27 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)
No recourse to public funds (‘NRPF’) is a condition imposed on the majority of UK visa holders preventing them from claiming benefits. In R (W, A Child By His Litigation Friend J) v Secretary of State for the Home Department & Anor [2020] EWHC 1299, the High Court found the Home Office’s policy on imposing NRPF under paragraph GEN.1.11A of Appendix FM to be unlawful.
Who does the judgment apply to?
More specifically still, the judgment concerns people granted leave to remain in the UK under paragraph D-LTRPT.1.2 of Appendix FM, in recognition of their family life as a parent.
Such people are granted leave with no recourse to public funds and placed on a ten-year route to settlement. This means that it will take ten years for them to become eligible for indefinite leave to remain. During those ten years, they must renew their visa every 2.5 years. The cost of doing so is currently £2,049.20 per person per renewal, excluding legal fees, and set to increase further from October 2020.
It is possible for destitute people to ask the Home Office to lift the NRPF condition and to waive visa fees, but such applications are onerous, difficult and slow. Even if successful, NRPF-lifting requests must be repeated each time a visa renewal application is made. The cost of renewal places a significant and recurring financial strain on families who are often vulnerable and unable to obtain high-paid work.
What now?
The court ordered the Home Office to publish a revised policy instruction within seven days of the date of the judgment — which gives officials until tomorrow, 28 May.
The new version is expected to clarify that a caseworker is under a duty either not to impose or to lift an NRPF condition if they consider that the applicant is at imminent risk of destitution without recourse to public funds. The practical effect ought to be a lessening of the burden on those applying to have NRPF lifted.
The judgment deals expressly with paragraphs GEN.1.11A and D-LTRPT.1.2. These paragraphs only relate to those granted leave as a parent under Appendix FM. There are many other immigration rules which lead to human rights visas and which result in imposition of an NRPF condition, including those leading to leave as a spouse or based on private life. The private life NRPF rules at paragraph 276A02, for example, mirror those at GEN.1.11A and rely on the same policy instruction.
One would hope that the policy changes implemented as a result of this judgment will be applied across the board and not limited in scope to those granted leave under the parent category. A positive sign in that respect is that the department has already amended an NRPF webpage aimed at everyone, not just parents. We eagerly await the revised instruction.
The High Court has looked further at when details of an asylum claim can be shared in family proceedings. The judgment in R v Secretary of State for the Home Department (No. 2) [2020] EWHC 1036 (Fam) applies previously established principles to a particular set of circumstances. It follows on from a previous hearing in the same case, R v Secretary of State for the Home Department (Disclosure of Asylum Records) [2019] EWHC 3147 (Fam).
01 June 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)
Revised Home Office guidance should make it easier for migrants with family visas to claim benefits if necessary. The change follows a recent High Court decision, along with the wider context of no recourse to public funds (NRPF).
As of today, the updated policy includes the following new paragraph:
"The position in Appendix FM
Paragraph GEN.1.11A provides the basis in the Immigration Rules for exceptions to the wider policy on migrants not having recourse to public funds. In all cases where an applicant has been granted leave, or is seeking leave, under the family or private life routes the NRPF condition must be lifted or not imposed if an applicant is destitute or is at risk of imminent destitution without recourse to public funds."
>>> Civil Legal Aid (Remuneration) (Amendment) (Coronavirus) Regulations 2020 (the Amendment Regulations) are being now challanged.
The Amendment Regulations were laid before parliament on 18 May 2020 and will come into force on 8 June 2020. They are designed to respond to the introduction of a new procedure at the First-tier Tribunal (Immigration and Asylum Chamber) which specifies that immigration and asylum appeals are to be decided by remote hearings where possible, and that Appellants must file and serve a detailed skeleton argument before the Tribunal decides whether a hearing is necessary, and if so, whether that hearing can be carried out remotely using video-link technology.
The Amendment Regulations amend the fee regime for legal aid providers operating under the new Online Tribunal Procedure, but does not adequately reflect the additional work solicitors and barristers must undertake to properly represent their clients. Without consultation, or any apparent evidence base, the amendment increases the likelihood that legal aid providers will be undercompensated for their work and places access to justice at risk.
02 June 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)
>>> Legality of the EU citizen's previous residence in the UK in relation to Nationality applications by the EU citizens
During the three (3 years - if married to a UK citizen)/five year qualifying period an EEA citizen must not have resided in the UK in breach of the UK’s immigration laws. The EEA citizen could be forgiven for assuming that European citizens, with the right to freedom of movement, are unlikely to breach the UK’s immigration laws.
However, EU free movement law has always required economic activity: work, job seeking, study or self-sufficiency. If studying or self-sufficient, you require Comprehensive Sickness Insurance. This is a requirement many were (potentially still are) unaware of and in practice non-compliance is widespread.
The paradoxical nature of the requirement (EU citizens are still entitled to use the NHS) and several controversial refusals in early 2017 led to the legality rule not being applied in the Settlement Scheme context.
But in May 2020, the Home Office confirmed in updated policy guidance that the Comprehensive Sickness Insurance requirement will be applied in the citizenship context. As a result, EU citizens who have not worked in the UK continuously for five years need to have held private health insurance during the three/five year qualifying period. If they do not, they are likely to be refused citizenship.
Can the Home Office do this?
This policy (although unwelcome) appears to me to be lawful. The definition of “breach of immigration laws” is surprisingly broad and includes non-compliance with the Immigration (EEA) Regulations 2016 which implement EU free movement law in the UK. A variety of cases have considered what it means to be in the UK “unlawfully” or “in breach of immigration law”, but cannot override clear statutory wording. Particularly when there has been a power to remove EU citizens who do not comply with EU free movement law since 1994 (albeit one that is rarely exercised).
This requirement will not cause a problem for:
- People who have permanent residence documents already;
- People who have worked for any continuous five year period in the UK and have therefore acquired permanent residence (it does not need to be the same five year qualifying period relied on for the purposes of your citizenship application; a historic period will do as long as you have not subsequently been absent from the UK for two consecutive years);
- People who have been working continuously during the three/five year qualifying period prior to their citizenship application (although an earlier breach may be relevant to the good character requirement which covers the last ten years); and
- People who apply for citizenship in the future, having been granted settled status after five years of pre-settled status.
This requirement will cause a problem for others, who need to rely on a period of study or self-sufficiency but lack Comprehensive Sickness Insurance. They can be granted settled status, but will encounter problems when applying for citizenship.
The Home Office recognizes this problem, and suggests in its guidance to decision makers that discretion may be exercised in an applicant’s favour in appropriate cases:
"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 assessment about whether discretion should be exercised in their favour."
One of the examples of when it may be appropriate to exercise discretion is:
"the breach was because the applicant did not meet an additional/implicit condition of stay, rather than illegal entry or overstaying, such as an EEA or Swiss national not having CSI and can provide sufficient evidence to justify discretion being exercised in their favour.".
It is unclear what the last bit is supposed to mean. Saying “we will exercise discretion when there is sufficient evidence to justify discretion being exercised” is no use to anyone, really. Needless to say, innocent oversight or blissful ignorance will be treated more favourably than wilfully ignoring the requirement.
04 June 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)
>>> No European Convention on Human Rights jurisdiction over humanitarian visa refusal: https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-202468%22]}
The European Court of Human Rights has declined an invitation to extend the jurisdiction of the Convention to cover applications made for a visa to enter a given country and claim asylum. In M.N. and Others v. Belgium (application no. 3599/18), the Strasbourg court ruled that an application brought by a Syrian family living in Lebanon, who had been refused humanitarian visas by the Belgian government, was inadmissible. Therefore the court could not consider their claim that the refusal violated Article 3 ECHR.
This is an important case; the United Kingdom was not even a party but still sent a team of six lawyers including the then Attorney General Geoffrey Cox QC, Sir James Eadie QC and David Blundell QC to defend the Belgian government’s position (!).
As the result of the judgement, it is difficult to avoid the conclusion that the most prudent course of action is for a refugee to illegally enter a signatory state, get well away from the border, and then approach the authorities to claim asylum and rely on Article 3.
11 June 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)
>>> Useful article on what to do if one's BRP is lost abroad
12 June 2020 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org - +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)
The number of immigration appeals decided by the First-tier Tribunal has fallen almost 70% over the past decade, new Home Office statistics show.
The 10 years since the tribunal was set up, replacing the old Immigration Appeals tribunal, has seen the number of cases fall from over 160,000 in its first year of operation to 50,000 last year. Put another way, First-tier Tribunal judges decided less than one third the number of cases in 2019/20 than they did in 2010/11. The number of appeals lodged, rather than decided, follows a similar trend.
The Upper Tribunal has also recorded a record low number in the number of appeals decided, at 5,000 cases. That compares to 7,000 a decade ago and 8-9,000 for most years in between. It is also deciding far fewer judicial review cases than a few years back.
Exactly 50% of all appeals in the First-tier Tribunal succeeded last year, in line with the recent trend. Each of the main categories of appeal — asylum, human rights and EEA free movement — had around the same success rate. In previous years, asylum appeals were more likely to fail than the other types, but all have now converged on close to 50%.
Waiting times for an appeal decision have continued to fall. It used to take a year, but in the last quarter stood at 28 weeks. This is unlikely to survive the coronavirus pandemic.
12 June 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)
>>> Planning Article 10 "visa-free" entry into the UK ? Beware !
"The applicant completes 10 years continuous lawful residence while awaiting a decision of an appeal
A person may complete 10 years continuous lawful residence whilst they are awaiting the outcome of an appeal and submit an application on this basis. Under sections 3C and 3D, it is not possible to submit a new application while an appeal is outstanding. However, the applicant can submit further grounds to be considered at appeal.
If the applicant has an outstanding appeal against a decision to refuse leave to remain or indefinite leave to remain, and submits an application for long residence, you must void the long residence application and refund the fee. You must create a file or sub-file and mark it ‘PRIORITY’. You must send the file or sub-file to the presenting officers unit (POU) dealing with the appeal. You must send a letter to the applicant or their representative informing them their application has been linked with their outstanding appeal. You must use Doc Gen letter ICD.3207 for this purpose.
If the appeal is against a decision to curtail or revoke, and the immigration decision was made on or after 31 August 2006, you must follow the same process but you must use Doc Gen letter ICD.3258."
The Statement states that all appeals to the First-tier Tribunal must be lodged online using the MyHMCTS portal, unless it is not reasonably practicable or the case falls within a list of exceptions.
There are three annexes to the new practice statement:
Directions on cases lodged using MyHMCTS
Different directions on cases not lodged using MyHMCTS
Directions for appellants with no lawyer
17 June 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 confirmed that extended family members need to show there has not been a break in their dependency on their EU citizen sponsor.
The official headnote
"The words “and continues to be dependent” in regulation 8(2)(c) of the Immigration (European Economic Area) Regulation 2006, properly characterised, require an applicant to establish that there has not been a break in their dependency on the EEA national sponsor."
Whats next ?
This decision is likely to have quite a damaging impact on the rights of extended family members. In effect, once you arrive in the UK, you are expected to be immediately dependent or residing with the EU citizen sponsor (even if you are on a different category of visa). That fallacy throws out so many questions:
- What would stop an extended family member from leaving the UK and entering again solely to meet the definition of joining their EU national sponsor and then becoming dependent?
- Does this mean that most other extended family members who are on a different type of visa will be prevented from applying for a residence card from within the UK? Almost all categories of visas would require evidence of having suitable accommodation and being able to maintain oneself without recourse to public funds. If, for example, a foreign national student in London was living here with his parents paying his fees, and he later decides to move in with his EU national brother, he would be prevented from applying because he would not have been able to show dependency or residence with his brother from the moment he arrived in the UK.
- What happens if an extended family member takes up a temporary job for a month and didn’t rely on family support? Would they stop qualifying? What constitutes a “break in dependency”?
And while the judgment is about the EEA Regulations, it also has implications for extended family members who are looking to apply for pre-settled or settled status. Under the rules in Appendix EU, a “dependent relative” needs to have a “relevant document” (basically a residence card or a permanent residence card). Those documents can only be issued under the EEA Regulations — so if prevented from qualifying for them, dependent relatives are essentially shoved out of the EU Settlement Scheme as well.
25 June 2020 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org - +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)
In the case of C‑754/18 Ryanair the Court of Justice of the European Union has concluded that a non-EU national who holds a permanent residence card from one EU state, is under EU law, exempt from any domestic law requirement to hold a visa to enter another EU state. The judgment effectively overrules the Court of Appeal judgment in Ryanair v Secretary of State for the Home Department [2018] EWCA Civ 899.
The CJEU reaches this conclusion despite there being no express provision to this effect in Directive 2004/38: only a residence card is specifically mentioned. This was no barrier to the CJEU, which considered it absurd and counterproductive for one of the benefits of a residence card to be lost when the status is upgraded to permanent residence.
The court also finds that other member states must accept a permanent residence card issued in a different member state as proof that status is genuinely held. This runs contrary to the current Home Office interpretation of the significance of possessing residence documentation issued in EU countries.
The judgment is an important one for airlines and for passengers, given that carrier liability laws were until now effectively forcing airlines to deny boarding to non-EU family members with permanent residence cards and no visa.
In the case of Merca v SSHD [2020] EWHC 1479 (Admin) the High Court ordered the Home Office to release the claimant within four days. One week and two extension of time requests later, the Home Office has now complied with that order.
This was all too quick for the authorities to get organised and unsurprisingly the Home Office applied twice for extensions of time – both times blaming probation. After the second extension application, probation confirmed the address as suitable and the claimant was released.
While not a hugely significant case, it’s encouraging to see the High Court taking a proactive approach to accommodation delays, particularly where probation services are involved. The decision may also be instructive for future “grace period” cases where delays are down to failures in coordination between the Home Office and probation.
15 July 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 COVID19 automatic visa extensions are unlekely to be extended beyond the 31st July 2020:
The new Health and Care Visa for foreign medical workers will open for applications on 4 August 2020, the government has announced.
The visa is not a new route as such, but a species of Tier 2 (General) visa — the announcement comes in a new Part A to the Tier 2 policy guidance, added on 14 July. It is also misnamed in the sense that it is only for “qualified doctors, nurses and allied health professionals who have been trained to a recognised standard” — not for care home workers. The full list of eligible professions is:
"2112 – Biological scientists and biochemists
2113 – Physical Scientists
2211 – Medical Practitioners
2212 – Psychologists
2213 – Pharmacists
2214 – Ophthalmic Opticians
2215 – Dental practitioners
2217 – Medical Radiographers
2218 – Podiatrists
2219 – Health Professionals not elsewhere classified
2221 – Physiotherapists
2222 – Occupational Therapists
2223 – Speech and Language Therapists
2229 – Therapy professionals not elsewhere classified
2231 – Nurses
2232 – Midwives
2442 – Social Workers
3213 – Paramedics
Tier 2 Policy Guidance, Paragraph A3"
To be eligible for a Health and Care Visa, the worker must be offered one of the above jobs, either for an NHS trust / health board or for one of several other medical and social care organisations listed in the guidance, and meet all the usual Tier 2 (General) criteria.
Reduced application fees are promised. The fees table has not yet been updated to say what they are, but the basic application fee has previously been reported as £464. Applicants should also be exempt from the Immigration Health Surcharge.
Decisions are to be fast-tracked, “with the aim that the vast majority are processed within three weeks”.
17 July 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)
>>> English language testing centres in the UK
Some English Testing Centres are resuming services. For more information on how you can book your English Language Test, contact either:
21 July 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 technical point, or ratio, of MZ (Hospital order: whether a ‘foreign criminal’) [2020] UKUT 225 (IAC) is that a hospital order under section 5(1)(b) of the Criminal Procedure (Insanity) Act 1964 is not a criminal conviction for the purposes of the definition of a ‘foreign criminal’ under Part V of the 2002 Act. Given that the sentencing judge explicitly said “This is not a conviction” it seems …surprising*… that officials at the Home Office tried to argue the point.
The official headnote:
"An individual sentenced to a hospital order following a finding under section 5 (1) (b) of the Criminal Procedure (Insanity) Act 1964 that he ‘is under a disability and that he did the act or made the omission charged against him’ is neither subject to section 117C of the 2002 Act (as amended) nor to paragraphs A398-399 of the Immigration Rules. He is excluded from the statutory provisions by section 117D(3)(a) and from the Immigration Rules concerning deportation."
23 July 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)
Details about the visa scheme for British National (Overseas) citizens in Hong Kong have finally been published today in a policy statement.
The key pieces of information published today are that:
- the route will open in January 2021,
- BNO citizens in the UK will be permitted to switch in-country without departing from the UK
- BNOs and their family members arriving at the UK border before January 2021 can be granted “Leave Outside the Rules” for a limited period of six months.
If a BNO’s leave is expiring before the new visa route opens however, they will need to find an alternative way to extend it to bridge the gap. The opening of the route in January does not give permission to BNOs to overstay their current visas in anticipation of making an application. It does however sound like more details may yet be announced for those with imminently expiring visas such as visitors, students, or youth mobility visa holders – possibly an extension of the “Leave Outside the Rules” scheme.
In the case of Ashfaq (Balajigari: appeals) [2020] UKUT 226 (IAC), the Upper Tribunal reiterates its previous findings that First-Tier Tribunal hearings provide appellants with the necessary opportunity to rebut findings of dishonesty by the Home Office. If the Home Office process was unfair, this deficiency is remedied where a right of appeal is granted or conferred.
The case is yet another “tax discrepancy case”, where, like many others, the Appellant was found to be dishonest by the Home Office, having declared differing incomes to the Home Office as opposed to HMRC in a previous application. The application for indefinite leave to remain was then refused, relying on paragraph 322(5) of the Immigration Rules.
The headnote:
"1. If the decision of the Secretary of State carries a right of appeal, the availability of the appeal process corrects the defects of justice identified in Balajigari.
2. In an earnings discrepancy case there is no a priori reason to suppose that any of the declared figures is or was accurate. In particular, the fact that a person is now prepared to pay a sum of money to HMRC does not of itself prove past income at the level claimed.
3. The explanation by any accountant said to have made or contributed to an error is essential because the allegation of error goes to the accountant’s professional standing. Without evidence from the accountant, the Tribunal may consider that the facts laid by the Secretary of State establish the appellant’s dishonesty."
This case does not really provide any further substantial guidance on tax discrepancy cases. However, it does reiterate the need for anyone affected to (1) submit a human rights application wherever possible, to attract a right of appeal; and (2) be prepared to explain why and how they were not being dishonest with their dealings with HMRC and the Home Office, including by asking their accountants to give evidence when they are to be blamed for the income discrepancy.
30 July 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)
>>> Scanned documents and sponsors
The guidance for Tier 2, 4 and 5 sponsors on Covid-19 was also updated:
"You can submit scanned documents as evidence due to the exceptional circumstances of coronavirus. We may write to you to request original or certified documents. Your application will be refused if you do not send us the evidence or documents we ask for and do not contact us to agree an extension within the given time limit.
On-site visits have been suspended due to coronavirus. If we need to visit, we will not decide the application until we are in receipt of the compliance visit report.
These arrangements will apply until 30 September, when they will be reviewed."
03 August 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 MM (section 117B(6) – EU citizen child) Iran [2020] UKUT 224 (IAC ) the Upper Tribunal holds that the seven year rule at section 117B(6) of the 2002 Act (which applies to British children and foreign national children resident for seven years) cannot be read as applying to EU children resident for less than seven years on the basis that it is contrary to the EU prohibition on discrimination between citizens of a Member State and other EU citizens.
The official headnote:
"The definition of “qualifying child” contained in section 117D(1) of the Nationality, Immigration and Asylum Act 2002 does not include an EU citizen child resident in the United Kingdom for less than seven years.
2. The non-inclusion of EU citizen children resident for less than seven years in the definition of “qualifying child” does not breach the EU law prohibition against discrimination on grounds of nationality."
An ambitious argument, but one of which we may hear more given that an appeal seems likely.
In R (BAA & Anor) v Secretary of State for the Home Department (Dublin III: judicial review; SoS’s duties) [2020] UKUT 227 (IAC), the Upper Tribunal takes the opportunity to review Article 17 of the Dublin III Regulation, which provides a general human rights-based discretion for the UK to take responsibility for an asylum claim lodged in another EU country. The Dublin III system is not long for this world so far as Brexit Britain is concerned.
The headnote:
"1) Article 17(2) of Regulation 604/2013 of the European Parliament and of the Council (“Dublin III”) confers a discretion on a Member State to examine an application for international protection “in order to bring together any family relations, on humanitarian grounds, based on family or cultural considerations”. Although the discretion is wide, it is not untrammelled: R (HA & others) (Dublin III; Articles 9 and 17.2) [2018] UKUT 297 (IAC). As in the case of any other discretionary power of the Secretary of State in the immigration field, Article 17(2) must be exercised in an individual’s favour, where to do otherwise would breach the individual’s human rights (or those of some other person), contrary to section 6 of the Human Rights Act 1998.
(2) The Secretary of State’s Article 17(2) decisions are susceptible to “ordinary” or “conventional” judicial review principles, of the kind described by Beatson LJ in ZT (Syria) v SSHD [2016] 1 WLR 4894 as “propriety of purpose, relevancy of considerations and the longstop Wednesbury unreasonableness category” (para 85).
(3) Where a judicial review challenge involves an allegation of violation of an ECHR right, such as Article 8, it is now an established principle of domestic United Kingdom law that the court or tribunal must make its own assessment of the lawfulness of the decision, in human rights terms. If, in order to make that assessment, the court or tribunal needs to make findings of fact, it must do so.
(4) Nothing in paragraphs (1) to (3) above is dependent upon Article 27 (remedies) of Dublin III applying to the facts of the case. Nevertheless, what the Upper Tribunal held in R (MS) (Dublin III; duty to investigate) [2019] UKUT 9 (IAC) regarding the scope of Article 27 is correct and nothing in the Court of Appeal judgments in MS [2019] EWCA Civ 1340 suggests otherwise. The reference to a “transfer decision” in Article 27 encompasses a refusal to take charge of a Dublin III applicant. That includes a refusal to take charge under Article 17(2).
(5) It would be remarkable if the Secretary of State’s investigatory responsibilities were materially narrower in an Article 17(2) case which concerns an unaccompanied minor and his or her best interests, than they would be in respect of any other take-charge request under Dublin III. Where the request under Article 17(2) raises issues that involve an asserted family life within Article 8 ECHR/Article 7 of the Charter of Fundamental Rights, then, in the normal course of events, the Secretary of State’s degree of engagement with the relevant United Kingdom local authority should be no less than in the case of any other unaccompanied minor, where the take-charge request is made under Article 8 of Dublin III on the basis that the relation in the United Kingdom is a sibling or a “family member” or “relative” as defined.
(6) Even in Article 17(2) cases, the principles of procedural fairness may mean that the Secretary of State may be required to provide an indication or gist to an applicant or his alleged United Kingdom relation, of matters of concern that may lead to a refusal to take charge of the applicant: R v SSHD ex parte Fayed [1998] 1 WLR 763; R (Balajigari) v SSHD [2019] 1 WLR 4647. This is, however, an area where one cannot lay down hard and fast rules. Even where Article 8 ECHR is in play, there may be exceptions. Furthermore, the process must not become so elaborate as to defeat the aim of expeditious decision-making, particularly where the best interests of minors are concerned.
(7) The references to “exceptional circumstances” in the Secretary of State’s Dublin III Guidance (18 April 2019) do not render the Guidance unlawful. Those working in the immigration field know that the use of “exceptional” in the context of Article 8 ECHR is not to be used as setting a particular (high) threshold but, rather, as predictive of the outcome of the application of the principles of proportionality to the facts of a particular case. Nothing in the Guidance suggests its author is telling caseworkers to do anything other than follow the settled law on this topic."
05 August 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)
>>> Easier access to benefits for family members of people from Northern Ireland
People from Northern Ireland will soon be able to sponsor non-European family members under the light-touch EU Settlement Scheme. The government has recently passed a separate but related measure: the Social Security (Income-Related Benefits) (Persons of Northern Ireland – Family Members) (Amendment) Regulations 2020. The aim of the regulations is to enable such family members to claim benefits in Great Britain “on broadly the same terms as family members of citizens of the Republic of Ireland”.
An accompanying memo explains:
"Family members of citizens of the Republic of Ireland granted [pre-settled status] under the EU Settlement Scheme can access income-related benefits if the Irish citizen is exercising a qualifying EU treaty right, meaning that they are a worker, self-employed person, self-sufficient person or student, or that they have acquired a right of permanent residence or if they are a family member who has retained a right of residence. This instrument will make amendments so that a family member of a person of Northern Ireland in a comparable situation can also access income-related benefits."
Income-related benefits include Jobseeker’s Allowance, Housing Benefit and Universal Credit. The family member of a “relevant person of Northern Ireland” will be able to rely on pre-settled status granted under Appendix EU as a right to reside. This is provided that, essentially, the Northern Ireland-born sponsor would be considered to be exercising treaty rights if they had been an EU migrant.
The regulations come into force on 24 August 2020, the same date as the new Northern Ireland-specific sponsorship rules.
>>> Government to “redesign” controversial visa algorithm
Earlier this year JCWI, with the help of Foxglove, launched a legal challenge against the Home Office over its use of an algorithmic “streaming tool” that assigned risk categories to visa applications. The tool scored visa applicants for risk based in part on their nationality.
The Home Office confirmed that it would “discontinue” the streaming tool from 7 August and committed to redesigning it.
06 August 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/Vibe
>>> Delayed communication of the Naturalization decisions by the Home Office
The Legal Centre has been made aware of the cases when the Home Office makes a decision in relation to the applicant's Naturalization application (AN, MN1 etc), yet (significantly) delays the communication of the decision to the client/legal representative.
The Home Office needs to be contacted via a dedicated Email address in order to get the decision communicated to the applicant.
Instruction for handling cases which raise the impact of the 2020 COVID-19 pandemic as grounds for not meeting the minimum income requirement in an entry clearance, leave to remain or indefinite leave to remain applications under the family Immigration Rules.
This guidance sets out the approach you must take over defined periods, when deciding a case, to ensure applicants are not disadvantaged as a result of circumstances beyond their control because of COVID-19.
Income received via the Coronavirus Job Retention Scheme or the Coronavirus Self-Employment Income Support Scheme can count as employment or self-employment income. Where there is evidence of a temporary loss of income due to COVID-19 during the period 1 March 2020 and 31 July 2020 you will apply the following concessions:
• a temporary loss of employment income between 1 March and 31 July 2020 due to COVID-19, will be disregarded provided the minimum income requirement was met at the required level for at least 6 months up to March 2020
• an applicant or sponsor furloughed under the Government’s Coronavirus Job Retention Scheme will be deemed as earning 100% of their salary
• a temporary loss of annual income due to COVID-19 between 1 March 2020 and 31 July 2020 will generally be disregarded for self-employment income, along with the impact on employment income from the same period for future applications.
• evidential flexibility may be applied where an applicant or sponsor experiences difficulty accessing specified evidence due to COVID-19 restrictions
11 August 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)
COVID-19 financial requirement concessions have been added. Changes made to reflect need to have permission to disclose Family Court Documents. References to the guidance being applicable only to non-EA family members have been removed.
[align=justify]12 August 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)[/align]
In Pormes v The Netherlands (application no. 25402/14), the European Court of Human Rights has approved the deportation of a man who had lived in the Netherlands between the ages of four and 29, on the basis of multiple convictions for indecent assault.
Mr Pormes had a troubled upbringing. He arrived from Indonesia when he was four after the death of his mother; his father died when he was 11 or 12. At the age of 17, he found out he had been residing in the Netherlands illegally, his father and foster parents not having made an immigration application on his behalf.
He amassed several convictions for indecent assault in his late teens and early 20s, but did not re-offend between December 2007 and his removal from the Netherlands in August 2016.
14 August 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 Johnson v Secretary of State for the Home Department [2020] EWCA Civ 1032, the Court of Appeal has determined that there is no breach of the General Data Protection Regulation involved in hearing human rights appeals from abroad via video link. Mr Johnson was deported to Jamaica in 2017 and mounted an audacious attempt to secure his return to the UK by objecting to this use of his personal data, arguing that his appeal must therefore take place in the UK.
The court dismissed the claim, pointing to the specific GDPR exception for legal proceedings:
"… paragraph 14(3) of schedule 2 provides “as regards personal data … the listed GDPR provisions do not apply to the extent that the application of those provisions would be likely to prejudice … judicial proceedings”. In my judgment preventing the hearing of the appeal would prejudice judicial proceedings, and the restriction of the right to object is necessary and proportionate for the same reasons. Therefore, in my judgment, the appellant is not entitled to object to the processing of his data in the use of video link, and by transferring a bundle to the British High Commission."
The court also accepted assurances from the High Commission that the data would be deleted within seven days of the appeal. Lord Justice Dingemans declined to rule on whether data going to the High Commission amounted to a transfer to a third country, which raised complicated international law issues about the status of embassies and consulates, but decided that it would be proportionate anyway because of the legal proceedings exception.
14 August 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)
>>> Permission granted in JCWI’s challenge to Covid-19 related UT(IAC) guidance (14 August 2020)
Grant of permission
On 6 August 2020 the High Court granted JCWI permission to judicially review Covid-19 related UT(IAC) guidance which creates ‘a strong presumption that error of law appeals in UTIAC will be determined without a hearing’ (§41 of the judgment).
Steyn J held that the challenge raised ‘an important issue warranting consideration at a substantive hearing’. She explained that:
‘I consider the Claimant’s ultra vires argument in respect of the Guidance Note arguable. Secondly, it is also arguable, in my judgment, that paragraph 16 of the Guidance Note is inconsistent with case-law regarding the importance of the interests at stake in determining whether common law fairness requires an oral hearing (see R (Osborn) v Parole Board [2013] UKSC 61), and therefore arguably unlawful in accordance with the principles stated in R (W) v SSHD [2020] EWHC 1299, at [58].’
Next steps
The substantive hearing is likely to be listed for October 2020.
Those already affected by the guidance
In the meantime, recipients of UT(IAC) decisions should consider appealing negative decisions to the Court of Appeal. Steyn J noted the possibility that there have been ‘aberrant decisions and unfairness in individual cases where oral hearings have been refused in circumstances where important interests were at stake for the (original) appellant’. Such cases, ‘would (as the Defendants submitted) raise an important point of principle or practice that would be likely to meet the second appeals test.’ [emphasis added, §46 of the judgment]
The meaning ?
The guidance has brought about a significant change to longstanding practice in appeals of fundamental importance to individual appellants and the State. Whilst we recognise the difficulties the judiciary faced in ensuring the safe administration of justice during the pandemic, we have real concerns that the novel procedure, introduced at speed, does have the ability to create real unfairness.
17 August 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)
>>> Which English language test providers are accepted by the Home Office ?
There has been some changes, with the new English language test providers being added to the list of the acceptable by the Home Office Providers.
19 August 2020 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org - +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)
In the case of Ali (permission decisions: errors; slip rule) Pakistan [2020] UKUT 249 (IAC) the Upper Tribunal has held that there is a process for fixing massive errors in an immigration judge’s decision on permission to appeal — so not just to correct errors in a substantive ruling — and explains what that process is.
The headnote:
"(1) Rule 31 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 and rule 42 of the Tribunal Procedure (Upper Tribunal) Rules 2008 may each be employed in order to correct an error in a decision granting or refusing permission to appeal to the Upper Tribunal. In cases of obvious error, the Upper Tribunal Immigration and Asylum Chamber can, in general, be expected in future to proceed as follows.
(2) Where the First-tier Tribunal permission judge has granted permission when the reasons make it evident they meant to refuse, an Upper Tribunal Judge, acting as a Judge of the First-tier Tribunal, will make the necessary correction under rule 31 of the FtTIAC Rules, as soon as the matter is identified, whether that is at case management stage, as a result of communication from a party, or otherwise. Although the matter can and should (as in the present case) be raised in a rule 24 response from the respondent, it is preferable for it to be addressed earlier, since a hearing may already have been arranged before that response is received.
(3) Where the First-tier Tribunal permission judge refuses permission, but clearly meant to grant it, any renewal of permission before the Upper Tribunal should point out the error and ask for it to be corrected under rule 31. In any event, a party should inform the Upper Tribunal of the mistake.
(4) In the Upper Tribunal, where a judge grants permission when they clearly meant to refuse, the error is unlikely to be identified at a case management stage, if and insofar as that stage is undertaken by the same judge, immediately after their mistaken grant. This highlights the point, emphasised in Isufaj (PTA decisions/reasons: EEA reg. 37 appeal) [2019] UKUT 283 (IAC), that it is the responsibility of the permission judge, whether in the First-tier Tribunal or the Upper Tribunal, to make sure there is no contradiction between their decision and the reasons for it. Otherwise, the points made above in respect of the rule 24 response apply also in this situation.
(5) Where an Upper Tribunal Judge refuses permission to appeal, when they clearly meant to grant it, the decision is an “excluded decision”: section 13(8)(c) of the 2007 Act and cannot be appealed to the appropriate appellate court. A party should, therefore, apply for the Upper Tribunal to exercise its power of correction under rule 42.
(6) The process just described applies only to those cases in which there is a clear and obvious contradiction between the intention of the judge who decided the application for permission and the order made on that application. In any other case, parties should proceed on the basis that the decision is that recorded in the relevant document and the Tribunal is likely to regard it as productive of delay and a waste of its resources to engage in an inter partes process in order to determine whether the slip rule should be applied."
20 August 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)
>>> Useful briefing on changes to Northern Ireland family immigration rules
Changes to family visa rules for people from Northern Ireland come into force on 24 August 2020. The following legal resource might also be useful to understand the current developments: a briefing from the Northern Ireland Human Rights Commission called EU Settlement Scheme extended to the people of NI: what does it mean for me?. It is written by nationality law expert Alison Harvey.
As she points out:
"The time frame for applications from those in the UK is 24 August 2020 to 30 June 2021. Close family members can join you in the UK after 30 June 2021, but only if you were in the UK before 31 December 2020 and the relationship existed before that date, or a child was born or adopted after that date. Those exceptions aside, after 30 June 2021 the scheme closes. EEA nationals and all the people of Northern Ireland will again fall under the immigration rules that apply to British citizens, people settled in the UK and refugees. Carpe diem: seize the day."
These temporary concessions do not address the underlying issue of people born in Northern Ireland having automatic British citizenship, to which some people with an Irish nationalist background object.
25 August 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 case of Advocate General for Scotland v Adiukwu [2020] CSIH 47 answers the question of whether the Home Office has a private law duty to grant a person discretionary leave to remain and issue them with a letter to allow them to take up employment once a tribunal has granted their appeal on human rights grounds. Apparently, it doesn’t.
>>> Settleent application on a visitor's visa from another country is possible, according to the UK BA:
"We’re telling all customers now that if they need to apply in another country due to VAC availability issues or travel problems, they can do and their application will be considered as normal".
27 August 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 so far rejected the majority of EU Settlement Scheme applications that rely on Zambrano rights. New figures show that 770 of the 1,260 Zambrano carers applying for leave to remain under the scheme have been rejected (61%).
Zambrano carers did not have a route to settlement in the UK before the EU Settlement Scheme. But the Home Office insists that potential Zambrano carers must have made an attempt to stay in the UK through the domestic immigration system first, before relying on EU law rights.
The new figures also confirm anecdotal reports of a backlog in specialised applications. Since August 2018 there have been 7,200 applications invoking Zambrano, Surinder Singh, Lounes, Chen and Ibrahim/Teixeira, all of which involve a paper application form rather than the normal online process. Only 2,900 had received a decision by the end of June 2020.
In total there have now been 3.4 million grants of status under the Settlement Scheme, with 50,000 refused, void, invalid or withdrawn.
28 August 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)
01 September 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 Immigration Act 2016 brought about extensive changes to the support available to people on immigration bail. Since those changes came into force in January 2018, tens of thousands of people have struggled against the harsh new system, which has kept many indefinitely detained by the Home Office or has left them homeless with no support.
It is a relief, then, that the High Court in Humnyntskyi v SSHD [2020] EWHC 1912 Admin has put the brakes on the new system, finding that it “does not come close” to a minimum standard of fairness.
In a lengthy judgment, Mr Justice Johnson considered three joined judicial reviews alleging unlawful detention and, in one case, inhuman and degrading treatment under Article 3 of the European Convention on Human Rights (ECHR). After finding in the claimants’ favour in their individual claims, the judge concluded that the system “by some margin” created a risk of unfairness for all those who may be eligible for support under Schedule 10 of the 2016 Act. As the charity Bail for Immigration Detainees (BID) puts it, “this judgment has found the Home Office’s bail accommodation policies and its practices to be individually and systemically unlawful”.
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>>> Part of no recourse to public funds policy declared unlawful: full judgment out - https://www.bailii.org/ew/cases/EWHC/Admin/2020/1299.html
No recourse to public funds (‘NRPF’) is a condition imposed on the majority of UK visa holders preventing them from claiming benefits. In R (W, A Child By His Litigation Friend J) v Secretary of State for the Home Department & Anor [2020] EWHC 1299, the High Court found the Home Office’s policy on imposing NRPF under paragraph GEN.1.11A of Appendix FM to be unlawful.
Who does the judgment apply to?
More specifically still, the judgment concerns people granted leave to remain in the UK under paragraph D-LTRPT.1.2 of Appendix FM, in recognition of their family life as a parent.
Such people are granted leave with no recourse to public funds and placed on a ten-year route to settlement. This means that it will take ten years for them to become eligible for indefinite leave to remain. During those ten years, they must renew their visa every 2.5 years. The cost of doing so is currently £2,049.20 per person per renewal, excluding legal fees, and set to increase further from October 2020.
It is possible for destitute people to ask the Home Office to lift the NRPF condition and to waive visa fees, but such applications are onerous, difficult and slow. Even if successful, NRPF-lifting requests must be repeated each time a visa renewal application is made. The cost of renewal places a significant and recurring financial strain on families who are often vulnerable and unable to obtain high-paid work.
What now?
The court ordered the Home Office to publish a revised policy instruction within seven days of the date of the judgment — which gives officials until tomorrow, 28 May.
The new version is expected to clarify that a caseworker is under a duty either not to impose or to lift an NRPF condition if they consider that the applicant is at imminent risk of destitution without recourse to public funds. The practical effect ought to be a lessening of the burden on those applying to have NRPF lifted.
The judgment deals expressly with paragraphs GEN.1.11A and D-LTRPT.1.2. These paragraphs only relate to those granted leave as a parent under Appendix FM. There are many other immigration rules which lead to human rights visas and which result in imposition of an NRPF condition, including those leading to leave as a spouse or based on private life. The private life NRPF rules at paragraph 276A02, for example, mirror those at GEN.1.11A and rely on the same policy instruction.
One would hope that the policy changes implemented as a result of this judgment will be applied across the board and not limited in scope to those granted leave under the parent category. A positive sign in that respect is that the department has already amended an NRPF webpage aimed at everyone, not just parents. We eagerly await the revised instruction.
>>> Family court judge orders refugee to disclose her asylum records: https://www.bailii.org/ew/cases/EWHC/Fam/2020/1036.html
The High Court has looked further at when details of an asylum claim can be shared in family proceedings. The judgment in R v Secretary of State for the Home Department (No. 2) [2020] EWHC 1036 (Fam) applies previously established principles to a particular set of circumstances. It follows on from a previous hearing in the same case, R v Secretary of State for the Home Department (Disclosure of Asylum Records) [2019] EWHC 3147 (Fam).
>>> Home Office softens no recourse to public funds policy following High Court defeat: https://www.gov.uk/government/publications/family-life-as-a-partner-or-parent-private-life-and-exceptional-circumstance
Revised Home Office guidance should make it easier for migrants with family visas to claim benefits if necessary. The change follows a recent High Court decision, along with the wider context of no recourse to public funds (NRPF).
As of today, the updated policy includes the following new paragraph:
"The position in Appendix FM
Paragraph GEN.1.11A provides the basis in the Immigration Rules for exceptions to the wider policy on migrants not having recourse to public funds. In all cases where an applicant has been granted leave, or is seeking leave, under the family or private life routes the NRPF condition must be lifted or not imposed if an applicant is destitute or is at risk of imminent destitution without recourse to public funds."
>>> Civil Legal Aid (Remuneration) (Amendment) (Coronavirus) Regulations 2020 (the Amendment Regulations) are being now challanged.
The Amendment Regulations were laid before parliament on 18 May 2020 and will come into force on 8 June 2020. They are designed to respond to the introduction of a new procedure at the First-tier Tribunal (Immigration and Asylum Chamber) which specifies that immigration and asylum appeals are to be decided by remote hearings where possible, and that Appellants must file and serve a detailed skeleton argument before the Tribunal decides whether a hearing is necessary, and if so, whether that hearing can be carried out remotely using video-link technology.
The Amendment Regulations amend the fee regime for legal aid providers operating under the new Online Tribunal Procedure, but does not adequately reflect the additional work solicitors and barristers must undertake to properly represent their clients. Without consultation, or any apparent evidence base, the amendment increases the likelihood that legal aid providers will be undercompensated for their work and places access to justice at risk.
>>> Legality of the EU citizen's previous residence in the UK in relation to Nationality applications by the EU citizens
During the three (3 years - if married to a UK citizen)/five year qualifying period an EEA citizen must not have resided in the UK in breach of the UK’s immigration laws. The EEA citizen could be forgiven for assuming that European citizens, with the right to freedom of movement, are unlikely to breach the UK’s immigration laws.
However, EU free movement law has always required economic activity: work, job seeking, study or self-sufficiency. If studying or self-sufficient, you require Comprehensive Sickness Insurance. This is a requirement many were (potentially still are) unaware of and in practice non-compliance is widespread.
The paradoxical nature of the requirement (EU citizens are still entitled to use the NHS) and several controversial refusals in early 2017 led to the legality rule not being applied in the Settlement Scheme context.
But in May 2020, the Home Office confirmed in updated policy guidance that the Comprehensive Sickness Insurance requirement will be applied in the citizenship context. As a result, EU citizens who have not worked in the UK continuously for five years need to have held private health insurance during the three/five year qualifying period. If they do not, they are likely to be refused citizenship.
Can the Home Office do this?
This policy (although unwelcome) appears to me to be lawful. The definition of “breach of immigration laws” is surprisingly broad and includes non-compliance with the Immigration (EEA) Regulations 2016 which implement EU free movement law in the UK. A variety of cases have considered what it means to be in the UK “unlawfully” or “in breach of immigration law”, but cannot override clear statutory wording. Particularly when there has been a power to remove EU citizens who do not comply with EU free movement law since 1994 (albeit one that is rarely exercised).
This requirement will not cause a problem for:
- People who have permanent residence documents already;
- People who have worked for any continuous five year period in the UK and have therefore acquired permanent residence (it does not need to be the same five year qualifying period relied on for the purposes of your citizenship application; a historic period will do as long as you have not subsequently been absent from the UK for two consecutive years);
- People who have been working continuously during the three/five year qualifying period prior to their citizenship application (although an earlier breach may be relevant to the good character requirement which covers the last ten years); and
- People who apply for citizenship in the future, having been granted settled status after five years of pre-settled status.
This requirement will cause a problem for others, who need to rely on a period of study or self-sufficiency but lack Comprehensive Sickness Insurance. They can be granted settled status, but will encounter problems when applying for citizenship.
The Home Office recognizes this problem, and suggests in its guidance to decision makers that discretion may be exercised in an applicant’s favour in appropriate cases:
"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 assessment about whether discretion should be exercised in their favour."
One of the examples of when it may be appropriate to exercise discretion is:
"the breach was because the applicant did not meet an additional/implicit condition of stay, rather than illegal entry or overstaying, such as an EEA or Swiss national not having CSI and can provide sufficient evidence to justify discretion being exercised in their favour.".
It is unclear what the last bit is supposed to mean. Saying “we will exercise discretion when there is sufficient evidence to justify discretion being exercised” is no use to anyone, really. Needless to say, innocent oversight or blissful ignorance will be treated more favourably than wilfully ignoring the requirement.
>>> No European Convention on Human Rights jurisdiction over humanitarian visa refusal: https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-202468%22]}
The European Court of Human Rights has declined an invitation to extend the jurisdiction of the Convention to cover applications made for a visa to enter a given country and claim asylum. In M.N. and Others v. Belgium (application no. 3599/18), the Strasbourg court ruled that an application brought by a Syrian family living in Lebanon, who had been refused humanitarian visas by the Belgian government, was inadmissible. Therefore the court could not consider their claim that the refusal violated Article 3 ECHR.
This is an important case; the United Kingdom was not even a party but still sent a team of six lawyers including the then Attorney General Geoffrey Cox QC, Sir James Eadie QC and David Blundell QC to defend the Belgian government’s position (!).
As the result of the judgement, it is difficult to avoid the conclusion that the most prudent course of action is for a refugee to illegally enter a signatory state, get well away from the border, and then approach the authorities to claim asylum and rely on Article 3.
>>> Useful article on what to do if one's BRP is lost abroad
See https://www.rca.ac.uk/studying-at-the-rca/support/international-student-support/lost-biometric-residence-permit-brp-cards-passports/
>>> UK immigration appeals statistics: https://www.gov.uk/government/statistics/tribunal-statistics-quarterly-january-to-march-2020?utm_source=dafd65c2-8f8d-4f8f-81a6-677b8fb4ed70&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
The number of immigration appeals decided by the First-tier Tribunal has fallen almost 70% over the past decade, new Home Office statistics show.
The 10 years since the tribunal was set up, replacing the old Immigration Appeals tribunal, has seen the number of cases fall from over 160,000 in its first year of operation to 50,000 last year. Put another way, First-tier Tribunal judges decided less than one third the number of cases in 2019/20 than they did in 2010/11. The number of appeals lodged, rather than decided, follows a similar trend.
The Upper Tribunal has also recorded a record low number in the number of appeals decided, at 5,000 cases. That compares to 7,000 a decade ago and 8-9,000 for most years in between. It is also deciding far fewer judicial review cases than a few years back.
Exactly 50% of all appeals in the First-tier Tribunal succeeded last year, in line with the recent trend. Each of the main categories of appeal — asylum, human rights and EEA free movement — had around the same success rate. In previous years, asylum appeals were more likely to fail than the other types, but all have now converged on close to 50%.
Waiting times for an appeal decision have continued to fall. It used to take a year, but in the last quarter stood at 28 weeks. This is unlikely to survive the coronavirus pandemic.
>>> Planning Article 10 "visa-free" entry into the UK ? Beware !
See https://www.tripadvisor.com/ShowTopic-g186216-i15-k12236471-Entering_the_UK_with_a_Article_10_residence_card_A_HOAX-United_Kingdom.html
This is not an isoltaed incident. We have had a number of caller reporting being turned back at the UK borders.
You have been warned.
Unsure of what to do ? The Legal Centre can help and advise you accordingly: https://legalcentre.org/Initial-Consultation.html
>>> I have a pending appeal yet I have now reached the 10 years of lawful residence in the UK. Can I apply for ILR now ?
The long residence Rules: https://www.gov.uk/government/publications/long-residence
The quote:
"The applicant completes 10 years continuous lawful residence while awaiting a decision of an appeal
A person may complete 10 years continuous lawful residence whilst they are awaiting the outcome of an appeal and submit an application on this basis. Under sections 3C and 3D, it is not possible to submit a new application while an appeal is outstanding. However, the applicant can submit further grounds to be considered at appeal.
If the applicant has an outstanding appeal against a decision to refuse leave to remain or indefinite leave to remain, and submits an application for long residence, you must void the long residence application and refund the fee. You must create a file or sub-file and mark it ‘PRIORITY’. You must send the file or sub-file to the presenting officers unit (POU) dealing with the appeal. You must send a letter to the applicant or their representative informing them their application has been linked with their outstanding appeal. You must use Doc Gen letter ICD.3207 for this purpose.
If the appeal is against a decision to curtail or revoke, and the immigration decision was made on or after 31 August 2006, you must follow the same process but you must use Doc Gen letter ICD.3258."
The Statement states that all appeals to the First-tier Tribunal must be lodged online using the MyHMCTS portal, unless it is not reasonably practicable or the case falls within a list of exceptions.
There are three annexes to the new practice statement:
Directions on cases lodged using MyHMCTS
Different directions on cases not lodged using MyHMCTS
Directions for appellants with no lawyer
>>> Extended family members can’t have any breaks in dependency on EU sponsor: https://www.bailii.org/uk/cases/UKUT/IAC/2020/188.html
The Upper Tribunal has confirmed that extended family members need to show there has not been a break in their dependency on their EU citizen sponsor.
The official headnote
"The words “and continues to be dependent” in regulation 8(2)(c) of the Immigration (European Economic Area) Regulation 2006, properly characterised, require an applicant to establish that there has not been a break in their dependency on the EEA national sponsor."
Whats next ?
This decision is likely to have quite a damaging impact on the rights of extended family members. In effect, once you arrive in the UK, you are expected to be immediately dependent or residing with the EU citizen sponsor (even if you are on a different category of visa). That fallacy throws out so many questions:
- What would stop an extended family member from leaving the UK and entering again solely to meet the definition of joining their EU national sponsor and then becoming dependent?
- Does this mean that most other extended family members who are on a different type of visa will be prevented from applying for a residence card from within the UK? Almost all categories of visas would require evidence of having suitable accommodation and being able to maintain oneself without recourse to public funds. If, for example, a foreign national student in London was living here with his parents paying his fees, and he later decides to move in with his EU national brother, he would be prevented from applying because he would not have been able to show dependency or residence with his brother from the moment he arrived in the UK.
- What happens if an extended family member takes up a temporary job for a month and didn’t rely on family support? Would they stop qualifying? What constitutes a “break in dependency”?
And while the judgment is about the EEA Regulations, it also has implications for extended family members who are looking to apply for pre-settled or settled status. Under the rules in Appendix EU, a “dependent relative” needs to have a “relevant document” (basically a residence card or a permanent residence card). Those documents can only be issued under the EEA Regulations — so if prevented from qualifying for them, dependent relatives are essentially shoved out of the EU Settlement Scheme as well.
Обратите внимание !
>>> CJEU: permanent residence card exempts family member from visa requirements: http://curia.europa.eu/juris/document/document.jsf;jsessionid=AA055E2F9BD5C5418C046501FEFD011B?text=&docid=227563&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=5945167
In the case of C‑754/18 Ryanair the Court of Justice of the European Union has concluded that a non-EU national who holds a permanent residence card from one EU state, is under EU law, exempt from any domestic law requirement to hold a visa to enter another EU state. The judgment effectively overrules the Court of Appeal judgment in Ryanair v Secretary of State for the Home Department [2018] EWCA Civ 899.
The CJEU reaches this conclusion despite there being no express provision to this effect in Directive 2004/38: only a residence card is specifically mentioned. This was no barrier to the CJEU, which considered it absurd and counterproductive for one of the benefits of a residence card to be lost when the status is upgraded to permanent residence.
The court also finds that other member states must accept a permanent residence card issued in a different member state as proof that status is genuinely held. This runs contrary to the current Home Office interpretation of the significance of possessing residence documentation issued in EU countries.
The judgment is an important one for airlines and for passengers, given that carrier liability laws were until now effectively forcing airlines to deny boarding to non-EU family members with permanent residence cards and no visa.
>>> Judge intervenes to end Home Office dithering over bail accommodation: https://www.bailii.org/ew/cases/EWHC/Admin/2020/1479.html
In the case of Merca v SSHD [2020] EWHC 1479 (Admin) the High Court ordered the Home Office to release the claimant within four days. One week and two extension of time requests later, the Home Office has now complied with that order.
This was all too quick for the authorities to get organised and unsurprisingly the Home Office applied twice for extensions of time – both times blaming probation. After the second extension application, probation confirmed the address as suitable and the claimant was released.
While not a hugely significant case, it’s encouraging to see the High Court taking a proactive approach to accommodation delays, particularly where probation services are involved. The decision may also be instructive for future “grace period” cases where delays are down to failures in coordination between the Home Office and probation.
>>> The COVID19 automatic visa extensions are unlekely to be extended beyond the 31st July 2020:
>>> Health and Care Visa launches on 4 August 2020:https://www.gov.uk/government/publications/guidance-on-application-for-uk-visa-as-tier-2-worker
The new Health and Care Visa for foreign medical workers will open for applications on 4 August 2020, the government has announced.
The visa is not a new route as such, but a species of Tier 2 (General) visa — the announcement comes in a new Part A to the Tier 2 policy guidance, added on 14 July. It is also misnamed in the sense that it is only for “qualified doctors, nurses and allied health professionals who have been trained to a recognised standard” — not for care home workers. The full list of eligible professions is:
"2112 – Biological scientists and biochemists
2113 – Physical Scientists
2211 – Medical Practitioners
2212 – Psychologists
2213 – Pharmacists
2214 – Ophthalmic Opticians
2215 – Dental practitioners
2217 – Medical Radiographers
2218 – Podiatrists
2219 – Health Professionals not elsewhere classified
2221 – Physiotherapists
2222 – Occupational Therapists
2223 – Speech and Language Therapists
2229 – Therapy professionals not elsewhere classified
2231 – Nurses
2232 – Midwives
2442 – Social Workers
3213 – Paramedics
Tier 2 Policy Guidance, Paragraph A3"
To be eligible for a Health and Care Visa, the worker must be offered one of the above jobs, either for an NHS trust / health board or for one of several other medical and social care organisations listed in the guidance, and meet all the usual Tier 2 (General) criteria.
Reduced application fees are promised. The fees table has not yet been updated to say what they are, but the basic application fee has previously been reported as £464. Applicants should also be exempt from the Immigration Health Surcharge.
Decisions are to be fast-tracked, “with the aim that the vast majority are processed within three weeks”.
>>> English language testing centres in the UK
Some English Testing Centres are resuming services. For more information on how you can book your English Language Test, contact either:
- Trinity College London: https://www.trinitycollege.com/qualifications/SELT/UKVI
- International English Language Testing System (IELTS): https://www.ielts.org/book-a-test/find-a-test-location/location-list/united-kingdom/ukvi
- LanguageCert website: https://www.languagecert.org/uk-visa-exams
- Pearson Test of English: https://pearsonpte.com/
>>> Hospital order not a conviction for purpose of foreign criminal definition: https://www.bailii.org/uk/cases/UKUT/IAC/2020/225.html
The technical point, or ratio, of MZ (Hospital order: whether a ‘foreign criminal’) [2020] UKUT 225 (IAC) is that a hospital order under section 5(1)(b) of the Criminal Procedure (Insanity) Act 1964 is not a criminal conviction for the purposes of the definition of a ‘foreign criminal’ under Part V of the 2002 Act. Given that the sentencing judge explicitly said “This is not a conviction” it seems …surprising*… that officials at the Home Office tried to argue the point.
The official headnote:
"An individual sentenced to a hospital order following a finding under section 5 (1) (b) of the Criminal Procedure (Insanity) Act 1964 that he ‘is under a disability and that he did the act or made the omission charged against him’ is neither subject to section 117C of the 2002 Act (as amended) nor to paragraphs A398-399 of the Immigration Rules. He is excluded from the statutory provisions by section 117D(3)(a) and from the Immigration Rules concerning deportation."
>>> The Hong Kong British National (Overseas) Visa: https://www.gov.uk/government/publications/hong-kong-bno-visa-policy-statement
Details about the visa scheme for British National (Overseas) citizens in Hong Kong have finally been published today in a policy statement.
The key pieces of information published today are that:
- the route will open in January 2021,
- BNO citizens in the UK will be permitted to switch in-country without departing from the UK
- BNOs and their family members arriving at the UK border before January 2021 can be granted “Leave Outside the Rules” for a limited period of six months.
If a BNO’s leave is expiring before the new visa route opens however, they will need to find an alternative way to extend it to bridge the gap. The opening of the route in January does not give permission to BNOs to overstay their current visas in anticipation of making an application. It does however sound like more details may yet be announced for those with imminently expiring visas such as visitors, students, or youth mobility visa holders – possibly an extension of the “Leave Outside the Rules” scheme.
>>> Appeals repair procedural unfairness in tax discrepancy cases: https://www.bailii.org/uk/cases/UKUT/IAC/2020/226.html
In the case of Ashfaq (Balajigari: appeals) [2020] UKUT 226 (IAC), the Upper Tribunal reiterates its previous findings that First-Tier Tribunal hearings provide appellants with the necessary opportunity to rebut findings of dishonesty by the Home Office. If the Home Office process was unfair, this deficiency is remedied where a right of appeal is granted or conferred.
The case is yet another “tax discrepancy case”, where, like many others, the Appellant was found to be dishonest by the Home Office, having declared differing incomes to the Home Office as opposed to HMRC in a previous application. The application for indefinite leave to remain was then refused, relying on paragraph 322(5) of the Immigration Rules.
The headnote:
"1. If the decision of the Secretary of State carries a right of appeal, the availability of the appeal process corrects the defects of justice identified in Balajigari.
2. In an earnings discrepancy case there is no a priori reason to suppose that any of the declared figures is or was accurate. In particular, the fact that a person is now prepared to pay a sum of money to HMRC does not of itself prove past income at the level claimed.
3. The explanation by any accountant said to have made or contributed to an error is essential because the allegation of error goes to the accountant’s professional standing. Without evidence from the accountant, the Tribunal may consider that the facts laid by the Secretary of State establish the appellant’s dishonesty."
This case does not really provide any further substantial guidance on tax discrepancy cases. However, it does reiterate the need for anyone affected to (1) submit a human rights application wherever possible, to attract a right of appeal; and (2) be prepared to explain why and how they were not being dishonest with their dealings with HMRC and the Home Office, including by asking their accountants to give evidence when they are to be blamed for the income discrepancy.
>>> Scanned documents and sponsors
The guidance for Tier 2, 4 and 5 sponsors on Covid-19 was also updated:
"You can submit scanned documents as evidence due to the exceptional circumstances of coronavirus. We may write to you to request original or certified documents. Your application will be refused if you do not send us the evidence or documents we ask for and do not contact us to agree an extension within the given time limit.
On-site visits have been suspended due to coronavirus. If we need to visit, we will not decide the application until we are in receipt of the compliance visit report.
These arrangements will apply until 30 September, when they will be reviewed."
>>> Seven year rule does not apply to EU children until they’ve lived in UK for seven years: https://www.bailii.org/uk/cases/UKUT/IAC/2020/224.html
In MM (section 117B(6) – EU citizen child) Iran [2020] UKUT 224 (IAC ) the Upper Tribunal holds that the seven year rule at section 117B(6) of the 2002 Act (which applies to British children and foreign national children resident for seven years) cannot be read as applying to EU children resident for less than seven years on the basis that it is contrary to the EU prohibition on discrimination between citizens of a Member State and other EU citizens.
The official headnote:
"The definition of “qualifying child” contained in section 117D(1) of the Nationality, Immigration and Asylum Act 2002 does not include an EU citizen child resident in the United Kingdom for less than seven years.
2. The non-inclusion of EU citizen children resident for less than seven years in the definition of “qualifying child” does not breach the EU law prohibition against discrimination on grounds of nationality."
An ambitious argument, but one of which we may hear more given that an appeal seems likely.
>>> Upper Tribunal ruling on discretion to reunite refugee families under Dublin III: https://www.bailii.org/uk/cases/UKUT/IAC/2020/227.html
In R (BAA & Anor) v Secretary of State for the Home Department (Dublin III: judicial review; SoS’s duties) [2020] UKUT 227 (IAC), the Upper Tribunal takes the opportunity to review Article 17 of the Dublin III Regulation, which provides a general human rights-based discretion for the UK to take responsibility for an asylum claim lodged in another EU country. The Dublin III system is not long for this world so far as Brexit Britain is concerned.
The headnote:
"1) Article 17(2) of Regulation 604/2013 of the European Parliament and of the Council (“Dublin III”) confers a discretion on a Member State to examine an application for international protection “in order to bring together any family relations, on humanitarian grounds, based on family or cultural considerations”. Although the discretion is wide, it is not untrammelled: R (HA & others) (Dublin III; Articles 9 and 17.2) [2018] UKUT 297 (IAC). As in the case of any other discretionary power of the Secretary of State in the immigration field, Article 17(2) must be exercised in an individual’s favour, where to do otherwise would breach the individual’s human rights (or those of some other person), contrary to section 6 of the Human Rights Act 1998.
(2) The Secretary of State’s Article 17(2) decisions are susceptible to “ordinary” or “conventional” judicial review principles, of the kind described by Beatson LJ in ZT (Syria) v SSHD [2016] 1 WLR 4894 as “propriety of purpose, relevancy of considerations and the longstop Wednesbury unreasonableness category” (para 85).
(3) Where a judicial review challenge involves an allegation of violation of an ECHR right, such as Article 8, it is now an established principle of domestic United Kingdom law that the court or tribunal must make its own assessment of the lawfulness of the decision, in human rights terms. If, in order to make that assessment, the court or tribunal needs to make findings of fact, it must do so.
(4) Nothing in paragraphs (1) to (3) above is dependent upon Article 27 (remedies) of Dublin III applying to the facts of the case. Nevertheless, what the Upper Tribunal held in R (MS) (Dublin III; duty to investigate) [2019] UKUT 9 (IAC) regarding the scope of Article 27 is correct and nothing in the Court of Appeal judgments in MS [2019] EWCA Civ 1340 suggests otherwise. The reference to a “transfer decision” in Article 27 encompasses a refusal to take charge of a Dublin III applicant. That includes a refusal to take charge under Article 17(2).
(5) It would be remarkable if the Secretary of State’s investigatory responsibilities were materially narrower in an Article 17(2) case which concerns an unaccompanied minor and his or her best interests, than they would be in respect of any other take-charge request under Dublin III. Where the request under Article 17(2) raises issues that involve an asserted family life within Article 8 ECHR/Article 7 of the Charter of Fundamental Rights, then, in the normal course of events, the Secretary of State’s degree of engagement with the relevant United Kingdom local authority should be no less than in the case of any other unaccompanied minor, where the take-charge request is made under Article 8 of Dublin III on the basis that the relation in the United Kingdom is a sibling or a “family member” or “relative” as defined.
(6) Even in Article 17(2) cases, the principles of procedural fairness may mean that the Secretary of State may be required to provide an indication or gist to an applicant or his alleged United Kingdom relation, of matters of concern that may lead to a refusal to take charge of the applicant: R v SSHD ex parte Fayed [1998] 1 WLR 763; R (Balajigari) v SSHD [2019] 1 WLR 4647. This is, however, an area where one cannot lay down hard and fast rules. Even where Article 8 ECHR is in play, there may be exceptions. Furthermore, the process must not become so elaborate as to defeat the aim of expeditious decision-making, particularly where the best interests of minors are concerned.
(7) The references to “exceptional circumstances” in the Secretary of State’s Dublin III Guidance (18 April 2019) do not render the Guidance unlawful. Those working in the immigration field know that the use of “exceptional” in the context of Article 8 ECHR is not to be used as setting a particular (high) threshold but, rather, as predictive of the outcome of the application of the principles of proportionality to the facts of a particular case. Nothing in the Guidance suggests its author is telling caseworkers to do anything other than follow the settled law on this topic."
>>> Easier access to benefits for family members of people from Northern Ireland
People from Northern Ireland will soon be able to sponsor non-European family members under the light-touch EU Settlement Scheme. The government has recently passed a separate but related measure: the Social Security (Income-Related Benefits) (Persons of Northern Ireland – Family Members) (Amendment) Regulations 2020. The aim of the regulations is to enable such family members to claim benefits in Great Britain “on broadly the same terms as family members of citizens of the Republic of Ireland”.
An accompanying memo explains:
"Family members of citizens of the Republic of Ireland granted [pre-settled status] under the EU Settlement Scheme can access income-related benefits if the Irish citizen is exercising a qualifying EU treaty right, meaning that they are a worker, self-employed person, self-sufficient person or student, or that they have acquired a right of permanent residence or if they are a family member who has retained a right of residence. This instrument will make amendments so that a family member of a person of Northern Ireland in a comparable situation can also access income-related benefits."
Income-related benefits include Jobseeker’s Allowance, Housing Benefit and Universal Credit. The family member of a “relevant person of Northern Ireland” will be able to rely on pre-settled status granted under Appendix EU as a right to reside. This is provided that, essentially, the Northern Ireland-born sponsor would be considered to be exercising treaty rights if they had been an EU migrant.
The regulations come into force on 24 August 2020, the same date as the new Northern Ireland-specific sponsorship rules.
>>> Government to “redesign” controversial visa algorithm
Earlier this year JCWI, with the help of Foxglove, launched a legal challenge against the Home Office over its use of an algorithmic “streaming tool” that assigned risk categories to visa applications. The tool scored visa applicants for risk based in part on their nationality.
The Home Office confirmed that it would “discontinue” the streaming tool from 7 August and committed to redesigning it.
>>> Delayed communication of the Naturalization decisions by the Home Office
The Legal Centre has been made aware of the cases when the Home Office makes a decision in relation to the applicant's Naturalization application (AN, MN1 etc), yet (significantly) delays the communication of the decision to the client/legal representative.
The Home Office needs to be contacted via a dedicated Email address in order to get the decision communicated to the applicant.
>>> The Home Office has updated the Appendix FM (Financial Requirement) to cover the COVID19 loss of income etc cases: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwjz9KTlpIbrAhXvQxUIHQ08CYYQFjAAegQIChAB&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/901579/appendix-fm-1-7-financial-requirement-v2.0-gov-uk.pdf&usg=AOvVaw0Mp6AGeTFNQAxLurhR6nv1
See page 69:
Coronavirus (COVID-19) concession
Instruction for handling cases which raise the impact of the 2020 COVID-19 pandemic as grounds for not meeting the minimum income requirement in an entry clearance, leave to remain or indefinite leave to remain applications under the family Immigration Rules.
This guidance sets out the approach you must take over defined periods, when deciding a case, to ensure applicants are not disadvantaged as a result of circumstances beyond their control because of COVID-19.
Income received via the Coronavirus Job Retention Scheme or the Coronavirus Self-Employment Income Support Scheme can count as employment or self-employment income. Where there is evidence of a temporary loss of income due to COVID-19 during the period 1 March 2020 and 31 July 2020 you will apply the following concessions:
• a temporary loss of employment income between 1 March and 31 July 2020 due to COVID-19, will be disregarded provided the minimum income requirement was met at the required level for at least 6 months up to March 2020
• an applicant or sponsor furloughed under the Government’s Coronavirus Job Retention Scheme will be deemed as earning 100% of their salary
• a temporary loss of annual income due to COVID-19 between 1 March 2020 and 31 July 2020 will generally be disregarded for self-employment income, along with the impact on employment income from the same period for future applications.
• evidential flexibility may be applied where an applicant or sponsor experiences difficulty accessing specified evidence due to COVID-19 restrictions
>>> Implementing allowed appeals Guidance: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwjzrPOE_pLrAhUCuRoKHYYNChsQFjAAegQIBRAB&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/906953/Implementing_allowed_appeals.pdf&usg=AOvVaw1fzMjUhBnLtcHUEVlHuopL
First published.
>>> Coronavirus (COVID-19): Tier 4 sponsors, migrants and short-term students Guidance: https://www.gov.uk/government/publications/coronavirus-covid-19-tier-4-sponsors-migrants-and-short-term-students
>>> Family and Personal Migration - Appendix FM 1.7: financial requirement : https://www.gov.uk/government/publications/chapter-8-appendix-fm-family-members
COVID-19 financial requirement concessions have been added. Changes made to reflect need to have permission to disclose Family Court Documents. References to the guidance being applicable only to non-EA family members have been removed.
>>> Appendix FM 1.7a: Adequate maintenance and accommodation : https://www.gov.uk/government/publications/chapter-8-appendix-fm-family-members
>>> English Language requirement: family members : https://www.gov.uk/government/publications/english-language-requirement-family-members/english-language-requirement
Updated.
>>> Knowledge of language and life in the UK : https://www.gov.uk/government/publications/knowledge-of-life-and-language-in-the-uk
Clarified the list of people who do not need to meet the KoLL requirement.
>>> Human rights court approves deportation of man who arrived aged four: https://hudoc.echr.coe.int/eng#{"itemid":["001-203836"]}
In Pormes v The Netherlands (application no. 25402/14), the European Court of Human Rights has approved the deportation of a man who had lived in the Netherlands between the ages of four and 29, on the basis of multiple convictions for indecent assault.
Mr Pormes had a troubled upbringing. He arrived from Indonesia when he was four after the death of his mother; his father died when he was 11 or 12. At the age of 17, he found out he had been residing in the Netherlands illegally, his father and foster parents not having made an immigration application on his behalf.
He amassed several convictions for indecent assault in his late teens and early 20s, but did not re-offend between December 2007 and his removal from the Netherlands in August 2016.
>>> Out of country appeals do not breach GDPR, says Court of Appeal: https://www.bailii.org/ew/cases/EWCA/Civ/2020/1032.html
In Johnson v Secretary of State for the Home Department [2020] EWCA Civ 1032, the Court of Appeal has determined that there is no breach of the General Data Protection Regulation involved in hearing human rights appeals from abroad via video link. Mr Johnson was deported to Jamaica in 2017 and mounted an audacious attempt to secure his return to the UK by objecting to this use of his personal data, arguing that his appeal must therefore take place in the UK.
The court dismissed the claim, pointing to the specific GDPR exception for legal proceedings:
"… paragraph 14(3) of schedule 2 provides “as regards personal data … the listed GDPR provisions do not apply to the extent that the application of those provisions would be likely to prejudice … judicial proceedings”. In my judgment preventing the hearing of the appeal would prejudice judicial proceedings, and the restriction of the right to object is necessary and proportionate for the same reasons. Therefore, in my judgment, the appellant is not entitled to object to the processing of his data in the use of video link, and by transferring a bundle to the British High Commission."
The court also accepted assurances from the High Commission that the data would be deleted within seven days of the appeal. Lord Justice Dingemans declined to rule on whether data going to the High Commission amounted to a transfer to a third country, which raised complicated international law issues about the status of embassies and consulates, but decided that it would be proportionate anyway because of the legal proceedings exception.
>>> Permission granted in JCWI’s challenge to Covid-19 related UT(IAC) guidance (14 August 2020)
Grant of permission
On 6 August 2020 the High Court granted JCWI permission to judicially review Covid-19 related UT(IAC) guidance which creates ‘a strong presumption that error of law appeals in UTIAC will be determined without a hearing’ (§41 of the judgment).
Steyn J held that the challenge raised ‘an important issue warranting consideration at a substantive hearing’. She explained that:
‘I consider the Claimant’s ultra vires argument in respect of the Guidance Note arguable. Secondly, it is also arguable, in my judgment, that paragraph 16 of the Guidance Note is inconsistent with case-law regarding the importance of the interests at stake in determining whether common law fairness requires an oral hearing (see R (Osborn) v Parole Board [2013] UKSC 61), and therefore arguably unlawful in accordance with the principles stated in R (W) v SSHD [2020] EWHC 1299, at [58].’
Next steps
The substantive hearing is likely to be listed for October 2020.
Those already affected by the guidance
In the meantime, recipients of UT(IAC) decisions should consider appealing negative decisions to the Court of Appeal. Steyn J noted the possibility that there have been ‘aberrant decisions and unfairness in individual cases where oral hearings have been refused in circumstances where important interests were at stake for the (original) appellant’. Such cases, ‘would (as the Defendants submitted) raise an important point of principle or practice that would be likely to meet the second appeals test.’ [emphasis added, §46 of the judgment]
The meaning ?
The guidance has brought about a significant change to longstanding practice in appeals of fundamental importance to individual appellants and the State. Whilst we recognise the difficulties the judiciary faced in ensuring the safe administration of justice during the pandemic, we have real concerns that the novel procedure, introduced at speed, does have the ability to create real unfairness.
>>> Which English language test providers are accepted by the Home Office ?
There has been some changes, with the new English language test providers being added to the list of the acceptable by the Home Office Providers.
See https://www.gov.uk/government/publications/english-language-requirement-family-members/english-language-requirement#english-language-test-level-requiredapproved-test-providers
>>> How to use the slip rule to fix a permission to appeal error: https://www.bailii.org/uk/cases/UKUT/IAC/2020/249.html
In the case of Ali (permission decisions: errors; slip rule) Pakistan [2020] UKUT 249 (IAC) the Upper Tribunal has held that there is a process for fixing massive errors in an immigration judge’s decision on permission to appeal — so not just to correct errors in a substantive ruling — and explains what that process is.
The headnote:
"(1) Rule 31 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 and rule 42 of the Tribunal Procedure (Upper Tribunal) Rules 2008 may each be employed in order to correct an error in a decision granting or refusing permission to appeal to the Upper Tribunal. In cases of obvious error, the Upper Tribunal Immigration and Asylum Chamber can, in general, be expected in future to proceed as follows.
(2) Where the First-tier Tribunal permission judge has granted permission when the reasons make it evident they meant to refuse, an Upper Tribunal Judge, acting as a Judge of the First-tier Tribunal, will make the necessary correction under rule 31 of the FtTIAC Rules, as soon as the matter is identified, whether that is at case management stage, as a result of communication from a party, or otherwise. Although the matter can and should (as in the present case) be raised in a rule 24 response from the respondent, it is preferable for it to be addressed earlier, since a hearing may already have been arranged before that response is received.
(3) Where the First-tier Tribunal permission judge refuses permission, but clearly meant to grant it, any renewal of permission before the Upper Tribunal should point out the error and ask for it to be corrected under rule 31. In any event, a party should inform the Upper Tribunal of the mistake.
(4) In the Upper Tribunal, where a judge grants permission when they clearly meant to refuse, the error is unlikely to be identified at a case management stage, if and insofar as that stage is undertaken by the same judge, immediately after their mistaken grant. This highlights the point, emphasised in Isufaj (PTA decisions/reasons: EEA reg. 37 appeal) [2019] UKUT 283 (IAC), that it is the responsibility of the permission judge, whether in the First-tier Tribunal or the Upper Tribunal, to make sure there is no contradiction between their decision and the reasons for it. Otherwise, the points made above in respect of the rule 24 response apply also in this situation.
(5) Where an Upper Tribunal Judge refuses permission to appeal, when they clearly meant to grant it, the decision is an “excluded decision”: section 13(8)(c) of the 2007 Act and cannot be appealed to the appropriate appellate court. A party should, therefore, apply for the Upper Tribunal to exercise its power of correction under rule 42.
(6) The process just described applies only to those cases in which there is a clear and obvious contradiction between the intention of the judge who decided the application for permission and the order made on that application. In any other case, parties should proceed on the basis that the decision is that recorded in the relevant document and the Tribunal is likely to regard it as productive of delay and a waste of its resources to engage in an inter partes process in order to determine whether the slip rule should be applied."
>>> Useful briefing on changes to Northern Ireland family immigration rules
Changes to family visa rules for people from Northern Ireland come into force on 24 August 2020. The following legal resource might also be useful to understand the current developments: a briefing from the Northern Ireland Human Rights Commission called EU Settlement Scheme extended to the people of NI: what does it mean for me?. It is written by nationality law expert Alison Harvey.
As she points out:
"The time frame for applications from those in the UK is 24 August 2020 to 30 June 2021. Close family members can join you in the UK after 30 June 2021, but only if you were in the UK before 31 December 2020 and the relationship existed before that date, or a child was born or adopted after that date. Those exceptions aside, after 30 June 2021 the scheme closes. EEA nationals and all the people of Northern Ireland will again fall under the immigration rules that apply to British citizens, people settled in the UK and refugees. Carpe diem: seize the day."
These temporary concessions do not address the underlying issue of people born in Northern Ireland having automatic British citizenship, to which some people with an Irish nationalist background object.
>>> No Home Office duty of care to migrants hit by delays confirming leave to remain: https://www.bailii.org/scot/cases/ScotCS/2020/2020_CSIH_47.html
The case of Advocate General for Scotland v Adiukwu [2020] CSIH 47 answers the question of whether the Home Office has a private law duty to grant a person discretionary leave to remain and issue them with a letter to allow them to take up employment once a tribunal has granted their appeal on human rights grounds. Apparently, it doesn’t.
>>> Settleent application on a visitor's visa from another country is possible, according to the UK BA:
"We’re telling all customers now that if they need to apply in another country due to VAC availability issues or travel problems, they can do and their application will be considered as normal".
>>> EU Settlement Scheme rejects majority of Zambrano carers: https://www.gov.uk/government/statistics/eu-settlement-scheme-quarterly-statistics-june-2020
The Home Office has so far rejected the majority of EU Settlement Scheme applications that rely on Zambrano rights. New figures show that 770 of the 1,260 Zambrano carers applying for leave to remain under the scheme have been rejected (61%).
Zambrano carers did not have a route to settlement in the UK before the EU Settlement Scheme. But the Home Office insists that potential Zambrano carers must have made an attempt to stay in the UK through the domestic immigration system first, before relying on EU law rights.
The new figures also confirm anecdotal reports of a backlog in specialised applications. Since August 2018 there have been 7,200 applications invoking Zambrano, Surinder Singh, Lounes, Chen and Ibrahim/Teixeira, all of which involve a paper application form rather than the normal online process. Only 2,900 had received a decision by the end of June 2020.
In total there have now been 3.4 million grants of status under the Settlement Scheme, with 50,000 refused, void, invalid or withdrawn.
>>> The Home Office exchange rate policy: https://www.gov.uk/government/publications/exchange-rate-policy
Ever wondered as to why there is a (big) difference between the expected UK BA fee charge and the actual UK BA fee charge ? Now you know.
>>> Bail accommodation system ruled “systemically unfair”: https://www.bailii.org/ew/cases/EWHC/Admin/2020/1912.html
The Immigration Act 2016 brought about extensive changes to the support available to people on immigration bail. Since those changes came into force in January 2018, tens of thousands of people have struggled against the harsh new system, which has kept many indefinitely detained by the Home Office or has left them homeless with no support.
It is a relief, then, that the High Court in Humnyntskyi v SSHD [2020] EWHC 1912 Admin has put the brakes on the new system, finding that it “does not come close” to a minimum standard of fairness.
In a lengthy judgment, Mr Justice Johnson considered three joined judicial reviews alleging unlawful detention and, in one case, inhuman and degrading treatment under Article 3 of the European Convention on Human Rights (ECHR). After finding in the claimants’ favour in their individual claims, the judge concluded that the system “by some margin” created a risk of unfairness for all those who may be eligible for support under Schedule 10 of the 2016 Act. As the charity Bail for Immigration Detainees (BID) puts it, “this judgment has found the Home Office’s bail accommodation policies and its practices to be individually and systemically unlawful”.