Bajracharya. It relied on a distinction between the wording of the rules on initial applications and variation applications.
As a result, Mr Bajracharya’s application for judicial review was successful and the case returned to the Home Office to make a decision on the outstanding private and family life application.
The official headnote
(1) Paragraph 34 [A-F] of the Immigration Rules is to be construed by the application of the ordinary principles of statutory construction, which start from the natural meaning of the words in their context.
(2) Paragraph 34 requires applicants to make an application for leave to remain in accordance with the provisions of 34.
(3) If a second application is submitted when the first application is outstanding, the second application will be treated as a variation of the first application [34BB(2)].
(4) If the variation does not comply with the requirements in paragraph 34 “the variation will be invalid and will not be considered” (paragraph 34E). Invalidity does not extend to the original application.
>>> Citizenship ceremonies and COVID19: https://www.gov.uk/citizenship-ceremonies
Due to coronavirus (COVID-19), you’ll have 6 months to book your citizenship ceremony after receiving an invitation from the Home Office. Any delays caused by COVID-19 will not affect decisions around your application.
>>> Migrant and self-employed workers and the COVID19 - the Home Office response
From the Home Office
Migrant workers
The Government has made provisions to allow employers to retain employees during interruption to commercial activity because of the pandemic. Employers can apply for support from the Government that can assist with these current difficulties. Employees whose leave in the UK is subject to conditions that they have no recourse to public funds may be able to secure assistance (subject to meeting all requirements) through-
1) Sta***ory Sick Pay
2) Contributory-based Employment and Support Allowance
3) Support provided to employers through the Coronavirus Job Retention Scheme
4) Some other work related benefits.
Self-employed migrants
Migrants who are registered as self employed and have made tax returns in the past few years may be able to apply for a grant through the self-employed income support scheme or in accessing other support.
https://www.gov.uk/guidance/claim-a-...support-scheme
>>> Update, replace or transfer - biometric residence permit or card: https://visas-immigration.service.go...BoCThMQAvD_BwE
Use this form if you are in the UK and you want to update, replace or transfer your biometric residence permit (BRP) or your biometric residence card (BRC).
>>> Not unfair to proceed with hearing after appellant’s lawyer stormed out, tribunal finds: https://tribunalsdecisions.service.g.../2019-ukut-416
The official headnote
(1) Fairness means fairness to both sides: it does not mean favouring the appellant at the expense of the respondent.
(2) Tribunals must ensure appellants have a fair hearing, but they should not be intimidated by unjustified withdrawal of representatives.
(3) Unless unfairness has resulted in there being no proper consideration of their case at all, appellants who allege procedural unfairness may find it difficult to have a decision set aside, without showing that they may have suffered prejudice through inability to present a better case.
>>> COVID19 and the Home Office clarification for the following immigration issues:
- Tier 2
If you cannot pay the salaries of sponsored employees because you’ve temporarily reduced or ceased trading
You can temporarily reduce the pay of your sponsored employees to 80% of their salary or £2,500 per month, whichever is the lower.
Any reductions must be part of a company-wide policy to avoid redundancies and in which all workers are treated the same.
These reductions must be temporary, and the employee’s pay must return to at least previous levels once these arrangements have ended
- Tier 1 Entrepreneur
If you are on a Tier 1 Entrepreneur visa and your business has been disrupted
You no longer need to employ at least 2 people for 12 consecutive months each. The 12 month period you are required to employ someone for can be made up of multiple employees across different months.
Time when your employees were furloughed will not count towards the 12 month period.
If have not been able to employ staff for 12 months in total by the time your visa expires, you will be allowed to temporarily extend your stay to give you time to meet the requirement.
- Changes to the current restrictions on the number of hours you can work or volunteer
There is no longer a limit on the number of hours you can work or volunteer each week if you work for the NHS as a doctor, nurse of paramedic and you are a:
tier 4 student
tier 2 worker and your NHS job is a second job
visiting academic researcher
holder of a short-term visa and are permitted to volunteer
>>> BRPs expiring on 31 December 2024 where leave has been granted for a longer period
The Home Office says that:
The Home Office will introduce a new UK format BRP next year which will not have restricted validity, and will therefore reflect the period of leave granted, or be valid for 10 years (five years for children) where indefinite leave is granted.
For those who have a limited validity BRP they are revising the notification of grant of leave and the BRP carrier letter to explain the difference in the date of expiry of leave and date of validity of the BRP card.
They will update right to work and right to rent guidance to ensure that employers and landlords are also aware of this issue.
They will provide advice on GOV.UK to reassure anyone with a short-dated BRP that it does not affect their immigration status and they do not need to do anything now. By early 2024, before these BRPs start to expire, they will publish details of what needs to be done to obtain a free replacement BRP or to use digital status.
>>> Application for change of conditions of leave to allow access to public funds if your circumstances change: https://www.gov.uk/government/publications/application-for-change-of-conditions-of-leave-to-allow-access-to-public-funds-if-your-circumstances-change?utm_source=e2c10f31-216d-4449-8dc7-2e1e7eff9293&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
These applications must now be submitted online. Apply online if you already have leave granted on the basis of your family or private life and your financial circumstances change.
>>> Ten-minute asylum interview enough to meet ECHR obligations before removal: https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-201870%22]}
In Asady and Others v Slovakia (application no. 24917/15) the European Court of Human Rights has delivered another judgment that will gratify governments seeking to use summary removal to get rid of asylum seekers. The decision continues the court’s retreat over the interpretation of Article 4 of the Fourth Protocol to the European Convention on Human Rights (ECHR), which is meant to prohibit mass expulsions.
The issue in Asady was a factual dispute between a group of Afghans and the Slovak government. The Afghan men complained that when encountered by Slovak police near the Ukraine/Slovakia border, the police had ignored their requests to claim asylum. After a perfunctory series of interviews they claimed to have been removed to Ukraine within 24 hours of entering Slovakia.
The Slovaks asserted that in fact each individual had been provided a full opportunity to claim asylum at an interview with an interpreter but had chosen not to. Therefore the immediate group removal was acceptable because each person had been considered as an individual. In an appeal at domestic level, the Slovak border police directorate found in favour of the police.
At the European Court of Human Rights, the Slovak police were once again vindicated. The majority, in a court split 4-3, were happy to accept that a ten-minute interview would be sufficient for the police to explain the asylum system to each person and to check whether there were any reasons not to proceed with removal to Ukraine. Experienced practitioners might doubt whether they would be able to achieve this in ten minutes through an interpreter, but the Strasbourg court clearly has greater faith in the Slovak police. The majority also noted that the applicants had not provided any details about their asylum claims at any later stage.
Judge Lemmens (who also recently dissented in defence of Afghan asylum seekers in another recent case) joined Judges Keller and Schembri Orland in a dissenting opinion. They identified problems with the evidence provided by the Slovak police: most importantly, the recorded interview times frequently overlapped, but there was only one interpreter present. They also observed that many of the men had subsequently been granted asylum in other countries, casting doubt on Slovakia’s claim that they were not asylum seekers.
Significantly, the dissenting opinion also tries to confine the applicability of the Grand Chamber decision in N.D. and N.T. v Spain by noting its very extreme facts. In a plea to future constitutions of the court, the judges state:
"It is vital that the limited scope of the Grand Chamber’s judgment in N.D. and N.T. v. Spain be respecte0d. An overly broad interpretation of the judgment would damage the “broad consensus within the international community” concerning compliance with “the Convention guarantees, and in particular … the obligation of non-refoulement” (see N.D. and N.T. v. Spain, cited above, § 232)."
This case is another depressing footnote in the story of how Europe has sought to make itself inhospitable to irregular migrants. But the level and strength of dissent illustrates that these issues remain open for argument before the Strasbourg court.
>>> Employers urged to apply now for licence to sponsor overseas workers once free movement ends: https://www.gov.uk/government/publications/uk-points-based-immigration-system-employer-information/the-uks-points-based-immigration-system-an-introduction-for-employers
Under the new immigration system planned to kick in from January 2021, the minimum skill level needed to be sponsored for a general work visa will be reduced from RQF level 6 to RQF level 3. This means that jobs which are considered to be A-level standard can be sponsored, instead of the Bachelor’s degree qualifications which are required now.
The 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 from level 6 (degree) to level 3 (A-level), as was also the case under the December 2018 white paper proposals.
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 about the 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:
"There 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 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 Government proposes adding a new “unsponsored route” for the highly skilled alongside Tier 1 (Global Talent), with eligibility determined by personal characteristics:
"Example characteristics for which points could be awarded include academic qualifications, age and relevant work experience."
But in light of bitter experience — the MAC pointed out that the Home Office itself had come to loathe truly 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 now?
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”.
>>> Government: we don’t want “low-skilled” workers after the pandemic: https://www.gov.uk/guidance/new-immigration-system-what-you-need-to-know?utm_source=76048cea-190a-4cfd-9041-422016fbfe97&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate#lower-skilled-workers
What a moment for the Home Office to update its guidance on the new immigration system to reiterate:
"There will not be an immigration route specifically for those who do not meet the skills or salary threshold for the skilled worker route."
Basically, in the midst of the COVID-19 crisis, the Home Office felt it necessary to state that care workers, nurses, hospital porters, cleaners, logistics personnel, postal workers etc will not be able to apply for a UK work visa from January. The only “low-skilled” workers that the government envisages letting in are agricultural labourers.
The same message appears in a brand new document, The UK’s points-based immigration system: an introduction for employers: https://www.gov.uk/government/publications/uk-points-based-immigration-system-employer-information/the-uks-points-based-immigration-system-an-introduction-for-employers
>>> COVID19 and Immigration update
If you’re applying to stay in the UK long-term
You can apply from the UK to switch to a long-term UK visa until 31 May 2020. This includes applications where you would usually need to apply for a visa from your home country.
You’ll need to meet the requirements of the route you are applying for and pay the UK application fee.
This includes those whose leave has already been automatically extended to 31 March 2020.
You can apply online. The terms of your leave will remain the same until your application is decided.
As of 14 April, it is possible for people waiting for a decision on a student or work visa to start working/studying in the meantime, so long as they meet certain conditions: https://www.gov.uk/guidance/coronavirus-covid-19-advice-for-uk-visa-applicants-and-temporary-uk-residents#inside-UK
Namely:
If you’ve applied for a Tier 4 visa and are waiting for a decision on your application
You can start your course or studies before your visa application has been decided if:
- your sponsor is a Tier 4 sponsor
- you have been given a confirmation of acceptance for studies (CAS)
- you submitted your application before your current visa expired and you show your sponsor evidence of this
- the course you start is the same as the one listed on your CAS
- you have a valid Academic Technology Approval Scheme (ATAS) certificate if required
If your application is eventually rejected as invalid or refused you must stop your course or studies.
If you’ve applied for a Tier 2 or 5 visa and are waiting for a decision on your application
You can start work before your visa application has been decided if:
- you have been assigned a Certificate of Sponsorship (CoS)
- you submitted your application before your current visa expired and you show your sponsor evidence of this
- the job you start is the same as the one listed on your CoS
If your application is eventually rejected as invalid or refused your sponsor will stop sponsoring you and you must stop working for them.
>>> Deportation of Royal Marine with 14 years’ service upheld on appeal: https://www.bailii.org/ew/cases/EWCA/Civ/2020/505.html
In LE (St Vincent and the Grenadines) v SSHD [2020] EWCA Civ 505 the Court of Appeal upheld a decision to deport a Royal Marine who had fought for this country in Iraq and Afghanistan over a 14-year career in the armed forces.
On 28 October 2016, the appellant was convicted of dishonestly making false representations. He tricked an elderly vulnerable woman into allowing him access to her bank account and emptied it of £20,000 to £30,000 for his own use. He was sentenced to 2 years imprisonment.
The Court of Appeal upheld the decision to remove the Appellant.
>>> Judge criticized for for adjourning case during cross-examination: https://www.bailii.org/uk/cases/UKUT/IAC/2020/127.html
The Upper Tribunal has reprimanded an immigration judge for granting an adjournment during the cross-examination of an appellant. In WA (Role and duties of judge) Egypt [2020] UKUT 127 (IAC), the President and Vice President of the Upper Tribunal provide guidance on how tribunal judges should manage hearings:
"During the course of taking evidence, a judge’s role has to be merely supervisory. In dealing with representatives, and in assessing their submissions, the judge is entitled to take a role as interventionist and active as he considers appropriate. But while evidence is being taken, he should limit himself to making sure that the evidence is given as well as may be. He should be alert to the witness’s welfare; he should check that there are no obvious problems with interpretation. He will ensure that there are no undue interventions from the other side, reminding representatives, if necessary, that they will have an opportunity in due course to ask their questions. … If there are any questions which are manifestly unfair, he might simply direct that they be not asked, or if already asked, not answered."
This explanation of the judicial function was triggered by First-tier Tribunal judge Peter Hollingworth deciding to adjourn a hearing during the cross-examination of the appellant to allow the appellant to prepare a new witness statement dealing with the Presenting Officer’s questions. The circumstances in which the adjournment decision came to be made are unclear; the judge recorded that the appellant’s lawyer had applied for one, but this was denied by counsel before the Upper Tribunal.
The Home Office argued that the adjournment “gave the claimant an opportunity to improve his case at a point where questions and cross-examination were getting difficult”.
Having reviewed the case, the Upper Tribunal concluded that the adjournment was inappropriate and unnecessary. The Presenting Officer was simply asking the appellant to clarify an aspect of his account in the usual way. The tribunal also identified an error of law in the determination itself, and for that reason remitted the appeal to the First-tier Tribunal.
The official headnote
1. During the taking of evidence a judge’s role is merely supervisory.
2. If something happens during a hearing that disrupts the normal course of taking evidence it is essential that the judge records what happened and why; who said what; and what decision the judge made and on what basis.
>>> High Court to rule on release of immigration detainees at high risk from COVID-19: https://www.bailii.org/ew/cases/EWHC/Admin/2020/950.html
In R (Samson Bello) v Secretary of State for the Home Department [2020] EWHC 950 (Admin), the High Court has refused to release a man at high risk of COVID-19 complications from immigration detention.
Instead, Mr Justice Chamberlain ordered a rolled-up hearing to take place on 27 April 2020. At that hearing the judge will consider the important issue of whether underlying health conditions, or “comorbidities”, indicating a higher risk of developing complications from COVID-19 should be recognised as Level 3 evidence under the Adults at Risk policy.
Once the Home Office accepts that a detainee has Level 3 evidence, it will only keep him or her in detention if removal will take place in the immediate future or there are significant public protection concerns. The resolution of this question will have huge implications for the use of detention during the coronavirus crisis.
Chamberlain J’s preliminary view is as follows:
"As to [Mr Bello’s] vulnerability to COVID-19, there is a real question of interpretation as to whether every person identified as vulnerable by reason of comorbidities ipso facto falls to be categorised as a level 3 risk. That turns on whether it can be said of such a person that continued detention would be “likely to cause harm”. I see some force in Mr Buley’s suggestion that the answer to that question is yes, but I do not think the answer is obvious. The word “likely” can mean different things in different contexts."
The update may follow in due course.
>>> Fellow worshippers can’t give “expert evidence” on religious conversion, tribunal holds: https://www.bailii.org/uk/cases/UKUT/IAC/2020/125.html
Two important (but completely different) points arise from the Upper Tribunal’s decision in MH (review; slip rule; church witnesses) Iran [2020] UKUT 125 (IAC), one concerning religious conversion cases and the other concerning clerical errors in a written decision.
“Expert” evidence on religious conversion
The first is quite a significant watering down of the Court of Session’s decision in TF and MA v Secretary of State for the Home Department [2018] CSIH 58, one of the few important immigration decisions to be decided north of the border. That case opened the door to fellow church-goers giving “expert evidence” on an asylum seeker’s conversion to a religion that would see them persecuted if returned to their country of origin.
On this point, the Upper Tribunal differed from the Court of Session. It referred to the Supreme Court’s decision in Kennedy v Cordia (Services) LLP (Scotland) [2016] UKSC 6 which said that a true “expert” would be backed up by a “reliable body of knowledge or experience to underpin the expert’s evidence”. By contrast, the tribunal held:
"The position in respect of an individual’s conversion to Christianity is to be distinguished from these paradigms. There is no recognised methodology by which the genuineness of an individual’s conversion from one faith to another can be measured, nor can that question properly be categorised as belonging to a field of knowledge or science…Their evidence on this issue (described by Lord Glennie as “Category 3” evidence) should not, in our judgment, be described either as expert evidence or even as “a species of expert evidence”, as was submitted by leading counsel for the appellants in TF & MA: [41] refers. To describe such evidence as expert evidence risks elevating the significance of that evidence unduly. "
The upshot was that the evidence of church-goers was potentially significant but not expert evidence and therefore could not be given the same weight as expert evidence. The weight to be given to that evidence is a matter for the judge deciding the case.
Slip rule: Katsonga overturned
The second important point was overruling the older Upper Tribunal case of Katsonga (“Slip Rule”; FtT’s general powers) [2016] UKUT 228 (IAC). The “slip rule” refers to Rule 31 of the First-tier Tribunal Procedure Rules:
"Clerical mistakes and accidental slips or omissions
31. The Tribunal may at any time correct any clerical mistake or other accidental slip or omission in a decision, direction or any document produced by it, by –
(a) providing notification of the amended decision or direction, or a copy of the amended document, to all parties; and
(b) making any necessary amendment to any information published in relation to the decision, direction or document."
The Katsonga tribunal said that the slip rule could not be used to “reverse the effect of a decision” of the tribunal.
In MH, the judge had made clear that he disbelieved the appellant’s account of converting to Christianity but ended the decision by saying the appeal was allowed. There was no doubt that this was an obvious error but the question was how to fix this. The effect of Katsonga was that the tribunal could not use the slip rule to correct that mistake. This raised a lot of eyebrows at the time, especially because Rule 31 allows “any” amendment to fix an “accidental slip”.
Realising the error of its ways, the Upper Tribunal has changed tack. It agreed with the Home Office contention that:
"The obvious typographical error in the judge’s decision was plainly amenable to such correction and Katsonga [2016] UKUT 228 (IAC) was wrongly decided insofar as it suggested otherwise."
The upshot is that where a judge has made a typographical error, the most convenient way of fixing that is by using the slip rule. This saves the hassle and expense of making an application for permission to appeal (and going through the motions of an Upper Tribunal hearing when it was obvious the judge had made a mistake). By doing this, the Upper Tribunal isn’t reversing the effect of a decision (as had been thought in Katsonga) but just giving effect to the decision which the judge intended to pronounce.
The official headnote
"(i) Part 4 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 contains a ‘toolkit’ of powers, the proper use of which saves time and expense and furthers the overriding objective.
(ii) A judge of the FtT who is minded to grant permission to appeal on the basis of a seemingly obvious error of law should consider whether, instead, to review the decision under appeal pursuant to rule 35.
(iii) A decision which contains a clerical mistake or other accidental slip or omission may be corrected by the FtT under rule 31 (the ‘slip rule’). Where a decision concludes by stating an outcome which is clearly at odds with the intention of the judge, the FtT may correct such an error under rule 31, if necessary by invoking rule 36 so as to treat an application for permission to appeal as an application under rule 31. Insofar as Katsonga [2016] UKUT 228 (IAC) held otherwise, it should no longer be followed.
(iv) Written and oral evidence given by ‘church witnesses’ is potentially significant in cases of Christian conversion (see TF & MA v SSHD [2018] CSIH 58). Such evidence is not aptly characterised as expert evidence, nor is it necessarily deserving of particular weight, and the weight to be attached to such evidence is for the judicial fact-finder."
>>> Upper Tribunal reminds visitors not to try and stay in the UK permanently:https://www.bailii.org/uk/cases/UKUT/IAC/2020/129.html
What happens when you enter the UK as a visitor and then apply to remain here so that you can stay with your British family members BEFORE* the visitor visa expires ?
What if plans change after entering the UK? What if, as the expiry of the visit visa approaches, a doctor advises against travel for medical reasons? What if there is a risk that the financial requirement for a spouse visa won’t be met and the person will not be able to return?
What if the person has never lived in their country of nationality (where they would need to apply from), having been born and raised in another country?
What if applying from abroad would be disruptive and not in the best interests of the applicant’s British child? Is it reasonable to expect that child to leave the UK?
May be the Home Office will be sympathetic to a change of circumstances, some may think ? The answer is "NO!".
In the recent case of Younas (section 117B(6)(b); Chikwamba; Zambrano) Pakistan [2020] UKUT 129 (IAC) the Upper Tribunal answers all of these questions, all in favour of the Home Office.
The official headnote
(1) An appellant in an Article 8 human rights appeal who argues that there is no public interest in removal because after leaving the UK he or she will be granted entry clearance must, in all cases, address the relevant considerations in Part 5A of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) including section 117B(1), which stipulates that “the maintenance of effective immigration controls is in the public interest”. Reliance on Chikwamba v SSHD [2008] UKHL 40 does not obviate the need to do this.
(2) Section 117B(6)(b) of the 2002 Act requires a court or tribunal to assume that the child in question will leave the UK: Secretary of State for the Home Department v AB (Jamaica) & Anor [2019] EWCA Civ 661 and JG (s 117B(6): “reasonable to leave” UK) Turkey [2019] UKUT 72 (IAC). However, once that assumption has been made, the court or tribunal must move from the hypothetical to the real: paragraph 19 of KO (Nigeria) & Ors v Secretary of State for the Home Department [2018] UKSC 53. The length of time a child is likely to be outside the UK is part of the real world factual circumstances in which a child will find herself and is relevant to deciding, for the purpose of section 117B(6)(b), whether it would be unreasonable to expect the child to leave the UK.
(3) The assessment of whether a child, as a result of being compelled to leave the territory of the European Union, will be a deprived of his or her genuine enjoyment of the rights conferred by Article 20 TFEU in accordance with Ruiz Zambrano v Office national de l’emploi (Case C-34/09) falls to be assessed by considering the actual facts (including how long a child is likely to be outside the territory of the Union), rather than theoretical possibilities.
*It is really strange, how some of the UK Immigration Rules are created. Just imagine: had Ms Younas overstayed, and been able to access the exception in paragraph EX.1, she would have met the rules. But because she applied whilst in the UK as a visitor, her application was refused. Why do the Immigration Rules encourage overstaying?
>>> Common Travel Area (CTA): https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwjKxP-DtIjpAhWR0eAKHfpvB2sQFjAAegQIARAC&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/879600/common-travel-area-v7.0ext.pdf&usg=AOvVaw3QIMuP7Ogfr9oTLhC14grd
Changes made to reflect the new legislation under which Biometrics are collected in Isle of Man
>>> Registration as a British citzien - children: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwjP_duftIjpAhWQHRQKHWfPDxIQFjAAegQIAhAC&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/824429/registration-as-british-citizen-children-of-british-parents-v6.0ext.pdf&usg=AOvVaw2KqnKrMmqPVU2_wSJlUAVq
Added information about the fee waiver for a child born on or after July 2006 where the mother was married to someone other than the natural father.
>>> Upper Tribunal reminds visitors not to try and stay in the UK permanently:https://www.bailii.org/uk/cases/UKUT/IAC/2020/129.html
What happens when you enter the UK as a visitor and then apply to remain here so that you can stay with your British family members BEFORE* the visitor visa expires ?
What if plans change after entering the UK? What if, as the expiry of the visit visa approaches, a doctor advises against travel for medical reasons? What if there is a risk that the financial requirement for a spouse visa won’t be met and the person will not be able to return?
What if the person has never lived in their country of nationality (where they would need to apply from), having been born and raised in another country?
What if applying from abroad would be disruptive and not in the best interests of the applicant’s British child? Is it reasonable to expect that child to leave the UK?
May be the Home Office will be sympathetic to a change of circumstances, some may think ? The answer is "NO!".
In the recent case of Younas (section 117B(6)(b); Chikwamba; Zambrano) Pakistan [2020] UKUT 129 (IAC) the Upper Tribunal answers all of these questions, all in favour of the Home Office.
The official headnote
(1) An appellant in an Article 8 human rights appeal who argues that there is no public interest in removal because after leaving the UK he or she will be granted entry clearance must, in all cases, address the relevant considerations in Part 5A of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) including section 117B(1), which stipulates that “the maintenance of effective immigration controls is in the public interest”. Reliance on Chikwamba v SSHD [2008] UKHL 40 does not obviate the need to do this.
(2) Section 117B(6)(b) of the 2002 Act requires a court or tribunal to assume that the child in question will leave the UK: Secretary of State for the Home Department v AB (Jamaica) & Anor [2019] EWCA Civ 661 and JG (s 117B(6): “reasonable to leave” UK) Turkey [2019] UKUT 72 (IAC). However, once that assumption has been made, the court or tribunal must move from the hypothetical to the real: paragraph 19 of KO (Nigeria) & Ors v Secretary of State for the Home Department [2018] UKSC 53. The length of time a child is likely to be outside the UK is part of the real world factual circumstances in which a child will find herself and is relevant to deciding, for the purpose of section 117B(6)(b), whether it would be unreasonable to expect the child to leave the UK.
(3) The assessment of whether a child, as a result of being compelled to leave the territory of the European Union, will be a deprived of his or her genuine enjoyment of the rights conferred by Article 20 TFEU in accordance with Ruiz Zambrano v Office national de l’emploi (Case C-34/09) falls to be assessed by considering the actual facts (including how long a child is likely to be outside the territory of the Union), rather than theoretical possibilities.
*It is really strange, how some of the UK Immigration Rules are created. Just imagine: had Ms Younas overstayed, and been able to access the exception in paragraph EX.1, she would have met the rules. But because she applied whilst in the UK as a visitor, her application was refused. Why do the Immigration Rules encourage overstaying?
>>> Common Travel Area (CTA): https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwjKxP-DtIjpAhWR0eAKHfpvB2sQFjAAegQIARAC&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/879600/common-travel-area-v7.0ext.pdf&usg=AOvVaw3QIMuP7Ogfr9oTLhC14grd
Changes made to reflect the new legislation under which Biometrics are collected in Isle of Man
>>> Registration as a British citzien - children: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwjP_duftIjpAhWQHRQKHWfPDxIQFjAAegQIAhAC&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/824429/registration-as-british-citizen-children-of-british-parents-v6.0ext.pdf&usg=AOvVaw2KqnKrMmqPVU2_wSJlUAVq
Added information about the fee waiver for a child born on or after July 2006 where the mother was married to someone other than the natural father.
>>> If your 30 day visa to work, study or join family has expired and you could not travel into the UK due to COVID19: https://www.gov.uk/guidance/coronavirus-covid-19-advice-for-uk-visa-applicants-and-temporary-uk-residents?utm_source=1b9655f9-d25e-405b-b691-29aa736d7a48&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate#outside-uk
If your 30 day visa to work, study or join family has expired
If your 30 day visa to travel to the UK for work, study or to join family has expired, or is about to expire, you can request a replacement visa with revised validity dates free of charge until the end of this year.
To make a request, contact the Coronavirus Immigration Help Centre (https://www.gov.uk/guidance/coronavirus-covid-19-advice-for-uk-visa-applicants-and-temporary-uk-residents?utm_source=1b9655f9-d25e-405b-b691-29aa736d7a48&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate#helpline). You’ll need to include your name, nationality, date of birth and your GWF reference number with ‘REPLACEMENT 30 DAY VISA’ in the subject line. If you’ve already contacted us about this, please let us know in your email.
You will be contacted when our VACs reopen to arrange for a replacement visa to be endorsed in your passport.
You will not be penalized for being unable to collect your BRP while coronavirus measures are in place.
This process will be in place until the end of 2020.
Note that this does not cover visit visas.
UK visa centres abroad are closed so the replacement wwill not be issued until they reopen.
>>> Asylum seeker to be sent back to Italy under Dublin III rules despite being interviewed in the UK: https://www.bailii.org/ew/cases/EWHC/Admin/2020/967.html
In R (Habte) v Secretary of State for the Home Department [2020] EWHC 967 (Admin), the High Court has decided that conducting a substantive asylum interview does not amount to assuming responsibility for the asylum claim under Article 17(1) of the Dublin Regulation.
The situation arose because the Home Office, apparently accidentally, conducted a substantive asylum interview of Mr Habte while it was going through the Dublin III procedure to remove him to Italy. The interview lasted four hours and involved 126 questions. Mr Habte might understandably have got the impression that the UK authorities had decided to consider his asylum claim here rather than removing him to Italy.
When directions were set to remove him to Italy, he challenged the decision by judicial review, arguing that the UK had assumed responsibility for his claim under Article 17(1) of the Dublin III Regulation.
>>> COVID19 & UK Immigration Update
Amendments to Home Office policy on automatic NHS extensions
The Home Secretary wrote to the House of Commons Home Affairs Committee to set out that it was partially extending its policy on automatic NHS extensions to other types of staff. The press release states:
"Frontline workers, including midwives, radiographers, social workers and pharmacists, with visas due to expire before 1 October 2020 will receive an automatic one-year extension. It will apply to those working both in the NHS and independent sector and include their family members.
...Any NHS workers who have paid for an unresolved application will be offered the option of a refund.
The Home Secretary has also confirmed family members and dependants of healthcare workers who sadly pass away as result of contracting the virus will be offered immediate indefinite leave to remain."
>>> High Court blow for EU citizens with pre-settled status trying to claim Universal Credit: https://www.bailii.org/ew/cases/EWHC/Admin/2020/998.html
The High Court has rejected an argument that the regulations making it difficult for Europeans with pre-settled status to access most public funds are discriminatory on the ground of nationality. The case is Fratila and Tanase v SSWP [2020] EWHC 998 (Admin).
Mr Justice Swift found that although the Social Security (Income-related Benefits) (Updating and Amendment) (EU Exit) Regulations 2019 do not constitute direct discrimination, they do amount to indirect discrimination. But he held that this discrimination was justified, and thus not unlawful.
>>> "Individuals with pre-settled status under the EUSS will be considered 'settled workers' following the end of the transition period.", Gabi Monk, Head of Euro and Settlement and EU Settled Status Customer Resolution Centre confirms
>>> You can carry on with an old-style EU law appeal even if granted settled status: https://www.bailii.org/uk/cases/UKUT/IAC/2020/124.html
The abandonment of an ongoing appeal seems to be a hot topic for the Upper Tribunal recently, with the case of Ammari (EEA appeals – abandonment) [2020] UKUT 124 (IAC) following on the heels of MSU and Aziz.
This time the facts concern an appeal against a refusal by the Home Office to issue a permanent residence card, based on a retained right of residence, and brought under the EEA Regulations (in this case the Immigration (European Economic Area) Regulations 2016).
After lodging the appeal the appellant, Mr Ammari applied for and was granted “settled status” under the EU Settlement Scheme, a form of indefinite leave to remain (ILR).
Meantime the First-tier Tribunal, unaware of the grant of ILR, had considered and refused Mr Ammari’s appeal against the refusal to grant a residence card. Mr Ammari was granted permission to appeal to the Upper Tribunal, where the abandonment issue reared its head.
At the Upper Tribunal the Home Office conceded that the First-tier judge had erred in refusing the appeal, but that this was immaterial since the grant of ILR served to abandon the appeal.
Not so, said the Upper Tribunal, based on two key aspects.
No abandonment in EEA Regulations appeals
Firstly, it noted that appeals concerning “EEA decisions” (such as the refusal of a residence card) were brought under the relevant EEA Regulations; primarily either the 2006 Regulations or the 2016 Regulations which replaced them, and not section 82 of the Nationality, Immigration and Asylum Act 2002.
Secondly, that since the drastic culling of the permitted grounds of appeal brought about by the Immigration Act 2014 (albeit with a myriad of savings and transitional provisions), it was not possible to cite EU law rights in an appeal under section 82 of the 2002 Act.
Prior to the 2014 Act changes, it was possible to appeal against an immigration decision, for example a decision to remove someone from the UK, but cite EU law rights in the grounds of appeal. In this way the appeal would be under the 2002 Act, but still invoke EU law rights.
The tribunal confirms that in an EU law appeal under the 2002 Act, there were two separate mechanisms for the appeal becoming abandoned if leave to remain was granted during the appeal. One was under section 104 of the 2002 Act, while there were also separate provisions within the EEA Regulations for abandonment of a section 82 appeal if a resident document was issued under those regulations.
Both of these mechanisms have now fallen away, because after the 2014 Act, the only way to assert EU law rights in an appellate process was through an appeal brought under the EEA Regulations. Neither the 2006 or 2016 Regulations contain a mechanism for an appeal brought under them to be statutorily abandoned if an appellant is granted leave to remain.
Critically, whilst both sets of regulations contain a list of provisions within the 2002 Act that can be “read across” as if applying equally to appeals brought under the regulations, section 104 (on abandonment) is not one of them. The case of Munday (EEA decision: grounds of appeal) [2019] UKUT 91 (IAC) has more details on this legislative device.
The upshot is that Mr Ammari getting ILR did not mean that his appeal against the earlier refusal was abandoned. The Upper Tribunal proceeded to decide the case in his favour.
The official headnote
i. Under the 2000 and 2006 EEA Regulations there was provision for appeals brought under section 82(1) of the Nationality, Immigration and Asylum Act 2002 to be treated as abandoned where an appellant was issued with documentation confirming a right to reside in the United Kingdom under EU law. Following the changes to the 2002 Act brought about by the Immigration Act 2014 that abandonment provision was revoked and never replaced.
ii. There has never been provision under any of the EEA Regulations for an appeal against an EEA decision brought under those Regulations to be treated as abandoned following a grant of leave to remain or the issuance of specified documentation confirming a right to reside in the United Kingdom under EU law.
iii. It follows that a grant of leave to remain following an application under the EU Settlement Scheme does not result in an appeal against an EEA decision brought under the 2016 EEA Regulations being treated as abandoned.
>>> New Home Office policy on Dublin III brings big changes for family reunification: https://www.gov.uk/government/publications/dublin-iii-regulation
On 30 April 2020 the Home Office published an updated policy on the Dublin III Regulation which has some significant changes for family reunification cases. The new policy includes updates on Article 9, Article 13.2 (entry and/or stay), Article 17.2 (discretionary clauses), working with local authorities in response to a take charge request involving unaccompanied minors, and on timescales.
>>> Lengthy absences from the UK can put EU pre-settled status at risk
For most people, the EU Settlement Scheme has largely lived up to its government billing as generous and straightforward, but confusion over permitted absences is likely to cause some European residents trouble down the line.
People with pre-settled status, in particular, need to be aware of the absence rules. If they are outside the UK for more than six months in any 12-month period during the five years it takes to qualify for full settled status, they will generally have to start the five years all over again. And if they return after 31 December 2020, they may lose the right to upgrade to settled status entirely.
Absences and the EU Settlement Scheme
The starting point is that EU citizens and their family members will qualify for settled status after completing “a continuous qualifying period of five years of residence” in the UK. Those living in the UK for less than five years qualify for pre-settled status instead, and can upgrade to settled status once they reach five years.
A “continuous qualifying period” is defined in Appendix EU of the Immigration Rules (the legal source of the Settlement Scheme) as being a period of residence that began before 11pm on 31 December 2020 and which has not been broken by one of the following:
- Absence(s) from the UK exceeding a total of six months in any 12-month period, subject to some exceptions discussed below
- A prison sentence
- A deportation, exclusion or removal decision or order (in very general terms)
How to calculate absences
Firstly, it’s worth noting that the six-month cap is not limited to a single lengthy period outside the UK. It also applies to multiple trips totalling six months together.
Secondly, the rules refer to absence(s) during “any 12-month period”. In other words, the Home Office will not just be looking at travel during a calendar year. It instead considers a “rolling” period of 12 months, which “resets” with every trip. This means applicants who travel frequently will need to keep a very close eye on their travel.
Thirdly, such absences are only relevant to the “qualifying period” relied upon. Once the five-year qualifying period is complete, an applicant will only lose the right to apply for settled status if they spend five years or more outside the UK (a so-called “supervening event”).
The above seems clear. What is less straightforward is how exactly such absences are calculated. So when Appendix EU sets a six-month limit on absences, how many days is that?
What constitutes a “month” is not defined anywhere in Appendix EU, the Immigration Rules overall or in the pre-Brexit provisions for EU citizens, the Immigration (European Economic Area) Regulations 2016.
But other kinds of application may provide a clue. For the purposes of long residence applications for indefinite leave to remain, Home Office guidance defines a month as “30 calendar days”. This means that six months equals 180 days (the same limit applied to indefinite leave applications in the Tier 2 (General) and Tier 1 (Investor) categories). This is of course slightly less than half a year, which would be 182.5 days exactly.
It is advisable, therefoe, for anyone who’s not yet reached 180 days to play it safe and avoid exceeding that limit. But I can’t really imagine an application failing at 182 days, subject to any further clarification on this point.
When counting days, remember that only a whole day’s absence from the UK will count. So if you leave the UK on 2 March and return on 3 March, this won’t count as an absence. If you return on 4 March instead, it would be one day’s absence only.
Finally, it’s worth noting that at present there’s no need to actually list the exact dates of travel as part of a Settlement Scheme application. The applicant simply needs to self-certify they’ve spent no more than six months outside the UK in any 12-month period.
This suggests a more relaxed approach to absences than the Home Office adopts in other types of settlement. That said, the Home Office will have a record of travel where eGates have been used at airports and where travel has been stamped in a passport, meaning that honesty is always the best policy.
Exceptions to the six-month rule
There is some allowance for periods longer than six months in very narrowly defined circumstances. These include periods of absence on compulsory military service, a Crown service posting (or as a partner or child accompanying such a person) or time “spent working in the UK marine area”.
In addition, applicants are permitted “a single period of absence” that does not exceed 12 months and which is “for an important reason, such as pregnancy, childbirth, serious illness, study, vocational training or an overseas posting”. These are examples only. This means other situations may also qualify as an “important reason”: for example, caring for a terminally ill parent.
What about frequent travel for the work-related reasons ? It is difficult to see how this falls within one of the permitted exceptions as it’s repeat travel rather than “a single period of absence”. There is simply no generic allowance for “compelling occupational reasons” or travel that is an “unavoidable consequence” of the applicant’s career (as permitted in naturalisation applications, for example).
Evidence of the reasons for the absence will of course be required in all cases. This could take the form of hospital records, an employer’s letter or university confirmation of a study abroad requirement, for example.
What happens if one has exceeded or is going to exceed the limit?
Absence(s) of more than six months that don’t fall within one of the exceptions will break a person’s “continuous qualifying period”. This means that the person has to begin a new five-year continuous qualifying period from the date they return to the UK to get settled status.
But, for the moment at least, it does not mean the applicant needs to leave the UK or that the person’s pre-settled status comes to an end. In fact, pre-settled status only lapses through two years of absence from the UK. This is according to the EU Settlement Scheme website, probably reflecting section 13(4)(a) of the Immigration (Leave to Enter and Remain) Order 2000:
"where the holder has stayed outside the United Kingdom for a continuous period of more than two years… any leave then remaining (where the leave is limited) shall thereupon lapse."
But there are two very important caveats. First, a person who has broken their continuous residence period will still need to reapply for pre-settled status when they return to ensure that they can ultimately upgrade to settled status. That is because pre-settled status can’t be renewed or extended, so an interruption will leave the person short of the five years they need to qualify with no way of making up the time.
The second important caveat is that the settled status clock cannot be restarted after 31 December 2020. That is because of how a “continuous qualifying period” is defined in Appendix EU: it has to begin before 11pm on that date. If someone with pre-settled status exceeds the permitted absences and returns to the UK after 31 December 2020, they will be unable to restart the settled status clock at all.
Someone in this situation would have to rely on the exceptions discussed above to argue that their continuous qualifying period had not been interrupted by the lengthy absence. It is possible that Home Office caseworkers will be sympathetic to absences related to coronavirus, or that it will make a new general exception making allowances for the pandemic. It is understood that the department is considering something along these lines. But if no announcement is made, the rules as written suggest that pre-settled status holders who return to the UK later than the end of this year will be in trouble if they have been gone for more than six months.
Possible sources of confusion
The Settlement Scheme is awash with various time periods that applicants need to consider, so to sum up:
- EU citizens and their family member qualify for settled status after a “continuous qualifying period” of five years’ UK residence
- A “continuous qualifying period” is broken by absence(s) of more than six months in any rolling 12-month period (unless that absence falls within one of the above exceptions)
- Pre-settled status lasts for five years max. If a holder of pre-settled status breaks their continuous residence but returns to the UK before 31 December 2020, they must apply for a new grant of pre-settled status to allow them to complete the “continuous qualifying period” of five years required for settled status
- Pre-settled status is only lost through two years of absence from the UK, but this is a red herring, for the reasons explained above
- The right to upgrade from pre-settled status to settled status is lost if the continuous qualifying period is broken and the person returns to the UK after 31 December 2020
- Once someone has already completed a “continuous qualifying period” of five years, they can spend up to five years outside the UK without losing the right to apply for settled status
All in all, absences may not be fatal to a settlement application or a person’s right to stay in the UK long term, but they certainly need to be approached carefully with a full understanding of the risks involved.
>>> High Court rules against government on no recourse to public funds: https://www.project17.org.uk/policy/strategic-litigation/intervention-in-legal-challenge-to-the-nrpf-policy
The High Court has ruled that the government must make it easier for migrants to access the welfare system if they are about to become destitute. In an oral ruling delivered yesterday, Lord Justice Bean and Mr Justice Chamberlain found that Home Office policy on no recourse to public funds is in breach of Article 3 of the European Convention on Human Rights.
A detailed judgment and order will follow, which will set out the steps the Home Office needs to take to comply with the judges’ ruling.
The case concerns the default no recourse condition imposed on migrants on a ten-year route to settlement. According to the oral judgment, caseworkers will in future have to lift the condition when the person “is not currently destitute but will imminently become so without access to public funds. The court made clear that the Home Office will still be able to impose the no resource condition “in the normal run of cases".
The no recourse to public funds issue has become particularly pressing during the coronavirus pandemic, which has seen many migrants thrown out of work and unable to get benefits. But the judges said they were not ordering any immediate change to Home Office policy. The court will decide on the exact terms of the order at a later date.
>>> “Slip rule” can be used to allow an appeal dismissed by accident: https://www.bailii.org/ew/cases/EWCA/Civ/2020/612.html
Interesting precedent when the asylum appeal was accidentally dismissed by a "slip of the pen", that is, when the judge wrote "appeal dismissed" rather than "appeal allowed" (wrong cut and past button ?).
>>> European Commission accuses UK government of violating EU citizens’ rights: https://ec.europa.eu/commission/presscorner/detail/en/inf_20_859
The European Commission has formally accused the UK government of breaching EU law on free movement of people. Brussels today launched “infringement proceedings” against the UK, the process used to force EU member countries to comply with their legal obligations.
The UK is no longer a member of the European Union, but the Commission points out that EU free movement law continues to apply here until the end of the post-Brexit transition period.
>>> Immigration Bill will return to the Parliament on 18 May for the 2nd reading
The second reading is when MPs have their first chance to properly debate the principle of a draft law. The Immigration Bill would put an end to EU free movement rights — although existing residents are largely protected by the EU Settlement Scheme — and is expected to pass easily given the government’s large majority in the House of Commons.
The bill’s full title is the Immigration and Social Security Co-ordination (EU Withdrawal) Bill 2019-21. The House of Commons Library has put together a useful briefing about it here: https://commonslibrary.parliament.uk/research-briefings/cbp-8706/
>>> It just got more difficult for Europeans to become British citizens: https://www.gov.uk/government/publications/naturalisation-as-a-british-citizen-by-discretion-nationality-policy-guidance
The Home Office has decided to make it more difficult for European residents to become British citizens. EU citizens with settled status who apply for naturalisation now have to provide evidence that they have been living in the UK legally, according an update to government nationality policy released on 15 May.
One of the requirements for naturalisation as a British citizen is to have lived in the UK for five years (or three years if married to a British citizen). Time living here in breach of UK immigration law doesn’t count. The Home Office has long taken the view that EU citizens physically present in the UK but who do not have a right of residence under EU law are in breach of UK immigration law. Unknowingly lacking a right to reside is surprisingly common — many people without comprehensive sickness insurance were caught out by this in the past.
Because of Brexit, European residents and their family members have been offered immigration status under UK law (instead of EU law). Getting the new “settled status” does not require proof of a previous right to reside — it is mostly based on simple presence in the UK.
But when people with settled status come to apply for citizenship, the Home Office is now saying that the right to reside issue must be dealt with in their application. Simply having settled status is not enough, in this context. Settled status will serve as proof of being free of immigration time restrictions (another of the naturalisation requirements) but will not do in terms of showing that the person’s period of residence in the UK was in accordance with immigration law.
The updated guidance says:
"An EEA or Swiss citizen or their family members who have a 5 years’ continuous qualifying period of residence in the UK and Islands when they apply to the EU Settlement Scheme will be eligible for settled status… However, this grant of settled status (also know as indefinite leave to enter or remain) will not confirm that they were here lawfully under the EEA Regulations during that time, as defined by the British Nationality Act 1981 as this is not a requirement of the EU Settlement Scheme. You may therefore need to request further information from the applicant to demonstrate this."
The EEA Regulations contain the detailed rules on how EU free movement law operates in the UK.
The guidance goes on to tell officials:
"You must assess whether the individual has been here lawfully during their 3 or 5 year residential period prior to pre-settled status or settled status, by considering on the balance of probabilities whether they were here:
as a qualified person (such as a worker, student, self-employed, selfsufficient, retired or incapacitated person)
as the family member of such a person.
Evidence of this can include API data or documents previously submitted to satisfy their lawful residence. Where appropriate, you must also be satisfied that the person was lawfully in the UK, with comprehensive sickness insurance (CSI)."
Later on, the document does suggest that there is discretion to overlook some technical breaches of the EEA Regulations:
"Following the introduction of the EU Settlement Scheme you may increasingly see applications from EEA or Swiss nationals who have not fully complied with additional requirements under the EEA regulations, such as having comprehensive sickness insurance where they needed it, and who may therefore have been in breach of immigration law. When considering such applications you should take into account all the facts surrounding such a breach and make a full assess[m]ent about whether discretion should be exercised in their favour."
On exercising discretion, the policy suggests that being in breach of the EEA Regulations is not as bad as entering the UK illegally or overstaying on a visa. But Europeans — assuming they are aware of their precise legal status in the first place — will have to “provide sufficient evidence to justify discretion being exercised in their favour”. The effect will be to make it more difficult for EU citizens to become British than if settled status were simply accepted as evidence of lawful residence.
By contrast, if the person has previously secured a permanent residence card, that will — unlike settled status — serve as proof of five years’ lawful residence.
The issue will also affect citizens of Norway, Iceland, Liechtenstein and Switzerland.
>>> Guidance ECB06: entry clearance fees: https://www.gov.uk/government/publications/entry-clearance-fees-ecb06/ecb06-entry-clearance-fees
This has been updated to provide a new procedure to request a fee waiver for entry clearance applications.
>>> Offshore wind workers: Immigration Rules concession 2017: https://www.gov.uk/government/publications/offshore-wind-workers-immigration-rules-concession-2017
Concession for workers joining a construction vessel operating in UK territorial waters.
This guidance explains the terms of the concession for non-European Economic Area (EEA) nationals who are joining vessels engaged in the construction and maintenance of offshore wind projects in UK territorial waters.
>>> Short term students Guidance: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=2ahUKEwi8qOyH3rrpAhWqA2MBHdy3Dx8QFjAAegQIAxAB&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/882103/short-term-students-v12.0ext.pdf&usg=AOvVaw1wilBJaaST-VVpNAoF3MFZ
The list of accredited institutions that a short-term student must be accepted onto a course of study with has been updated.
>>> Family life (as a partner or parent), private life and exceptional circumstances: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=2ahUKEwjO09PY3rrpAhUIEBQKHcRNCD8QFjAAegQIBBAB&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/881563/family-life-_as-a-partner-or-parent_-private-life-and-exceptional-circumstances.pdf&usg=AOvVaw2y7AJJqKA7v6TNmudUlREb
Changes made to reflect need to have permission to disclose Family Court documents.
>>> People born in Northern Ireland get improved family reunion rights
The DeSouza case raised complex issues of citizenship, identity and implementation of the Good Friday Agreement, but at the heart of the case was an immigration matter and a family who have faced a brutal uphill struggle to live together in the UK, like so many others. Last week, the bravery and perseverance of Emma and Jake DeSouza paid off when they achieved a rare concession from the Home Office, which will have significant impacts for families like them.
The DeSouza litigation
The facts of DeSouza may be known to some. The case was centred on an application by Jake, a US citizen married to Irish citizen Emma, for permission to live in the UK — relying on European Union law. Their application was refused by the Home Office because Emma was born in Northern Ireland. She was therefore considered a dual British and Irish national and excluded under the finding in Case C-434/09 McCarthy.
Emma contends that she is an Irish national only and that this right is protected by the Good Friday Agreement, which allows for the people of Northern Ireland to identify themselves and be accepted as Irish or British or both. The subsequent appeal was successful in the First-tier Tribunal but overturned in the Upper Tribunal. It raised issues of incompatibility between Home Office policy, the application of the British Nationality Act and the Good Friday Agreement.
The political campaign
A vocal campaign led by Emma and Jake gained momentum. Political support followed, with the Irish government, Westminster politicians and parties in Northern Ireland speaking out in support of the case. The joint committee of the Northern Ireland Human Rights Commission and the Irish Human Rights and Equality Commission also supported the case.
In January 2020, the New Decade, New Approach deal for the restoration of the NI devolved institutions made specific immigration commitments on the right to family reunion for the people of Northern Ireland “underpinned by the birthright of all the people of Northern Ireland to identify themselves and be accepted as Irish or British, or both, as they may so choose.”
Many felt that these commitments were a form of peace offering from the UK government, hoping to address the immigration issues at the core of DeSouza, while avoiding the more awkward issues of imposed British citizenship and compliance with the Good Friday Agreement. This proved accurate when the political commitment were translated into law through a statement of changes to the Immigration Rules in May 2020.
The family reunion concession
The changes can be summarised as follows:
- The definition of a “relevant EEA citizen” under Appendix EU will be amended to include a “relevant person of Northern Ireland”
- A relevant person of Northern Ireland is, in turn, defined in line with the “people of Northern Ireland” under the Good Friday Agreement
- A relevant person of Northern Ireland is therefore a British citizen, an Irish citizen or a dual British and Irish citizen who was born in Northern Ireland (and at the time of their birth had at least one parent who was a British citizen; or an Irish citizen; or a dual British and Irish citizen; or who was otherwise entitled to reside in Northern Ireland without any restriction on their period of residence)
- This will mean that qualifying family members of the people of Northern Ireland will be able to apply for immigration status under the EU Settlement Scheme. Family members will be eligible to apply regardless of whether their family member is British, Irish or a dual Irish/British national;
- This will also apply to a qualifying person of Northern Ireland living in England, Scotland and Wales.
- The changes will take effect on 24 August 2020. As the EU Settlement Scheme is open for a limited period, applications must be made before the deadline (currently 30 June 2021).
These changes address the underlying immigration issue by allowing Irish citizens born in Northern Ireland to use the EU Settlement Scheme. It also expands the scheme’s coverage to British and dual British/Irish nationals born in Northern Ireland. This respects the principle of equality of treatment under the Good Friday Agreement and ends the need for renunciation of British citizenship by British and dual British/Irish nationals who want to exercise EU family reunion rights.
There are limitations to this concession. Since the scheme will not open until August, there are questions over what qualifying family members who have visas expiring before that date should do. The scheme is also time limited to the end of the EU Settlement Scheme, meaning this is a very brief window of opportunity. It is also not clear what provision will be made for people who renounced British citizenship due to the previous policy, often on Home Office advice.
Politics trumps law
The changes have been hailed as a victory for Emma and Jake, and welcomed by figures such as Taoiseach Leo Varadkar and institutions such as the Northern Ireland Human Rights Commission. Emma and Jake have today confirmed that they will not be proceeding to the Court of Appeal:
"We had hoped our legal challenge could help right that wrong and force the British Government to amend statute to fall in line with its international obligations. But legally, with this concession from the Home Office, we regrettably cannot proceed. This disappointment, however, should not overshadow what is an unbridled win worth celebrating- families have and will continue to be reunited thanks to these changes and everyone in Northern Ireland will benefit from the government’s recognition of the rights provided under the Good Friday Agreement."
The couple say that while these changes address the immigration issue at the centre of their case, they will continue to campaign on the broader issues raised: full implementation of the Good Friday Agreement and amendment of the British Nationality Act 1981.
The impact of these changes on families who would otherwise be separated by the UK Immigration Rules can’t be overstated. They have — if only for a brief period — accessible, free and fair family reunion rights.
So the people born in (or with family born in) Northern Ireland can now take advantage of this rare opportunity. The fact that British citizens and dual British/Irish citizens born in Northern Ireland will now have access to broader family reunion rights than their counterparts born in Great Britain should also highlight the inhumanity of the UK Immigration Rules — as well as the ability of the Home Office to provide better, when it wants to.
>>> Immigration application fee destitution policy found unlawful
The Upper Tribunal has found that the Home Office’s policy for waiving the immigration application fee for destitute immigrants — the fees can add up to thousands of pounds for a family — is unlawful and needs to be widened. The judgment is Liggison v Secretary of State for the Home Department JR/2249/2019. The case was clearly considered an important one at the Home Office.
The family of five at the heart of the case would have had to pay fees of £7,665, including the Immigration Health Surcharge. They were unlawfully resident (although of course the point of the application was to become lawfully resident) and had no source of income; they simply could not afford to pay the fees. This meant they were locked out of lawful status by the cost of entry.
The Home Office’s original position, until 2012, was that no exceptions at all would be made to the absolute requirement to pay an application fee. Having lost a case called Omar and then subsequent litigation as well, the Home Office introduced a very limited policy on when fees might be waived. Under this policy, an applicant would need to prove that he or she would become destitute if the fee were to be paid.
The family involved in this case could prove they could not afford the fees but they could not prove they would be destitute. This was because they were accommodated and supported by friends and family members who would continue to support them come what may.
What next?
The Home Office sought and was granted permission to appeal to the Court of Appeal. This means that the old policy will probably continue to be applied by the Home Office, at least unless the appeal is abandoned (which is possible given that the policy in question is such a mess) or an outcome from the Court of Appeal is known, which could take months or even years. So, in the short term, there is no immediate change.
If the outcome of this case sticks, it means an unknown number of people have had their applications for fee waivers rejected on the basis of an unlawful policy. There is an argument that if they subsequently somehow managed to pay the fee they might be entitled to a refund. This seems pretty dubious given that actually finding the money seems a fortiori proof that they could somehow afford it.
>>> Immigration Health Surcharge to be waived for NHS and social care workers
A public announcement should follow shortly.
The surcharge — not actually a payment for using the NHS but a tax on visas collected at the point of application — is currently £400 a year but is due to rise to £624 in October 2020.