24 March 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)7791145923 (WhatsApp/Viber)
In R (AM) v Secretary of State for the Home Department (legal “limbo”) [2021] UKUT 62 (IAC) the Upper Tribunal considered the extraordinary case of a Belarusian man who had been in the UK on immigration bail since 2003.
The official headnote
"A person whose removal from the United Kingdom has become an impossibility in the sense identified by the House of Lords in R (Khadir) v Secretary of State for the Home Department [2005] UKHL 39 cannot be subject to immigration bail (formerly temporary admission). Such “Khadir” Impossibility is, however, a high threshold to surmount.
(2) Applying the four-stage analysis of Haddon Cave LJ in RA (Iraq) v Secretary of State for the Home Department [2019] EWCA Civ 850, an individual who is subject to immigration bail may still succeed in a human rights challenge, based on ending his state of legal “limbo” in the United Kingdom, where the case is of a truly exceptional nature."
The Upper Tribunal has rejected an attempt to put a report by an unofficial grouping of MPs into evidence in an English language testing appeal. The case is DK and RK (Parliamentary privilege; evidence) India [2021] UKUT 61 (IAC) and the official headnote reads:
"(1) Although the Upper Tribunal is not bound by formal rules of evidence, it cannot act in such a way as to violate Parliamentary privilege, whether that be to interfere with free speech in Parliament or by reference to the separation of powers doctrine. The Tribunal cannot interfere with or criticise proceedings of the legislature.
(2) Courts and tribunals determine cases by reference to the evidence before them and not by reference to the views of others, expressed in a non-judicial setting, on evidence which is not the same as that before the court or tribunal. Indeed, even if the evidence were the same, the court or tribunal must reach its own views, applying the relevant burden and standard of proof."
The issue of Parliamentary privilege was also canvassed recently by the Court of Appeal, in R (Project for the Registration of Children as British Citizens & Anor) v Secretary of State for the Home Department (Rev 1) [2021] EWCA Civ 19.
25 March 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)7791145923 (WhatsApp/Viber)
The Home Office has published a new plan for immigration with the title, somehow both grandiloquent and banal, New Plan for Immigration. It is mainly concerned with asylum and people who enter the UK illegally (those two concepts being subtly mashed together) but there are also some miscellaneous proposals for tweaks to citizenship laws.
Bonus points for “safe and legal” arrivals
At any rate, the strategy is to contrast refugees who have arrived through “illegal” routes with those who have travelled via “safe and legal routes”. The latter are to be treated better than the former, creating a sort of two-tier asylum system.
The safe and legal arrivals may benefit from the following:
- Indefinite leave to remain on arrival for resettled refugees, rather than five years’ temporary permission leading to ILR as now.
- A possible tweak to the family reunion rules such that “unmarried dependent children under the age of 21”, rather than under 18 as now, can come to the UK if both their parents are here as refugees already.
- A bit of extra funding for integration programmes, already announced, “tailored and flexible employment support arrangements” and improved English language teaching.
- Some chat about reopening resettlement schemes, but with no timetable nor numerical target akin to the “20,000 Syrians in five years” in place between 2015 and 2020.
Punishment of clandestine entrants
By contrast, people who have entered the UK illegally to claim asylum, or who have travelled through a “safe third country” such as France, will be have fewer rights than before.
Rules allowing the Home Office to refuse even to consider an asylum claim where the person has come via a safe third country are already in place but get another airing. Anyone who arrives into the UK illegally – where they could reasonably have claimed asylum in another safe country – will be considered inadmissible to the asylum system, consistent with the Refugee Convention.
There will be a “rebuttable presumption” that people can be returned to EU and other developed countries, and sections 77 and 78 of the Nationality, Immigration and Asylum Act 2002 amended so that people can be removed despite having a pending asylum claim or appeal. This is all academic given that punting asylum seekers to other countries is admitted to be “contingent on securing returns agreements”, which do not exist (but will be pursued).
So instead, people in this position will be punished with a new “temporary protection status” instead of refugee status. This is for people with inadmissible claims but who cannot be returned. It will be a grant of permission to remain in the UK for no longer than 30 months, with no recourse to public funds and “restricted” family reunion rights. They would also be “regularly reassessed for removal from the UK” (a policy that already exists, at least on paper).
There will be an increase in the maximum sentence for entering the UK illegally. The maximum currently is six months, but the document does not say what this would change to. The separate “facilitation” offence of assisting unlawful immigration will now attract a maximum of life in prison, up from 14 years (in reality the average sentence is three and a bit years).
Other asylum measures
Changes to substantive law
There are to be changes to the test for whether someone has a “well-founded fear of persecution”, subject to consultation and the Refugee Convention. People will first have to prove on the balance of probabilities that “they are who they say they are and that they are experiencing genuine fear of persecution”. There will then be consideration of “whether the claimant is likely to face persecution if they return to their country of origin”. This would have to be established on the lower standard of proof of “reasonable likelihood”.
There will also be a statutory definition of “persecution”, in line with the Refugee Convention.
National Age Assessment Board
There are plans for new bureaucracy around age assessments. A National Age Assessment Board will set centralised standards and processes for assigning an age to asylum seekers who claim to be under 18. These would be enshrined in secondary legislation.
There is also to be legislation allowing immigration officers, rather than social workers, to make “to make reasonable initial assessments of age”. The current policy of treating someone as an child unless they seem clearly over 25 may be reduced to 18. Also up for consultation is a “fast-track” statutory appeal process for age assessments to reduce the number of judicial reviews in this area.
Asylum appeals and judicial reviews
There will be a “Good Faith Requirement” for appeals. “Anyone bringing a claim or a challenge in the courts and their representatives will be required to act in good faith at all times”.
There will be a “new ‘one-stop’ process” to incentive people to raise all asylum issues up front:
"People who claim for any form of protection will be issued with a ‘one-stop’ notice, requiring them to bring forward all relevant matters in one go at the start of the process."
There is one paragraph on bringing back some form of fast-track asylum appeals, but no details.
On the judicial review front, the Home Office is “considering” (so presumably will consult on) making people who lose judicial reviews pay some of the Home Office’s costs. Tribunal judges may also get additional powers to make wasted costs orders “in response to specified events or behaviours, including failure to follow the directions of the court, or promoting a case that is bound to fail”.
Also under consideration is requiring medical and other experts to be drawn from a state-approved panel. This is, I kid you not, with a view to “putting the independence of the experts beyond question”.
Removals
Also in the mix are some bits and pieces on removing people from the UK. Perhaps the most eye-catching is an attempt to blackmail other countries into taking their citizens back:
"We also expect our international partners to work with us on facilitating the return of their own nationals back to their country where those nationals have no lawful right to remain in the UK. We will seek to use the range of levers we have to improve returns co-operation, including considering whether to more carefully control visa availability where a country does not co-operate with receiving their own nationals who have no right to be in the UK."
Existing powers to remove asylum support from people who fail to comply with attempts to remove them will be enforced (no doubt triggering a wave of human rights challenges).
The scheme under which someone can be let out of jail early if they leave the UK will be adjusted. The early release window will be increased from 9 months to 12 months at the end of the sentence, subject to the person serving out at least 25% of their overall sentence.
Finally, the maximum sentence for a foreign national offender who returns to the UK in breach of a deportation order will be increased from six months to five years. This will of course have the effect of keeping such people in the country for longer when the whole point is to get rid of them.
Finally there are to be some changes to nationality law. This has nothing whatever to do with the main themes of the policy statement.
The nationality measures mostly concern niche scenarios (nevertheless very important to those affected). One is where someone is unable to inherit British citizenship from their father because their mother is still married to someone else, in which case the law deems the husband to be the parent for citizenship purposes. Such children will in future be entitled to register as British, rather than registration being at the discretion of the Home Office.
Children of British Overseas Territories citizens who did not inherit that citizenship because of discriminatory rules (e.g. against unmarried fathers) will also get new routes to citizenship via registration. Such routes were introduced in respect of full British citizens years ago — sections 4C and 4F of the British Nationality Act 1981 — and these are essentially being extended to British Overseas Territories citizens too.
As a general backstop, there will be a “new discretionary adult registration route”. This will allow adults, not just children, to get citizenship at the discretion of the Home Office “in compelling cases”. The existing equivalent for children is section 3(1) of the 1981 Act.
However, officials think that the route to citizenship for stateless children — paragraph 3 of Schedule 2 to the 1981 Act — is being abused. As a result, there will be extra “requirements and actions parents are required to follow before their children are able to benefit from statelessness provisions”.
Consultation
A consultation on many of the proposed measures will run until 6 May 2021. The consultation had not opened at time of writing but is supposed to later today on a dedicated website, https://newplanforimmigration.com.
>>> Out of Country appeals - MyHMCTS release date 31 March 2021
"Immigration and Asylum online service – Out of Country appeals
I am pleased to let you know that our online service will be able to accept ‘Out of Country’ appeals from 31 March 2021.
This will enable applicants to submit an appeal where the appellant is outside the UK; following the same process as in-country appeals (but with a longer time to issue an appeal in accordance with the procedure rules).
Information and support guides will be available on GOV.UK in the usual way."
02 April 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)7791145923 (WhatsApp/Viber)
In Secretary of State for the Home Department v Starkey [2021] EWCA Civ 421 the Court of Appeal provides a helpful reminder of the need for very clear language when explaining how evidence has been examined and assessed. The immigration tribunal’s ambiguity on a crucial piece of evidence was enough to amount to an error of law in this case.
The appeal concerned the decision to deport a South African man who had lived in the UK for over 30 years — almost his entire life. He had committed an extremely serious criminal offence, but also suffers from paranoid schizophrenia. The Article 8 issues were therefore finely balanced.
The First-tier Tribunal dismissed the appeal, but the Upper Tribunal identified an error of law in its approach to the expert evidence on mental health treatment in South Africa. The Upper Tribunal re-made the decision and allowed the appeal.
The Court of Appeal upheld the error of law decision, noting that the formulation used by the First-tier Tribunal on a crucial issue regarding the availability of treatment was ambiguous. The judge had said “there was no satisfactory evidence”, which might mean either that there was no evidence, or that the evidence provided was insufficient. The first option was factually incorrect, while the second option would also be an error of law because the judge provided no explanation for finding the evidence to be unsatisfactory:
"The conclusions expressed in paragraphs 63 and 69 use the same formula, ‘There is no satisfactory evidence that…’. The formula is ambiguous. It could be a loose way of saying that there was no evidence, or it could mean that there was evidence, but that the FTT did not consider that it was satisfactory. If the formula has the first meaning it is a materially inaccurate account of the evidence. If it has the second meaning, it begs a question, which is why the FTT considered that the evidence was not satisfactory. In this context of anxious scrutiny, the FTT should have explained why it considered that the evidence was unsatisfactory."
But the Court of Appeal also concluded that the Upper Tribunal had itself made an error of law when remaking the decision. It had failed to accurately characterise the medical evidence about the severity of the appellant’s condition while taking the right medication:
"I accept Mr Malik’s submission that the UT misunderstood the evidence about the severity of the R’s illness when he was receiving the appropriate medication. It appears to have thought that, even with medication, the R would have great difficulty when he arrived in South Africa both in finding a clinic and a job. That approach is inconsistent with the evidence that R’s illness was stable with his medication, that he had worked throughout his time in prison (even though he did not have the right medication throughout), and had gained various vocational qualifications there. That misunderstanding is an essential foundation of the UT’s reasoning about what would happen to the R on his return. It means that the UT’s conclusion that the demanding test in section 117C(6) was met cannot stand."
While there is nothing of ground-breaking significance in this case, it illustrates the importance of the ordinary courts having oversight of the tribunal system to ensure that errors can be identified and corrected.
05 April 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)7791145923 (WhatsApp/Viber)
>>> Red list countries Rules exemption for migrants
If a person holds a visa for the UK then they may have “residence rights” and so be treated as exempt from the “red list” rules.
Who has residence rights does not appear to be defined anywhere on the government website pages setting out the new scheme, or in the regulations. But according to the Home Office Visas & Citizenship External Relations Team, it includes people with existing:
- Indefinite leave to remain
- Limited leave to enter or remain e.g. students or workers (but not visitors)
- Settled or pre-settled status under the EU Settlement Scheme
07 April 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)7791145923 (WhatsApp/Viber)
>>> UK Immigration Appeal decision waiting times
From the Tribunal Statistics Quarterly: October to December 2020
"In the FTTIAC, the mean time taken to clear appeals across all categories has increased by 14 weeks to 44 weeks (44 weeks = 10 months !) this quarter compared to the same period a year ago.
Asylum/Protection, Human Rights and EEA Free Movement had mean times taken of 41 weeks, 48 weeks (48 weeks = 11 months !) and 38 weeks respectively.
Managed Migration and Entry Clearance, which had a mean time taken of 45 and 75 weeks (75 weeks = 1.5 years) respectively, are older appeal categories, removed by the Immigration Act 2014. There are a small number of remaining appeals which have longer clearance times due to the circumstances of those individual appeals. "
Now add the time to prepare, lodge the appeal, and then wait for a visa being issues. The lot can easily clock up 1-2 years !
So do it right from the very first time with the Legal Centre: www.legalcentre.org, +447791145923, +443300010342
The updated list of fees for immigration and nationality applications that apply from 6 April 2021 shows that all remain unchanged from last year. This marks the third financial year running that headline application fees have been largely frozen, having last increased significantly in April 2018.
There is a catch: the Immigration Health Surcharge, a separate tax on immigration, has increased sharply over that period. In 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 2020. So even with the headline fee staying the same, the total cost of that spouse application had jumped from £1,533 to £2,593 — a 69% rise — in just a few years.
07 April 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)7791145923 (WhatsApp/Viber)
>>> From the UK BA:
⦁ Hoping that end of March super priority visa will be available again for marriage settlement applications
⦁ Visit visa demand is considerably depressed and we expect that to remain the case.
⦁ Exceptional assurance is being extended to leave expiring 31 March 2021, we are currently reviewing what we do after that but it is likely to be done on a month by month basis.
⦁ Production of BRPs where numbers had built up accelerated in late summer and not surprisingly a lot of people had moved addresses in the many months their applications had been outstanding, so UKVI then received a surge of emails to our failed deliveries box and they are still catching up with those and are aware that response times may be a bit slow. A recovery plan is in place, staff have been moved and UKVI has also taken on agency staff to help.
⦁ Error corrections have been deprioritised and card collections are the priority, particularly where the error is with duration and does not cause an immediate problem for the customer. These will still be dealt with as quickly as possible.
⦁ In order to deal with the issue of undelivered cards, UKVI has changed processes and now when the BRP is produced an email is sent out with the BRP reference number and that allows them to prove their right to rent and work etc. So if the card does go elsewhere the customer can use their status in the meantime.
⦁ The email also acts as a reminder that they will need to contact TNT to change their address. We have given TNT broad discretion so that if someone calls TNT and gives the BRP number from the email then they should accept that is the customer and deliver the card to the new address provided.
Indefinite leave to remain
UKVI policy are looking at our request to update the long residence guidance so that absences that arose due to the pandemic are waived. UKVI advised that they believed that 5b had been actioned.
Applicants unable to attend VACs to have their biometrics taken
UKVI is acutely aware of the issue and are considering whether they need to use th IDV app in more routes again.
Working after a CoS has been issued
Currently not permitted as the Home Office advises that the applicants can use the 24-hour Super Priority Service to get a decision and so start working.
07 April 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)7791145923 (WhatsApp/Viber)
>>> Home Office Exceptional Assurance - concession extended
UKVI have extended the Exceptional Assurance concession so that those individuals who have a visa, or leave, that expires by 30 June 2021, and who intend to leave the UK but have not been able to do so, can request additional time to stay.
Applying for a visa if your VAC is closed - concession extended
The concession allowing customers outside of the UK, whose local visa application centre (VAC) is closed due to coronavirus restrictions, to apply online and select a VAC in another country worldwide to submit their application and biometrics, has been extended to 30 June 2021.
Customers must continue to select the country where they intend to to submit biometrics at the start of their application.
Message from the Sales Manager at Sopra Steria
"We’ve made a couple of amendments to the business to business offering which I wanted to make you aware of. We are now catering for up to 8 applicants for the half day pop-up and the price would be £2450.
As you’re aware pop-ups are a fairly new offering, and we’ve had to go through health and safety. Due to social distancing we’ve made the decision to reduce the numbers slightly so we can stay within government guidelines."
08 April 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)7791145923 (WhatsApp/Viber)
>>> Home Office update
- The Home Office is considering implementing the ETA - Electronic Travel Authorization. Anyone wishing to travel to the UK will have to complere a form before travelling into the UK
- The Super Premium 24-hour service has been re-introuduced for the Family type immigrtation applications in-country (SETM/FLRM etc)
- The Home Office Coronovirus Concession for the in-country switching from Visitor Visas is now only available for the family immigration routes (UK Spouse Visa etc)
This is a little-known provision designed to allow applicants to be granted a short grant of leave to remain (ordinarily, three months) to provide urgent care to a settled or British relative and, most importantly, to make arrangements for their long-term care. The guidance says that the following points are relevant to applications on this basis:
- the type of illness/condition (this should be supported by a Consultant’s letter); and
- the type of care required; and
- care which is available (e.g. from the Social Services or other relatives/friends); and
- the long-term prognosis.
The guidance also states that although applications for leave in order to care for a sick or disabled friend should normally be refused, “in an emergency (e.g. where the patient has suddenly fallen ill and there is insufficient time to arrange permanent care or where there is nobody else in the United Kingdom to whom the patient can turn) it may be appropriate to grant leave”.
An applicant’s prospects of success depend largely on the severity of their relative’s condition, the urgency of their care needs and the quality of the supporting evidence. A grant of leave is more likely, for example, in cases where the relative is terminally ill and requires help with everyday tasks than in cases where the illness is less severe and the care required is emotional support rather than practical assistance.
Contrary to the guidance, which is out of date, a refusal of this application only carries a right of appeal if the First-tier Tribunal accepts jurisdiction to hear the appeal. That is only possible where it is satisfied that there has been a refusal of a human rights application, so it may be helpful to raise Article 8 (and Article 3, where relevant) grounds in the application.
Although this is not stated by the guidance, the appropriate form in this case would be FLR(HRO), if making the application in the UK. If making the application outside the UK, the relevant form is the visit visa form.
Interim asylum policy guidance used by UK Visas and Immigration to make decisions on applications to transfer a refugee status.
>>> Should a migrant update his visa or inform the home office if he starts working at another branch but for the same employer?
The asnwer is "Yes":
-> Employer’s duty under C1.12 to report
"The location they are employed at changes – this includes where a worker is working at a different client’s site or a sports player moves to another sports club on loan"
12 April 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)7791145923 (WhatsApp/Viber)
>>> ATAS requirement - Skilled Worker route
Some applicants applying for entry clearance or permission to stay from 21 May 2021 will need to obtain an Academic Approval Technology Scheme (ATAS) certificate from the Counter-Proliferation and Arms Control Centre of the Foreign, Commonwealth and Development Office before they make their application. This is known as the ‘ATAS requirement’.
The ATAS requirement applies where the worker is not an exempt national and will be working in a job in a relevant occupation code which includes an element of research at PhD level or above in certain sensitive subject areas whose knowledge could be used in programmes to develop Advanced Conventional Military Technology (ACMT), weapons of mass destruction (WMDs) or their means of delivery.
>>> Sponsor licence inspection visits back on
UK Visas and Immigration (UKVI) has confirmed that with lockdown easing, it is resuming sponsor licence compliance visits. Initial visits will be focused on organisations that have a pending sponsor licence application.
>>> Late applications to the EU Settlement Scheme
From 1 July 2021, EU, EEA and Swiss citizens living in the UK without having applied for pre-settled or settled status under the EU Settlement Scheme will be here unlawfully. The Home Secretary confirmed a few months ago that people can apply after that deadline, but they must have “reasonable grounds to apply late”. Clarity on what grounds might be considered reasonable was lacking until 1 April 2021, when the Home Office released guidance on how it will deal with late applications: pages 26 to page 44 of the main caseworker guidance.
Since the Home Office also requires those with pre-settled status to make a further application in order to upgrade to settled status, this guidance also applies to those who fail to upgrade before their pre-settled status expires. It also applies to family members joining an EU citizen sponsor via the family permit route, and to a few other scenarios.
That said, there is still time to apply for a Pre-Settled, Settled status AND change (non-EEA migrants) an "old style" Biometric Residence Card (BRC).
19 April 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)7791145923 (WhatsApp/Viber)
Her Majesty’s Passport Office was wrong to insist on signed consent for child passports from an abusive father, the High Court has held in R (GA & Ors) v Secretary of State for the Home Department [2021] EWHC 868 (Admin).
19 April 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)7791145923 (WhatsApp/Viber)
The judgment of the Court of Appeal in MR (Pakistan) v Secretary of State for Justice & Others [2021] EWCA Civ 541 marks a major step forward in the battle over the use of immigration detention in prisons. The court has decided that the absence of a Rule 35 procedure for identifying vulnerable immigration detainees in prisons is irrational.
Although the court held back from making a broader finding that this was systemically unfair, the Home Office and Ministry of Justice will surely have to provide something similar to Rule 35 in prisons in order to avoid further claims of this nature. The judgment confirms that the Home Office is already taking steps to amend the legal framework.
22 April 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)7791145923 (WhatsApp/Viber)
>>> Occupations which are not eligible for the Skilled Worker route: https/www.gov.uk/government/publications/uk-points-based-immigration-system-further-details-statement/uk-points-based-immigration-system-further-details-statement#occupations-which-are-not-eligible-for-the-skilled-worker-route
These occupations cannot be sponsored under the Skilled Worker route for various reasons, including:
-other, more appropriate immigration routes are available (for example, clergy and sport players).
-jobs cannot be held by anyone who is subject to immigration control in the UK (for example, elected officers and officers in armed forces).
-the jobs do not meet the skills threshold (for example, security guards and waiters).
23 April 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)7791145923 (WhatsApp/Viber)
(Asylum seekers can normally work only in shortage occupations)
The Upper Tribunal has declared the government’s strict policy on asylum seekers working to be unlawful because it doesn’t mention that exceptions can be made. The case is R (C6) v Secretary of State for the Home Department (asylum seekers’ permission to work) [2021] UKUT 94 (IAC).
It has now been officially reported by the tribunal. The official headnote reads:
"Insofar as the Secretary of State’s policy Permission to work and volunteering for asylum seekers, version 8.0, 29 May 2019, admits no exceptions, it has not been justified and so is unlawful."
The judgment follows a very similar decision by the High Court in December. Despite these two rulings, the permission to work policy has still not been amended. In fact, a further challenge to it is now in the works.
24 April 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)7791145923 (WhatsApp/Viber)
The Home Office’s compartmentalised approach to applications for permission to stay in the UK can sometimes cause problems. Not everyone’s claim fits neatly into pre-defined categories.
So what happens when there is overlap between, for instance, an asylum claim and a human rights claim? This is the issue considered by the Upper Tribunal in JA (human rights claim, serious harm) Nigeria [2021] UKUT 97 (IAC).
The official headnote
"(1) Where a human rights claim is made, in circumstances where the Secretary of State considers the nature of what is being alleged is such that the claim could also constitute a protection claim, it is appropriate for her to draw this to the attention of the person concerned, pointing out they may wish to make a protection claim. Indeed, so much would appear to be required, in the light of the Secretary of State’s international obligations regarding refugees and those in need of humanitarian protection.
(2) There is no obligation on such a person to make a protection claim. The person concerned may decide to raise an alleged risk of serious harm, potentially falling within Article 3 of the ECHR, solely for the purpose of making an application for leave to remain in the United Kingdom that is centred on the private life aspects of Article 8, whether by reference to paragraph 276ADE(1)(vi) or outside the immigration rules. If so, the “serious harm” element of the claim falls to be considered in that context.
(3) This is not to say, however, that the failure of a person to make a protection claim, when the possibility of doing so is drawn to their attention by the Secretary of State, will never be relevant to the assessment by her and, on appeal, by the First-tier Tribunal of the “serious harm” element of a purely human rights appeal. Depending on the circumstances, the assessment may well be informed by a person’s refusal to subject themselves to the procedures that are inherent in the consideration of a claim to refugee or humanitarian protection status. Such a person may have to accept that the Secretary of State and the Tribunal are entitled to approach this element of the claim with some scepticism, particularly if it is advanced only late in the day. That is so, whether or not the element constitutes a “new matter” for the purposes of section 85(5) of the Nationality, Immigration and Asylum Act 2002.
(4) On appeal against the refusal of a human rights claim, a person who has not made a protection claim will not be able to rely on the grounds set out in section 84(1) of the 2002 Act, but only on the ground specified in section 84(2)."
28 April 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)7791145923 (WhatsApp/Viber)
>>> Correspondence regarding BRP/BRC for non-EEA nationals with status under EUSS
From the Home Office:
"The biometric residence card’s (BRC’s) are issued to non-EEA nationals with EU law rights and we currently issue two types of biometric residence cards to non-EEA family members of EEA and Swiss citizens living in the UK - the EEA BRC (Rights card) issued as evidence of rights under EU legislation) and the EUSS BRC (Scheme card). Both BRCs can, at present, be used as evidence to carriers that the holder has the right to travel to the UK and to prove a right to work or rent private accommodation. Any non-EEA national granted EUSS leave and did not use an EEA Rights BRC to apply, will receive an EUSS BRC valid for 5 or 10 years.
Valid EEA BRC’s can continue to be used for immigration and travel purposes until at least the end of the grace period on 30 June 2021 and the Government will shortly provide updated information on the GOV.UK website with further advice on the use of BRC’s post June. Non-EEA national family members whose cards expire can apply for a replacement document if they need one to board carriage to the UK. Any non-EEA nationals granted leave under the EU Settlement Scheme can exchange their EEA BRC for an EUSS BRC if they wish, but there is no requirement to do so.
Our intention is to eventually provide all foreign nationals coming and staying in the UK with access to their immigration information online instead of issuing physical documents that can be lost, stolen or tampered with. This will be the primary means for EEA citizens and their family members to prove their status in the UK. Current holders of EEA BRC’s are able to access and share their immigration status online to evidence their status in the UK."
>>> In-country customers applying for replacement biometric resident permits (BRP) and replacement biometric residence cards (BRC)
In recent months the Visas and Citizenship Appointment Service (UKVCAS) has worked hard to increase appointment capacity to above pre-Covid-19 levels. However, this has coincided with a surge of demand for replacement biometric resident permits (BRP) and biometric residence cards (BRC). This additional demand has impacted appointment availability.
To support our customers and address demand for appointments, from 23 April we will invite some customers applying for replacement BRP and BRC to apply via the Identification Verification (IDV) app, that can be downloaded on to most mobile devices.
Applications for most replacement BRP and BRC cards require only verification of identity and facial biometric capture, and can be processed via the IDV app without the need to provide additional documentation.
Submission via the IDV app will continue to be offered to eligible in-country student applications.
03 May 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)7791145923 (WhatsApp/Viber)
In Asif (Paragraph 276B, disregard, previous overstaying) Pakistan [2021] UKUT 96 (IAC) the Upper Tribunal confirms that previously disregarded overstaying between periods of leave should be treated as lawful residence for individuals making 10 year long residence applications.
Headnote:
"On the proper construction of paragraph 276B any period of overstaying that has been disregarded in accordance with sub-paragraph (v)(a) or (b) is treated as lawful residence for the purpose of sub-paragraph (i)"
04 May 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)7791145923 (WhatsApp/Viber)
>>> Changes to UKVCAS website
UKVAS have implemented a small website change. Part of this change will mean the Google Map on the search page will no longer be visible. Members and applicants can still search for appropriate service points using the postcode finder and the rest of the user journey remains the same.
>>> Correspondence with Richard Jackson (Immigration Policy, Home Office) regarding COVID Switching Concession
Question: Can this applicant switch now in-country ?
- Application in the UK as a visitor
- Leave still valid therefore exceptional assurance is not needed
- Applicant has a job offer but no CoS has yet been issued
So, can the applicant apply in county for permission to stay as a Skilled Worker with an undefined CoS or must they leave the UK and seek entry clearance with a defined CoS?
Response from the UK BA Policy department:
“This would be a permission to stay application, and the sponsor could assign an undefined CoS."
05 May 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)7791145923 (WhatsApp/Viber)
Rules restricting migrants’ access to benefits are back in the spotlight following a new High Court decision, which found that aspects of the “no recourse to public funds” (NRPF) scheme fail to protect the rights of children.
The case of ST (a child, by his Litigation Friend VW) & VW v Secretary of State for the Home Department [2021] EWHC 1085 (Admin) focused specifically on the approach to NRPF in Appendix FM. This is the section of the Immigration Rules applicable to the family members of British citizens and those with long-term residence rights.
06 May 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)7791145923 (WhatsApp/Viber)
The Home Office has updated its policy guidance on when asylum seekers can get permission to work, following two cases finding the previous version unlawful. The update (version 10.0, published on 4 May 2021) explicitly mentions that exceptions can be made to the strict rules against working while awaiting an asylum decision.
07 May 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)7791145923 (WhatsApp/Viber)
>>> Student visa and BRP/BRC replacement applicants will not be able to book an appointment immediately following an on-line application
The Home Office intends to start using the IDV App so the applications could enrol for the biometric and upload their supporting documents via their mobile phones.
The IDV App was widely used by the Home Office during the 1st lockdown.
The Legal Centre (www.legalcentre.org) believes that the Home Office is moving towards the "all digital documents".
See below for the relevant case-law, confirmin that point.
The High Court has issued a judgment refusing permission for a judicial review challenge to the government’s policy of giving digital-only proof of immigration status to millions of EU citizens. The case is R (The 3million Ltd) v Secretary of State for the Home Department [2021] EWHC 1159 (Admin).
People granted pre-settled or settled status are not being issued with physical residence permits. Instead, their status exists in the ether. People can pull their individual proof of status out of a Home Office database using a “view and prove” service on gov.uk.
Juba (s. 94B: access to lawyers) [2021] UKUT 95 (IAC) is the latest judgment dealing with the “deport first appeal later” policy, following on from the famous Kiarie and Byndloss case. In Juba, the Upper Tribunal has found that it was acceptable for the First-Tier Tribunal to hear an appeal brought from abroad after deportation, and to only then decide whether the appellant had been deprived of the ability to secure legal representation, and/or to give instructions and receive advice.
08 May 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)7791145923 (WhatsApp/Viber)
The UK and India signed a non-binding agreement on migration this week. The basic ingredients are to beef up cooperation on removing unauthorised migrants in exchange for a minor liberalisation on youth mobility-type visas and some warm words on encouraging temporary migration more generally. Such a deal has been on the cards for years and a text was reportedly ready for signature in 2018, but was dropped in light of the Windrush scandal which made removals politically unappealing for a time.
The Young Professionals Scheme
The element of the deal most likely to result in substantive change to the Immigration Rules is the “Young Professionals Scheme” referred to in Paragraph 5 of Chapter 3 and Annex I. This will allow Indian nationals aged between 18 and 30 to live and work in the UK for up to two years, and vice versa. There will be a quota, initially 3,000 places a year. The scheme is therefore similar to the existing Youth Mobility Scheme in place for a small number of developed countries.
There are some differences. In particular, that Young Professionals:
"must hold a diploma / degree which validates as far as possible at least three years’ higher education corresponding to the qualification required for the employment on offer or have professional experience of comparable level in the sphere of activity concerned and be able to express themselves in the language(s) of the host country."
The Youth Mobility Scheme has no qualification or English language requirements. Nevertheless there will be many millions of Indians who meet these criteria, so the quota is likely to be oversubscribed. Presumably there will be a lottery if that is the case, as for Youth Mobility countries like Taiwan.
Another possible difference: the Young Professional could require employer sponsorship. That would make the scheme quite different to Youth Mobility, which does not tie the person to any one employer (or even require the person to work at all, in theory). The bit about qualifications having to be related to “the employment on offer” sits oddly with an unsponsored route, though, so perhaps the scheme will be much less flexible than Youth Mobility after all.
If the scheme does turn out to be much like Youth Mobility, that would be the first time that it will be opened to visa nationals. But the old Working Holiday Maker visa, abolished in 2008, was open to Indians and many other visa nationals, so in that sense "there is nothing new under the sun".
Other migration provisions
Much of the rest is fluff that refers to visas that already exist. For example, “Indian nationals who successfully complete their studies and who wish to supplement their training with professional experience in the UK may apply to remain in the UK on a work-based immigration route”. Similarly, there is nothing of substance in Chapter 2 on visit visas (“The UK will continue to welcome Indian nationals who wish to visit the UK in order to undertake a wide range of activities in accordance with the UK Immigration Rules”).
The pre-deal spin suggested that there would be something concrete on student visas which “could allow thousands more Indian students to enrol in UK universities”. Nothing seems to have come of that.
Theoretically, the Chapter 3, Paragraph 8 may be hinting at some sort of new research visa or add-on to the Global Talent route, but we will have to wait and see.
Removing unauthorised migrants
Then there is the quid pro quo: “Cooperation relating to the prevention and combatting of illegal migration” (Chapter 4 and Annex 2). This includes procedures for verifying the identity of someone being sent back, types of documents that will be accepted for that purpose, and timelines for acknowledging responsibility for the person being removed. If they have a passport, the authorities in the country of return are supposed to respond within 20 days (or failing that, 30 days). If not, the timeline is 60/90 days. Emergency Travel Documents should be issued within five working days.
Also in Chapter 4 is a provision targeting Indian nationals said to be deliberately making their UK-born children stateless in order to secure them permission to remain. This echoes a clampdown on perceived abuse of the statelessness rules in the New Plan for Immigration.
Chapter 5 then discusses information and intelligence sharing on border security, trafficking and forgery.
It is hard to assess the likely impact of this in the abstract. The Home Office is briefing that returns to India could reach “tens of thousands” as a result of the deal. In 2019, total voluntary and enforced returns of Indian citizens from the UK was 2,100 and the average over the past decade was around 6,000 a year. Returns did peak at 10,000 in 2012, so tens of thousands is not necessarily out of reach, although the fact that such a figure was possible back then suggests that the issue is not so much the absence of a deal like this as underperformance by Immigration Enforcement.
10 May 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)7791145923 (WhatsApp/Viber)
Updated ‘EU Settlement Scheme: person with a Zambrano right to reside’ to reflect the changes to Appendix EU made in Statements of Changes in Immigration Rules, up to HC 1248, laid on 4 March 2021.
11 May 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)7791145923 (WhatsApp/Viber)
"To a person in detention, particularly in prison, every day of freedom lost matters and the Defendant needs to be able to justify it. In this case I think that principle became lost to sight."
So says the High Court in the case of Louis v Home Office [2021] EWHC 288 (QB), a depressing false imprisonment claim in which the Home Office was taken to task for its appalling treatment of a vulnerable detainee who was held under immigration powers for over four years.
The court found a multitude of failures going “very well beyond maladministration” that resulted in Mr Louis, a care leaver who arrived in the UK aged 13, being unlawfully detained for 42 of the 51 months he spent in immigration removal centres.
The case also shows the necessity of an effective system for monitoring detainee welfare on the prison estate, an issue to which the courts are now becoming alert.
13 May 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)7791145923 (WhatsApp/Viber)
>>> Home Ofice news
- UKVCAS document upload categories
UKVCAS are in the process of making changes to the categories section of the UKVCAS website for customers who self-upload their documents.
In the meantime, customers are reassured that all documents they choose to upload in support of their application are checked and - considered by UKVI caseworkers.
- Changes to service point locations
The UKVCAS Manchester Fountain Street Service Point is now closed and has relocated as the Manchester (Core) site based at Saint James Tower, 7 Charlotte Street, Manchester M1 4DZ. All customers whose appointment has been affected will receive an updated confirmation e-mail from UKVCAS and are encouraged to check their email and phone for messages.
Since our last update, UKVCAS have also opened the Aberdeen Enhanced Service Point (ESP) at Regus, 1, Marischal Square, Aberdeen AB10 1BL.
- Visa pause
As part of the government strategy designed to protect the UK’s health system during the global pandemic, UKVI recently paused the issue of transit and visit visas in red list locations. This has now been updated for transit visas.
>Transit visa – Applications for Visitor in Transit and Direct Airside Transit Visas that have already been submitted will now be issued and new applications will be processed as normal.
>Visit visa – In red list locations the pause on issuing visit visas is still in place and will be kept under review. There is no change to the UKVI approach to applications lodged in red list locations in a category where there are residence rights
- Fast track immigration route opens for prestigious award winners
The Global Talent route is part of the UK’s new points-based immigration system, which will attract the best and brightest to the country depending on the skills they can bring, rather than their nationality.
From 5 May, individuals who have won prestigious awards from across the sciences, humanities, engineering, the arts and digital technology will be able to take advantage of changes to the Global Talent visa route.
14 May 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)7791145923 (WhatsApp/Viber)
>>> Updated advice for employers carrying out right to work checks during the coronavirus (COVID-19) pandemic:
The following temporary changes were made on 30 March 2020 and remain in place until 20 June 2021 (inclusive):
Updated advice for employers carrying out right to work checks during the coronavirus (COVID-19) pandemic.
The following temporary changes were made on 30 March 2020 and remain in place until 20 June 2021 (inclusive):
-checks can currently be carried out over video calls
-job applicants and existing workers can send scanned documents or a photo of documents for checks using email or a mobile app, rather than sending originals
- employers should use the Employer Checking Service if a prospective or existing employee cannot provide any of the accepted documents
Checks continue to be necessary and you must continue to check the prescribed documents set out in right to work checks: an employer’s guide or use the online right to work checking service. It remains an offence to knowingly employ anyone who does not have the right to work in the UK.
A £100 million scheme for loaning migrants the money for an Investor visa was legal after all, the Court of Appeal has ruled. The case is R (Wang & Anor) v Secretary of State for the Home Department [2021] EWCA Civ 679. It overturned a previous Upper Tribunal decision that the scheme did not meet the Investor rules because the money invested was not under the borrower’s control.
The court reached this conclusion reluctantly and criticised the shoddy drafting of the Immigration Rules in allowing the scheme to operate despite what the Home Office intended.
15 May 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)7791145923 (WhatsApp/Viber)
Fouad Kakaei is an Iranian man who helped steer small boats carrying asylum seekers across the English Channel on two separate occasions, in July and December 2019. He also attempted to cross on several other occasions. Following the July 2019 crossing, he did not claim asylum here in the UK and was returned to Denmark, where a previous claim for asylum had already been refused. He did claim asylum in the UK after the December crossing but was charged with illegal entry under section 24 of the Immigration Act 1971, pleaded guilty and was sentenced to four months’ imprisonment. He also faced trial for the separate crime of assisting unlawful immigration, an offence under section 25 of the 1971 Act attracting a maximum sentence of 14 years. Following a legal ruling at his trial, he pleaded guilty to this offence as well and was sentenced to 26 months’ imprisonment.
Fast forward through a lenghly determination:
Mr Kakaei therefore had a defence: it is not a breach of UK immigration law for asylum seekers to claim asylum at port on arrival and therefore he had not necessarily assisted unlawful immigration. Given that he was acquitted yesterday, it looks like this defence was accepted by the jury.
The Court of Appeal has considered, again, whether it is “unduly harsh” for British children to be separated from their father on the basis that he is a foreign criminal.
The case is TD (Albania) v Secretary of State for the Home Department [2021] EWCA Civ 619. It concerns an Albanian national who was granted indefinite leave to remain in 2011 and lives here with his British partner and their three children. Due to his persistent criminal offending, the Home Office decided to deport him. The question for the Court of Appeal was whether it would be unduly harsh for them to do so.
17 May 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)7791145923 (WhatsApp/Viber)
You might be able to ask for the decision on your visa or immigration application to be reviewed if you applied in the UK.
This is known as a ‘reconsideration request’. It isn’t a formal appeal or an administrative review. You can’t ask for a reconsideration if you have a right to an appeal or a review.
When you can make a reconsideration request
You can make a reconsideration request if you believe immigration rules or policies weren’t followed correctly when the decision was made.
You must be in the UK to make the request.
You can only make a request if you applied in the UK to:
-transfer your visa to a biometric residence permit - known as a ‘transfer of conditions’ (TOC)
-transfer your indefinite leave to remain to a biometric residence permit - known as ‘no time limit’ (NTL)
-extend your leave, switch your visa or settle in the UK
You can make a request if your application for TOC, NTL or leave to remain was successful but you believe the type or the expiry date of the leave is wrong.
You can also make a request if your TOC or NTL application was refused and you have any of the following:
-new evidence about the date of the application
-new evidence to prove that your documents were authentic
-evidence that information received by UK Visas and Immigration (UKVI) before the decision date was not available to the team who made the decision
These are the only kinds of new evidence that you can use. You can’t make a request if it relates to any other sort of new evidence that wasn’t received by UKVI before the decision date.
When you can’t make a reconsideration request
You can’t make a reconsideration request if you have a right of appeal or right to an administrative review against the decision.
Your decision letter will usually tell you if you have either of these rights.
When your request will be rejected
Your reconsideration request will be rejected if you:
-make a new application before or after you send the request
-have since been given permission to stay in another visa category
-left the UK and your permission to stay has expired
-were removed or deported from the UK
-have already exhausted your appeal rights or lost your case in a judicial review
-need to make an appeal or apply for an administrative review instead of making a reconsideration request
How to make a request
Write a letter saying why you think the decision was wrong. Refer to the rules or policy under which you applied - check the guidance for your application to find the right rules or policies.
Send your request to the team who made the decision on your original application - the address will be shown on the decision letter.
You must make your request as soon as possible and no later than 14 days after you get the decision on your application.
You can only make one reconsideration request.
Legacy requests
If you made your request before 13 November 2012 (known as a ‘legacy request’) and your immigration status is still not resolved that request will still be considered as long as you meet the guidance requirements.
18 May 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)7791145923 (WhatsApp/Viber)
If you are in a red list country and wish to apply for a visitor in transit or direct airside transit visa (DATV) we are now able to process your application, as the pause on issuing transit visas has been lifted.
Links have been added to check an individual’s immigration status, right to work or rent to prevent subject access requests being made when other sources of information are available.
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>>> A man from Belarus who has been in “limbo” since 2003 wins permission to remain in landmark case: https://tribunalsdecisions.service.gov.uk/utiac/2021-ukut-62
In R (AM) v Secretary of State for the Home Department (legal “limbo”) [2021] UKUT 62 (IAC) the Upper Tribunal considered the extraordinary case of a Belarusian man who had been in the UK on immigration bail since 2003.
The official headnote
"A person whose removal from the United Kingdom has become an impossibility in the sense identified by the House of Lords in R (Khadir) v Secretary of State for the Home Department [2005] UKHL 39 cannot be subject to immigration bail (formerly temporary admission). Such “Khadir” Impossibility is, however, a high threshold to surmount.
(2) Applying the four-stage analysis of Haddon Cave LJ in RA (Iraq) v Secretary of State for the Home Department [2019] EWCA Civ 850, an individual who is subject to immigration bail may still succeed in a human rights challenge, based on ending his state of legal “limbo” in the United Kingdom, where the case is of a truly exceptional nature."
>>> No role for Parliamentary reports in immigration appeals: https://www.bailii.org/uk/cases/UKUT/IAC/2021/61.html
The Upper Tribunal has rejected an attempt to put a report by an unofficial grouping of MPs into evidence in an English language testing appeal. The case is DK and RK (Parliamentary privilege; evidence) India [2021] UKUT 61 (IAC) and the official headnote reads:
"(1) Although the Upper Tribunal is not bound by formal rules of evidence, it cannot act in such a way as to violate Parliamentary privilege, whether that be to interfere with free speech in Parliament or by reference to the separation of powers doctrine. The Tribunal cannot interfere with or criticise proceedings of the legislature.
(2) Courts and tribunals determine cases by reference to the evidence before them and not by reference to the views of others, expressed in a non-judicial setting, on evidence which is not the same as that before the court or tribunal. Indeed, even if the evidence were the same, the court or tribunal must reach its own views, applying the relevant burden and standard of proof."
The issue of Parliamentary privilege was also canvassed recently by the Court of Appeal, in R (Project for the Registration of Children as British Citizens & Anor) v Secretary of State for the Home Department (Rev 1) [2021] EWCA Civ 19.
>>> The Home Office piblishes the “New Plan for Immigration”: https://www.gov.uk/government/consultations/new-plan-for-immigration
The Home Office has published a new plan for immigration with the title, somehow both grandiloquent and banal, New Plan for Immigration. It is mainly concerned with asylum and people who enter the UK illegally (those two concepts being subtly mashed together) but there are also some miscellaneous proposals for tweaks to citizenship laws.
Bonus points for “safe and legal” arrivals
At any rate, the strategy is to contrast refugees who have arrived through “illegal” routes with those who have travelled via “safe and legal routes”. The latter are to be treated better than the former, creating a sort of two-tier asylum system.
The safe and legal arrivals may benefit from the following:
- Indefinite leave to remain on arrival for resettled refugees, rather than five years’ temporary permission leading to ILR as now.
- A possible tweak to the family reunion rules such that “unmarried dependent children under the age of 21”, rather than under 18 as now, can come to the UK if both their parents are here as refugees already.
- A bit of extra funding for integration programmes, already announced, “tailored and flexible employment support arrangements” and improved English language teaching.
- Some chat about reopening resettlement schemes, but with no timetable nor numerical target akin to the “20,000 Syrians in five years” in place between 2015 and 2020.
Punishment of clandestine entrants
By contrast, people who have entered the UK illegally to claim asylum, or who have travelled through a “safe third country” such as France, will be have fewer rights than before.
Rules allowing the Home Office to refuse even to consider an asylum claim where the person has come via a safe third country are already in place but get another airing. Anyone who arrives into the UK illegally – where they could reasonably have claimed asylum in another safe country – will be considered inadmissible to the asylum system, consistent with the Refugee Convention.
There will be a “rebuttable presumption” that people can be returned to EU and other developed countries, and sections 77 and 78 of the Nationality, Immigration and Asylum Act 2002 amended so that people can be removed despite having a pending asylum claim or appeal. This is all academic given that punting asylum seekers to other countries is admitted to be “contingent on securing returns agreements”, which do not exist (but will be pursued).
So instead, people in this position will be punished with a new “temporary protection status” instead of refugee status. This is for people with inadmissible claims but who cannot be returned. It will be a grant of permission to remain in the UK for no longer than 30 months, with no recourse to public funds and “restricted” family reunion rights. They would also be “regularly reassessed for removal from the UK” (a policy that already exists, at least on paper).
There will be an increase in the maximum sentence for entering the UK illegally. The maximum currently is six months, but the document does not say what this would change to. The separate “facilitation” offence of assisting unlawful immigration will now attract a maximum of life in prison, up from 14 years (in reality the average sentence is three and a bit years).
Other asylum measures
Changes to substantive law
There are to be changes to the test for whether someone has a “well-founded fear of persecution”, subject to consultation and the Refugee Convention. People will first have to prove on the balance of probabilities that “they are who they say they are and that they are experiencing genuine fear of persecution”. There will then be consideration of “whether the claimant is likely to face persecution if they return to their country of origin”. This would have to be established on the lower standard of proof of “reasonable likelihood”.
There will also be a statutory definition of “persecution”, in line with the Refugee Convention.
National Age Assessment Board
There are plans for new bureaucracy around age assessments. A National Age Assessment Board will set centralised standards and processes for assigning an age to asylum seekers who claim to be under 18. These would be enshrined in secondary legislation.
There is also to be legislation allowing immigration officers, rather than social workers, to make “to make reasonable initial assessments of age”. The current policy of treating someone as an child unless they seem clearly over 25 may be reduced to 18. Also up for consultation is a “fast-track” statutory appeal process for age assessments to reduce the number of judicial reviews in this area.
Asylum appeals and judicial reviews
There will be a “Good Faith Requirement” for appeals. “Anyone bringing a claim or a challenge in the courts and their representatives will be required to act in good faith at all times”.
There will be a “new ‘one-stop’ process” to incentive people to raise all asylum issues up front:
"People who claim for any form of protection will be issued with a ‘one-stop’ notice, requiring them to bring forward all relevant matters in one go at the start of the process."
There is one paragraph on bringing back some form of fast-track asylum appeals, but no details.
On the judicial review front, the Home Office is “considering” (so presumably will consult on) making people who lose judicial reviews pay some of the Home Office’s costs. Tribunal judges may also get additional powers to make wasted costs orders “in response to specified events or behaviours, including failure to follow the directions of the court, or promoting a case that is bound to fail”.
Also under consideration is requiring medical and other experts to be drawn from a state-approved panel. This is, I kid you not, with a view to “putting the independence of the experts beyond question”.
Removals
Also in the mix are some bits and pieces on removing people from the UK. Perhaps the most eye-catching is an attempt to blackmail other countries into taking their citizens back:
"We also expect our international partners to work with us on facilitating the return of their own nationals back to their country where those nationals have no lawful right to remain in the UK. We will seek to use the range of levers we have to improve returns co-operation, including considering whether to more carefully control visa availability where a country does not co-operate with receiving their own nationals who have no right to be in the UK."
Existing powers to remove asylum support from people who fail to comply with attempts to remove them will be enforced (no doubt triggering a wave of human rights challenges).
The scheme under which someone can be let out of jail early if they leave the UK will be adjusted. The early release window will be increased from 9 months to 12 months at the end of the sentence, subject to the person serving out at least 25% of their overall sentence.
Finally, the maximum sentence for a foreign national offender who returns to the UK in breach of a deportation order will be increased from six months to five years. This will of course have the effect of keeping such people in the country for longer when the whole point is to get rid of them.
...
Tweaks to British nationality law
Finally there are to be some changes to nationality law. This has nothing whatever to do with the main themes of the policy statement.
The nationality measures mostly concern niche scenarios (nevertheless very important to those affected). One is where someone is unable to inherit British citizenship from their father because their mother is still married to someone else, in which case the law deems the husband to be the parent for citizenship purposes. Such children will in future be entitled to register as British, rather than registration being at the discretion of the Home Office.
Children of British Overseas Territories citizens who did not inherit that citizenship because of discriminatory rules (e.g. against unmarried fathers) will also get new routes to citizenship via registration. Such routes were introduced in respect of full British citizens years ago — sections 4C and 4F of the British Nationality Act 1981 — and these are essentially being extended to British Overseas Territories citizens too.
As a general backstop, there will be a “new discretionary adult registration route”. This will allow adults, not just children, to get citizenship at the discretion of the Home Office “in compelling cases”. The existing equivalent for children is section 3(1) of the 1981 Act.
There will be more flexibility introduced on the residence requirements for citizenship, essentially in response to this case: https://www.theguardian.com/uk-news/2021/mar/05/windrush-victim-denied-uk-citizenship-home-office-admitting-error-trevor-donald
However, officials think that the route to citizenship for stateless children — paragraph 3 of Schedule 2 to the 1981 Act — is being abused. As a result, there will be extra “requirements and actions parents are required to follow before their children are able to benefit from statelessness provisions”.
Consultation
A consultation on many of the proposed measures will run until 6 May 2021. The consultation had not opened at time of writing but is supposed to later today on a dedicated website, https://newplanforimmigration.com.
"Immigration and Asylum online service – Out of Country appeals
I am pleased to let you know that our online service will be able to accept ‘Out of Country’ appeals from 31 March 2021.
This will enable applicants to submit an appeal where the appellant is outside the UK; following the same process as in-country appeals (but with a longer time to issue an appeal in accordance with the procedure rules).
Information and support guides will be available on GOV.UK in the usual way."
>>> Court of Appeal criticises ambiguous language in immigration tribunal judgments: https://www.bailii.org/ew/cases/EWCA/Civ/2021/421.html
In Secretary of State for the Home Department v Starkey [2021] EWCA Civ 421 the Court of Appeal provides a helpful reminder of the need for very clear language when explaining how evidence has been examined and assessed. The immigration tribunal’s ambiguity on a crucial piece of evidence was enough to amount to an error of law in this case.
The appeal concerned the decision to deport a South African man who had lived in the UK for over 30 years — almost his entire life. He had committed an extremely serious criminal offence, but also suffers from paranoid schizophrenia. The Article 8 issues were therefore finely balanced.
The First-tier Tribunal dismissed the appeal, but the Upper Tribunal identified an error of law in its approach to the expert evidence on mental health treatment in South Africa. The Upper Tribunal re-made the decision and allowed the appeal.
The Court of Appeal upheld the error of law decision, noting that the formulation used by the First-tier Tribunal on a crucial issue regarding the availability of treatment was ambiguous. The judge had said “there was no satisfactory evidence”, which might mean either that there was no evidence, or that the evidence provided was insufficient. The first option was factually incorrect, while the second option would also be an error of law because the judge provided no explanation for finding the evidence to be unsatisfactory:
"The conclusions expressed in paragraphs 63 and 69 use the same formula, ‘There is no satisfactory evidence that…’. The formula is ambiguous. It could be a loose way of saying that there was no evidence, or it could mean that there was evidence, but that the FTT did not consider that it was satisfactory. If the formula has the first meaning it is a materially inaccurate account of the evidence. If it has the second meaning, it begs a question, which is why the FTT considered that the evidence was not satisfactory. In this context of anxious scrutiny, the FTT should have explained why it considered that the evidence was unsatisfactory."
But the Court of Appeal also concluded that the Upper Tribunal had itself made an error of law when remaking the decision. It had failed to accurately characterise the medical evidence about the severity of the appellant’s condition while taking the right medication:
"I accept Mr Malik’s submission that the UT misunderstood the evidence about the severity of the R’s illness when he was receiving the appropriate medication. It appears to have thought that, even with medication, the R would have great difficulty when he arrived in South Africa both in finding a clinic and a job. That approach is inconsistent with the evidence that R’s illness was stable with his medication, that he had worked throughout his time in prison (even though he did not have the right medication throughout), and had gained various vocational qualifications there. That misunderstanding is an essential foundation of the UT’s reasoning about what would happen to the R on his return. It means that the UT’s conclusion that the demanding test in section 117C(6) was met cannot stand."
While there is nothing of ground-breaking significance in this case, it illustrates the importance of the ordinary courts having oversight of the tribunal system to ensure that errors can be identified and corrected.
>>> Red list countries Rules exemption for migrants
If a person holds a visa for the UK then they may have “residence rights” and so be treated as exempt from the “red list” rules.
Who has residence rights does not appear to be defined anywhere on the government website pages setting out the new scheme, or in the regulations. But according to the Home Office Visas & Citizenship External Relations Team, it includes people with existing:
- Indefinite leave to remain
- Limited leave to enter or remain e.g. students or workers (but not visitors)
- Settled or pre-settled status under the EU Settlement Scheme
>>> UK Immigration Appeal decision waiting times
From the Tribunal Statistics Quarterly: October to December 2020
"In the FTTIAC, the mean time taken to clear appeals across all categories has increased by 14 weeks to 44 weeks (44 weeks = 10 months !) this quarter compared to the same period a year ago.
Asylum/Protection, Human Rights and EEA Free Movement had mean times taken of 41 weeks, 48 weeks (48 weeks = 11 months !) and 38 weeks respectively.
Managed Migration and Entry Clearance, which had a mean time taken of 45 and 75 weeks (75 weeks = 1.5 years) respectively, are older appeal categories, removed by the Immigration Act 2014. There are a small number of remaining appeals which have longer clearance times due to the circumstances of those individual appeals. "
Now add the time to prepare, lodge the appeal, and then wait for a visa being issues. The lot can easily clock up 1-2 years !
So do it right from the very first time with the Legal Centre: www.legalcentre.org, +447791145923, +443300010342
>>> Immigration and nationality fees for 2021/22: https://www.gov.uk/government/publications/visa-regulations-revised-table/home-office-immigration-and-nationality-fees-6-april-2021
The updated list of fees for immigration and nationality applications that apply from 6 April 2021 shows that all remain unchanged from last year. This marks the third financial year running that headline application fees have been largely frozen, having last increased significantly in April 2018.
There is a catch: the Immigration Health Surcharge, a separate tax on immigration, has increased sharply over that period. In 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 2020. So even with the headline fee staying the same, the total cost of that spouse application had jumped from £1,533 to £2,593 — a 69% rise — in just a few years.
>>> From the UK BA:
⦁ Hoping that end of March super priority visa will be available again for marriage settlement applications
⦁ Visit visa demand is considerably depressed and we expect that to remain the case.
⦁ Exceptional assurance is being extended to leave expiring 31 March 2021, we are currently reviewing what we do after that but it is likely to be done on a month by month basis.
⦁ Production of BRPs where numbers had built up accelerated in late summer and not surprisingly a lot of people had moved addresses in the many months their applications had been outstanding, so UKVI then received a surge of emails to our failed deliveries box and they are still catching up with those and are aware that response times may be a bit slow. A recovery plan is in place, staff have been moved and UKVI has also taken on agency staff to help.
⦁ Error corrections have been deprioritised and card collections are the priority, particularly where the error is with duration and does not cause an immediate problem for the customer. These will still be dealt with as quickly as possible.
⦁ In order to deal with the issue of undelivered cards, UKVI has changed processes and now when the BRP is produced an email is sent out with the BRP reference number and that allows them to prove their right to rent and work etc. So if the card does go elsewhere the customer can use their status in the meantime.
⦁ The email also acts as a reminder that they will need to contact TNT to change their address. We have given TNT broad discretion so that if someone calls TNT and gives the BRP number from the email then they should accept that is the customer and deliver the card to the new address provided.
Indefinite leave to remain
UKVI policy are looking at our request to update the long residence guidance so that absences that arose due to the pandemic are waived. UKVI advised that they believed that 5b had been actioned.
Applicants unable to attend VACs to have their biometrics taken
UKVI is acutely aware of the issue and are considering whether they need to use th IDV app in more routes again.
Working after a CoS has been issued
Currently not permitted as the Home Office advises that the applicants can use the 24-hour Super Priority Service to get a decision and so start working.
>>> Home Office Exceptional Assurance - concession extended
UKVI have extended the Exceptional Assurance concession so that those individuals who have a visa, or leave, that expires by 30 June 2021, and who intend to leave the UK but have not been able to do so, can request additional time to stay.
Applying for a visa if your VAC is closed - concession extended
The concession allowing customers outside of the UK, whose local visa application centre (VAC) is closed due to coronavirus restrictions, to apply online and select a VAC in another country worldwide to submit their application and biometrics, has been extended to 30 June 2021.
Customers must continue to select the country where they intend to to submit biometrics at the start of their application.
Message from the Sales Manager at Sopra Steria
"We’ve made a couple of amendments to the business to business offering which I wanted to make you aware of. We are now catering for up to 8 applicants for the half day pop-up and the price would be £2450.
As you’re aware pop-ups are a fairly new offering, and we’ve had to go through health and safety. Due to social distancing we’ve made the decision to reduce the numbers slightly so we can stay within government guidelines."
>>> Home Office update
- The Home Office is considering implementing the ETA - Electronic Travel Authorization. Anyone wishing to travel to the UK will have to complere a form before travelling into the UK
- The Super Premium 24-hour service has been re-introuduced for the Family type immigrtation applications in-country (SETM/FLRM etc)
- The Home Office Coronovirus Concession for the in-country switching from Visitor Visas is now only available for the family immigration routes (UK Spouse Visa etc)
>>> Leave outside the Rules – three-month concession for carers: https://www.gov.uk/government/publications/chapter-17-section-2-carers
This is a little-known provision designed to allow applicants to be granted a short grant of leave to remain (ordinarily, three months) to provide urgent care to a settled or British relative and, most importantly, to make arrangements for their long-term care. The guidance says that the following points are relevant to applications on this basis:
- the type of illness/condition (this should be supported by a Consultant’s letter); and
- the type of care required; and
- care which is available (e.g. from the Social Services or other relatives/friends); and
- the long-term prognosis.
The guidance also states that although applications for leave in order to care for a sick or disabled friend should normally be refused, “in an emergency (e.g. where the patient has suddenly fallen ill and there is insufficient time to arrange permanent care or where there is nobody else in the United Kingdom to whom the patient can turn) it may be appropriate to grant leave”.
An applicant’s prospects of success depend largely on the severity of their relative’s condition, the urgency of their care needs and the quality of the supporting evidence. A grant of leave is more likely, for example, in cases where the relative is terminally ill and requires help with everyday tasks than in cases where the illness is less severe and the care required is emotional support rather than practical assistance.
Contrary to the guidance, which is out of date, a refusal of this application only carries a right of appeal if the First-tier Tribunal accepts jurisdiction to hear the appeal. That is only possible where it is satisfied that there has been a refusal of a human rights application, so it may be helpful to raise Article 8 (and Article 3, where relevant) grounds in the application.
Although this is not stated by the guidance, the appropriate form in this case would be FLR(HRO), if making the application in the UK. If making the application outside the UK, the relevant form is the visit visa form.
>>> Transfering refugee status - interim notice: https://www.gov.uk/government/publications/transfering-refugee-status-interim-notice-process
Interim asylum policy guidance used by UK Visas and Immigration to make decisions on applications to transfer a refugee status.
>>> Should a migrant update his visa or inform the home office if he starts working at another branch but for the same employer?
The asnwer is "Yes":
-> Employer’s duty under C1.12 to report
"The location they are employed at changes – this includes where a worker is working at a different client’s site or a sports player moves to another sports club on loan"
>>> ATAS requirement - Skilled Worker route
Some applicants applying for entry clearance or permission to stay from 21 May 2021 will need to obtain an Academic Approval Technology Scheme (ATAS) certificate from the Counter-Proliferation and Arms Control Centre of the Foreign, Commonwealth and Development Office before they make their application. This is known as the ‘ATAS requirement’.
The ATAS requirement applies where the worker is not an exempt national and will be working in a job in a relevant occupation code which includes an element of research at PhD level or above in certain sensitive subject areas whose knowledge could be used in programmes to develop Advanced Conventional Military Technology (ACMT), weapons of mass destruction (WMDs) or their means of delivery.
>>> Sponsor licence inspection visits back on
UK Visas and Immigration (UKVI) has confirmed that with lockdown easing, it is resuming sponsor licence compliance visits. Initial visits will be focused on organisations that have a pending sponsor licence application.
>>> Late applications to the EU Settlement Scheme
From 1 July 2021, EU, EEA and Swiss citizens living in the UK without having applied for pre-settled or settled status under the EU Settlement Scheme will be here unlawfully. The Home Secretary confirmed a few months ago that people can apply after that deadline, but they must have “reasonable grounds to apply late”. Clarity on what grounds might be considered reasonable was lacking until 1 April 2021, when the Home Office released guidance on how it will deal with late applications: pages 26 to page 44 of the main caseworker guidance.
Since the Home Office also requires those with pre-settled status to make a further application in order to upgrade to settled status, this guidance also applies to those who fail to upgrade before their pre-settled status expires. It also applies to family members joining an EU citizen sponsor via the family permit route, and to a few other scenarios.
That said, there is still time to apply for a Pre-Settled, Settled status AND change (non-EEA migrants) an "old style" Biometric Residence Card (BRC).
Talk to us, the Legal Centre, as we can help you: https://legalcentre.org/Initial-Consultation.html
>>> Now UK passports can be issued to British children abroad without abusive father’s consent: https://www.bailii.org/ew/cases/EWHC/Admin/2021/868.html
Her Majesty’s Passport Office was wrong to insist on signed consent for child passports from an abusive father, the High Court has held in R (GA & Ors) v Secretary of State for the Home Department [2021] EWHC 868 (Admin).
>>> Lack of Rule 35 process in prisons is unlawful, Court of Appeal finds: https://www.bailii.org/ew/cases/EWCA/Civ/2021/541.html
The judgment of the Court of Appeal in MR (Pakistan) v Secretary of State for Justice & Others [2021] EWCA Civ 541 marks a major step forward in the battle over the use of immigration detention in prisons. The court has decided that the absence of a Rule 35 procedure for identifying vulnerable immigration detainees in prisons is irrational.
Although the court held back from making a broader finding that this was systemically unfair, the Home Office and Ministry of Justice will surely have to provide something similar to Rule 35 in prisons in order to avoid further claims of this nature. The judgment confirms that the Home Office is already taking steps to amend the legal framework.
>>> Occupations which are not eligible for the Skilled Worker route: https
These occupations cannot be sponsored under the Skilled Worker route for various reasons, including:
-other, more appropriate immigration routes are available (for example, clergy and sport players).
-jobs cannot be held by anyone who is subject to immigration control in the UK (for example, elected officers and officers in armed forces).
-the jobs do not meet the skills threshold (for example, security guards and waiters).
>>> Home Office can make exceptions to rules stopping asylum seekers working: https://www.bailii.org/uk/cases/UKUT/IAC/2021/94.html
(Asylum seekers can normally work only in shortage occupations)
The Upper Tribunal has declared the government’s strict policy on asylum seekers working to be unlawful because it doesn’t mention that exceptions can be made. The case is R (C6) v Secretary of State for the Home Department (asylum seekers’ permission to work) [2021] UKUT 94 (IAC).
It has now been officially reported by the tribunal. The official headnote reads:
"Insofar as the Secretary of State’s policy Permission to work and volunteering for asylum seekers, version 8.0, 29 May 2019, admits no exceptions, it has not been justified and so is unlawful."
The judgment follows a very similar decision by the High Court in December. Despite these two rulings, the permission to work policy has still not been amended. In fact, a further challenge to it is now in the works.
>>> Home Office can’t just ignore human rights issues even if there is no asylum claim: https://www.bailii.org/uk/cases/UKUT/IAC/2021/97.html
The Home Office’s compartmentalised approach to applications for permission to stay in the UK can sometimes cause problems. Not everyone’s claim fits neatly into pre-defined categories.
So what happens when there is overlap between, for instance, an asylum claim and a human rights claim? This is the issue considered by the Upper Tribunal in JA (human rights claim, serious harm) Nigeria [2021] UKUT 97 (IAC).
The official headnote
"(1) Where a human rights claim is made, in circumstances where the Secretary of State considers the nature of what is being alleged is such that the claim could also constitute a protection claim, it is appropriate for her to draw this to the attention of the person concerned, pointing out they may wish to make a protection claim. Indeed, so much would appear to be required, in the light of the Secretary of State’s international obligations regarding refugees and those in need of humanitarian protection.
(2) There is no obligation on such a person to make a protection claim. The person concerned may decide to raise an alleged risk of serious harm, potentially falling within Article 3 of the ECHR, solely for the purpose of making an application for leave to remain in the United Kingdom that is centred on the private life aspects of Article 8, whether by reference to paragraph 276ADE(1)(vi) or outside the immigration rules. If so, the “serious harm” element of the claim falls to be considered in that context.
(3) This is not to say, however, that the failure of a person to make a protection claim, when the possibility of doing so is drawn to their attention by the Secretary of State, will never be relevant to the assessment by her and, on appeal, by the First-tier Tribunal of the “serious harm” element of a purely human rights appeal. Depending on the circumstances, the assessment may well be informed by a person’s refusal to subject themselves to the procedures that are inherent in the consideration of a claim to refugee or humanitarian protection status. Such a person may have to accept that the Secretary of State and the Tribunal are entitled to approach this element of the claim with some scepticism, particularly if it is advanced only late in the day. That is so, whether or not the element constitutes a “new matter” for the purposes of section 85(5) of the Nationality, Immigration and Asylum Act 2002.
(4) On appeal against the refusal of a human rights claim, a person who has not made a protection claim will not be able to rely on the grounds set out in section 84(1) of the 2002 Act, but only on the ground specified in section 84(2)."
>>> Correspondence regarding BRP/BRC for non-EEA nationals with status under EUSS
From the Home Office:
"The biometric residence card’s (BRC’s) are issued to non-EEA nationals with EU law rights and we currently issue two types of biometric residence cards to non-EEA family members of EEA and Swiss citizens living in the UK - the EEA BRC (Rights card) issued as evidence of rights under EU legislation) and the EUSS BRC (Scheme card). Both BRCs can, at present, be used as evidence to carriers that the holder has the right to travel to the UK and to prove a right to work or rent private accommodation. Any non-EEA national granted EUSS leave and did not use an EEA Rights BRC to apply, will receive an EUSS BRC valid for 5 or 10 years.
Valid EEA BRC’s can continue to be used for immigration and travel purposes until at least the end of the grace period on 30 June 2021 and the Government will shortly provide updated information on the GOV.UK website with further advice on the use of BRC’s post June. Non-EEA national family members whose cards expire can apply for a replacement document if they need one to board carriage to the UK. Any non-EEA nationals granted leave under the EU Settlement Scheme can exchange their EEA BRC for an EUSS BRC if they wish, but there is no requirement to do so.
Our intention is to eventually provide all foreign nationals coming and staying in the UK with access to their immigration information online instead of issuing physical documents that can be lost, stolen or tampered with. This will be the primary means for EEA citizens and their family members to prove their status in the UK. Current holders of EEA BRC’s are able to access and share their immigration status online to evidence their status in the UK."
>>> In-country customers applying for replacement biometric resident permits (BRP) and replacement biometric residence cards (BRC)
In recent months the Visas and Citizenship Appointment Service (UKVCAS) has worked hard to increase appointment capacity to above pre-Covid-19 levels. However, this has coincided with a surge of demand for replacement biometric resident permits (BRP) and biometric residence cards (BRC). This additional demand has impacted appointment availability.
To support our customers and address demand for appointments, from 23 April we will invite some customers applying for replacement BRP and BRC to apply via the Identification Verification (IDV) app, that can be downloaded on to most mobile devices.
Applications for most replacement BRP and BRC cards require only verification of identity and facial biometric capture, and can be processed via the IDV app without the need to provide additional documentation.
Submission via the IDV app will continue to be offered to eligible in-country student applications.
>>> Interjacent overstaying may count in 10 year long residence application: http://www.bailii.org/uk/cases/UKUT/IAC/2021/96.html
In Asif (Paragraph 276B, disregard, previous overstaying) Pakistan [2021] UKUT 96 (IAC) the Upper Tribunal confirms that previously disregarded overstaying between periods of leave should be treated as lawful residence for individuals making 10 year long residence applications.
Headnote:
"On the proper construction of paragraph 276B any period of overstaying that has been disregarded in accordance with sub-paragraph (v)(a) or (b) is treated as lawful residence for the purpose of sub-paragraph (i)"
>>> Changes to UKVCAS website
UKVAS have implemented a small website change. Part of this change will mean the Google Map on the search page will no longer be visible. Members and applicants can still search for appropriate service points using the postcode finder and the rest of the user journey remains the same.
>>> Correspondence with Richard Jackson (Immigration Policy, Home Office) regarding COVID Switching Concession
Question: Can this applicant switch now in-country ?
- Application in the UK as a visitor
- Leave still valid therefore exceptional assurance is not needed
- Applicant has a job offer but no CoS has yet been issued
So, can the applicant apply in county for permission to stay as a Skilled Worker with an undefined CoS or must they leave the UK and seek entry clearance with a defined CoS?
Response from the UK BA Policy department:
“This would be a permission to stay application, and the sponsor could assign an undefined CoS."
>>> Prove your English language abilities with a secure English language test (SELT) : https://www.gov.uk/guidance/prove-your-english-language-abilities-with-a-secure-english-language-test-selt?utm_medium=email&utm_campaign=govuk-notifications&utm_source=c98365e6-37b5-4ea7-bea3-c3f0cf22a406&utm_content=immediately
An updated list of approved test centres in and outside the UK
>>> Apply to the EU Settlement Scheme (settled and pre-settled status) translations: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwjD8-Xr4a_wAhULSxUIHet_Dc8QFjAAegQIAxAD&url=https://www.gov.uk/guidance/settled-status-for-eu-citizens-and-their-families-translations&usg=AOvVaw1BVtfGQ-sr8k6nmrOmJ5ou
The title of the guidance has been updated to match the English version
>>> 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_medium=email&utm_campaign=govuk-notifications&utm_source=9f64ab73-f34b-492c-96b7-a555eafe6d07&utm_content=immediately
The guidance has been updated with minor amendments to clarify when an application can be refused where previous deception has been used
>>> Russia: country policy and information notes: https://www.gov.uk/government/publications/russia-country-policy-and-information-notes?utm_medium=email&utm_campaign=govuk-notifications&utm_source=4b60d5bf-471b-4f05-b993-670965a582e1&utm_content=immediately
A CPIN on Jehovah’s Witnesses has been added
>>> Fresh blow to “no recourse to public funds” scheme: https://www.bailii.org/ew/cases/EWHC/Admin/2021/1085.html
Rules restricting migrants’ access to benefits are back in the spotlight following a new High Court decision, which found that aspects of the “no recourse to public funds” (NRPF) scheme fail to protect the rights of children.
The case of ST (a child, by his Litigation Friend VW) & VW v Secretary of State for the Home Department [2021] EWHC 1085 (Admin) focused specifically on the approach to NRPF in Appendix FM. This is the section of the Immigration Rules applicable to the family members of British citizens and those with long-term residence rights.
>>> Asylum right to work policy changed to allow more discretion: https://www.gov.uk/government/publications/handling-applications-for-permission-to-take-employment-instruction
The Home Office has updated its policy guidance on when asylum seekers can get permission to work, following two cases finding the previous version unlawful. The update (version 10.0, published on 4 May 2021) explicitly mentions that exceptions can be made to the strict rules against working while awaiting an asylum decision.
>>> Student visa and BRP/BRC replacement applicants will not be able to book an appointment immediately following an on-line application
The Home Office intends to start using the IDV App so the applications could enrol for the biometric and upload their supporting documents via their mobile phones.
The IDV App was widely used by the Home Office during the 1st lockdown.
The Legal Centre (www.legalcentre.org) believes that the Home Office is moving towards the "all digital documents".
See below for the relevant case-law, confirmin that point.
>>> Digital-only immigration status for EU citizens: https://www.bailii.org/ew/cases/EWHC/Admin/2021/1159.html
The High Court has issued a judgment refusing permission for a judicial review challenge to the government’s policy of giving digital-only proof of immigration status to millions of EU citizens. The case is R (The 3million Ltd) v Secretary of State for the Home Department [2021] EWHC 1159 (Admin).
People granted pre-settled or settled status are not being issued with physical residence permits. Instead, their status exists in the ether. People can pull their individual proof of status out of a Home Office database using a “view and prove” service on gov.uk.
>>> Judges can decide after the hearing whether an out-of-country appeal is fair: https://www.bailii.org/uk/cases/UKUT/IAC/2021/95.html
Juba (s. 94B: access to lawyers) [2021] UKUT 95 (IAC) is the latest judgment dealing with the “deport first appeal later” policy, following on from the famous Kiarie and Byndloss case. In Juba, the Upper Tribunal has found that it was acceptable for the First-Tier Tribunal to hear an appeal brought from abroad after deportation, and to only then decide whether the appellant had been deprived of the ability to secure legal representation, and/or to give instructions and receive advice.
>>> The UK-India migration deal: https://www.gov.uk/government/publications/migration-and-mobility-partnership/mou-on-migration-and-mobility-partnership-between-india-and-the-united-kingdom
The UK and India signed a non-binding agreement on migration this week. The basic ingredients are to beef up cooperation on removing unauthorised migrants in exchange for a minor liberalisation on youth mobility-type visas and some warm words on encouraging temporary migration more generally. Such a deal has been on the cards for years and a text was reportedly ready for signature in 2018, but was dropped in light of the Windrush scandal which made removals politically unappealing for a time.
The Young Professionals Scheme
The element of the deal most likely to result in substantive change to the Immigration Rules is the “Young Professionals Scheme” referred to in Paragraph 5 of Chapter 3 and Annex I. This will allow Indian nationals aged between 18 and 30 to live and work in the UK for up to two years, and vice versa. There will be a quota, initially 3,000 places a year. The scheme is therefore similar to the existing Youth Mobility Scheme in place for a small number of developed countries.
There are some differences. In particular, that Young Professionals:
"must hold a diploma / degree which validates as far as possible at least three years’ higher education corresponding to the qualification required for the employment on offer or have professional experience of comparable level in the sphere of activity concerned and be able to express themselves in the language(s) of the host country."
The Youth Mobility Scheme has no qualification or English language requirements. Nevertheless there will be many millions of Indians who meet these criteria, so the quota is likely to be oversubscribed. Presumably there will be a lottery if that is the case, as for Youth Mobility countries like Taiwan.
Another possible difference: the Young Professional could require employer sponsorship. That would make the scheme quite different to Youth Mobility, which does not tie the person to any one employer (or even require the person to work at all, in theory). The bit about qualifications having to be related to “the employment on offer” sits oddly with an unsponsored route, though, so perhaps the scheme will be much less flexible than Youth Mobility after all.
If the scheme does turn out to be much like Youth Mobility, that would be the first time that it will be opened to visa nationals. But the old Working Holiday Maker visa, abolished in 2008, was open to Indians and many other visa nationals, so in that sense "there is nothing new under the sun".
Other migration provisions
Much of the rest is fluff that refers to visas that already exist. For example, “Indian nationals who successfully complete their studies and who wish to supplement their training with professional experience in the UK may apply to remain in the UK on a work-based immigration route”. Similarly, there is nothing of substance in Chapter 2 on visit visas (“The UK will continue to welcome Indian nationals who wish to visit the UK in order to undertake a wide range of activities in accordance with the UK Immigration Rules”).
The pre-deal spin suggested that there would be something concrete on student visas which “could allow thousands more Indian students to enrol in UK universities”. Nothing seems to have come of that.
Theoretically, the Chapter 3, Paragraph 8 may be hinting at some sort of new research visa or add-on to the Global Talent route, but we will have to wait and see.
Removing unauthorised migrants
Then there is the quid pro quo: “Cooperation relating to the prevention and combatting of illegal migration” (Chapter 4 and Annex 2). This includes procedures for verifying the identity of someone being sent back, types of documents that will be accepted for that purpose, and timelines for acknowledging responsibility for the person being removed. If they have a passport, the authorities in the country of return are supposed to respond within 20 days (or failing that, 30 days). If not, the timeline is 60/90 days. Emergency Travel Documents should be issued within five working days.
Also in Chapter 4 is a provision targeting Indian nationals said to be deliberately making their UK-born children stateless in order to secure them permission to remain. This echoes a clampdown on perceived abuse of the statelessness rules in the New Plan for Immigration.
Chapter 5 then discusses information and intelligence sharing on border security, trafficking and forgery.
It is hard to assess the likely impact of this in the abstract. The Home Office is briefing that returns to India could reach “tens of thousands” as a result of the deal. In 2019, total voluntary and enforced returns of Indian citizens from the UK was 2,100 and the average over the past decade was around 6,000 a year. Returns did peak at 10,000 in 2012, so tens of thousands is not necessarily out of reach, although the fact that such a figure was possible back then suggests that the issue is not so much the absence of a deal like this as underperformance by Immigration Enforcement.
>>> UK visa fees: https://www.gov.uk/government/publications/visa-regulations-revised-table/fees-5-october
Updated the 5th October 2020 fees table In-UK Student and Child Student Route. The updated table of fees can be found via the link above
>>> EU Settlement Scheme: evidence of UK residence: https://www.gov.uk/guidance/eu-settlement-scheme-evidence-of-uk-residence?utm_medium=email&utm_campaign=govuk-notifications&utm_source=2cdc8288-da54-4046-8010-655d1ee111c7&utm_content=immediately
The document has been updated to clarify you’ll need to provide one document to show that you were resident in the UK before 31 December 2020.
>>> EU Settlement Scheme caseworker guidance: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwjfzNDI7r7wAhUE6OAKHUffByQQFjABegQIAxAD&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/981908/eu-settlement-scheme-person-with-a-zambrano-right-to-reside-v4.0-ext.pdf&usg=AOvVaw3pV_zpF6m5NJzT6ztHuSy0
Updated ‘EU Settlement Scheme: person with a Zambrano right to reside’ to reflect the changes to Appendix EU made in Statements of Changes in Immigration Rules, up to HC 1248, laid on 4 March 2021.
>>> Request personal data held in the immigration and borders system: https://www.gov.uk/government/publications/requests-for-personal-data-uk-visas-and-immigration/request-personal-information-held-by-uk-visas-and-immigration
Updated as the Home Office is now able to provide personal data held on some paper records
>>> Skilled Worker visa caseworker guidance: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwi0ifeY777wAhVLLBoKHTVgAeAQFjAAegQIAhAD&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/974078/skilled-worker-caseworker-guidance-v2.0ext.pdf&usg=AOvVaw14JaQw1sFJD4M7hAf3uEu7
Updated caseworker guidance.
>>> Permission to work: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwi92Nyu777wAhUR8eAKHZjGAIgQFjAAegQIAxAD&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/983283/permission-to-work-v10.0ext.pdf&usg=AOvVaw32RldgkUJftFHsD0Q7Iq4A
Updated the permissions to work and volunteering for asylum seekers guidance with the latest version.
>>> Congolese man unlawfully detained for three and a half years: https://www.bailii.org/ew/cases/EWHC/QB/2021/288.html
"To a person in detention, particularly in prison, every day of freedom lost matters and the Defendant needs to be able to justify it. In this case I think that principle became lost to sight."
So says the High Court in the case of Louis v Home Office [2021] EWHC 288 (QB), a depressing false imprisonment claim in which the Home Office was taken to task for its appalling treatment of a vulnerable detainee who was held under immigration powers for over four years.
The court found a multitude of failures going “very well beyond maladministration” that resulted in Mr Louis, a care leaver who arrived in the UK aged 13, being unlawfully detained for 42 of the 51 months he spent in immigration removal centres.
The case also shows the necessity of an effective system for monitoring detainee welfare on the prison estate, an issue to which the courts are now becoming alert.
>>> Home Ofice news
- UKVCAS document upload categories
UKVCAS are in the process of making changes to the categories section of the UKVCAS website for customers who self-upload their documents.
In the meantime, customers are reassured that all documents they choose to upload in support of their application are checked and - considered by UKVI caseworkers.
- Changes to service point locations
The UKVCAS Manchester Fountain Street Service Point is now closed and has relocated as the Manchester (Core) site based at Saint James Tower, 7 Charlotte Street, Manchester M1 4DZ. All customers whose appointment has been affected will receive an updated confirmation e-mail from UKVCAS and are encouraged to check their email and phone for messages.
Since our last update, UKVCAS have also opened the Aberdeen Enhanced Service Point (ESP) at Regus, 1, Marischal Square, Aberdeen AB10 1BL.
- Visa pause
As part of the government strategy designed to protect the UK’s health system during the global pandemic, UKVI recently paused the issue of transit and visit visas in red list locations. This has now been updated for transit visas.
>Transit visa – Applications for Visitor in Transit and Direct Airside Transit Visas that have already been submitted will now be issued and new applications will be processed as normal.
>Visit visa – In red list locations the pause on issuing visit visas is still in place and will be kept under review. There is no change to the UKVI approach to applications lodged in red list locations in a category where there are residence rights
- Fast track immigration route opens for prestigious award winners
The Global Talent route is part of the UK’s new points-based immigration system, which will attract the best and brightest to the country depending on the skills they can bring, rather than their nationality.
From 5 May, individuals who have won prestigious awards from across the sciences, humanities, engineering, the arts and digital technology will be able to take advantage of changes to the Global Talent visa route.
>>> Updated advice for employers carrying out right to work checks during the coronavirus (COVID-19) pandemic:
The following temporary changes were made on 30 March 2020 and remain in place until 20 June 2021 (inclusive):
Updated advice for employers carrying out right to work checks during the coronavirus (COVID-19) pandemic.
The following temporary changes were made on 30 March 2020 and remain in place until 20 June 2021 (inclusive):
-checks can currently be carried out over video calls
-job applicants and existing workers can send scanned documents or a photo of documents for checks using email or a mobile app, rather than sending originals
- employers should use the Employer Checking Service if a prospective or existing employee cannot provide any of the accepted documents
Checks continue to be necessary and you must continue to check the prescribed documents set out in right to work checks: an employer’s guide or use the online right to work checking service. It remains an offence to knowingly employ anyone who does not have the right to work in the UK.
>>> £100 million investment visa loan scheme ruled legal after all: https://www.bailii.org/ew/cases/EWCA/Civ/2021/679.html
A £100 million scheme for loaning migrants the money for an Investor visa was legal after all, the Court of Appeal has ruled. The case is R (Wang & Anor) v Secretary of State for the Home Department [2021] EWCA Civ 679. It overturned a previous Upper Tribunal decision that the scheme did not meet the Investor rules because the money invested was not under the borrower’s control.
The court reached this conclusion reluctantly and criticised the shoddy drafting of the Immigration Rules in allowing the scheme to operate despite what the Home Office intended.
>>> “Hand on the tiller” prosecution for assisting unlawful immigration fails: https://www.bailii.org/ew/cases/EWCA/Crim/2021/503.html
Fouad Kakaei is an Iranian man who helped steer small boats carrying asylum seekers across the English Channel on two separate occasions, in July and December 2019. He also attempted to cross on several other occasions. Following the July 2019 crossing, he did not claim asylum here in the UK and was returned to Denmark, where a previous claim for asylum had already been refused. He did claim asylum in the UK after the December crossing but was charged with illegal entry under section 24 of the Immigration Act 1971, pleaded guilty and was sentenced to four months’ imprisonment. He also faced trial for the separate crime of assisting unlawful immigration, an offence under section 25 of the 1971 Act attracting a maximum sentence of 14 years. Following a legal ruling at his trial, he pleaded guilty to this offence as well and was sentenced to 26 months’ imprisonment.
Fast forward through a lenghly determination:
Mr Kakaei therefore had a defence: it is not a breach of UK immigration law for asylum seekers to claim asylum at port on arrival and therefore he had not necessarily assisted unlawful immigration. Given that he was acquitted yesterday, it looks like this defence was accepted by the jury.
>>> Court of Appeal considers unduly harsh deportation test (again): https://www.bailii.org/ew/cases/EWCA/Civ/2021/619.html
The Court of Appeal has considered, again, whether it is “unduly harsh” for British children to be separated from their father on the basis that he is a foreign criminal.
The case is TD (Albania) v Secretary of State for the Home Department [2021] EWCA Civ 619. It concerns an Albanian national who was granted indefinite leave to remain in 2011 and lives here with his British partner and their three children. Due to his persistent criminal offending, the Home Office decided to deport him. The question for the Court of Appeal was whether it would be unduly harsh for them to do so.
>>> Visa and immigration reconsideration requests: https://www.gov.uk/visa-and-immigration-reconsideration-requests
You might be able to ask for the decision on your visa or immigration application to be reviewed if you applied in the UK.
This is known as a ‘reconsideration request’. It isn’t a formal appeal or an administrative review. You can’t ask for a reconsideration if you have a right to an appeal or a review.
When you can make a reconsideration request
You can make a reconsideration request if you believe immigration rules or policies weren’t followed correctly when the decision was made.
You must be in the UK to make the request.
You can only make a request if you applied in the UK to:
-transfer your visa to a biometric residence permit - known as a ‘transfer of conditions’ (TOC)
-transfer your indefinite leave to remain to a biometric residence permit - known as ‘no time limit’ (NTL)
-extend your leave, switch your visa or settle in the UK
You can make a request if your application for TOC, NTL or leave to remain was successful but you believe the type or the expiry date of the leave is wrong.
You can also make a request if your TOC or NTL application was refused and you have any of the following:
-new evidence about the date of the application
-new evidence to prove that your documents were authentic
-evidence that information received by UK Visas and Immigration (UKVI) before the decision date was not available to the team who made the decision
These are the only kinds of new evidence that you can use. You can’t make a request if it relates to any other sort of new evidence that wasn’t received by UKVI before the decision date.
When you can’t make a reconsideration request
You can’t make a reconsideration request if you have a right of appeal or right to an administrative review against the decision.
Your decision letter will usually tell you if you have either of these rights.
When your request will be rejected
Your reconsideration request will be rejected if you:
-make a new application before or after you send the request
-have since been given permission to stay in another visa category
-left the UK and your permission to stay has expired
-were removed or deported from the UK
-have already exhausted your appeal rights or lost your case in a judicial review
-need to make an appeal or apply for an administrative review instead of making a reconsideration request
How to make a request
Write a letter saying why you think the decision was wrong. Refer to the rules or policy under which you applied - check the guidance for your application to find the right rules or policies.
Send your request to the team who made the decision on your original application - the address will be shown on the decision letter.
You must make your request as soon as possible and no later than 14 days after you get the decision on your application.
You can only make one reconsideration request.
Legacy requests
If you made your request before 13 November 2012 (known as a ‘legacy request’) and your immigration status is still not resolved that request will still be considered as long as you meet the guidance requirements.
>>> Coronavirus (COVID-19): advice for UK visa applicants and temporary UK residents: https://www.gov.uk/guidance/coronavirus-covid-19-advice-for-uk-visa-applicants-and-temporary-uk-residents?utm_medium=email&utm_campaign=govuk-notifications&utm_source=d42040b8-f21d-49f7-b7c2-8c989de0b28e&utm_content=immediately
If you are in a red list country and wish to apply for a visitor in transit or direct airside transit visa (DATV) we are now able to process your application, as the pause on issuing transit visas has been lifted.
>>> Prove your English language abilities with a secure English language test (SELT) Guidance: https://www.gov.uk/guidance/prove-your-english-language-abilities-with-a-secure-english-language-test-selt?utm_medium=email&utm_campaign=govuk-notifications&utm_source=5dd73aac-246c-45f8-a7b4-35bc162f23a9&utm_content=immediately
The list of test centres in and outside the UK has been updated.
>>> Request personal data held in the immigration and borders system: https://www.gov.uk/government/publications/requests-for-personal-data-uk-visas-and-immigration/request-personal-information-held-by-uk-visas-and-immigration
Links have been added to check an individual’s immigration status, right to work or rent to prevent subject access requests being made when other sources of information are available.
>>> Immigration Act 2014: appeals: https://www.google.co.uk/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwji06a18NDwAhUJDxQKHXq_CuQQFjAAegQIAxAD&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/983591/euss-appeals-certifying-v1.0-gov-uk.pdf&usg=AOvVaw0N9m8dkfpT-TvhTFvFBV4I
A new document has been added titled: EU Settlement Scheme appeals: certification in national security and deportation cases.