10 November 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)
Right to Rent checks can be carried out online and in real time from 25 November 2020 onwards. Under the new scheme, landlords will be able to conduct checks on whether prospective tenants are permitted to rent using a Home Office webpage (NB: It is not live yet).
For now, the online checking service will only be available for EEA nationals and their family members who have been granted status under the EU Settlement Scheme; non-EEA nationals with a biometric residence permit, and Points Based System migrants. For anyone else, documents will still need to be checked manually or by putting in a request to the Landlord Checking Service if they have no documents.
How will it work?
How it works is set out in new guidance for landlords on Right to Rent checks. As with online Right to Work checks, the system involves the prospective tenant giving permission to the prospective landlord to view their Home Office immigration record by providing a “share code”.
Using this share code and the person’s date of birth, the landlord can then log in to the website to check whether the prospective tenant matches the picture shown online. No physical documents are needed, but the guidance is clear that the check itself needs to be done in the presence of the prospective tenant or by video link.
The system should confirm whether the renter has “continuous” or “time-limited” Right to Rent. The landlord will need to retain either a printed or electronic copy of the profile page during the tenancy.
The guidance also warns landlords that: “If you enter into a tenancy agreement with someone on the basis of the online check, but it is reasonably apparent that the person in the photograph on the online service is not the prospective tenant, you may be liable for a penalty if they do not have the right to rent”.
Who does it help?
The Home Office is trying to reduce the “burden” placed on those who, like landlords, are now expected to act as Immigration Enforcement officers. It was because of this burden that the National Residential Landlords Association intervened in the JCWI case challenging Right to Rent.
As noted by the Court of Appeal in its judgment earlier this year, the Right to Rent scheme has led to massive discrimination against migrants across the rental sector. But the court held that the discrimination was justified by the public interest in immigration control. It also held that any adverse effect on individuals was outweighed by the scheme’s “public benefits” in controlling immigration. So for now the scheme remains lawful, at least until the Supreme Court has its say.
The online process will likely make things a lot easier for some of those who have struggled in the rental sector. For computer-literate people whose immigration status is straightforward, this will speed things up considerably. But things remain as tricky as ever for those whose immigration situations aren’t so clear and landlords faced with sanctions and administrative delays will continue to be put off from
renting to them in favour of certain established categories.
12 November 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 2020 has arrived. The new legislation — the full title of which is the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 — passed into law on 11 November 2020.
The Act is much shorter than any of the other Immigration Acts but makes wide-ranging changes to how EU citizens will be treated by immigration law. The government’s stated intention was to pass an Act ending free movement by repealing the domestic legislation which gives effect to EU law immigration rights, paving the way for its new Points-Based Immigration System. The Act also addresses the special situation of Irish citizens.
Repeal of free movement legislation
Section 1 of the Act repeals a long list of provisions which were essential for implementing EU free movement law in UK immigration law. In particular, it repeals:
- Section 7 of the Immigration Act 1988 – this exempted EU nationals from requiring leave to enter and remain.
- Article 1 of the Workers Regulation – this gave EU nationals the right to work in the UK as if they were British citizens.
- All EU-derived rights saved by section 4 of the European Union (Withdrawal) Act 2018 – this had preserved rights which depended on the EU treaties and the UK’s EU law obligations.
Just in case these explicit repeals are insufficient, there is also a general repeal of anything else related to free movement in Schedule 1, paragraph 6:
"Any other EU-derived rights, powers, liabilities, obligations, restrictions, remedies and procedures cease to be recognised and available in domestic law so far as—
(a) they are inconsistent with, or are otherwise capable of affecting the interpretation, application or operation of, any provision made by or under the Immigration Acts (including, and as amended by, this Act), or
(b) they are otherwise capable of affecting the exercise of functions in connection with immigration."
That provision could hardly be any broader and clearly makes sure all aspects of free movement law are taken off the statute book. The government shouldn’t find itself caught out later on by a forgotten provision of EU law which rises from the dead and disrupts the Brexit plan.
But such a broad, unspecific repeal provision undermines legal certainty. The legislation removes any EU law which might get in the way of domestic immigration law. It is impossible for anyone, including the government, to be exactly sure what else is repealed by this provision. The Immigration Law Practitioners’ Association (ILPA) has suggested that the following provisions might have been repealed even though they are not about free movement:
- Protections for victims of trafficking in the Anti-trafficking Directive 2011/36/EU
- Protections for asylum seekers in the Reception Conditions Directive 2013/33/EU
- Protections for victims of crime in the Victims Rights’ Directive 2012/29/EU
The one will only know for certain once a court has considered the status of these pieces of legislation.
Henry VIII powers
At the same time, Parliament has given the government a broad power to make regulations altering primary legislation in connection with free movement. These are known as the “Henry VIII powers”.
Section 4 of the Act provides:
"The Secretary of State may by regulations made by statutory instrument make such provision as the Secretary of State considers appropriate in consequence of, or in connection with, any provision of this Part."
This is the part of the Act which attracted the most criticism during its passage through the House of Commons. The power is not time-limited in any way and can be exercised whenever the government considers it to be “appropriate”, rather than a more limited test such as when it is “necessary”. Moreover, the first set of regulations made under this provision may be passed using the ‘made affirmative’ procedure, which means that they will come into force immediately and only lapse if not approved by both Houses of Parliament. Subsequent regulations will have to be laid in draft form and approved by both Houses before coming force, providing a better albeit still inadequate level of scrutiny.
Again, the problem here is that provision is so broad. It could be used to change any legislation with a “connection” to free movement. As JCWI put it in a briefing before the Act came into force:
"JCWI does not consider it acceptable for the Government to introduce a Bill which does not set out proposals for comprehensive reform to the immigration system, and 2 instead, asks Parliamentarians to vote on a “blank cheque”. The Bill gives the Secretary of State powers to introduce wide-ranging changes to the immigration system without substantive oversight."
The scope of this power will be a matter for the courts and it should be hoped that they will carefully police its use.
Immigration status of Irish citizens
The headline outcome is that the Act preserves the special position of Irish citizens in UK immigration law. Section 2 amends the Immigration Act 1971 to state:
"An Irish citizen does not require leave to enter or remain in the United Kingdom, unless subsection (2), (3) or (4) applies to that citizen."
The exceptions in sub-sections 2, 3 and 4 refer to deportation and exclusion orders, The government stated during the passage of the Act that it intends to maintain its longstanding policy of only deporting Irish nationals where deportation is recommended by a criminal court or there are other exceptional circumstances.
This clarifies the position of Irish nationals coming into the UK from outside the Common Travel Area (Ireland, the UK, Isle of Man and the Channel Islands). Previously, domestic law only exempted Irish nationals from the requirement to have leave to enter and remain if they had entered the UK from within the Common Travel Area. The effect of this was masked while the UK was a member of the EU because all Irish nationals were exempt anyway because of free movement laws. Now that EU free movement law is disappearing there was a risk of an arbitrary difference in the treatment of Irish nationals, which has been avoided by this legislation.
There has been some frustration about the government’s policy on only deporting Irish nationals in exceptional circumstances has not been put into primary legislation. It is currently just a statement of policy and has not been placed in the Immigration Rules either.
The future of the immigration system
Much of the debate both inside and outside Parliament was about two things which form the key context of this Act but are not explicitly mentioned in it.
The first is the Settlement Scheme for EU nationals currently living in the UK. The requirement to submit an application before a given deadline is going to inevitably result in a significant number of people missing out on settled status, creating both severe hardship for those left without any immigration status and a policy problem for the government.
The second is the new Points-Based Immigration System. This Act was necessary to repeal free movement law but it does not contain anything about the new system, which is being introduced using secondary legislation to amend the Immigration Rules in the usual way. Those changes are much less high-profile, but tell the one much more about what the new immigration system will look like than the Immigration Act itself.
16 November 2020 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org - +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)
>>> UK BA advice on collection of Biometric Residence Permits (BRP) for customers arriving from overseas
Customers arriving from overseas, and who have been allocated a BRP, should collect their BRP at their designated collection point at the earliest opportunity upon arrival in the UK unless they are required to quarantine in line with UK government guidance.
Those customers required to quarantine should not collect their BRP until after they have completed this period of isolation.
Customers are reassured that BRPs will be held at their designated collection point for up to 90 days from the start date printed on their vignette and will be available for collection once they have fulfilled any quarantine requirements.
Customers will not face any penalties if they are unable to collect their BRP within ten days of arrival in the UK due to quarantine requirements.
Added a biometric enrolment fee: there is a separate fee of £19.20 for each person requiring biometric enrolment which must be paid in addition to the application fee.
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 RetentionScheme or the CoronavirusSelf-Employment Income Support Scheme can count as employment or self-employment income. Where there is evidenceof a temporary loss of income due to COVID-19 during the period 1 March 2020 and 1 January 2021 you will apply the following concessions:
•a temporary loss of employment income between 1 March and1 January 2021 due to COVID-19, will be disregarded provided the minimum income requirement was met for at least 6months immediately prior to the date the income was lost - this is for a loss of employment income between 1 March 2020 to 1 January 2021 due to COVID-19 an applicant or sponsor furloughed under the Government’s Coronavirus Job Retention Scheme or job support 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 1 January 2021 will generally be disregarded for self-employmentincome, 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
17 November 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)
20 November 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 document from hell just got longer". Now it contains the whapping 246 pages.
First off, the guidance now runs to 246 pages in total. Somehow, they’ve managed to add another 37 pages to what was already a hideously long set of instructions.
Secondly, they’ve divided what was at least a single, easily searchable document into five separate documents:
-Part 1: Apply for a licence
-Part 2: Sponsor a worker – general information
-Part 3: Sponsor duties and compliance
-Sponsor a Skilled Worker
-Sponsor an Intra-Company Worker
For now, it seems that anyone hoping for a more simplified sponsorship system at this point in time will be disappointed and may need professional legal advice (such as from the Legal CEntre, www.legalcentre.org), to pass the "246 hurdles" of the new Guidance
In the recent case of Topadar v Secretary of State for the Home Department [2020] EWCA Civ 1525 the Court of Appeal considers two questions:
1. At what point is an immigration application decided by the Home Office?
2. Is it procedurally unfair for the Home Office to refuse an application due to the applicant’s sponsor (i.e. their employer) failing to provide additional information (without the applicant ever being made aware of the request)?
The answers:
1. When a decision is issued – an administrative review of that decision is not an extension of the decision-making process;
2. No – there is no absolute or universal requirement that the Home Office must give an applicant prior notice of something that might affect the consideration of their application.
21 November 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)
Upper Tribunal immigration appeals during the coronavirus pandemic are unlawful. Mr Justice Fordham held that the President of the Upper Tribunal’s guidance leans too heavily in favour of deciding cases on the papers rather than having a hearing, a situation that is “inconsistent with basic common law requirements”. The tribunal must now write to everyone who lost a paper appeal since 23 March 2020 telling them to seek legal advice. The case is Joint Council for the Welfare of Immigrants v President of the Upper Tribunal (Immigration and Asylum Chamber) [2020] EWHC 3103 (Admin).
23 November 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)
>>> Q & A: EU frontier workers visas in the UK
From the UK BA:
⦁ What is the general thinking around making the permit a type of exemption from immigration control rather than a type of immigration permission?
Frontier workers have rights under the citizens’ rights agreements which means they must continue (as now) to be exempt from the requirement to hold leave to enter or remain in the UK.
⦁ How, if at all, will the COVID pandemic be taken into account when assessing a person’s eligibility for a frontier worker permit? For example we know of individuals who ordinarily travel into the UK for work but have not done so since the lockdown started in March. Will flexibility be given on this?
Guidance for applicants to the scheme who have been affected by illness or travel restrictions due to Covid-19 will be published shortly.
⦁ Can exemption from immigration control as a frontier worker be used for individuals who wish to continue to work or be self-employed in the UK only occasionally in the future, provided their pattern of work or self-employment in the UK meets the definition of not being primarily resident in the UK as set out in The Citizens’ Rights (Frontier Workers) (EU Exit) Regulations 2020 (the frontier worker regulations), reg 3(3)?
We have answered this and your following question together below.
⦁ What will be the minimum amount of previous work/self-employment in the UK that will be accepted when making an initial frontier worker permit application or renewal (if this has already been confirmed), or alternatively, when is guidance on this point expected to be made available? For instance would someone who travels into the UK to work once a month be deemed to be a worker?
Frontier workers must have met (at 11pm 31 December 2020) and continue to meet thereafter all three elements of the definition of frontier worker at Regulation 3. i.e. they are:
⦁ an EEA national;
⦁ not primarily resident in the United Kingdom; and
⦁ either—
1. a worker in the United Kingdom;
2. a self-employed person in the United Kingdom; or
3. a person treated as a worker or self-employed person in the United Kingdom by virtue of regulation 4.
This covers a broad range of economic activities, from people who cross the border every day, to those who come less frequently or for longer periods of time. It includes those whose only work activity is in the UK, and those for whom only part of their overall activity is in the UK.
If an EEA citizen has carried out genuine and effective work in the UK by the end of the transition period whilst residing elsewhere, their rights are protected under the Agreements.
For as long as person continues to meet the definition of frontier worker, they have rights under the agreements. We will publish guidance in due course which will set out in detail who will be considered a worker or self-employed person under the frontier worker scheme.
We will publish guidance in due course which will set out in detail who will be considered a worker or self-employed person under the frontier worker scheme.
⦁ What will be the position for a person who holds a frontier worker permit, but who wishes to come to the UK during the period of its validity for a recreational visit – will they still be able to enter in reliance on the permit?
A frontier worker is only exempt from the need to hold leave to enter or remain in the UK by virtue of their frontier worker rights (i.e. the rights they have as a frontier worker under Part 2 of the Withdrawal Agreement, Part 2 of the EEA EFTA Separation Agreement or Part 2 of the Swiss Citizens’ Rights Agreement). If they wish to come to the UK for a purpose other than work or self-employment, such as a recreational visit they will need leave, for example, as a visitor.
⦁ Will a person who has valid leave under the EU Settlement Scheme be precluded from holding a frontier worker permit? (We think the answer to this is yes but would be grateful for confirmation)
The EU Settlement Scheme provides the necessary leave for those resident in the UK prior to 31 December 2020, whereas frontier workers are required not to be primarily resident in the UK. The two schemes should not overlap in the majority cases.
A person who has valid leave under the EU Settlement Scheme does not need a frontier worker permit to work or be self-employed in the UK as they already have those rights. There is no benefit to the EU Settlement Scheme leave holder in holding a frontier worker permit.
However, a person who has valid leave under the EU Settlement Scheme is not precluded from holding a frontier worker permit where they meet the requirements of The Citizens’ Rights (Frontier Workers) (EU Exit) Regulations 2020.
Similarly, EEA citizens who are frontier working in the UK may have been resident in the UK for sufficient periods in the course of their work here to be eligible for the EU Settlement Scheme.
⦁ Regarding the second query above, we would in particular be interested to know whether a person whose activities in the UK ordinarily fall within the range of activities allowed under the Immigration Rules for business visitors will be considered eligible for a frontier worker permit. We are aware that for some of our clients, some of their time spent in the UK will be of this nature, but it may also extend to productive work on other occasions.
The work a frontier worker carries out in the UK must be ‘genuine and effective’, and not marginal and ancillary to their lifestyle as a whole.
‘Not marginal and ancillary’ means the economic activity carried out in the UK must not involve so little time and money as to be largely irrelevant to the lifestyle of the applicant whilst in the UK. For example, attending an interview or an individual meeting, or taking part in one off competitions or auditions in the UK would not be considered genuine and effective work.
⦁ If there are any other points that the Home Office would like to emphasise to stakeholders about the arrangements for frontier worker permits, please can you also let us know?
Applications for the frontier worker permit scheme will open on 10 December this year. Applications for a frontier worker permit will be made online, and will be simple, streamlined and free of charge.
Until 1 July 2021, protected frontier workers can continue to enter the UK using a valid passport or national identity card. There is no deadline for making applications to the frontier worker permit scheme. However, from the end of the grace period (1 July 2021) frontier workers will be required to hold a valid frontier worker permit in order to evidence their right to enter the UK on this basis.
Irish citizens have a right to enter the UK under existing Common Travel Area arrangements which is independent of their right of admission as a frontier worker. This means Irish citizen frontier workers are not required to obtain a frontier worker permit to come to the UK and work, although they can apply for one if they wish.
24 November 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)
These new regulations follow hard on the heels of the Immigration Act 2020. Where that Act provides for the high-level repeal of EU free movement laws, these regulations make dozens of changes to the plumbing of the immigration system to bring EU migrants fully within its scope. (But they should not affect existing residents with EU Settlement Scheme status, nor Irish citizens - full stop.)
For example, there are various amendments to the laws on getting married in the UK as a foreign national and on sham marriage investigations. Like non-EU citizens today, EU citizens will in future have to give notice at a Register Office if they wish to get married in the UK (even to a British citizen). But as the explanatory memo explains, “Irish citizens and individuals with status under the EUSS (or who have a pending application under the EUSS submitted by the deadline of 30 June 2021) will continue to be exempt”. The change will nonetheless cost the Church of England up to £1.9 million over ten years in lost fees from Reading of the Banns, an alternative to Register Office notification that will now be closed to many Anglican couples.
The Court of Appeal has decided in Alam v Secretary of State for the Home Department [2020] EWCA Civ 1527 that sending a decision letter to a person’s last known address will generally be sufficient proof that the letter has been received. To prove otherwise, it must be shown the letter was intercepted and did not arrive, not merely that the person was unaware of the letter.
The importance of keeping the Home Office up to date
The central lesson remains the same: advising the Home Office when you move address is important.
If the Home Office sends an important letter to an old address, despite you updating them with your new address, they will not be able to get past the first hurdle of showing that the letter was posted to the last known address (as required by the legislation). But if you have not told them your new address, they cannot really be blamed. The burden will fall on you to prove that the letter was not received i.e. not delivered to your last known address. This is likely to be difficult.
You can update your address using this form on the gov.uk website.
26 November 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)
A non-binary gender identity can form the basis of an asylum claim, the Upper Tribunal has expressly confirmed for the first time. The case is Mx M (gender identity – HJ (Iran) – terminology) El Salvador [2020] UKUT 313 (IAC).
The court unanimously found that the UK’s supposedly Article 8 compliant deportation rules don’t preclude judges from following the correct approach to assessing the proportionality of deportation, and that the Upper Tribunal had failed to do so in Mr Unuane’s case (European Court of Human Rights like Unuane v The United Kingdom (application no. 80343/17). ), breaching Article 8.
When is a “false document” not a “false” document? In LLD v Secretary of State for the Home Department [2020] NICA 38, the Court of Appeal in Northern Ireland held that a document cannot itself be dishonest. Dishonesty requires an assessment of the state of mind of the person submitting the document as part of their immigration application.
27 November 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)
Guidance on how UK Visas and Immigration deals with litigation debts owed to the Home Office from applicants.
>>> Can one travel to other EU countries with the new EU Settelment Scheme Biometric Residence Card (BRC) ?
Apparently not, as the Home Office confirm that:
"Please note that a BRC issued under EEA Regulations provides your client with an exemption from the requirement to obtain a visa to travel to another Member State of the European Union. A BRC issued under the EU Settlement Scheme does not, and if your client chooses to exchange their current BRC for a BRC issued under the EU Settlement Scheme, they will be required to apply for a Schengen visa to travel to another EU Member State. They only need to apply to replace their biometric residence card issued under the EEA Regulations when it expires and then only if they intend to travel outside the United Kingdom, as they can rely upon their digital status to prove their right to stay, work or study in the United Kingdom."
27 November 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)
>>> Home Office is experiencing delays in considering outstaidng applications now
From the Home Office:
"Due to Coronavirus restrictions applicants are currently experiencing longer waiter times than normal. However, our 6-month service standard is still in place, and we will be in touch in due course with further information."
02 December 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)
>>> List of the Home Office approve English language test providers:
>>> Farewell to the Comprehensive Medidal Insurance (CSI)? Legal challenges to the Comprehensive Sickness Insurance rule
In reference to certain categories of EEA citizens and their family members (self-sufficient; students)
In 2014, the Court of Appeal held that Comprehensive Sickness Insurance cover was indeed a requirement in the UK as well:
"This condition must be strictly complied with. The fact that [the appellant] would be entitled to treatment under the NHS, and was thus at all times in substantially the same position as she would have been had she had CSIC, is nothing to the point. Her failure to take out CSIC put the host state at risk of having to pay for healthcare at a time when… she was not economically active."
The effect of that decision is that people who needed CSI and didn’t have it were not living in the UK lawfully.
Thankfully the Home Office decided not to enforce the CSI requirement as a condition for getting to stay in the UK post-Brexit (the EU Settlement Scheme). But it does still insist that past periods of residence without CSI will jeopardise a British citizenship application for up to a decade. In addition, people who have not yet applied to the Settlement Scheme continue to be unlawfully resident and, theoretically, subject to removal from the UK.
Is there anything that can be done about this, given the Court of Appeal’s blessing? There is a higher authority on the requirements of EU law, and that is the Court of Justice of the European Union. The European Commission has been making noises about taking a case on CSI to the Court of Justice since at least 2012. But, perhaps for political reasons, it never materialised.
With Brexit a done deal, there is no longer any need to worry about upsetting the Daily Mail by insisting on EU citizens’ rights. Last month, the Commission announced that it had begun “infringement proceedings” against the UK for breach of EU law. The first step in a process that can end up at the Court of Justice is a “letter of formal notice” giving the country in question two months to explain itself or mend its ways.
The Commission’s position is clear:
"In the United Kingdom, EU citizens who are affiliated with the UK public healthcare scheme (NHS) and are entitled to get medical treatment provided by the NHS are not considered as having sufficient sickness insurance. The Commission considers that the UK’s relevant rules are in breach of EU law."
CSI is a running sore when it comes to EU citizens’ rights in the UK. It remains to be seen how many people will be negatively affected by it in practice, but Court of Justice intervention would be reassuring for thousands of people whose legal status in the UK has been rendered unnecessarily complicated.
03 December 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 job skills that qualify for the new UK Skilled Worker visa:
04 December 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)
he government wants to make it much harder to appeal from the tribunal system to the Court of Appeal. The Ministry of Justice is consulting on changes where appeals that have already been heard in both the First-tier and Upper Tribunals in England and Wales would need “reasons of exceptional public interest” to be heard at the next level up. It is also proposing tighter rules on appeals in judicial review cases. The government estimates that the two changes would cull around 600 cases a year from the Court of Appeal’s books.
In Ali v Home Office EW Misc 27 (CC) [2020], the County Court robustly dismissed a false imprisonment claim brought by an Afghan refugee who was detained for 98 days under the Detained Fast Track process in 2015.
07 December 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 handed down a new country guidance decision on draft evaders from Ukraine, PK and OS (basic rules of human conduct) Ukraine CG [2020] UKUT 314 (IAC). The judgment contains important guidance on the relationship between the Refugee Convention and international humanitarian law (IHL), as well as on the present situation in Ukraine.
Both appeals are dismissed on asylum and human rights grounds.
While the legal analysis is helpful in some places, overall the findings will make it difficult for Ukrainian conscientious objectors to succeed in claiming refugee status. PK and OS, who are both Ukrainian draft evaders, may apply for permission to appeal.
09 December 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 list of fees for immigration and nationality applications was updated on 1 December 2020 to reflect the new or rebranded visa routes introduced on that date. The actual amounts are unchanged, though, and indeed application fees have mostly been frozen for the last two years. *But there is a catch: the Immigration Health Surcharge, a separate tax on immigration, has increased sharply.
At the end of 2018, the health surcharge was £200 a year. A spouse applying for permission to remain in the UK would have paid £1,033 in processing fees for permission lasting two and a half years, plus £500 in health surcharge. The health surcharge doubled at the start of 2019 and rose further to £624 a year in October. So by the end of 2020, even with the headline fee staying the same, the total cost of that spouse application has jumped from £1,533 to £2,593 in just two years.
10 December 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)
>>> New Civil Procedure Rules on translating witness statements catch claimant out
In April 2020, the Civil Procedure Rules were updated with significant changes made to the rules about witness statements filed by non-English speakers. The new rules are of obvious interest to any concerned party and Diamond v Secretary of State for the Home Department [2020] EWHC 3313 (Admin) is an early example of the consequences of non-compliance.
The new rules are contained in CPR Practice Directions 22 and 32. They impose several requirements on witness statements filed by non-English speakers:
- The witness statement must be drafted in the witness’s own language rather than English (PD 32 Para 19.1(8))
- The statement of truth must be in the witness’s own language (PD 22 Para 2.4)
- The party relying on the witness statement must file a certified English translation of the statement (PD 32 Para 23.2)
Practice Direction 32 Para 18.1 also states that witness statements should be in the witness’s own intended words. The rules are intended to remove the risk of witnesses signing witness statements that do not reflect what they will actually say and without understanding the significance of the statement of truth.
14 December 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)
Guidance about the Article 10 and 20 residence cards and what they allow holders to do.
Updated the guidance to make it clear that from 1 January 2021, you will not be able to use an Article 10 or Article 20 residence card issued by an EEA member state to enter the UK.
This collection contains immigration staff guidance on EEA and Swiss nationals and EC association agreements.
Added ‘Frontier worker permit scheme caseworker guidance’.
If you’re coming to the UK, you’ll need to prove you have enough money to support yourself and any dependants in the UK. What you need to show depends on the route you’re applying on and your personal circumstances.
Financial requirement figures amended in line with 1 December changes to Immigration Rules.
On 10 December 2020 the Home Office published a statement of changes to the Immigration Rules that appears to be a flagrant breach of the UN Refugee Convention. The purpose of the main change is to:
"Enhance our capacity to treat as inadmissible to the UK asylum system asylum claims made by those who have passed through or have connections with a safe third country."
It does this by changing the rules on inadmissibility in Part 11 of the Rules.
The changes relate to:
- The place of claim: new paragraph 327B sets out a definition for '[A] designated place of asylum claim'.
- The third country inadmissibility rules: the new paragraphs concern safe third counties, including individuals coming from EU Member States. Claims will only be treated as inadmissible if the asylum applicant is accepted for readmission by the third country through which they have travelled or have a connection.
16 December 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 infamous minimum income rule for spouse visas should be reconsidered, the influential Migration Advisory Committee has suggested. The MAC, a crack team of economists that advises the government on immigration policy, says in its annual report:
"We… think now would be an opportune time to reconsider the minimum income requirements associated with this route. The MAC are concerned that previous analysis may have given too much weight to the fiscal contribution of such migrants and insufficient attention to the benefits that accrue, to both the family and society, from the route. In addition, it is a considerable time since the current income requirements were introduced, so more evidence should now be available to review the impact of these requirements."
The “previous analysis” is the MAC’s own 2011 report, giving economic cover for the dramatic rise in the minimum income, required to sponsor someone for a spouse visa that came in the following year. Although the committee can hardly be blamed for the general thrust of the policy, it clearly regrets its past role in designing the nuts and bolts. The MAC can now take the initiative in examining policy areas, so may decide to conduct a review without ministerial direction, although government-commissioned research will take priority and may leave no time for a review of minimum income.
The annual report also points to other policy areas that the MAC reckons are ripe for reform, such as investor visas, social care recruitment and the ban on asylum seekers working.
In the case of Robinson (Jamaica) v Secretary of State for the Home Department [2020] UKSC 53 the Supreme Court has held that there is no “exceptional circumstances” test that applies in EU law to protect a non-EU national carer from deportation. The case involved a Jamaican woman who is the mother of a British citizen child, now aged 12. The woman was imprisoned for a Class A drug supply offence back in 2006 and deportation proceedings began in 2007. She was settled in the UK (i.e. she had indefinite leave to remain), as was her husband.
The United Nations refugee agency, UNHCR, has recently released a new report auditing the Home Office’s procedure for deciding statelessness applications. The audit finds that there is considerable room for improvement in how the UK processes applications to stay in the UK by people who are not considered as nationals by any state in the world.
Guidance for applicants for documentation issued under the Immigration (European Economic Area) Regulations 2016 who have been affected by restrictions associated with coronavirus.
17 December 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)
Today the University of Exeter and Public Law Project released new research drawing on ethnographic observations of 390 asylum appeal hearings, 41 interviews with asylum appellants and 19 interviews with lawyers. Some of the more troubling observations include security guards looking after children; female appellants struggling to disclose essential but sensitive details about rape to a male interpreter; and children overhearing the horrifying details of their parents’ asylum cases.
Each poses a significant threat to the ability of appellants to engage fully and effectively in the appeal process. For each challenge, the report offers a series of recommendations — for a total of 34 — about how to improve fairness and access to justice in this jurisdiction.
18 December 2020 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org - +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)
The Court of Appeal has handed down a ruling that should, if not successfully appealed, make it easier for millions of EU citizens with pre-settled status to claim benefits. The case is Fratila and Tanase v Secretary of State for Work and Pensions [2020] EWCA Civ 1741.
On 15 December 2020 the Home Office published a short guidance document covering absences from the UK connected to COVID-19. It applies to EEA citizens and their family members who have settled or pre-settled status under the EU Settlement Scheme, or those who are eligible but haven’t applied yet.
The guidance is important because many EU citizens have been forced to leave the UK for an extended period in 2020 due to the COVID-19 pandemic. This doesn’t really matter to anyone who has settled status (or qualifies for it): as they have already completed their five-year “continuous qualifying period”, they are entitled to leave the UK for up to five years without their right to live here lapsing.
But the absences from the UK can be important to someone with less than five years of residence: those with pre-settled status (or who qualify for it). If they are absent from the UK for more than six months, they may lose the right to upgrade to settled status if they don’t return to the UK before 31 December 2020. And even if they do return before that date, their continuous qualifying period of five years needed for settled status would be broken — they would need to start a new qualifying period and wait a full five years before being able to upgrade.
Exceptions to the six-month rule
There is a general rule within the Settlement Scheme that:
"a single period of absence of more than 6 months but which does not exceed 12 months is permitted, where this is for an important reason."
Acceptable examples of important reasons are listed in Appendix EU as pregnancy, childbirth, serious illness, study, vocational training or an overseas posting.
But as the Settlement Scheme was launched before the pandemic, this new guidance looks at when a COVID-related absence between six and 12 months will be accepted as an important reason. In other words, what happens if you have pre-settled status and spend, say, eight months of the pandemic outside the UK — can you argue that the circumstances were so important that the extended absence doesn’t break your “continuous qualifying period”?
COVID-19 will be accepted as an “important reason” only in certain, limited circumstances. Unfortunately, situations that are not covered are where a citizen has made a conscious decision to remain abroad for economic reasons, because they wanted to be closer to their family members or because they considered the risk to their health to be greater in the UK than in another country. The guidance only caters for situations where a person is considered to be forced to remain outside the UK due to travel restrictions, quarantine or COVID-19 related health complications. The only minor concession beyond this is for students who are enrolled at British universities but have been allowed to study online; they are considered to have an important reason to be absent for up to 12 months.
The guidance then confirms that an absence that exceeds 12 months will always break the citizen’s continuous qualifying period irrespective of COVID-19.
The pretty limited concession for absences of between six and 12 months is disappointing. The Home Office has been working on its COVID-19 absences policy for months and the outcome is a very short guidance document which does little more than reiterate the conditions that a citizen has to comply with in order to maintain their continuous qualifying residence under the Settlement Scheme. It had been hoped that the policy would provide more wide-ranging concessions, or allow caseworkers more discretion to overlook extended absences if the situation is sufficiently compelling.
19 December 2020 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org - +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)
"If your 30 day or 90 day visa vignette to work, study or join family has expired
If your 90 day vignette has expired, you will need to apply for a replacement by completing the online form. The cost of replacing an expired 90 day vignette is £154 and you will need to make an appointment to resubmit your biometric information.
We strongly advise that you only apply for a new visa, or apply to replace an expired vignette, when you are confident you can travel to the UK. The new vignette will be valid for a period of 90 days. If you cannot travel during this time, you may need to apply again to update your vignette.
If you have submitted an application for a replacement vignette, and are still awaiting a decision, but now no longer intend to travel, you should submit a withdrawal request at the Visa Application Centre that you applied from in order for your passport to be released back to you.
We will continue to replace 30 day vignettes free of charge for eligible customers until 31 December 2020.
To request a replacement 30 day visa you can either:
· contact the Coronavirus Immigration Help Centre
· arrange to return your passport to your VAC if it has re-opened
Contacting the Coronavirus Immigration Help Centre:
You’ll need to include your name, nationality, date of birth and your GWF reference number with ‘REPLACEMENT 30 DAY VISA’ in the subject line. If you’ve already contacted us about this, please let us know in your email.
Contact the Coronavirus Immigration Help Centre.
Please do not travel to the VAC with your passport until you have checked our commercial partner websites for the process in place for re-submitting your passport for your replacement visa, as this may vary depending on your geographical location:
· TLS contact if you’re in Europe, Africa and parts of the Middle East
· VFS global for all other countries
The guidance is different if you applied through an enrolment location operated by Immigration New Zealand."
22 December 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)
23 December 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)
Pending asylum appeals in Scotland can be affected by changes to country guidance right up to the point when they are sent out to the parties to the case, even if the judge has already signed off on his or decision, according to the Upper Tribunal in NRS and Another (NA (Libya) in Scotland) Iraq [2020] UKUT 349 (IAC).
In R (MP) v Secretary of State for Health And Social Care [2020] EWCA Civ 1634, the Court of Appeal upheld the High Court’s decision that there was no need for the government to consult the public before introducing advance charging of overseas visitors for NHS treatment. The High Court had also rejected the argument that the regulations breached the Public Sector Equality Duty and that allegation was not renewed before the Court of Appeal.
The challenge was to 2017 regulations requiring NHS service providers to secure advance payment of the estimated cost of treatment before providing treatment to people who are not entitled to free treatment. There are exemptions for immediately necessary services, such as life-saving emergency treatments and the treatment of pregnant women and newborn babies. But the new regime required advance charging for most other forms of medical treatment.
28 December 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)
>>> How new visa rules on invalidity will create more overstayers
The Home Office recently introduced a set of new validity requirements for visa applications under the Points Based Immigration System, such as the Skilled Worker route. This is significant because an invalid application doesn’t extend your permission to be in the UK while it is being considered (what’s called “section 3C leave”). So if you dutifully apply to extend your visa just before it expires, and the application is later rejected as invalid because you failed to meet a validity requirement, it will be like you never made an application. You’re now an overstayer.
Invalidity can be worse than a refusal
Validity requirements existed before but pretty much all the old ones (in paragraph 34 of the Immigration Rules, which still applies to non-Points Based Immigration System applications) were things that could be rectified. If you paid the wrong application fee, for example, the Home Office would send you a letter giving you two weeks to pay the correct fee. If you did that, your application was validated and considered valid from the date you lodged the application, so you had section 3C leave all along.
The new requirements are category-specific and import what used to be eligibility rules into the validity section. Many are things that cannot be rectified. So if you apply under UK Ancestry and you’re not a Commonwealth citizen, or you are applying in-country and do not already have permission in this category, your application is invalid. There is no way to rectify the failure to meet these two requirements.
Previously, such an application would have been refused on eligibility grounds. But because it was a valid application, section 3C leave meant you had time to work out your next steps — whether to leave the UK to avoid overstaying, or put in a different application. By contrast, you often don’t find out that your application is invalid until after your permission in the UK was due to expire. By the time you get the invalidity letter from the Home Office, you might well have been an overstayer for weeks or months without knowing it.
This will hit applicants who are applying without legal assistance harder than others. We at the Legal Centre (www.legalcentre.org) expects to see increasing numbers of clients who have lodged the wrong application, had it rejected as invalid, and are now overstayers.
But it will affect lawyers as well. If a new client comes to us the day their permission is due to expire, we can’t just fire off an application to trigger section 3C leave and worry about whether they meet all the requirements later. Previously, once we had ensured that our client’s leave was extended pending a decision, we always had the option of varying the application to another category if we discovered that they did not meet the rules for the application that had just gone in. That won’t be an option in circumstances where the initial application is invalid — you cannot vary an invalid application.
How easy is it to fall foul of a validity requirement?
Some of the new validity requirements are tricky. If you apply in the Skilled Worker route and you currently have leave outside the Rules, that’s an invalid application. If a new client shows their lawyer a residence permit endorsed with “leave to remain”, they have no way of knowing just from looking at the permit whether it’s leave outside the Rules.
This makes it more important than ever for employers to do right to work checks on time. An employee could produce evidence that they made an in-time application but it can later turn out to be invalid so they never actually made an application before their permission expired. A timely right to work check will protect the employer if that turns out to be the case.
The Validation, variation and withdrawal of applications guidance has been updated in light of the new category-specific validity requirements and is definitely worth reading. It’s useful to note that if you apply on the wrong form, you will at least be given the chance to rectify that:
"If an applicant has not applied on the correct specified form, you must contact them using the validation warning template ICD 4944 on Doc Gen or the IC and OOC validation reminder on Atlas telling them, (indicating what the correct form is) and give them 10 working days to submit an application on that form."
But when it comes to requirements that cannot be met, even if you were given the opportunity to rectify the error, your application will just be rejected as invalid:
"Where it is clear that the applicant cannot meet the validity requirement, for example, where the applicant did not meet a minimum age requirement or a nationality requirement, and you do not consider it appropriate to exercise discretion (for example if they missed the age requirement by one day), providing a further opportunity to provide evidence that they do meet the requirement would be futile. In these cases you may reject the application without seeking further evidence using the ‘Validation rejection no write out’ template on Atlas."
Is there anything that can be done in such circumstances?
Validity hacks
If one had a case where it became clear that the client wouldn’t meet an unfixable requirement (such as having to be a Commonwealth citizen) after they submitted their application, one would be tempted to put in a covering letter that said, for example, “This is an application for leave outside the Rules”. This might allow the Home Office to treat the application as invalid because the wrong form was used and give the applicant an opportunity to remedy the invalidity by lodging a different form, rather than reject it as irreparably invalid because they’re not a Commonwealth citizen. Note that it is difficut to be sure that this option will work for sure, but if the alternative is invalidity, it might be worth a try.
Of course, if by the time that you discover that one of the validity requirements is not met, the applicant still has permission, the simple solution is just to lodge a different, valid, application before permission expires.
In cases where there is any doubt about whether a validity requirement is met, and expiry of permission is imminent, one approach could be to lodge a different application — one to which the old paragraph 34 validity requirements apply. The one could then vary it to the right application once the one has had the chance to properly assess the validity requirements of that route.
04 December 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)
>>> Home Office floats automatic deportation after six-month sentence
The Home Office may cut the minimum prison sentence required to trigger automatic deportation from 12 months to six months, it emerged over the holidays. The Mail and Times appear to have been briefed independently on the idea, with the former reporting that “the measures are likely to form part of the Sovereign Borders Bill, which is due to be published within the next few months”.
The Court of Appeal has handed down a major judgment on the correct approach to assessing whether a person is a victim of trafficking: MN v Secretary of State for the Home Department [2020] EWCA Civ 1746. Although this was the central question in the case and huge resources were devoted to addressing it, the judgment is of much wider interest for what it says about expert evidence and so-called “credibility”.
The changes came into effect on 31 December 2020, the day that the statement of changes was published, and as summarised in the Explanatory Memorandum the Immigration Rules were amended as follows:
• Implement commitments made in the Temporary Agreement between the Swiss Confederation and the United Kingdom of Great Britain and Northern Ireland on Services Mobility and make changes on Mode IV commitments (the part of a trade agreement which sets out what persons of one party in an agreement can do in the other for the purpose of providing a service) within the UK-EU Trade and Co-Operation Agreement.
• Make changes to Appendix T5 (Temporary Worker) International Agreement Worker to implement commitments on contractual service suppliers and independent professionals in the Temporary Agreement between the Swiss Confederation and the United Kingdom of Great Britain and Northern Ireland on Services Mobility. This agreement requires us to grant entry for up to 12 months and extend our provisions to nationals and permanent residents of Switzerland.
• Make changes to Appendix T5 (Temporary Worker) International Agreement Worker to implement commitments made in the Services chapter of the UK-EU Trade and Co-Operation Agreement on length of stay for European Union contractual service suppliers and independent professionals.
• Amend the Visitor rules to implement the United Kingdom’s commitments on short-term business visitors in the Services chapter of the UK-EU Trade and Co-Operation Agreement.
• Correct a small number of minor drafting errors made in the Statement of Changes to the Immigration Rules (HC 813) laid on 22 October 2020.
0 January 2021 – 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)
>>> Return to the biometric re-use ?
From the ILPA briefing, re: Home Office biometrics re-used (currently suspended for most of the immigration categiries)
"In that meeting, the Home Office provided an operational update. They confirmed that biometric reuse would form part of UKVI’s strategy moving forward. Appointment availability and the conduct of staff (in particular offering legal advice) was discussed. It was agreed that ILPA would continue to act as a conduit for Members' issues. From the end of January, ILPA will have fortnightly meetings with Sopra Steria, where we will continue to press for improvements to their services, in particular regarding appointment availability."
08 January 2021 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org - +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)
>> UK Immigration Rules Simplification - Response to the Review Committee
11 January 2021 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org - +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)
The government has introduced important new rules on the handling of claims for asylum with effect from 1 January 2021. Guidance for Home Office asylum caseworkers was published the day before, on 31 December, fleshing out some of the operational details. What is not in the policy document is as revealing as what is.
The headline is that any person who travelled to the UK through a safe country will have their asylum case declared inadmissible and in theory face removal to any other safe country around the world willing to accept them. The likely reality of what happens in practice is very different: more delays in the asylum process and very few if any third country removals.
The overall impression is that the rules are completely unworkable as they stand, even if there were removal agreements with other countries. Which there are not, and a person cannot be sent to a country of which they are not a citizen without the agreement of that country. The rules build in an automatic period of delay in the processing of new asylum claims and are replete with opportunities for legal challenge. The civil servants who drafted them expect the rules to be “workable” in the sense of removals actually taking place to safe third countries. The rules are about politics and presentation, not governance.
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>>> Online Right to Rent checks launch later this month: https://www.check-right-to-rent.service.gov.uk (not live yet)
Right to Rent checks can be carried out online and in real time from 25 November 2020 onwards. Under the new scheme, landlords will be able to conduct checks on whether prospective tenants are permitted to rent using a Home Office webpage (NB: It is not live yet).
For now, the online checking service will only be available for EEA nationals and their family members who have been granted status under the EU Settlement Scheme; non-EEA nationals with a biometric residence permit, and Points Based System migrants. For anyone else, documents will still need to be checked manually or by putting in a request to the Landlord Checking Service if they have no documents.
How will it work?
How it works is set out in new guidance for landlords on Right to Rent checks. As with online Right to Work checks, the system involves the prospective tenant giving permission to the prospective landlord to view their Home Office immigration record by providing a “share code”.
Using this share code and the person’s date of birth, the landlord can then log in to the website to check whether the prospective tenant matches the picture shown online. No physical documents are needed, but the guidance is clear that the check itself needs to be done in the presence of the prospective tenant or by video link.
The system should confirm whether the renter has “continuous” or “time-limited” Right to Rent. The landlord will need to retain either a printed or electronic copy of the profile page during the tenancy.
The guidance also warns landlords that: “If you enter into a tenancy agreement with someone on the basis of the online check, but it is reasonably apparent that the person in the photograph on the online service is not the prospective tenant, you may be liable for a penalty if they do not have the right to rent”.
Who does it help?
The Home Office is trying to reduce the “burden” placed on those who, like landlords, are now expected to act as Immigration Enforcement officers. It was because of this burden that the National Residential Landlords Association intervened in the JCWI case challenging Right to Rent.
As noted by the Court of Appeal in its judgment earlier this year, the Right to Rent scheme has led to massive discrimination against migrants across the rental sector. But the court held that the discrimination was justified by the public interest in immigration control. It also held that any adverse effect on individuals was outweighed by the scheme’s “public benefits” in controlling immigration. So for now the scheme remains lawful, at least until the Supreme Court has its say.
The online process will likely make things a lot easier for some of those who have struggled in the rental sector. For computer-literate people whose immigration status is straightforward, this will speed things up considerably. But things remain as tricky as ever for those whose immigration situations aren’t so clear and landlords faced with sanctions and administrative delays will continue to be put off from
renting to them in favour of certain established categories.
>>> The Immigration Act 2020: https://services.parliament.uk/bills/2019-21/immigrationandsocialsecuritycoordinationeuwithdrawal.html
The Immigration Act 2020 has arrived. The new legislation — the full title of which is the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 — passed into law on 11 November 2020.
The Act is much shorter than any of the other Immigration Acts but makes wide-ranging changes to how EU citizens will be treated by immigration law. The government’s stated intention was to pass an Act ending free movement by repealing the domestic legislation which gives effect to EU law immigration rights, paving the way for its new Points-Based Immigration System. The Act also addresses the special situation of Irish citizens.
Repeal of free movement legislation
Section 1 of the Act repeals a long list of provisions which were essential for implementing EU free movement law in UK immigration law. In particular, it repeals:
- Section 7 of the Immigration Act 1988 – this exempted EU nationals from requiring leave to enter and remain.
- Article 1 of the Workers Regulation – this gave EU nationals the right to work in the UK as if they were British citizens.
- All EU-derived rights saved by section 4 of the European Union (Withdrawal) Act 2018 – this had preserved rights which depended on the EU treaties and the UK’s EU law obligations.
Just in case these explicit repeals are insufficient, there is also a general repeal of anything else related to free movement in Schedule 1, paragraph 6:
"Any other EU-derived rights, powers, liabilities, obligations, restrictions, remedies and procedures cease to be recognised and available in domestic law so far as—
(a) they are inconsistent with, or are otherwise capable of affecting the interpretation, application or operation of, any provision made by or under the Immigration Acts (including, and as amended by, this Act), or
(b) they are otherwise capable of affecting the exercise of functions in connection with immigration."
That provision could hardly be any broader and clearly makes sure all aspects of free movement law are taken off the statute book. The government shouldn’t find itself caught out later on by a forgotten provision of EU law which rises from the dead and disrupts the Brexit plan.
But such a broad, unspecific repeal provision undermines legal certainty. The legislation removes any EU law which might get in the way of domestic immigration law. It is impossible for anyone, including the government, to be exactly sure what else is repealed by this provision. The Immigration Law Practitioners’ Association (ILPA) has suggested that the following provisions might have been repealed even though they are not about free movement:
- Protections for victims of trafficking in the Anti-trafficking Directive 2011/36/EU
- Protections for asylum seekers in the Reception Conditions Directive 2013/33/EU
- Protections for victims of crime in the Victims Rights’ Directive 2012/29/EU
The one will only know for certain once a court has considered the status of these pieces of legislation.
Henry VIII powers
At the same time, Parliament has given the government a broad power to make regulations altering primary legislation in connection with free movement. These are known as the “Henry VIII powers”.
Section 4 of the Act provides:
"The Secretary of State may by regulations made by statutory instrument make such provision as the Secretary of State considers appropriate in consequence of, or in connection with, any provision of this Part."
This is the part of the Act which attracted the most criticism during its passage through the House of Commons. The power is not time-limited in any way and can be exercised whenever the government considers it to be “appropriate”, rather than a more limited test such as when it is “necessary”. Moreover, the first set of regulations made under this provision may be passed using the ‘made affirmative’ procedure, which means that they will come into force immediately and only lapse if not approved by both Houses of Parliament. Subsequent regulations will have to be laid in draft form and approved by both Houses before coming force, providing a better albeit still inadequate level of scrutiny.
Again, the problem here is that provision is so broad. It could be used to change any legislation with a “connection” to free movement. As JCWI put it in a briefing before the Act came into force:
"JCWI does not consider it acceptable for the Government to introduce a Bill which does not set out proposals for comprehensive reform to the immigration system, and 2 instead, asks Parliamentarians to vote on a “blank cheque”. The Bill gives the Secretary of State powers to introduce wide-ranging changes to the immigration system without substantive oversight."
The scope of this power will be a matter for the courts and it should be hoped that they will carefully police its use.
Immigration status of Irish citizens
The headline outcome is that the Act preserves the special position of Irish citizens in UK immigration law. Section 2 amends the Immigration Act 1971 to state:
"An Irish citizen does not require leave to enter or remain in the United Kingdom, unless subsection (2), (3) or (4) applies to that citizen."
The exceptions in sub-sections 2, 3 and 4 refer to deportation and exclusion orders, The government stated during the passage of the Act that it intends to maintain its longstanding policy of only deporting Irish nationals where deportation is recommended by a criminal court or there are other exceptional circumstances.
This clarifies the position of Irish nationals coming into the UK from outside the Common Travel Area (Ireland, the UK, Isle of Man and the Channel Islands). Previously, domestic law only exempted Irish nationals from the requirement to have leave to enter and remain if they had entered the UK from within the Common Travel Area. The effect of this was masked while the UK was a member of the EU because all Irish nationals were exempt anyway because of free movement laws. Now that EU free movement law is disappearing there was a risk of an arbitrary difference in the treatment of Irish nationals, which has been avoided by this legislation.
There has been some frustration about the government’s policy on only deporting Irish nationals in exceptional circumstances has not been put into primary legislation. It is currently just a statement of policy and has not been placed in the Immigration Rules either.
The future of the immigration system
Much of the debate both inside and outside Parliament was about two things which form the key context of this Act but are not explicitly mentioned in it.
The first is the Settlement Scheme for EU nationals currently living in the UK. The requirement to submit an application before a given deadline is going to inevitably result in a significant number of people missing out on settled status, creating both severe hardship for those left without any immigration status and a policy problem for the government.
The second is the new Points-Based Immigration System. This Act was necessary to repeal free movement law but it does not contain anything about the new system, which is being introduced using secondary legislation to amend the Immigration Rules in the usual way. Those changes are much less high-profile, but tell the one much more about what the new immigration system will look like than the Immigration Act itself.
>>> UK BA advice on collection of Biometric Residence Permits (BRP) for customers arriving from overseas
Customers arriving from overseas, and who have been allocated a BRP, should collect their BRP at their designated collection point at the earliest opportunity upon arrival in the UK unless they are required to quarantine in line with UK government guidance.
Those customers required to quarantine should not collect their BRP until after they have completed this period of isolation.
Customers are reassured that BRPs will be held at their designated collection point for up to 90 days from the start date printed on their vignette and will be available for collection once they have fulfilled any quarantine requirements.
Customers will not face any penalties if they are unable to collect their BRP within ten days of arrival in the UK due to quarantine requirements.
Further details on collecting a BRP can be found here: https://www.gov.uk/biometric-residence-permits/collect
>>> Coronavirus (COVID-19): jobs that qualify for travel exemptions:
https://www.gov.uk/government/publications/coronavirus-covid-19-travellers-exempt-from-uk-border-rules/coronavirus-covid-19-travellers-exempt-from-uk-border-rules
>>> Frontier workers in the UK: rights and status: https://www.gov.uk/guidance/frontier-workers-in-the-uk-rights-and-status?utm_source=d31c2a41-6794-4150-90c2-f38a48a1ad07&utm_medium=email&utm_campaign=govuk-notifications&utm_content=daily
Guidance for frontier workers who want to continue working in the UK or who wish to begin employment in the UK.
>>> Fees for citizenship applications and the right of abode: https://www.gov.uk/government/publications/fees-for-citizenship-applications/fees-for-citizenship-applications-and-the-right-of-abode-from-6-april-2018
Added a biometric enrolment fee: there is a separate fee of £19.20 for each person requiring biometric enrolment which must be paid in addition to the application fee.
>>> Appendix FM guidance: COVID-19 financial requirement update : https://www.gov.uk/government/publications/chapter-8-appendix-fm-family-members?utm_source=62b5c7e4-db58-4d14-b7c2-494d7e5eb2d9&utm_medium=email&utm_campaign=govuk-notifications&utm_content=daily
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 RetentionScheme or the CoronavirusSelf-Employment Income Support Scheme can count as employment or self-employment income. Where there is evidenceof a temporary loss of income due to COVID-19 during the period 1 March 2020 and 1 January 2021 you will apply the following concessions:
•a temporary loss of employment income between 1 March and1 January 2021 due to COVID-19, will be disregarded provided the minimum income requirement was met for at least 6months immediately prior to the date the income was lost - this is for a loss of employment income between 1 March 2020 to 1 January 2021 due to COVID-19 an applicant or sponsor furloughed under the Government’s Coronavirus Job Retention Scheme or job support 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 1 January 2021 will generally be disregarded for self-employmentincome, 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
>>> Replace or correct a UK citizenship certificate: https://www.gov.uk/get-replacement-citizenship-certificate
Guidance on how to replace or correct an error in the Naturalziation certificate
>>> Employers handed 246 pages of guidance on new worker sponsorship system: https://www.gov.uk/government/publications/sponsor-a-tier-2-or-5-worker-guidance-for-employers
"The document from hell just got longer". Now it contains the whapping 246 pages.
First off, the guidance now runs to 246 pages in total. Somehow, they’ve managed to add another 37 pages to what was already a hideously long set of instructions.
Secondly, they’ve divided what was at least a single, easily searchable document into five separate documents:
-Part 1: Apply for a licence
-Part 2: Sponsor a worker – general information
-Part 3: Sponsor duties and compliance
-Sponsor a Skilled Worker
-Sponsor an Intra-Company Worker
For now, it seems that anyone hoping for a more simplified sponsorship system at this point in time will be disappointed and may need professional legal advice (such as from the Legal CEntre, www.legalcentre.org), to pass the "246 hurdles" of the new Guidance
>>> No procedural unfairness in refusing work visa where sponsor doesn’t engage: https://www.bailii.org/ew/cases/EWCA/Civ/2020/1525.html
In the recent case of Topadar v Secretary of State for the Home Department [2020] EWCA Civ 1525 the Court of Appeal considers two questions:
1. At what point is an immigration application decided by the Home Office?
2. Is it procedurally unfair for the Home Office to refuse an application due to the applicant’s sponsor (i.e. their employer) failing to provide additional information (without the applicant ever being made aware of the request)?
The answers:
1. When a decision is issued – an administrative review of that decision is not an extension of the decision-making process;
2. No – there is no absolute or universal requirement that the Home Office must give an applicant prior notice of something that might affect the consideration of their application.
>>> Pandemic rules for immigration appeals declared unlawful: https://www.bailii.org/ew/cases/EWHC/Admin/2020/3103.html
Upper Tribunal immigration appeals during the coronavirus pandemic are unlawful. Mr Justice Fordham held that the President of the Upper Tribunal’s guidance leans too heavily in favour of deciding cases on the papers rather than having a hearing, a situation that is “inconsistent with basic common law requirements”. The tribunal must now write to everyone who lost a paper appeal since 23 March 2020 telling them to seek legal advice. The case is Joint Council for the Welfare of Immigrants v President of the Upper Tribunal (Immigration and Asylum Chamber) [2020] EWHC 3103 (Admin).
>>> Q & A: EU frontier workers visas in the UK
From the UK BA:
⦁ What is the general thinking around making the permit a type of exemption from immigration control rather than a type of immigration permission?
Frontier workers have rights under the citizens’ rights agreements which means they must continue (as now) to be exempt from the requirement to hold leave to enter or remain in the UK.
⦁ How, if at all, will the COVID pandemic be taken into account when assessing a person’s eligibility for a frontier worker permit? For example we know of individuals who ordinarily travel into the UK for work but have not done so since the lockdown started in March. Will flexibility be given on this?
Guidance for applicants to the scheme who have been affected by illness or travel restrictions due to Covid-19 will be published shortly.
⦁ Can exemption from immigration control as a frontier worker be used for individuals who wish to continue to work or be self-employed in the UK only occasionally in the future, provided their pattern of work or self-employment in the UK meets the definition of not being primarily resident in the UK as set out in The Citizens’ Rights (Frontier Workers) (EU Exit) Regulations 2020 (the frontier worker regulations), reg 3(3)?
We have answered this and your following question together below.
⦁ What will be the minimum amount of previous work/self-employment in the UK that will be accepted when making an initial frontier worker permit application or renewal (if this has already been confirmed), or alternatively, when is guidance on this point expected to be made available? For instance would someone who travels into the UK to work once a month be deemed to be a worker?
Frontier workers must have met (at 11pm 31 December 2020) and continue to meet thereafter all three elements of the definition of frontier worker at Regulation 3. i.e. they are:
⦁ an EEA national;
⦁ not primarily resident in the United Kingdom; and
⦁ either—
1. a worker in the United Kingdom;
2. a self-employed person in the United Kingdom; or
3. a person treated as a worker or self-employed person in the United Kingdom by virtue of regulation 4.
This covers a broad range of economic activities, from people who cross the border every day, to those who come less frequently or for longer periods of time. It includes those whose only work activity is in the UK, and those for whom only part of their overall activity is in the UK.
If an EEA citizen has carried out genuine and effective work in the UK by the end of the transition period whilst residing elsewhere, their rights are protected under the Agreements.
For as long as person continues to meet the definition of frontier worker, they have rights under the agreements. We will publish guidance in due course which will set out in detail who will be considered a worker or self-employed person under the frontier worker scheme.
We will publish guidance in due course which will set out in detail who will be considered a worker or self-employed person under the frontier worker scheme.
⦁ What will be the position for a person who holds a frontier worker permit, but who wishes to come to the UK during the period of its validity for a recreational visit – will they still be able to enter in reliance on the permit?
A frontier worker is only exempt from the need to hold leave to enter or remain in the UK by virtue of their frontier worker rights (i.e. the rights they have as a frontier worker under Part 2 of the Withdrawal Agreement, Part 2 of the EEA EFTA Separation Agreement or Part 2 of the Swiss Citizens’ Rights Agreement). If they wish to come to the UK for a purpose other than work or self-employment, such as a recreational visit they will need leave, for example, as a visitor.
⦁ Will a person who has valid leave under the EU Settlement Scheme be precluded from holding a frontier worker permit? (We think the answer to this is yes but would be grateful for confirmation)
The EU Settlement Scheme provides the necessary leave for those resident in the UK prior to 31 December 2020, whereas frontier workers are required not to be primarily resident in the UK. The two schemes should not overlap in the majority cases.
A person who has valid leave under the EU Settlement Scheme does not need a frontier worker permit to work or be self-employed in the UK as they already have those rights. There is no benefit to the EU Settlement Scheme leave holder in holding a frontier worker permit.
However, a person who has valid leave under the EU Settlement Scheme is not precluded from holding a frontier worker permit where they meet the requirements of The Citizens’ Rights (Frontier Workers) (EU Exit) Regulations 2020.
Similarly, EEA citizens who are frontier working in the UK may have been resident in the UK for sufficient periods in the course of their work here to be eligible for the EU Settlement Scheme.
⦁ Regarding the second query above, we would in particular be interested to know whether a person whose activities in the UK ordinarily fall within the range of activities allowed under the Immigration Rules for business visitors will be considered eligible for a frontier worker permit. We are aware that for some of our clients, some of their time spent in the UK will be of this nature, but it may also extend to productive work on other occasions.
The work a frontier worker carries out in the UK must be ‘genuine and effective’, and not marginal and ancillary to their lifestyle as a whole.
‘Not marginal and ancillary’ means the economic activity carried out in the UK must not involve so little time and money as to be largely irrelevant to the lifestyle of the applicant whilst in the UK. For example, attending an interview or an individual meeting, or taking part in one off competitions or auditions in the UK would not be considered genuine and effective work.
⦁ If there are any other points that the Home Office would like to emphasise to stakeholders about the arrangements for frontier worker permits, please can you also let us know?
Applications for the frontier worker permit scheme will open on 10 December this year. Applications for a frontier worker permit will be made online, and will be simple, streamlined and free of charge.
Until 1 July 2021, protected frontier workers can continue to enter the UK using a valid passport or national identity card. There is no deadline for making applications to the frontier worker permit scheme. However, from the end of the grace period (1 July 2021) frontier workers will be required to hold a valid frontier worker permit in order to evidence their right to enter the UK on this basis.
Irish citizens have a right to enter the UK under existing Common Travel Area arrangements which is independent of their right of admission as a frontier worker. This means Irish citizen frontier workers are not required to obtain a frontier worker permit to come to the UK and work, although they can apply for one if they wish.
>>> New regulations to wipe free movement from the statute book: https://www.legislation.gov.uk/uksi/2020/1309/introduction/made
These new regulations follow hard on the heels of the Immigration Act 2020. Where that Act provides for the high-level repeal of EU free movement laws, these regulations make dozens of changes to the plumbing of the immigration system to bring EU migrants fully within its scope. (But they should not affect existing residents with EU Settlement Scheme status, nor Irish citizens - full stop.)
For example, there are various amendments to the laws on getting married in the UK as a foreign national and on sham marriage investigations. Like non-EU citizens today, EU citizens will in future have to give notice at a Register Office if they wish to get married in the UK (even to a British citizen). But as the explanatory memo explains, “Irish citizens and individuals with status under the EUSS (or who have a pending application under the EUSS submitted by the deadline of 30 June 2021) will continue to be exempt”. The change will nonetheless cost the Church of England up to £1.9 million over ten years in lost fees from Reading of the Banns, an alternative to Register Office notification that will now be closed to many Anglican couples.
>>> Court of Appeal reverts to Home Office-friendly approach to service of decision letters: https://www.bailii.org/ew/cases/EWCA/Civ/2020/1527.html
The Court of Appeal has decided in Alam v Secretary of State for the Home Department [2020] EWCA Civ 1527 that sending a decision letter to a person’s last known address will generally be sufficient proof that the letter has been received. To prove otherwise, it must be shown the letter was intercepted and did not arrive, not merely that the person was unaware of the letter.
The importance of keeping the Home Office up to date
The central lesson remains the same: advising the Home Office when you move address is important.
If the Home Office sends an important letter to an old address, despite you updating them with your new address, they will not be able to get past the first hurdle of showing that the letter was posted to the last known address (as required by the legislation). But if you have not told them your new address, they cannot really be blamed. The burden will fall on you to prove that the letter was not received i.e. not delivered to your last known address. This is likely to be difficult.
You can update your address using this form on the gov.uk website.
>>> Non-binary identity can form basis of asylum claim, Upper Tribunal finds: https://www.bailii.org/uk/cases/UKUT/IAC/2020/313.html
A non-binary gender identity can form the basis of an asylum claim, the Upper Tribunal has expressly confirmed for the first time. The case is Mx M (gender identity – HJ (Iran) – terminology) El Salvador [2020] UKUT 313 (IAC).
>>> UK breached European convention in deporting man without proper human rights assessment: https://hudoc.echr.coe.int/eng#{"itemid":["001-205796"]}
The court unanimously found that the UK’s supposedly Article 8 compliant deportation rules don’t preclude judges from following the correct approach to assessing the proportionality of deportation, and that the Upper Tribunal had failed to do so in Mr Unuane’s case (European Court of Human Rights like Unuane v The United Kingdom (application no. 80343/17). ), breaching Article 8.
>>> Appeal judges clash over false document rules: https://www.bailii.org/nie/cases/NICA/2020/38.html
When is a “false document” not a “false” document? In LLD v Secretary of State for the Home Department [2020] NICA 38, the Court of Appeal in Northern Ireland held that a document cannot itself be dishonest. Dishonesty requires an assessment of the state of mind of the person submitting the document as part of their immigration application.
>>> Litigation debt - Home Office/UK Immigration: https://www.gov.uk/government/publications/litigation-debt
Guidance on how UK Visas and Immigration deals with litigation debts owed to the Home Office from applicants.
>>> Can one travel to other EU countries with the new EU Settelment Scheme Biometric Residence Card (BRC) ?
Apparently not, as the Home Office confirm that:
"Please note that a BRC issued under EEA Regulations provides your client with an exemption from the requirement to obtain a visa to travel to another Member State of the European Union. A BRC issued under the EU Settlement Scheme does not, and if your client chooses to exchange their current BRC for a BRC issued under the EU Settlement Scheme, they will be required to apply for a Schengen visa to travel to another EU Member State. They only need to apply to replace their biometric residence card issued under the EEA Regulations when it expires and then only if they intend to travel outside the United Kingdom, as they can rely upon their digital status to prove their right to stay, work or study in the United Kingdom."
>>> Home Office is experiencing delays in considering outstaidng applications now
From the Home Office:
"Due to Coronavirus restrictions applicants are currently experiencing longer waiter times than normal. However, our 6-month service standard is still in place, and we will be in touch in due course with further information."
So many links that it was viable to provide the graphics at this stage, as follows:
>>> List of the Home Office approve English language test providers:
https://www.gov.uk/guidance/prove-your-english-language-abilities-with-a-secure-english-language-test-selt
>>> Farewell to the Comprehensive Medidal Insurance (CSI)? Legal challenges to the Comprehensive Sickness Insurance rule
In reference to certain categories of EEA citizens and their family members (self-sufficient; students)
In 2014, the Court of Appeal held that Comprehensive Sickness Insurance cover was indeed a requirement in the UK as well:
"This condition must be strictly complied with. The fact that [the appellant] would be entitled to treatment under the NHS, and was thus at all times in substantially the same position as she would have been had she had CSIC, is nothing to the point. Her failure to take out CSIC put the host state at risk of having to pay for healthcare at a time when… she was not economically active."
The effect of that decision is that people who needed CSI and didn’t have it were not living in the UK lawfully.
Thankfully the Home Office decided not to enforce the CSI requirement as a condition for getting to stay in the UK post-Brexit (the EU Settlement Scheme). But it does still insist that past periods of residence without CSI will jeopardise a British citizenship application for up to a decade. In addition, people who have not yet applied to the Settlement Scheme continue to be unlawfully resident and, theoretically, subject to removal from the UK.
Is there anything that can be done about this, given the Court of Appeal’s blessing? There is a higher authority on the requirements of EU law, and that is the Court of Justice of the European Union. The European Commission has been making noises about taking a case on CSI to the Court of Justice since at least 2012. But, perhaps for political reasons, it never materialised.
With Brexit a done deal, there is no longer any need to worry about upsetting the Daily Mail by insisting on EU citizens’ rights. Last month, the Commission announced that it had begun “infringement proceedings” against the UK for breach of EU law. The first step in a process that can end up at the Court of Justice is a “letter of formal notice” giving the country in question two months to explain itself or mend its ways.
The Commission’s position is clear:
"In the United Kingdom, EU citizens who are affiliated with the UK public healthcare scheme (NHS) and are entitled to get medical treatment provided by the NHS are not considered as having sufficient sickness insurance. The Commission considers that the UK’s relevant rules are in breach of EU law."
CSI is a running sore when it comes to EU citizens’ rights in the UK. It remains to be seen how many people will be negatively affected by it in practice, but Court of Justice intervention would be reassuring for thousands of people whose legal status in the UK has been rendered unnecessarily complicated.
>>> The job skills that qualify for the new UK Skilled Worker visa:
- https://www.gov.uk/guidance/immigration-rules/immigration-rules-appendix-skilled-occupations
- https://www.gov.uk/guidance/immigration-rules/immigration-rules-appendix-shortage-occupation-list
A nanny/child minder can now come to work in the UK, for example.
>>> Number of immigration cases heard by the Court of Appeal to be radically cut: https://www.gov.uk/government/consultations/reforms-to-arrangements-for-obtaining-permission-to-the-court-of-appeal
he government wants to make it much harder to appeal from the tribunal system to the Court of Appeal. The Ministry of Justice is consulting on changes where appeals that have already been heard in both the First-tier and Upper Tribunals in England and Wales would need “reasons of exceptional public interest” to be heard at the next level up. It is also proposing tighter rules on appeals in judicial review cases. The government estimates that the two changes would cull around 600 cases a year from the Court of Appeal’s books.
>>> County Court takes dim view of Fast Track detainee’s false imprisonment claim: https://www.bailii.org/ew/cases/Misc/2020/27.html
In Ali v Home Office EW Misc 27 (CC) [2020], the County Court robustly dismissed a false imprisonment claim brought by an Afghan refugee who was detained for 98 days under the Detained Fast Track process in 2015.
>>> Important Upper Tribunal judgment on draft evaders and Ukraine: https://www.bailii.org/uk/cases/UKUT/IAC/2020/314.html
The Upper Tribunal has handed down a new country guidance decision on draft evaders from Ukraine, PK and OS (basic rules of human conduct) Ukraine CG [2020] UKUT 314 (IAC). The judgment contains important guidance on the relationship between the Refugee Convention and international humanitarian law (IHL), as well as on the present situation in Ukraine.
Both appeals are dismissed on asylum and human rights grounds.
While the legal analysis is helpful in some places, overall the findings will make it difficult for Ukrainian conscientious objectors to succeed in claiming refugee status. PK and OS, who are both Ukrainian draft evaders, may apply for permission to appeal.
>>> Immigration and nationality fees remain unchanged* for 2020/21: https://www.gov.uk/government/publications/visa-regulations-revised-table/home-office-immigration-and-nationality-fees-6-april-2020
The list of fees for immigration and nationality applications was updated on 1 December 2020 to reflect the new or rebranded visa routes introduced on that date. The actual amounts are unchanged, though, and indeed application fees have mostly been frozen for the last two years. *But there is a catch: the Immigration Health Surcharge, a separate tax on immigration, has increased sharply.
At the end of 2018, the health surcharge was £200 a year. A spouse applying for permission to remain in the UK would have paid £1,033 in processing fees for permission lasting two and a half years, plus £500 in health surcharge. The health surcharge doubled at the start of 2019 and rose further to £624 a year in October. So by the end of 2020, even with the headline fee staying the same, the total cost of that spouse application has jumped from £1,533 to £2,593 in just two years.
>>> New Civil Procedure Rules on translating witness statements catch claimant out
In April 2020, the Civil Procedure Rules were updated with significant changes made to the rules about witness statements filed by non-English speakers. The new rules are of obvious interest to any concerned party and Diamond v Secretary of State for the Home Department [2020] EWHC 3313 (Admin) is an early example of the consequences of non-compliance.
The new rules are contained in CPR Practice Directions 22 and 32. They impose several requirements on witness statements filed by non-English speakers:
- The witness statement must be drafted in the witness’s own language rather than English (PD 32 Para 19.1(8))
- The statement of truth must be in the witness’s own language (PD 22 Para 2.4)
- The party relying on the witness statement must file a certified English translation of the statement (PD 32 Para 23.2)
Practice Direction 32 Para 18.1 also states that witness statements should be in the witness’s own intended words. The rules are intended to remove the risk of witnesses signing witness statements that do not reflect what they will actually say and without understanding the significance of the statement of truth.
>>> Entering the UK as the holder of an Article 10 or 20 residence card: https://www.gov.uk/government/publications/entering-the-uk-as-the-holder-of-an-article-10-residence-card?utm_source=13a39da7-8f59-4e3b-af19-b5cae37dbdcd&utm_medium=email&utm_campaign=govuk-notifications&utm_content=daily
Guidance about the Article 10 and 20 residence cards and what they allow holders to do.
Updated the guidance to make it clear that from 1 January 2021, you will not be able to use an Article 10 or Article 20 residence card issued by an EEA member state to enter the UK.
>>> EEA, Swiss nationals and EC association agreements (immigration staff guidance): https://www.gov.uk/government/collections/eea-swiss-nationals-and-ec-association-agreements-modernised-guidance?utm_source=ff00e966-d970-4a0f-93b2-29c6c4c9cf7b&utm_medium=email&utm_campaign=govuk-notifications&utm_content=daily
This collection contains immigration staff guidance on EEA and Swiss nationals and EC association agreements.
Added ‘Frontier worker permit scheme caseworker guidance’.
>>> Visiting the UK from 1 January 2021: https://www.gov.uk/guidance/visiting-the-uk-from-1-january-2021?utm_source=e8a99d30-a356-481c-a268-b5daee52fbd5&utm_medium=email&utm_campaign=govuk-notifications&utm_content=daily
What you need to know about crossing the UK border and visiting the UK from 1 January 2021.
You will not be able to use the List of Travellers scheme to visit the UK from 1 October 2021.
>>> Sponsorship: guidance for employers and educators: https://www.gov.uk/government/collections/sponsorship-information-for-employers-and-educators?utm_source=2a0e8be5-ea28-4849-b0a8-01256838d941&utm_medium=email&utm_campaign=govuk-notifications&utm_content=daily
Information for student and worker sponsors, including full policy guidance, using the sponsorship management system and how to get help.
Guidance and links need to be updated to reflect changes to the Immigration Rules which came into effect on 1 December 2020.
>>> Financial evidence for Student and Child Student route applicants: https://www.gov.uk/guidance/financial-evidence-for-student-and-child-student-route-applicants?utm_source=b2b53184-4d81-43a0-868d-235b846cde0e&utm_medium=email&utm_campaign=govuk-notifications&utm_content=daily
If you’re coming to the UK, you’ll need to prove you have enough money to support yourself and any dependants in the UK. What you need to show depends on the route you’re applying on and your personal circumstances.
Financial requirement figures amended in line with 1 December changes to Immigration Rules.
>>> COVID19 and the UK Immigration Rules
Exceptional assurance application guidance updated: https://www.gov.uk/guidance/coronavirus-covid-19-advice-for-uk-visa-applicants-and-temporary-uk-residents?utm_source=743eeee3-c07c-4470-afa9-789028d338ef&utm_medium=email&utm_campaign=govuk-notifications&utm_content=daily
>>> Suitability: previous breach of UK immigration laws (immigration staff guidance): https://www.gov.uk/government/publications/suitability-previous-breach-of-uk-immigration-laws-immigration-staff-guidance?utm_source=d9f45e86-7225-4946-9931-dea952e904e3&utm_medium=email&utm_campaign=govuk-notifications&utm_content=daily
First published
>>> Visiting the UK: information for EU, EEA and Swiss citizens: https://www.gov.uk/guidance/visiting-the-uk-after-brexit?utm_source=57287ab1-770a-4fdf-83d8-0b1e50a3d263&utm_medium=email&utm_campaign=govuk-notifications&utm_content=daily
What you need to know about crossing the UK border and visiting the UK from 1 February 2020.
>>> New statement of changes to the Immigration Rules: HC 1043: https://www.gov.uk/government/publications/statement-of-changes-to-the-immigration-rules-hc-1043-10-december-2020
On 10 December 2020 the Home Office published a statement of changes to the Immigration Rules that appears to be a flagrant breach of the UN Refugee Convention. The purpose of the main change is to:
"Enhance our capacity to treat as inadmissible to the UK asylum system asylum claims made by those who have passed through or have connections with a safe third country."
It does this by changing the rules on inadmissibility in Part 11 of the Rules.
The changes relate to:
- The place of claim: new paragraph 327B sets out a definition for '[A] designated place of asylum claim'.
- The third country inadmissibility rules: the new paragraphs concern safe third counties, including individuals coming from EU Member States. Claims will only be treated as inadmissible if the asylum applicant is accepted for readmission by the third country through which they have travelled or have a connection.
>>>Time to revisit spouse visa minimum income rule, government advisers suggest: https://www.gov.uk/government/publications/migration-advisory-committee-annual-report-2020
The infamous minimum income rule for spouse visas should be reconsidered, the influential Migration Advisory Committee has suggested. The MAC, a crack team of economists that advises the government on immigration policy, says in its annual report:
"We… think now would be an opportune time to reconsider the minimum income requirements associated with this route. The MAC are concerned that previous analysis may have given too much weight to the fiscal contribution of such migrants and insufficient attention to the benefits that accrue, to both the family and society, from the route. In addition, it is a considerable time since the current income requirements were introduced, so more evidence should now be available to review the impact of these requirements."
The “previous analysis” is the MAC’s own 2011 report, giving economic cover for the dramatic rise in the minimum income, required to sponsor someone for a spouse visa that came in the following year. Although the committee can hardly be blamed for the general thrust of the policy, it clearly regrets its past role in designing the nuts and bolts. The MAC can now take the initiative in examining policy areas, so may decide to conduct a review without ministerial direction, although government-commissioned research will take priority and may leave no time for a review of minimum income.
The annual report also points to other policy areas that the MAC reckons are ripe for reform, such as investor visas, social care recruitment and the ban on asylum seekers working.
>>> Supreme Court: no additional “exceptional circumstances” test in Zambrano deportation cases: http://www.bailii.org/uk/cases/UKSC/2020/53.html
In the case of Robinson (Jamaica) v Secretary of State for the Home Department [2020] UKSC 53 the Supreme Court has held that there is no “exceptional circumstances” test that applies in EU law to protect a non-EU national carer from deportation. The case involved a Jamaican woman who is the mother of a British citizen child, now aged 12. The woman was imprisoned for a Class A drug supply offence back in 2006 and deportation proceedings began in 2007. She was settled in the UK (i.e. she had indefinite leave to remain), as was her husband.
>>> Expert report finds room for improvement in UK’s statelessness system: https://www.unhcr.org/uk/5fd893304
The United Nations refugee agency, UNHCR, has recently released a new report auditing the Home Office’s procedure for deciding statelessness applications. The audit finds that there is considerable room for improvement in how the UK processes applications to stay in the UK by people who are not considered as nationals by any state in the world.
>>> Coronavirus (COVID-19): EU Settlement Scheme - guidance for applicants: https://www.gov.uk/guidance/coronavirus-covid-19-eu-settlement-scheme-guidance-for-applicants
Guidance for EUSS applicants in or outside the UK who have been affected by restrictions associated with coronavirus.
>>> Coronavirus (COVID-19): Immigration (European Economic Area) Regulations 2016 - guidance for applicants: https://www.gov.uk/guidance/coronavirus-covid-19-immigration-european-economic-area-regulations-2016-guidance-for-applicants
Guidance for applicants for documentation issued under the Immigration (European Economic Area) Regulations 2016 who have been affected by restrictions associated with coronavirus.
>>> New research: 34 ways to improve asylum appeals: https://publiclawproject.org.uk/resources/experiencing-asylum-appeals/
Today the University of Exeter and Public Law Project released new research drawing on ethnographic observations of 390 asylum appeal hearings, 41 interviews with asylum appellants and 19 interviews with lawyers. Some of the more troubling observations include security guards looking after children; female appellants struggling to disclose essential but sensitive details about rape to a male interpreter; and children overhearing the horrifying details of their parents’ asylum cases.
Each poses a significant threat to the ability of appellants to engage fully and effectively in the appeal process. For each challenge, the report offers a series of recommendations — for a total of 34 — about how to improve fairness and access to justice in this jurisdiction.
>>> Court of Appeal bombshell: EU citizens with pre-settled status CAN claim benefits: https://files.gcnchambers.co.uk/wp-content/uploads/2020/12/18111043/Fratila-v-Secretary-of-State-for-Work-and-Pensions-2020-EWCA-1741-18-December-2020.pdf
The Court of Appeal has handed down a ruling that should, if not successfully appealed, make it easier for millions of EU citizens with pre-settled status to claim benefits. The case is Fratila and Tanase v Secretary of State for Work and Pensions [2020] EWCA Civ 1741.
>>> How do Covid-related absences from the UK affect EU settled status? https://www.gov.uk/guidance/coronavirus-covid-19-eu-settlement-scheme-guidance-for-applicants
On 15 December 2020 the Home Office published a short guidance document covering absences from the UK connected to COVID-19. It applies to EEA citizens and their family members who have settled or pre-settled status under the EU Settlement Scheme, or those who are eligible but haven’t applied yet.
The guidance is important because many EU citizens have been forced to leave the UK for an extended period in 2020 due to the COVID-19 pandemic. This doesn’t really matter to anyone who has settled status (or qualifies for it): as they have already completed their five-year “continuous qualifying period”, they are entitled to leave the UK for up to five years without their right to live here lapsing.
But the absences from the UK can be important to someone with less than five years of residence: those with pre-settled status (or who qualify for it). If they are absent from the UK for more than six months, they may lose the right to upgrade to settled status if they don’t return to the UK before 31 December 2020. And even if they do return before that date, their continuous qualifying period of five years needed for settled status would be broken — they would need to start a new qualifying period and wait a full five years before being able to upgrade.
Exceptions to the six-month rule
There is a general rule within the Settlement Scheme that:
"a single period of absence of more than 6 months but which does not exceed 12 months is permitted, where this is for an important reason."
Acceptable examples of important reasons are listed in Appendix EU as pregnancy, childbirth, serious illness, study, vocational training or an overseas posting.
But as the Settlement Scheme was launched before the pandemic, this new guidance looks at when a COVID-related absence between six and 12 months will be accepted as an important reason. In other words, what happens if you have pre-settled status and spend, say, eight months of the pandemic outside the UK — can you argue that the circumstances were so important that the extended absence doesn’t break your “continuous qualifying period”?
COVID-19 will be accepted as an “important reason” only in certain, limited circumstances. Unfortunately, situations that are not covered are where a citizen has made a conscious decision to remain abroad for economic reasons, because they wanted to be closer to their family members or because they considered the risk to their health to be greater in the UK than in another country. The guidance only caters for situations where a person is considered to be forced to remain outside the UK due to travel restrictions, quarantine or COVID-19 related health complications. The only minor concession beyond this is for students who are enrolled at British universities but have been allowed to study online; they are considered to have an important reason to be absent for up to 12 months.
The guidance then confirms that an absence that exceeds 12 months will always break the citizen’s continuous qualifying period irrespective of COVID-19.
The pretty limited concession for absences of between six and 12 months is disappointing. The Home Office has been working on its COVID-19 absences policy for months and the outcome is a very short guidance document which does little more than reiterate the conditions that a citizen has to comply with in order to maintain their continuous qualifying residence under the Settlement Scheme. It had been hoped that the policy would provide more wide-ranging concessions, or allow caseworkers more discretion to overlook extended absences if the situation is sufficiently compelling.
>>> Visa replacement vignettes - Home Office update: https://www.gov.uk/guidance/coronavirus-covid-19-advice-for-uk-visa-applicants-and-temporary-uk-residents
"If your 30 day or 90 day visa vignette to work, study or join family has expired
If your 90 day vignette has expired, you will need to apply for a replacement by completing the online form. The cost of replacing an expired 90 day vignette is £154 and you will need to make an appointment to resubmit your biometric information.
We strongly advise that you only apply for a new visa, or apply to replace an expired vignette, when you are confident you can travel to the UK. The new vignette will be valid for a period of 90 days. If you cannot travel during this time, you may need to apply again to update your vignette.
If you have submitted an application for a replacement vignette, and are still awaiting a decision, but now no longer intend to travel, you should submit a withdrawal request at the Visa Application Centre that you applied from in order for your passport to be released back to you.
We will continue to replace 30 day vignettes free of charge for eligible customers until 31 December 2020.
To request a replacement 30 day visa you can either:
· contact the Coronavirus Immigration Help Centre
· arrange to return your passport to your VAC if it has re-opened
Contacting the Coronavirus Immigration Help Centre:
You’ll need to include your name, nationality, date of birth and your GWF reference number with ‘REPLACEMENT 30 DAY VISA’ in the subject line. If you’ve already contacted us about this, please let us know in your email.
Contact the Coronavirus Immigration Help Centre.
Please do not travel to the VAC with your passport until you have checked our commercial partner websites for the process in place for re-submitting your passport for your replacement visa, as this may vary depending on your geographical location:
· TLS contact if you’re in Europe, Africa and parts of the Middle East
· VFS global for all other countries
The guidance is different if you applied through an enrolment location operated by Immigration New Zealand."
>>> Visiting the UK from 1 January 2021: https://www.gov.uk/guidance/visiting-the-uk-from-1-january-2021?utm_source=577b359a-e0ae-4563-be43-8d07e43b4087&utm_medium=email&utm_campaign=govuk-notifications&utm_content=daily
What you need to know about crossing the UK border and visiting the UK from 1 January 2021.
Added information, particularly about which documents non-EEA family members of EU, EEA or Swiss citizens need to show to enter the UK.
>>> Russia: country policy and information notes: https://www.gov.uk/government/publications/russia-country-policy-and-information-notes?utm_source=8c91b537-ced4-4305-8446-c3bdf46b795c&utm_medium=email&utm_campaign=govuk-notifications&utm_content=daily
Guidance used by UK Visas and Immigration to make decisions in asylum and human rights applications.
>>> Ukraine: country policy and information notes: https://www.gov.uk/government/publications/ukraine-country-policy-and-information-notes?utm_source=308d3710-4ca1-469b-8eb9-aa730667b781&utm_medium=email&utm_campaign=govuk-notifications&utm_content=daily
Guidance used by UK Visas and Immigration to make decisions in asylum and human rights applications.
>>> Country guidance changes affect pending decisions if not already sent out to the parties: https://www.bailii.org/uk/cases/UKUT/IAC/2020/349.html
Pending asylum appeals in Scotland can be affected by changes to country guidance right up to the point when they are sent out to the parties to the case, even if the judge has already signed off on his or decision, according to the Upper Tribunal in NRS and Another (NA (Libya) in Scotland) Iraq [2020] UKUT 349 (IAC).
>>> Court of Appeal confirms no consultation duty for NHS advance charges: https://www.bailii.org/ew/cases/EWCA/Civ/2020/1634.html
In R (MP) v Secretary of State for Health And Social Care [2020] EWCA Civ 1634, the Court of Appeal upheld the High Court’s decision that there was no need for the government to consult the public before introducing advance charging of overseas visitors for NHS treatment. The High Court had also rejected the argument that the regulations breached the Public Sector Equality Duty and that allegation was not renewed before the Court of Appeal.
The challenge was to 2017 regulations requiring NHS service providers to secure advance payment of the estimated cost of treatment before providing treatment to people who are not entitled to free treatment. There are exemptions for immediately necessary services, such as life-saving emergency treatments and the treatment of pregnant women and newborn babies. But the new regime required advance charging for most other forms of medical treatment.
>>> How new visa rules on invalidity will create more overstayers
The Home Office recently introduced a set of new validity requirements for visa applications under the Points Based Immigration System, such as the Skilled Worker route. This is significant because an invalid application doesn’t extend your permission to be in the UK while it is being considered (what’s called “section 3C leave”). So if you dutifully apply to extend your visa just before it expires, and the application is later rejected as invalid because you failed to meet a validity requirement, it will be like you never made an application. You’re now an overstayer.
Invalidity can be worse than a refusal
Validity requirements existed before but pretty much all the old ones (in paragraph 34 of the Immigration Rules, which still applies to non-Points Based Immigration System applications) were things that could be rectified. If you paid the wrong application fee, for example, the Home Office would send you a letter giving you two weeks to pay the correct fee. If you did that, your application was validated and considered valid from the date you lodged the application, so you had section 3C leave all along.
The new requirements are category-specific and import what used to be eligibility rules into the validity section. Many are things that cannot be rectified. So if you apply under UK Ancestry and you’re not a Commonwealth citizen, or you are applying in-country and do not already have permission in this category, your application is invalid. There is no way to rectify the failure to meet these two requirements.
Previously, such an application would have been refused on eligibility grounds. But because it was a valid application, section 3C leave meant you had time to work out your next steps — whether to leave the UK to avoid overstaying, or put in a different application. By contrast, you often don’t find out that your application is invalid until after your permission in the UK was due to expire. By the time you get the invalidity letter from the Home Office, you might well have been an overstayer for weeks or months without knowing it.
This will hit applicants who are applying without legal assistance harder than others. We at the Legal Centre (www.legalcentre.org) expects to see increasing numbers of clients who have lodged the wrong application, had it rejected as invalid, and are now overstayers.
But it will affect lawyers as well. If a new client comes to us the day their permission is due to expire, we can’t just fire off an application to trigger section 3C leave and worry about whether they meet all the requirements later. Previously, once we had ensured that our client’s leave was extended pending a decision, we always had the option of varying the application to another category if we discovered that they did not meet the rules for the application that had just gone in. That won’t be an option in circumstances where the initial application is invalid — you cannot vary an invalid application.
How easy is it to fall foul of a validity requirement?
Some of the new validity requirements are tricky. If you apply in the Skilled Worker route and you currently have leave outside the Rules, that’s an invalid application. If a new client shows their lawyer a residence permit endorsed with “leave to remain”, they have no way of knowing just from looking at the permit whether it’s leave outside the Rules.
This makes it more important than ever for employers to do right to work checks on time. An employee could produce evidence that they made an in-time application but it can later turn out to be invalid so they never actually made an application before their permission expired. A timely right to work check will protect the employer if that turns out to be the case.
The Validation, variation and withdrawal of applications guidance has been updated in light of the new category-specific validity requirements and is definitely worth reading. It’s useful to note that if you apply on the wrong form, you will at least be given the chance to rectify that:
"If an applicant has not applied on the correct specified form, you must contact them using the validation warning template ICD 4944 on Doc Gen or the IC and OOC validation reminder on Atlas telling them, (indicating what the correct form is) and give them 10 working days to submit an application on that form."
But when it comes to requirements that cannot be met, even if you were given the opportunity to rectify the error, your application will just be rejected as invalid:
"Where it is clear that the applicant cannot meet the validity requirement, for example, where the applicant did not meet a minimum age requirement or a nationality requirement, and you do not consider it appropriate to exercise discretion (for example if they missed the age requirement by one day), providing a further opportunity to provide evidence that they do meet the requirement would be futile. In these cases you may reject the application without seeking further evidence using the ‘Validation rejection no write out’ template on Atlas."
Is there anything that can be done in such circumstances?
Validity hacks
If one had a case where it became clear that the client wouldn’t meet an unfixable requirement (such as having to be a Commonwealth citizen) after they submitted their application, one would be tempted to put in a covering letter that said, for example, “This is an application for leave outside the Rules”. This might allow the Home Office to treat the application as invalid because the wrong form was used and give the applicant an opportunity to remedy the invalidity by lodging a different form, rather than reject it as irreparably invalid because they’re not a Commonwealth citizen. Note that it is difficut to be sure that this option will work for sure, but if the alternative is invalidity, it might be worth a try.
Of course, if by the time that you discover that one of the validity requirements is not met, the applicant still has permission, the simple solution is just to lodge a different, valid, application before permission expires.
In cases where there is any doubt about whether a validity requirement is met, and expiry of permission is imminent, one approach could be to lodge a different application — one to which the old paragraph 34 validity requirements apply. The one could then vary it to the right application once the one has had the chance to properly assess the validity requirements of that route.
>>> Home Office floats automatic deportation after six-month sentence
The Home Office may cut the minimum prison sentence required to trigger automatic deportation from 12 months to six months, it emerged over the holidays. The Mail and Times appear to have been briefed independently on the idea, with the former reporting that “the measures are likely to form part of the Sovereign Borders Bill, which is due to be published within the next few months”.
>>> Important Court of Appeal judgment on expert evidence and “credibility”: https://www.bailii.org/ew/cases/EWCA/Civ/2020/1746.html
The Court of Appeal has handed down a major judgment on the correct approach to assessing whether a person is a victim of trafficking: MN v Secretary of State for the Home Department [2020] EWCA Civ 1746. Although this was the central question in the case and huge resources were devoted to addressing it, the judgment is of much wider interest for what it says about expert evidence and so-called “credibility”.
>>> Immigration Rules changes – CP 361: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwitsd7tsoLuAhWmzoUKHUaGALMQFjAAegQIAxAC&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/948598/CCS207_CCS1220730834-001_-__CP_361__-_EXPLANATORY_MEMORANDUM__Web_Accessible_.pdf&usg=AOvVaw3cGeAu6jHdce-1N7XeAJLT
The changes came into effect on 31 December 2020, the day that the statement of changes was published, and as summarised in the Explanatory Memorandum the Immigration Rules were amended as follows:
• Implement commitments made in the Temporary Agreement between the Swiss Confederation and the United Kingdom of Great Britain and Northern Ireland on Services Mobility and make changes on Mode IV commitments (the part of a trade agreement which sets out what persons of one party in an agreement can do in the other for the purpose of providing a service) within the UK-EU Trade and Co-Operation Agreement.
• Make changes to Appendix T5 (Temporary Worker) International Agreement Worker to implement commitments on contractual service suppliers and independent professionals in the Temporary Agreement between the Swiss Confederation and the United Kingdom of Great Britain and Northern Ireland on Services Mobility. This agreement requires us to grant entry for up to 12 months and extend our provisions to nationals and permanent residents of Switzerland.
• Make changes to Appendix T5 (Temporary Worker) International Agreement Worker to implement commitments made in the Services chapter of the UK-EU Trade and Co-Operation Agreement on length of stay for European Union contractual service suppliers and independent professionals.
• Amend the Visitor rules to implement the United Kingdom’s commitments on short-term business visitors in the Services chapter of the UK-EU Trade and Co-Operation Agreement.
• Correct a small number of minor drafting errors made in the Statement of Changes to the Immigration Rules (HC 813) laid on 22 October 2020.
>>> Return to the biometric re-use ?
From the ILPA briefing, re: Home Office biometrics re-used (currently suspended for most of the immigration categiries)
"In that meeting, the Home Office provided an operational update. They confirmed that biometric reuse would form part of UKVI’s strategy moving forward. Appointment availability and the conduct of staff (in particular offering legal advice) was discussed. It was agreed that ILPA would continue to act as a conduit for Members' issues. From the end of January, ILPA will have fortnightly meetings with Sopra Steria, where we will continue to press for improvements to their services, in particular regarding appointment availability."
>> UK Immigration Rules Simplification - Response to the Review Committee
For those who likes to "dig deeper" - read the full review here: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwiIgta48ozuAhVGyYUKHcYKBD4QFjAAegQIARAC&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/914010/24-03-2020_-_Response_to_Law_Commission_for_publication.pdf&usg=AOvVaw1gQWFphZoaoeZV0QAdH6n_
>>> The new UK approach to refugees and safe third countries: https://www.gov.uk/government/publications/inadmissibility-third-country-cases
The government has introduced important new rules on the handling of claims for asylum with effect from 1 January 2021. Guidance for Home Office asylum caseworkers was published the day before, on 31 December, fleshing out some of the operational details. What is not in the policy document is as revealing as what is.
The headline is that any person who travelled to the UK through a safe country will have their asylum case declared inadmissible and in theory face removal to any other safe country around the world willing to accept them. The likely reality of what happens in practice is very different: more delays in the asylum process and very few if any third country removals.
The overall impression is that the rules are completely unworkable as they stand, even if there were removal agreements with other countries. Which there are not, and a person cannot be sent to a country of which they are not a citizen without the agreement of that country. The rules build in an automatic period of delay in the processing of new asylum claims and are replete with opportunities for legal challenge. The civil servants who drafted them expect the rules to be “workable” in the sense of removals actually taking place to safe third countries. The rules are about politics and presentation, not governance.