13 July 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)
13 July 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)
Half of all Tier 1 (Investor) visas ever issued are being reviewed on national security grounds, according to an anti-corruption charity.
"The Home Office confirmed that all 6,312 main applicants and their adult dependents who entered the golden visa route between 30 June 2008 and 6 April 2015 were in the scope of the review; and that analysis of that cohort has been completed and the findings of the review are being finalised. It noted, however, that the end date and publication date for the review was still to be confirmed."
>>> Some interesting Home Office Q and A:
No switching between Skilled Worker and Tier 1(Investor) route
Q: Can Skilled Workers and ICTs switch in country into the Tier 1 (Investor) visa category now ?
A: Whilst the Tier 1 (Investor) route allows switching into the route, it does not allow for time spent in other routes to count toward settlement. Given this, the decision was taken not to amend the switching requirements as part of the December Rules changes and consider these as part of the wider simplification programme
Are Skilled Workers able unable to start working for their employers before their applications are approved ?
Q: Is there any scope to enable those who submit in-time Skilled Worker applications to start work prior to decision?
A: We allowed workers to start while waiting for a decision as part of one of the many covid concessions,we have no plans to reintroduce this. There is an exception for Students, who have a long-standing rule allowing them to do this, but not for other routes
Exceptional Assurance
Will the concession be extended further (for those who intend to leave the UK but have not been able to do so and have a visa or leave that expires soon but after 30 June 2021)?
A: The concession will not be extended in its current form but will be open to those nations on the amber and red list.
Q: Submitting in-country applications where normally need to apply from overseas - again, concession currently only applies to those with leave/EA expiring on or before 30 June 2021 – any plans to extend the concession on this ?
A: All Covid-19 policy concessions are kept under regular review, and our content on GOV.UK is updated regularly as and when concessions change. Concessions on switching were introduced at a point when international travel was severely limited in the early stages of the pandemic, and it would not have been reasonable to expect those in the UK on a route where switching would not normally be permitted to have anticipated difficulties around returning overseas to make a further application.It is a condition of someone’s permission as a visitor to intend to leave the UK at the end of their visit, and travelling to the UK under that route with the intention to switch into a different route when it would have been possible to make an initial application overseas is not permitted. Exceptional assurance provides those who are genuinely unable to leave the UK with protection against enforcement action and allows them to continue carrying out activity permitted by their previous form of leave. EA has been extended further and exists to protect those who find themselves unable to travel. Further information is provided in the link above.It is open to applicants to provide information on any extenuating circumstances when making an application in the UK for further leave. Information is also available on gov.uk under the heading: if you’re applying to enter UK or remain on the basis of family or private life”
Individuals marrying in the UK
Q: Will there be a policy update on the issues raised previously concerning those who wish to marry in the UK but have been unable to do so ?
A: Fiancée or proposed civil partner applicants who have been unable to marry in the UK, within their allocated 6 month period, as a result of Covid-19 restrictions can still rely on exceptional assurance provisions until 30 June 2021. Those applicants who need to rely on the provisions must apply before the 30 June and the assurance will then be guaranteed until 31 October 2021, in order for them to complete their ceremony.As wedding ceremonies have now been permitted within all regions of the UK, this has been deemed a sensible timeframe for applicants to complete their ceremony. However, we will continue to review this matter and may make further changes in the future should they prove necessary. The current family Immigration Rules also allow a fiancé(e) or proposed civil partner to apply for an extension of leave if there is good reason for their wedding or civil partnership not taking place during the initial six-month period of leave to enter. Cancellation of a wedding due to COVID-19 will be considered a good reason under this policy. Applicants are still required to pay the application fee and charges.
14 July 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 European Court of Human Rights has ruled that forcing sponsors to wait for a minimum of three years before applying for family reunification without an individualised assessment of the family’s circumstances violates Article 8 of the human rights convention. The case is MA v Denmark (application no. 6697/18).
14 July 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)
>>> It was coming: Judicial Review claim regarding the availability of free appointments for biometric enrolment
The legal team from in the judicial review claim (M.S. v SSHD CO/3367/2020), regarding the availability of free appointments for biometric enrolment provided by Sopra Steria on behalf of the Home Office, has been lodged. The claimants have been granted permission to argue that there is an unlawful failure to ensure the availability of a sufficient number of free applications for applicants, in particular recognised refugees, to enrol their biometrics without payment of a fee.
The Legal Centre has contributed to the claim and confirms that indeed there has been very few biometric appointments available since Sopra Steria has been running the biometrics franchise, granted by the Home Office.
>>> Whats constitutes the date of the UK Immigration application ?
"34G. For the purposes of these rules, the date on which an application (or a variation of application in accordance with paragraph 34E is made is:
(1) where the paper application form is sent by post by Royal Mail, whether or not accompanied by a fee waiver request form, the date of posting as shown on the tracking information provided by Royal Mail or, if not tracked, by the postmark date on the envelope; or
(2) where the paper application form is sent by courier, or other postal services provider, the date on which it is delivered to the Home Office; or
(3) where the application is made via the online application process, and there is no request for a fee waiver, the date on which the online application is submitted; or
(4) where the online application includes a request for a fee waiver, the date on which the online request for a fee waiver is submitted, as long as the completed application for leave to remain is submitted within 10 days of the receipt of the decision on the fee waiver application.
(5) Notice of invalidity under paragraph 34G(4) will be given in writing and served in accordance with Appendix SN of these Rules."
15 July 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 Upper Tribunal can consider late acknowledgments of service from the Home Office when deciding whether to grant permission for judicial review proceedings, the Court of Appeal has ruled in KA v Secretary of State for the Home Department [2021] EWCA Civ 1040.
Issues in the case
The first issue concerned the interpretation of Rule 29 of the Tribunal (Procedure) (Upper Tribunal) Rules 2008. The question was whether the Upper Tribunal can consider a late acknowledgement of service, provided after the usual 21-day time limit.
The second issue was whether the tribunal’s unilateral decision to give the Home Office 42 days to file acknowledgment of service, rather than the usual 21 days, was lawful – the Kumar arrangements, in place from 2014 to 2019.
16 July 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 Sanambar v Secretary of State for the Home Department [2021] UKSC 2 the Supreme Court has dismissed the appeal against deportation of an Iranian citizen who arrived in the United Kingdom aged nine in 2005. He had committed several knifepoint robberies as a teenager, between the ages of 14 and 17, and several other lesser offences. He was convicted aged 17 and sentenced to three years’ detention in a Young Offender Institution.
19 July 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)
Temporary concession: coronavirus (COVID-19) related research - the concession for certain Global Talent applicants has been extended until 31 December 2021.
Temporary concession: coronavirus (COVID-19) related research - the concession for certain Global Talent applicants has been extended until 31 December 2021.
20 July 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 displaced talent visa: helping refugees apply for UK work permits
"I am announcing that those displaced by conflict and violence will now also be able to benefit from access to our global points-based immigration system.
To enable skilled displaced people who have had to flee their homes to come to the UK safely and legally through established routes.
We will work with the charity Talent Beyond Boundaries and other partners on this pilot project.
[Priti Patel, 19 July 2021]"
What is the displaced talent mobility pilot?
The scheme is designed to facilitate UK work permit applications by skilled refugees and displaced people from Jordan and Lebanon ONLY at this time. The policy connection is clear: ministers had promised safe and legal routes for people in need, and this is a safe and legal way for those people to come to the UK.
That said, it is not a new form of refugee status. It is better understood as a tailored version of the Skilled Worker visa, to exist alongside the asylum system as a complementary pathway.
The precise details of the pilot are not yet known, but the broad structure should be familiar. As a starting point, we anticipate that:
- Displaced people will need a job offer from a licensed sponsor
- They will need to meet the usual minimum salary level
- The English language requirement must also be met
- The visa will last for five years and lead to settlement
- It will be possible to change employers once in the UK
- Eligible family members will be able to come too
Crucially, the pilot is not aimed at lowering existing eligibility criteria. Rather, it recognises that the rigorous documentary requirements and administrative processes of the existing work permit rules can inadvertently discriminate against displaced people and that that discrimination needs to be removed.
How employers can hire refugees from abroad
First, employers must identify their preferred candidate. Businesses can find 26,000 highly qualified displaced people with skills in sectors such as health, digital technology, education, legal, construction, engineering (and more) in Talent Beyond Boundaries’ talent catalogue. More details on the catalogue and how to work with Talent Beyond Boundaries are available at https://www.talentbeyondboundaries.org/for-employers
Secondly, once that candidate is identified, Talent Beyond Boundaries and their partners such as the International Organization for Migration can help with the logistics of job interviews (which aren’t easy if your refugee camp only has intermittent electricity and WiFi.)
Thirdly, once the job offer has been made and accepted, Talent Beyond Boundaries work with the sponsoring employer and the applicant to prepare and file the visa application. The UK authorities will expedite the processing of the application, typically deciding them within five working days where feasible.
Help without charity
Although charities will assist with the overall process, it is important to stress that this recruitment is not charitable. Potential applicants are very skilled, eminently qualified and with a wealth of experience, all of which means they have a huge amount to contribute to the UK economy. The pilot is aimed at enabling that contribution and normalising displaced talent mobility. This will establish ease of access to a whole new labour market for UK businesses, and help skilled displaced people rebuild their lives in a new home.
Both Australia and Canada are proof that pilots like that can work.
The fact that the UK is joining their number with a new complementary pathway is a positive step that will hopefully encourage other countries to do the same.
23 July 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 Court of Appeal in R (Mungur) v Secretary of State for the Home Department [2021] EWCA Civ 1076 has weighed in on what kind of permission to be in the UK can count towards the necessary ten years.
This decision is helpful confirmation that time spent in the UK on a visit visa can count towards ten years’ continuous lawful residence. It is also an excellent reminder that the relevant ten-year period does not have to immediately precede the settlement application. That is, if a person had acquired a lawful 10-year residence in the say, say, between 2001 and 2011, and then became an overstayer, the period between 2001 and 2011 in the above example may be counted as lawful residence towards ILR (Indefinite Leave to Remain) on the basis of the Long Residence (10 years).
>>> Home Office refuses to explain secret sham marriage algorithm
The Home Office has rebuffed Public Law Project’s (PLP) the latest attempt to find out more about the secret algorithmic criteria used to decide whether a proposed marriage should be investigated as a “sham”.
Sham marriage investigations can be invasive and unpleasant, and it appears that they are targeted at some nationalities more than others. PLP is concerned about the lack of transparency and possible discrimination involved in the automated triage system.
>>> Transit stops in amber or red list countries
On arrival into England, rules for the highest risk country or territory that you have been in or passed through in the previous 10 days must be observed. This includes transit stops.
A transit stop is where passengers can get on or off the same part of the transport in which you are travelling. It can apply to ships, trains or flights.
>>> Biometrics Enrolment at the Post Office
From 31 July 2021, applicants will no longer be directed to use the Post Office to enrol biometrics as part of an immigration application or immigration application related process.
Where biometric enrolment is required as part of an immigration process, applicants will be directed to one of the 7 Service Support Centres (SSCs) or 44 UK Visa and Citizenship Application Service (UKVCAS) across the UK. The majority of applicants will be able to complete their visa or citizenship application at a UK Visa and Citizenship Application Service centre. However, for applicants who require more support and face to face interaction with UKVI staff, appointments can be made at a Service and Support Centre.
For those applicants who may have higher needs or be in a position of vulnerability, there will be enhanced support; to allow any appropriate safeguarding action to be taken through a range of travel assistance and mobile services.
Applicants have already benefited from being directed to SSC and UKVCAS prior to the 31 July 2021 due to the phasing out of the Post Office biometric services.
The Judicial Review and Courts Bill 2021, published recently, will mostly abolish the right of migrants to apply to the High Court to have an appeal reopened if rejected by both chambers of the immigration tribunal. This is the process, well known to lawyers, known as a Cart or Eba judicial review.
Clause 2(2) of the Bill says that a decision of the Upper Tribunal to refuse to hear an appeal from the First-tier Tribunal is “final, and not liable to be questioned or set aside in any other court”.
24 July 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)
Some of the staff charged with running the camp were themselves migrants working in breach of their visa conditions, according to the Independent Chief Inspector of Borders and Immigration.
Need one say more about the efficiency of this Brexit Government ?
26 July 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)
05 August 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 April 2021 the High Court held that Her Majesty’s Passport Office was wrong to insist on signed consent for child passports from an abusive father overseas. That judgment has now been robustly upheld by the Court of Appeal following a hopeless appeal by the Passport Office: Secretary of State for the Home Department v GA & Ors [2021] EWCA Civ 1131.
10 August 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 Department for Business, Energy & Industrial Strategy has published a UK Innovation Strategy, which sets out an intention to ‘Introduce new High Potential Individual and Scale-up visa routes, and revitalise the Innovator route to attract and retain high-skilled, globally mobile innovation talent’ as part of the government’s ‘vision to make the UK a global hub for innovation by 2035’ (see pages 60-61):
"Furthermore, as part of our plan for growth, the UK government will introduce a new High Potential Individual route to make it as simple as possible for internationally mobile individuals who demonstrate high potential to come to the UK. Eligibility will be open to applicants who have graduated from a top global university. The UK government will explore the scope to expand eligibility to other characteristics of high potential. There will be no job offer requirement, giving individuals the flexibility to work, switch jobs or employers and make contributions to the UK economy. The route will also allow eligible individuals to extend their visa and settle in the UK, subject to meeting specific requirements.
A scale-up route will also support UK scale-ups by allowing talented individuals with a high skilled job offer from a qualifying scale-up at the required salary level to come to the UK. Scale-ups will be able to apply through a fast-track verification process to use the route, so long as they can demonstrate an annual average revenue or employment growth rate over a three-year period greater than 20%, and a minimum of 10 employees at the start of the three-year period. UK Government will explore whether scale-ups who can demonstrate an expectation of strong growth in future years may also qualify following a review. The route will allow eligible individuals to work, switch jobs or employers. Individuals will be able to extend their visa and settle in the UK, subject to meeting specific requirements.
A revitalised Innovator route will allow talented innovators and entrepreneurs from overseas to start and operate a business in the UK that is venture-backed or harnesses innovative technologies, creating jobs for UK workers and boosting growth. We have reviewed the Innovator route to build a competitive offer. We will do this by:
• Simplifying and streamlining the business eligibility criteria. Applicants will need to demonstrate that their business venture has a high potential to grow and add value to the UK and is innovative.
• Fast-tracking applications. The UK government is exploring a fast-track, lighter touch endorsement process for applicants whose business ideas are particularly advanced to match the best-in-class international offers. Applicants that have been accepted on to the Department for International Trade’s Global Entrepreneur Programme will be automatically eligible.
• Building flexibility. Applicants will no longer be required to have at least £50,000 in investment funds to apply for an Innovator visa, provided that the endorsing body is satisfied the applicant has sufficient funds to grow their business. We will also remove the restriction on doing work outside of the applicant’s primary business.
The new Global Business Mobility visa will also allow overseas businesses and innovative companies greater flexibility in transferring workers to the UK, in order to establish and expand their businesses".
First published page outlining that you can contact the Home Office about your immigration status if your access to work, benefits or services has been affected, and you believe this is because the immigration status held by the Home Office may be incorrect.
This collection of all application forms for people who cannot apply online and want to come to the UK, extend their stay or settle has the categories reordered by applicant group on the GOV.UK website
Updated guide on an introduction to the UK's points-based immigration system for EU citizens and new guidance for au pairs, business travellers, Erasmus students and those looking to come to the UK for an internship and EU, EEA and Swiss business travellers.
10 August 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)
EU citizens and their families who apply late to the EU Settlement Scheme will have their day-to-day rights protected while that application is considered, the Home Office has announced.
The U-turn came in a press release on Friday evening, which says:
"While the numbers applying late [i.e. after 30 June 2021] have been small compared to pre-deadline application numbers, to provide further reassurance to late applicants the government will protect their rights until their application and any appeal is decided.
The government will also take a similar approach with joining family members, who will have temporary protection for three months after their arrival in the UK and pending the outcome of an EUSS application made during that period (and of any appeal)."
Before announcement After announcement
Right to work No Yes
Right to rent No Yes
Benefits No Yes
NHS access Yes Yes
16 August 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)
First published news story. Those who apply late to the EU Settlement Scheme, and joining family members, will have rights protected while their application is determined.
First published information for people travelling to the UK from Ireland, Guernsey or the Isle of Man, and information for people passing through the UK to Ireland, Jersey, Guernsey or the Isle of Man. The report can be found here.
17 August 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 Chowdhury v Secretary of State for the Home Department [2021] EWCA Civ 1220, the Court of Appeal has confirmed that where an extended family member applies for an EEA residency card, their period of dependency on their EEA citizen sponsor must have not have been broken up by periods in which they were not dependent. In short, this is because the purpose of granting rights to extended family members is to protect the free movement of EEA citizens. If the extended family member is not a dependant of the sponsoring EEA citizen at any given time, then there is no need to them give rights to protect the free movement of the EEA citizen.
This was an important issue under the EEA Regulations 2016 (and 2006). The tribunal decision had real practical impact by limiting the ability of some extended family members to get the EEA residence documents they needed to apply for settled status. Post-Brexit, the Court of Appeal decision will only be relevant to a small number of people with outstanding appeals or applications under the EEA Regulations.
23 August 2021 - Helpful and useful UK Immigration news from the Legal Centre, www.legalcentre.org, +447791145923
>>> The financial requirement for Short- Term Student, Representative of an Overseas Business, UK Ancestry and Hong Kong British National (Overseas) applicants:
If you meet the financial requirements of Appendix FM at the date of application but your sponsor then leaves their job, do you still qualify for a spouse visa? Yes, the Upper Tribunal found in Begum (employment income; Rules/Article 8) [2021] UKUT 115 (IAC).
Note that the pricate fees for defending the Asylum claim may well reach £350 000 !
A costs judge has backed a leading firm of solicitors in its dispute with a former client over a £194,000 bill for work on her asylum case. The judgment is Farrer & Co LLP v Yertayeva [2021] EWHC B16 (Costs).
The firm thought it would be a complicated case. Ms Yertayeva would have to establish that the charges against her were “politically motivated”, requiring “expert reports and local lawyers’ witness statements”. Farrer & Co partner Elena Hinchin told the court that at an initial meeting at Côte Brasserie in Hampstead, she quoted “potential fees at around £250,000-£350,000 for the first stage of work, though she warned that they might end up being significantly higher”.
The claimant lost her case.
Overall, the judge concluded, “I regard the allegations of overcharging, exploitation and other misconduct levelled by the Defendant at the Claimant to be unfair and untrue”.
>>> Children under 18 coming to school in the UK
Under the quarantine arrangements for boarding school students from red list countries, if a child under 18 is coming to study at a UK boarding school, they may isolate at accommodation provided or arranged by their boarding school instead of going into managed quarantine.
If there is no facility at the boarding school or they are staying in family/foster arrangements, a visitor visa may be considered to one parent/guardian to accompany the child to the UK to undergo managed quarantine together.
Full details have been updated and published on the Coronavirus (COVID-19): advice for UK visa applicants and temporary UK residents GOV.UK.
27 August 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 Updates on Right to Work and Right to Rent Checks
The Home Office has updated its guidance for employers carrying out right to work checks and landlords carrying out right to rent checks during the Covid-19 pandemic. The end date for the temporary adjusted checks has now been deferred to 5 April 2022 (inclusive).
>>> Asylum backlog passes 70,000
The backlog of asylum cases has passed 70,000 despite a fall in the annual number of applications.
Almost 71,000 asylum seekers, including dependants, were awaiting an initial decision on their claim for refugee status as of 30 June 2021, according to new Home Office figures. The overall backlog has doubled in just a couple of years: at the end of 2018, the figure was 36,000.
31 August 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)
>>> EU, EEA and Swiss citizens ID Cards
From the 1 October 2021, most EU, EEA and Swiss citizens will only be able to travel to the UK using a valid passport. ID cards will no longer be accepted as a valid travel document for entry to the UK. If EU, EEA and Swiss citizens do not have a passport from 1 October, they are liable to be refused entry to the UK. EU, EEA and Swiss citizens who hold pre-settled or settled status under the EU Settlement Scheme, or who have made a valid application under the scheme which is still pending, and those whose rights are protected under the Citizens’ Rights Agreements (such Frontier workers) will be able to use their national identity cards to enter the UK until 2025 at least.
To support you in providing essential guidance about this change to your network, we have developed a suite of products you may use to communicate this change.
01 September 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)
>>> Court of Appeal confirms that 3C leave can be revived: https://www.bailii.org/ew/cases/EWCA/Civ/2021/1308.html
Interesting case law on the “resurrection” of the “lost” 3C leave when an out of time appeal is accepted by the court.
This is also an important decision for anyone who has lodged a late appeal, as it means they can work whilst the appeal is pending.
01 September 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)
>>> Court of Appeal confirms that 3C leave can be revived: https://www.bailii.org/ew/cases/EWCA/Civ/2021/1308.html
Interesting case law on the “resurrection” of the “lost” 3C leave when an out of time appeal is accepted by the court.
This is also an important decision for anyone who has lodged a late appeal, as it means they can work whilst the appeal is pending.
03 September 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 Economic Migration upcoming changes in 2021
Progress so far
- removal of the Resident Labour Market Test (RLMT)
- suspension of the cap on skilled workers
- introduction of the pre-licence priority service
- a paperless sponsor licence application process, and
- redesign of guidance for sponsors.
The Home Office is looking to simplify the supporting evidence required to become a sponsor with a view to speeding up the end-to-end processing of applications.
The Home Office also plans to set up a new support service for small and micro businesses. This may not require additional ‘premium sponsor’ fees for access to such a service.
A new Skilled Worker eligibility checking tool will also be introduced, to make it easier for employers and workers to check whether a particular job is eligible under the Skilled Worker route.
In terms of compliance reforms, the Home Office will pilot a new salary check mechanism, in conjunction with HMRC, to verify that employees are being paid the amount specified by their employer during the application process. Not all employees will be paid using PAYE for various reasons, so it will be important for the Home Office to ensure these checks do not result in its software generating an automatic compliance breach and instead provides an employer with an alternative way to evidence salary payments.
Finally, the Home Office will be conducting a review of its fees to ensure they remain ‘fair’ as the new system is rolled out.
The outlook for 2022 and beyond
The Home Office plans to implement a range of technological and system reforms between 2022 and 2024 with the intention of creating, so the Home Office says, a faster and simpler end-to-end journey for sponsors and workers, with a more user-friendly system and less bureaucracy. The focus of the reforms is on customer service.
Customer service reforms
There will be a quicker, simplified service for compliant ‘straightforward’ sponsors. To this end, the Home Office will be reviewing licence renewal patterns, meaning certain sponsors will no longer need to renew their sponsor licence every four years.
The Home Office is also reviewing its service standards with a view to delivering improvements by Spring 2022. Its aim is to deliver a faster end-to-end journey from sponsor licence application to approval. Prior to the introduction of the priority service, sponsor licence applications would typically take up to eight weeks to be processed, often being processed much quicker than this.
Applicants are currently seeing delays which, in part, may be due to the rise in applications.
The Home Office is also carrying out research into the barriers facing SMEs applying for a sponsor licence in order to deliver the right support package. As well as the overhaul of the Sponsor Management System (SMS), one hopes this includes a review of fees, the hefty sponsor guidance materials, and making the sponsorship requirements more accessible.
Tech reforms
A potentially exciting development for those beaten down by Sponsor Management System and application woes are the IT reforms. The changes will be delivered in three stages, with each phase being rolled out to a test group of SMEs and larger employers before gradually being extended to a larger cohort. The Home Office anticipates that it will take two years to implement the new IT system, with all sponsors being transferred to the new system by early 2024.
Phase 1: Sponsor a visa
The first stage will be delivered in mid-2022 and aims to implement a streamlined ‘customer journey’ for sponsors. Once the details of a sponsored worker’s role have been approved by the Home Office, the worker will be invited to submit their immigration application. The worker’s application will then be pre-populated with information previously submitted by the employer, removing duplication of data entry.
Phase 2: Manage a licence
The second stage to be delivered by the end of 2022 will introduce an improved online SMS for sponsors. The revised SMS will include a sponsored worker dashboard with key information about a worker’s status and actions that need to be taken. A significant change will be the way the Home Office collects and shares data with other government departments. The Home Office plans to implement automatic checks against data based on information held by other departments, such as Companies House and HMRC. This may create huge issues for sponsors if the information held by other departments is incorrect or has not been updated, particularly given the time it can often take for reported changes to be made.
Phase 3: Become a sponsor
The final phase will be delivered in early 2023 and will introduce automatic checks to verify key information about a prospective sponsor and whether certain key personnel are employed by, or are office holders of, a sponsored organization. Prospective sponsors are not currently required to provide evidence of this as part of the application, so it would be useful to know how this is currently being verified, if at all.
Sponsor compliance
Compliance checks under the new system will largely reflect those under the current system; however, the Home Office has said its compliance visits will target sponsors who present a higher risk of non-compliance or who have no track record of compliance. It is important that the Home Office provides guidance on which sponsors it deems at higher risk, not only to ensure fairness in its assessment but also to put sponsors on notice. The new salary checks will also be a way of checking employees are being paid as required, and discrepancies may trigger a visit. Again, given that certain sponsors will not typically use PAYE, and are not required to, it will be important to ensure systems in place to avoid potential discrimination.
Engagement strategy
The new system is to be accompanied by a ‘comprehensive’ engagement strategy that will inform its design and implementation. This will include customer feedback from external stakeholders, including premium sponsors, SMEs, education organisations, and advisory groups.
Global Business Mobility route
In its strategy statement for the New Plan for Immigration, the government announced the launch of a single, sponsored Global Business Mobility route in Spring 2022 that will merge, reform and expand several existing sponsored worker categories. Rather than creating something new, this sounds more like an umbrella term under which to group and revise existing work routes, such as the Intra Company Transfer route.
09 September 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)
>>> Can children be deported from the UK?
The answer is “yes”.
Children can be removed from the UK as part of a family. They can, on paper, also be deported in their own right for criminal offending: the Home Secretary’s power of deportation under the Immigration Act 1971 is not limited to under-18s, and the Home Office has specific guidance on applying that power to children. That said, under that guidance, the physical removal will “usually” be delayed until the child turns 18.
10 September 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)
13 September 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 reflect the decisions that have a right of administrative review;
· to reflect that from 6 April 2021, there is a fee for administrative reviews of entry clearance decisions;
· to update references to Part 9 of the Rules; and other general housekeeping
· An introduction for EU, EEA and Swiss workers
· An introduction for EU, EEA and Swiss students
· Information for EU, EEA and Swiss visitors
· Application guidance
14 September 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)
>>> New statement of changes to the Immigration Rules: HC 617
Part 1
On 10 September 2021 the Home Office published a statement of changes to the Immigration Rules (HC 617). It is 183 pages long and makes adjustments in quite a number of areas. Some of the main changes are:
Banning entry to the UK with an ID card rather than a passport (with exceptions for some existing residents)
Update to existing relocation schemes for Afghans, including granting indefinite leave to remain from the outset
A new International Sportsperson route, consolidating what were the Tier 2 and Tier 5 sporting visas
Update to Global Talent, making it slightly easier to get an endorsement, and doubling the number of awards that mean no endorsement is required
Changes to EU Settlement Scheme family permits, including “to allow a joining family member to apply to the EUSS whilst in the UK as a visitor”
Iceland and India being added to the Youth Mobility Scheme
A new “Appendix Settlement Protection” for refugees to get ILR
Incorporation of some coronavirus concessions into the Rules
EU family permits
The non-EU family members of EU citizens with pre-settled or settled status under Appendix EU to the Rules need a type of visa called a “family permit” to join their sponsor in the UK. The rules governing these permits are in the inscrutable Appendix EU (Family Permit). Those rules are, according to the explanatory memo, being changed as follows:
to allow a joining family member to apply to the EUSS whilst in the UK as a visitor. From 6 October 2021, the temporary concession to this effect outside Appendix EU where certain joining family members are concerned, as currently set out in the EUSS caseworker guidance, will cease to operate.
technical changes to reflect the passing of the 30 June 2021 deadline for applications to the EUSS by those resident in the UK by the end of the transition period (though a late application can still be made where there are reasonable grounds as to why the person missed that deadline).
technical changes to reflect the fact that, as the Home Office has already confirmed to relevant stakeholders, a person who is exempt from immigration control can, if they wish, apply to the EUSS whilst they remain exempt, or they can apply once they have ceased to be exempt.
For anyone who wants to try, see pages 32 to 39 of the statement of changes document.
Part 2
ID cards are out
Last year the government announced that “From 1 October 2021, EU, EEA and Swiss national identity cards will no longer be accepted as a valid travel document and a passport will be required for entry to the UK”. The Immigration Rules are now being changed to that effect.
Paragraph 11(i) of the Rules says that someone seeking entry to the UK must produce “a valid national passport or other document satisfactorily establishing his identity and nationality”. From 1 October, this provision will be subject to a new paragraph 11A, which says that an ID card is not an acceptable alternative to a passport unless the holder is an existing resident with EU settled status or similar.
Afghan citizens
Paragraphs 276BA1 to 276BS4 in Part 7 of the Rules cover permission for Afghan citizens to come to the UK under two special schemes. These are the Afghan Relocations and Assistance Policy and the ex-gratia scheme. The paragraphs in question are being replaced by new text, rather than just amended.
One significant change is to paragraph 276BA1. This currently says that Afghans who qualify for these schemes will be granted permission to enter the UK for five years. In future, “they will be granted entry clearance, which will have effect on arrival in the UK as indefinite leave to enter”. In other words, their permission to be in the UK will not have an expiration date.
In paragraph 276BB1, the requirement for people availing of these schemes to be “in Afghanistan” is being removed. The same goes for dependants, in paragraph 276BF1. The effect is that people will be able to apply for these schemes from outside Afghanistan, which makes sense in view of recent events.
The grounds for refusing permission under these provisions are being slimmed down to just the general grounds for refusal in Part 9 of the Rules. At the moment, there are additional grounds for turning people away, including if “there are serious reasons for considering that the applicant constitutes a danger to the community or to the security of the United Kingdom”. It is hard to know what to make of this change: the Home Office is not about to let people into the UK if it considers them a security risk. It may be just a tidying-up exercise, and that any cases caught by this wording could also be addressed under the general grounds for refusal.
At the moment there are two possible visas for professional sportspeople. One is T2 Sportsperson and the other is T5 Creative or Sporting Worker. The names reflect the old categorisation of work visas into Tier 2 or Tier 5, which has been abolished, in the otherwise meaningless prefixes T2 and T5.
There will now be one visa called International Sportsperson, although it will continue to cater for athletes coming to the UK for 12 months or less. The T5 label is being removed from the remaining temporary routes, so they will be called “Temporary Work – Creative Worker”, “Temporary Work – Seasonal Worker”, etc.
The main requirement for getting an International Sportsperson visa is to have an endorsement from the UK governing body of the relevant sport. Those wishing to stay for longer than 12 months must also speak basic English (level A1). These requirements are expressed as “points”, but they are in reality mandatory rules, since the only way to earn the points is to tick the boxes.
This takes effect from 10 October.
Global Talent
Quite a few changes are being made to Appendix Global Talent. This is the visa for people with “exceptional talent or exceptional promise” in various fields. Generally they must have an endorsement from a specific organisation in that field: Arts Council England for the arts and culture track, Tech Nation for the digital technology track, etc.
Those organisations seem to have given feedback on how it’s all working, which is being reflected in changes to the endorsement criteria. Those changes include:
evidence of exceptional talent/promise in arts and culture can include media coverage of the applicant’s work “as a named member of a group”, not just individually (see paragraphs GTE 3.3 and 3.4).
evidence of exceptional promise in digital technology can be accompanied by just one example, rather than two (GTE 7.4).
fast track endorsement will be possible for people who have held an approved fellowship or award from the Royal Society, Royal Academy of Engineering or British Academy in the past five years, rather than the past 12 months (GTE 8.2).
Various other changes are highlighted in the explanatory memo. The broad effect is to make it a little easier to get Global Talent endorsements.
Similarly, the list of “prestigious prizes” that qualify the recipient for a Global Talent visa without the need for an endorsement at all is being expanded. At present there are 72 such awards in Appendix Global Talent: Prestigious Prizes. Five of them are Nobel Prizes and six are Oscars, so the bar is pretty high.
The new list contains twice as many awards —145 — with a big expansion in science, engineering, humanities and medicine. See page 63 of the statement of changes for the full list.
Part 4
Youth Mobility Scheme: Iceland and India
Citizens of Iceland and India will in future be able to get a Youth Mobility visa. There will be 1,000 places for Iceland (population: 366,000) and 3,000 places for India (population: 1.4 billion). Indians interested in the visa will therefore enter a lottery (“invitation to apply arrangements”), as Japanese, Taiwanese, Hongkongers and South Koreans already do.
There are also extra requirements for Indian citizens. They must satisfy either paragraph YMS 4.5B or YMS 4.5C:
YMS 4.5B. This additional requirement is met where the applicant:
(a) holds a qualification equal to or above RQF level 6; and
(b) provides evidence of that qualification in the form of written confirmation from the issuing institution that they successfully completed their studies and graduated with the required qualification
RQF level 6 means an undergraduate degree. Alternatively:
YMS 4.5C. This additional requirement is met where the applicant:
(a) has a minimum of three years’ work experience in a professional role equivalent to an eligible occupation listed in Appendix Skilled Occupations; and
(b) provides evidence of that work experience in the form of either:
(i) formal payslips from the applicant’s employer showing the applicant’s job title and employer’s name; or
(ii) payslips accompanied by a letter from the applicant’s employer, on the employer’s headed paper and signed by a senior official, confirming the payslips are authentic.
Appendix Skilled Occupations lists roles that can be sponsored for a Skilled Worker or Intra Company Transfer visas. The difference with Youth Mobility compared with those routes is that there is no need for employer sponsorship.
When the government first announced that Indians would get Youth Mobility visas, it said that they would need to “be able to express themselves in the language(s) of the host country”, but that seems to have been dropped as there is no mention of an English language requirement.
None of this takes effect until 1 January 2022.
Part 5
Settlement for refugees
People with refugee status or humanitarian protection can apply for settlement in the UK after five years. This is normally a formality, although the Home Office does reserve the right, in theory, to send people back where they came from if they are no longer in need of refuge.
The statement of changes introduces a new Appendix Settlement Protection. The explanatory memo says that this is to “provide greater clarity”, rather than to change the substance of the refugee settlement rules. These are currently in paragraphs 339R, 339S and 339T in Part 11 of the Rules, which are being deleted.
The revised rules say that, where someone is refused settlement but is still entitled to refugee status or humanitarian protection, they will get a 30-month extension of permission to stay instead. There are separate provisions for main applicants and for dependants; the rules for the latter say that a partner applying for settlement must be in a “genuine and subsisting relationship” with their sponsor.
Coronavirus concessions
Various ways in which the Home Office promises to go easy on migrants affected by coronavirus are being written into the Rules, rather than being left as guidance. The concessions being incorporated in this way cover:
Tier 1 (Entrepreneur) visa holders unable to fulfil the job creation requirement
Skilled Workers and Sportspersons who began working before their visa was granted
Covid-related absences from the UK for people with EU pre-settled status; existing guidance is being replaced by changes to Appendix EU
15 September 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)
When is an immigration application made “in time”? Does it need to be submitted before the expiry of the applicant’s visa? Or is an application made after the visa expires, but within the grace period permitted under the Immigration Rules, also “in time”?
This is the issue considered by the Court of Appeal in Secretary of State for the Home Department v Ali [2021] EWCA Civ 1357.
The court confirmed that an application is only in time if it is submitted before the date of expiry of the person’s visa (in the court’s more technical language, their “leave to remain”). The effect of the decision is to prevent people from relying on the relevant grace period twice.
Grace periods for late applications
The context is paragraph 39E(2) of the Immigration Rules. This allows the Home Office to consider an application that is lodged after the refusal of an “in time” application (providing that it is submitted within 14 days of the refusal, or conclusion of any appeal or admin review).
The applicant was effectively trying to use this grace period twice. He first applied to extend his permission to be in the UK before it expired, and was refused. He applied a second time, within the grace period, and was refused again.
To try to get the application considered a third time, the applicant argued that an application submitted within the grace period was itself in time, as it was within the time limit provided by the Immigration Rules. The Upper Tribunal agreed.
The Home Office appealed, arguing that the Upper Tribunal’s…
“… approach undermines the overall scheme of paragraphs 245DD(g) and 39E of the Immigration Rules by allowing (the appellant) to have a third bite of the cherry and undermines the purpose of placing greater rigour on the aim of discouraging overstaying.”
The Court of Appeal agreed, reversing the decision of the Upper Tribunal:
“Read in context and in light of the other paragraphs, the reference to “in-time” applications is to applications made before the expiry of the deadline for making a valid application, namely the expiry of existing leave (including where applicable, as extended by 3C leave).”
So, you only get two bites of the cherry, not three. If you apply to extend your visa and the application is refused, you can apply again within 14 days, but not a third time if that second application is refused.
This leads to a simple phrase such as “in time” being open to interpretation, with Upper Tribunal and Court of Appeal judges disagreeing on what it means.
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>>> Using your UK Visas and Immigration account: https://www.gov.uk/guidance/using-your-uk-visas-and-immigration-account?utm_medium=email&utm_campaign=govuk-notifications&utm_source=fd168a1c-903e-4127-9534-65548e6b5d65&utm_content=immediately
First published information on using your UK Visas and Immigration (UKVI) account to prove your rights in the UK and keep your details up to date.
>>> Visa decision waiting times: applications inside the UK: https://www.gov.uk/guidance/visa-decision-waiting-times-applications-inside-the-uk?utm_medium=email&utm_campaign=govuk-notifications&utm_source=479327c8-9745-444b-863f-dc613c3c2b5b&utm_content=immediately
New Graduate visa processing times added on the GOV.UK website
>>> Graduate caseworker guidance: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/997587/graduate-route-v1.0ext.pdf
First published immigration staff guidance on considering applications under the Graduate route.
>>> 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=4ef7b3e6-3347-45ae-a6d7-ecb525fa0620&utm_content=immediately
Lists of test centres in and outside the UK updated for July 2021.
>>> Half of all UK Tier 1 (Investor) visa holders are being investigated, report suggests: https://www.spotlightcorruption.org/new-briefing-red-carpet-for-dirty-money-the-uks-golden-visa-regime/
Half of all Tier 1 (Investor) visas ever issued are being reviewed on national security grounds, according to an anti-corruption charity.
"The Home Office confirmed that all 6,312 main applicants and their adult dependents who entered the golden visa route between 30 June 2008 and 6 April 2015 were in the scope of the review; and that analysis of that cohort has been completed and the findings of the review are being finalised. It noted, however, that the end date and publication date for the review was still to be confirmed."
>>> Some interesting Home Office Q and A:
No switching between Skilled Worker and Tier 1(Investor) route
Q: Can Skilled Workers and ICTs switch in country into the Tier 1 (Investor) visa category now ?
A: Whilst the Tier 1 (Investor) route allows switching into the route, it does not allow for time spent in other routes to count toward settlement. Given this, the decision was taken not to amend the switching requirements as part of the December Rules changes and consider these as part of the wider simplification programme
Are Skilled Workers able unable to start working for their employers before their applications are approved ?
Q: Is there any scope to enable those who submit in-time Skilled Worker applications to start work prior to decision?
A: We allowed workers to start while waiting for a decision as part of one of the many covid concessions,we have no plans to reintroduce this. There is an exception for Students, who have a long-standing rule allowing them to do this, but not for other routes
Exceptional Assurance
Will the concession be extended further (for those who intend to leave the UK but have not been able to do so and have a visa or leave that expires soon but after 30 June 2021)?
A: The concession will not be extended in its current form but will be open to those nations on the amber and red list.
Q: Submitting in-country applications where normally need to apply from overseas - again, concession currently only applies to those with leave/EA expiring on or before 30 June 2021 – any plans to extend the concession on this ?
A: All Covid-19 policy concessions are kept under regular review, and our content on GOV.UK is updated regularly as and when concessions change. Concessions on switching were introduced at a point when international travel was severely limited in the early stages of the pandemic, and it would not have been reasonable to expect those in the UK on a route where switching would not normally be permitted to have anticipated difficulties around returning overseas to make a further application.It is a condition of someone’s permission as a visitor to intend to leave the UK at the end of their visit, and travelling to the UK under that route with the intention to switch into a different route when it would have been possible to make an initial application overseas is not permitted. Exceptional assurance provides those who are genuinely unable to leave the UK with protection against enforcement action and allows them to continue carrying out activity permitted by their previous form of leave. EA has been extended further and exists to protect those who find themselves unable to travel. Further information is provided in the link above.It is open to applicants to provide information on any extenuating circumstances when making an application in the UK for further leave. Information is also available on gov.uk under the heading: if you’re applying to enter UK or remain on the basis of family or private life”
Individuals marrying in the UK
Q: Will there be a policy update on the issues raised previously concerning those who wish to marry in the UK but have been unable to do so ?
A: Fiancée or proposed civil partner applicants who have been unable to marry in the UK, within their allocated 6 month period, as a result of Covid-19 restrictions can still rely on exceptional assurance provisions until 30 June 2021. Those applicants who need to rely on the provisions must apply before the 30 June and the assurance will then be guaranteed until 31 October 2021, in order for them to complete their ceremony.As wedding ceremonies have now been permitted within all regions of the UK, this has been deemed a sensible timeframe for applicants to complete their ceremony. However, we will continue to review this matter and may make further changes in the future should they prove necessary. The current family Immigration Rules also allow a fiancé(e) or proposed civil partner to apply for an extension of leave if there is good reason for their wedding or civil partnership not taking place during the initial six-month period of leave to enter. Cancellation of a wedding due to COVID-19 will be considered a good reason under this policy. Applicants are still required to pay the application fee and charges.
>>> Blanket rule delaying family reunion for temporary refugees violates human rights: https://hudoc.echr.coe.int/fre#{"itemid":["001-211178"]}
The European Court of Human Rights has ruled that forcing sponsors to wait for a minimum of three years before applying for family reunification without an individualised assessment of the family’s circumstances violates Article 8 of the human rights convention. The case is MA v Denmark (application no. 6697/18).
>>> It was coming: Judicial Review claim regarding the availability of free appointments for biometric enrolment
The legal team from in the judicial review claim (M.S. v SSHD CO/3367/2020), regarding the availability of free appointments for biometric enrolment provided by Sopra Steria on behalf of the Home Office, has been lodged. The claimants have been granted permission to argue that there is an unlawful failure to ensure the availability of a sufficient number of free applications for applicants, in particular recognised refugees, to enrol their biometrics without payment of a fee.
The Legal Centre has contributed to the claim and confirms that indeed there has been very few biometric appointments available since Sopra Steria has been running the biometrics franchise, granted by the Home Office.
>>> Whats constitutes the date of the UK Immigration application ?
From the current UK Immigration Rules, para 34G:https://www.gov.uk/guidance/immigration-rules/immigration-rules-part-1-leave-to-enter-or-stay-in-the-uk#date-an-application-or-variation-of-an-application-for-leave-to-remain-is-made
"34G. For the purposes of these rules, the date on which an application (or a variation of application in accordance with paragraph 34E is made is:
(1) where the paper application form is sent by post by Royal Mail, whether or not accompanied by a fee waiver request form, the date of posting as shown on the tracking information provided by Royal Mail or, if not tracked, by the postmark date on the envelope; or
(2) where the paper application form is sent by courier, or other postal services provider, the date on which it is delivered to the Home Office; or
(3) where the application is made via the online application process, and there is no request for a fee waiver, the date on which the online application is submitted; or
(4) where the online application includes a request for a fee waiver, the date on which the online request for a fee waiver is submitted, as long as the completed application for leave to remain is submitted within 10 days of the receipt of the decision on the fee waiver application.
(5) Notice of invalidity under paragraph 34G(4) will be given in writing and served in accordance with Appendix SN of these Rules."
>>> Upper Tribunal can accept late acknowledgment of service in judicial review cases: https://www.bailii.org/ew/cases/EWCA/Civ/2021/1040.html
The Upper Tribunal can consider late acknowledgments of service from the Home Office when deciding whether to grant permission for judicial review proceedings, the Court of Appeal has ruled in KA v Secretary of State for the Home Department [2021] EWCA Civ 1040.
Issues in the case
The first issue concerned the interpretation of Rule 29 of the Tribunal (Procedure) (Upper Tribunal) Rules 2008. The question was whether the Upper Tribunal can consider a late acknowledgement of service, provided after the usual 21-day time limit.
The second issue was whether the tribunal’s unilateral decision to give the Home Office 42 days to file acknowledgment of service, rather than the usual 21 days, was lawful – the Kumar arrangements, in place from 2014 to 2019.
>>> Supreme Court dismisses deportation appeal of man living in UK since he was 9 years old: https://www.bailii.org/uk/cases/UKSC/2021/30.html
In Sanambar v Secretary of State for the Home Department [2021] UKSC 2 the Supreme Court has dismissed the appeal against deportation of an Iranian citizen who arrived in the United Kingdom aged nine in 2005. He had committed several knifepoint robberies as a teenager, between the ages of 14 and 17, and several other lesser offences. He was convicted aged 17 and sentenced to three years’ detention in a Young Offender Institution.
>>> COVID19 and UK Immigration update: https://www.gov.uk/government/publications/temporary-concession-coronavirus-covid-19-related-research/temporary-concession-coronavirus-covid-19-related-research
Temporary concession: coronavirus (COVID-19) related research - the concession for certain Global Talent applicants has been extended until 31 December 2021.
>>> 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=9ac59180-8e57-431d-9502-ee1fa31fdd2b&utm_content=immediately
The lists of test centres in and outside the UK. This keep changing on monthly basis, for some reason.
>>> EU Settlement Scheme: https://www.gov.uk/government/publications/eu-settlement-scheme-communications-information-for-applicants/eu-settlement-scheme-information-for-eu-settlement-scheme-applicants-accessible-version
Communications information for applicants: first published factsheet
Temporary concession: coronavirus (COVID-19) related research - the concession for certain Global Talent applicants has been extended until 31 December 2021.
>>> The displaced talent visa: helping refugees apply for UK work permits
"I am announcing that those displaced by conflict and violence will now also be able to benefit from access to our global points-based immigration system.
To enable skilled displaced people who have had to flee their homes to come to the UK safely and legally through established routes.
We will work with the charity Talent Beyond Boundaries and other partners on this pilot project.
[Priti Patel, 19 July 2021]"
What is the displaced talent mobility pilot?
The scheme is designed to facilitate UK work permit applications by skilled refugees and displaced people from Jordan and Lebanon ONLY at this time. The policy connection is clear: ministers had promised safe and legal routes for people in need, and this is a safe and legal way for those people to come to the UK.
That said, it is not a new form of refugee status. It is better understood as a tailored version of the Skilled Worker visa, to exist alongside the asylum system as a complementary pathway.
The precise details of the pilot are not yet known, but the broad structure should be familiar. As a starting point, we anticipate that:
- Displaced people will need a job offer from a licensed sponsor
- They will need to meet the usual minimum salary level
- The English language requirement must also be met
- The visa will last for five years and lead to settlement
- It will be possible to change employers once in the UK
- Eligible family members will be able to come too
Crucially, the pilot is not aimed at lowering existing eligibility criteria. Rather, it recognises that the rigorous documentary requirements and administrative processes of the existing work permit rules can inadvertently discriminate against displaced people and that that discrimination needs to be removed.
How employers can hire refugees from abroad
First, employers must identify their preferred candidate. Businesses can find 26,000 highly qualified displaced people with skills in sectors such as health, digital technology, education, legal, construction, engineering (and more) in Talent Beyond Boundaries’ talent catalogue. More details on the catalogue and how to work with Talent Beyond Boundaries are available at https://www.talentbeyondboundaries.org/for-employers
Secondly, once that candidate is identified, Talent Beyond Boundaries and their partners such as the International Organization for Migration can help with the logistics of job interviews (which aren’t easy if your refugee camp only has intermittent electricity and WiFi.)
Thirdly, once the job offer has been made and accepted, Talent Beyond Boundaries work with the sponsoring employer and the applicant to prepare and file the visa application. The UK authorities will expedite the processing of the application, typically deciding them within five working days where feasible.
Help without charity
Although charities will assist with the overall process, it is important to stress that this recruitment is not charitable. Potential applicants are very skilled, eminently qualified and with a wealth of experience, all of which means they have a huge amount to contribute to the UK economy. The pilot is aimed at enabling that contribution and normalising displaced talent mobility. This will establish ease of access to a whole new labour market for UK businesses, and help skilled displaced people rebuild their lives in a new home.
Both Australia and Canada are proof that pilots like that can work.
The fact that the UK is joining their number with a new complementary pathway is a positive step that will hopefully encourage other countries to do the same.
>>> Visit visas can count towards ten years’ long residence: https://www.bailii.org/ew/cases/EWCA/Civ/2021/1076.html
The Court of Appeal in R (Mungur) v Secretary of State for the Home Department [2021] EWCA Civ 1076 has weighed in on what kind of permission to be in the UK can count towards the necessary ten years.
This decision is helpful confirmation that time spent in the UK on a visit visa can count towards ten years’ continuous lawful residence. It is also an excellent reminder that the relevant ten-year period does not have to immediately precede the settlement application. That is, if a person had acquired a lawful 10-year residence in the say, say, between 2001 and 2011, and then became an overstayer, the period between 2001 and 2011 in the above example may be counted as lawful residence towards ILR (Indefinite Leave to Remain) on the basis of the Long Residence (10 years).
>>> Home Office refuses to explain secret sham marriage algorithm
The Home Office has rebuffed Public Law Project’s (PLP) the latest attempt to find out more about the secret algorithmic criteria used to decide whether a proposed marriage should be investigated as a “sham”.
Sham marriage investigations can be invasive and unpleasant, and it appears that they are targeted at some nationalities more than others. PLP is concerned about the lack of transparency and possible discrimination involved in the automated triage system.
>>> Transit stops in amber or red list countries
On arrival into England, rules for the highest risk country or territory that you have been in or passed through in the previous 10 days must be observed. This includes transit stops.
A transit stop is where passengers can get on or off the same part of the transport in which you are travelling. It can apply to ships, trains or flights.
>>> Biometrics Enrolment at the Post Office
From 31 July 2021, applicants will no longer be directed to use the Post Office to enrol biometrics as part of an immigration application or immigration application related process.
Where biometric enrolment is required as part of an immigration process, applicants will be directed to one of the 7 Service Support Centres (SSCs) or 44 UK Visa and Citizenship Application Service (UKVCAS) across the UK. The majority of applicants will be able to complete their visa or citizenship application at a UK Visa and Citizenship Application Service centre. However, for applicants who require more support and face to face interaction with UKVI staff, appointments can be made at a Service and Support Centre.
For those applicants who may have higher needs or be in a position of vulnerability, there will be enhanced support; to allow any appropriate safeguarding action to be taken through a range of travel assistance and mobile services.
Applicants have already benefited from being directed to SSC and UKVCAS prior to the 31 July 2021 due to the phasing out of the Post Office biometric services.
>>> Judicial Review Bill to abolish most Cart cases: https://bills.parliament.uk/bills/3035/publications
The Judicial Review and Courts Bill 2021, published recently, will mostly abolish the right of migrants to apply to the High Court to have an appeal reopened if rejected by both chambers of the immigration tribunal. This is the process, well known to lawyers, known as a Cart or Eba judicial review.
Clause 2(2) of the Bill says that a decision of the Upper Tribunal to refuse to hear an appeal from the First-tier Tribunal is “final, and not liable to be questioned or set aside in any other court”.
>>> UK BA in total shables: The ssylum camp staff were working illegally, inspectors say: https://www.gov.uk/government/publications/an-inspection-of-contingency-asylum-accommodation-hmip-report-on-penally-camp-and-napier-barracks
Some of the staff charged with running the camp were themselves migrants working in breach of their visa conditions, according to the Independent Chief Inspector of Borders and Immigration.
Need one say more about the efficiency of this Brexit Government ?
>>> UK points-based immigration system: employer information: https://www.gov.uk/government/publications/uk-points-based-immigration-system-employer-information/the-uks-points-based-immigration-system-an-introduction-for-employers
>>> EU Settlement Scheme caseworker guidance: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1004627/main-euss-guidance-v13.0ext.pdf
EU Settlement Scheme: EU, other EEA and Swiss citizens and their family members guidance updated following rules changes on 1 July.
>>> Passports can be issued to British children abroad without abusive father’s consent: https://www.bailii.org/ew/cases/EWCA/Civ/2021/1131.html
In April 2021 the High Court held that Her Majesty’s Passport Office was wrong to insist on signed consent for child passports from an abusive father overseas. That judgment has now been robustly upheld by the Court of Appeal following a hopeless appeal by the Passport Office: Secretary of State for the Home Department v GA & Ors [2021] EWCA Civ 1131.
>>> UK Innovation Strategy: New Visa Routes: https://www.gov.uk/government/publications/uk-innovation-strategy-leading-the-future-by-creating-it
The Department for Business, Energy & Industrial Strategy has published a UK Innovation Strategy, which sets out an intention to ‘Introduce new High Potential Individual and Scale-up visa routes, and revitalise the Innovator route to attract and retain high-skilled, globally mobile innovation talent’ as part of the government’s ‘vision to make the UK a global hub for innovation by 2035’ (see pages 60-61):
"Furthermore, as part of our plan for growth, the UK government will introduce a new High Potential Individual route to make it as simple as possible for internationally mobile individuals who demonstrate high potential to come to the UK. Eligibility will be open to applicants who have graduated from a top global university. The UK government will explore the scope to expand eligibility to other characteristics of high potential. There will be no job offer requirement, giving individuals the flexibility to work, switch jobs or employers and make contributions to the UK economy. The route will also allow eligible individuals to extend their visa and settle in the UK, subject to meeting specific requirements.
A scale-up route will also support UK scale-ups by allowing talented individuals with a high skilled job offer from a qualifying scale-up at the required salary level to come to the UK. Scale-ups will be able to apply through a fast-track verification process to use the route, so long as they can demonstrate an annual average revenue or employment growth rate over a three-year period greater than 20%, and a minimum of 10 employees at the start of the three-year period. UK Government will explore whether scale-ups who can demonstrate an expectation of strong growth in future years may also qualify following a review. The route will allow eligible individuals to work, switch jobs or employers. Individuals will be able to extend their visa and settle in the UK, subject to meeting specific requirements.
A revitalised Innovator route will allow talented innovators and entrepreneurs from overseas to start and operate a business in the UK that is venture-backed or harnesses innovative technologies, creating jobs for UK workers and boosting growth. We have reviewed the Innovator route to build a competitive offer. We will do this by:
• Simplifying and streamlining the business eligibility criteria. Applicants will need to demonstrate that their business venture has a high potential to grow and add value to the UK and is innovative.
• Fast-tracking applications. The UK government is exploring a fast-track, lighter touch endorsement process for applicants whose business ideas are particularly advanced to match the best-in-class international offers. Applicants that have been accepted on to the Department for International Trade’s Global Entrepreneur Programme will be automatically eligible.
• Building flexibility. Applicants will no longer be required to have at least £50,000 in investment funds to apply for an Innovator visa, provided that the endorsing body is satisfied the applicant has sufficient funds to grow their business. We will also remove the restriction on doing work outside of the applicant’s primary business.
The new Global Business Mobility visa will also allow overseas businesses and innovative companies greater flexibility in transferring workers to the UK, in order to establish and expand their businesses".
>>> Ask the Home Office to check your immigration status is correct: https://www.gov.uk/guidance/ask-the-home-office-to-check-your-immigration-status-is-correct?utm_medium=email&utm_campaign=govuk-notifications&utm_source=10b76791-f32b-4183-9679-8a9442709b4f&utm_content=immediately
First published page outlining that you can contact the Home Office about your immigration status if your access to work, benefits or services has been affected, and you believe this is because the immigration status held by the Home Office may be incorrect.
>>> UK visa and immigration application forms: https://www.gov.uk/government/collections/uk-visa-forms?utm_medium=email&utm_campaign=govuk-notifications&utm_source=d3c1b679-11db-411e-8339-972480050051&utm_content=immediately
This collection of all application forms for people who cannot apply online and want to come to the UK, extend their stay or settle has the categories reordered by applicant group on the GOV.UK website
>>> The UK’s points-based immigration system: information for EU citizens: https://www.gov.uk/guidance/the-uks-points-based-immigration-system-information-for-eu-citizens?utm_medium=email&utm_campaign=govuk-notifications&utm_source=4dea3575-bf57-4e5e-8744-59880d010405&utm_content=immediately
Updated guide on an introduction to the UK's points-based immigration system for EU citizens and new guidance for au pairs, business travellers, Erasmus students and those looking to come to the UK for an internship and EU, EEA and Swiss business travellers.
>>> Preliminary information questionnaire for asylum claims: https://www.gov.uk/government/publications/preliminary-information-questionnaire-for-asylum-claims?utm_medium=email&utm_campaign=govuk-notifications&utm_source=e020090c-2db3-4d61-a05e-f3b435290fa2&utm_content=immediately
>>> Prove your English language abilities with a secure English language test: 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=c0244200-7095-4e1c-80d5-f1cd95e4755c&utm_content=immediately
Lists of test centres in and outside the UK updated on the GOV.UK website.
>>> Good news for EU citizens making late applications for post-Brexit residence rights: https://www.gov.uk/government/news/temporary-protection-for-more-applicants-to-the-settlement-scheme
EU citizens and their families who apply late to the EU Settlement Scheme will have their day-to-day rights protected while that application is considered, the Home Office has announced.
The U-turn came in a press release on Friday evening, which says:
"While the numbers applying late [i.e. after 30 June 2021] have been small compared to pre-deadline application numbers, to provide further reassurance to late applicants the government will protect their rights until their application and any appeal is decided.
The government will also take a similar approach with joining family members, who will have temporary protection for three months after their arrival in the UK and pending the outcome of an EUSS application made during that period (and of any appeal)."
Before announcement After announcement
Right to work No Yes
Right to rent No Yes
Benefits No Yes
NHS access Yes Yes
>>> Temporary protection for more applicants to the Settlement Scheme:https://www.gov.uk/government/news/temporary-protection-for-more-applicants-to-the-settlement-scheme?utm_medium=email&utm_campaign=govuk-notifications&utm_source=3abea81a-120d-49be-b493-db47fdac8524&utm_content=immediately
First published news story. Those who apply late to the EU Settlement Scheme, and joining family members, will have rights protected while their application is determined.
>>> Travelling between the UK and Ireland, Isle of Man, Guernsey or Jersey: https://www.gov.uk/guidance/travelling-between-the-uk-and-ireland-isle-of-man-guernsey-or-jersey?utm_medium=email&utm_campaign=govuk-notifications&utm_source=08139af3-85b0-47cc-8a6f-5394fc4af471&utm_content=immediately
First published information for people travelling to the UK from Ireland, Guernsey or the Isle of Man, and information for people passing through the UK to Ireland, Jersey, Guernsey or the Isle of Man. The report can be found here.
>>> Confirmed: dependency for extended family members must be unbroken: https://www.bailii.org/ew/cases/EWCA/Civ/2021/1220.html
In Chowdhury v Secretary of State for the Home Department [2021] EWCA Civ 1220, the Court of Appeal has confirmed that where an extended family member applies for an EEA residency card, their period of dependency on their EEA citizen sponsor must have not have been broken up by periods in which they were not dependent. In short, this is because the purpose of granting rights to extended family members is to protect the free movement of EEA citizens. If the extended family member is not a dependant of the sponsoring EEA citizen at any given time, then there is no need to them give rights to protect the free movement of the EEA citizen.
This was an important issue under the EEA Regulations 2016 (and 2006). The tribunal decision had real practical impact by limiting the ability of some extended family members to get the EEA residence documents they needed to apply for settled status. Post-Brexit, the Court of Appeal decision will only be relevant to a small number of people with outstanding appeals or applications under the EEA Regulations.
>>> The financial requirement for Short- Term Student, Representative of an Overseas Business, UK Ancestry and Hong Kong British National (Overseas) applicants:
See https://www.gov.uk/government/publications/financial-requirement-caseworker-guidance
>>> UK Sponsor changing job is not a reason to refuse a spouse visa: https://www.bailii.org/uk/cases/UKUT/IAC/2021/115.html
If you meet the financial requirements of Appendix FM at the date of application but your sponsor then leaves their job, do you still qualify for a spouse visa? Yes, the Upper Tribunal found in Begum (employment income; Rules/Article 8) [2021] UKUT 115 (IAC).
>>> High Court backs law firm in dispute over £194,000 asylum bill: https://www.bailii.org/ew/cases/EWHC/Costs/2021/B16.html
Note that the pricate fees for defending the Asylum claim may well reach £350 000 !
A costs judge has backed a leading firm of solicitors in its dispute with a former client over a £194,000 bill for work on her asylum case. The judgment is Farrer & Co LLP v Yertayeva [2021] EWHC B16 (Costs).
The firm thought it would be a complicated case. Ms Yertayeva would have to establish that the charges against her were “politically motivated”, requiring “expert reports and local lawyers’ witness statements”. Farrer & Co partner Elena Hinchin told the court that at an initial meeting at Côte Brasserie in Hampstead, she quoted “potential fees at around £250,000-£350,000 for the first stage of work, though she warned that they might end up being significantly higher”.
The claimant lost her case.
Overall, the judge concluded, “I regard the allegations of overcharging, exploitation and other misconduct levelled by the Defendant at the Claimant to be unfair and untrue”.
>>> Children under 18 coming to school in the UK
Under the quarantine arrangements for boarding school students from red list countries, if a child under 18 is coming to study at a UK boarding school, they may isolate at accommodation provided or arranged by their boarding school instead of going into managed quarantine.
If there is no facility at the boarding school or they are staying in family/foster arrangements, a visitor visa may be considered to one parent/guardian to accompany the child to the UK to undergo managed quarantine together.
Full details have been updated and published on the Coronavirus (COVID-19): advice for UK visa applicants and temporary UK residents GOV.UK.
>>> Home Office Updates on Right to Work and Right to Rent Checks
The Home Office has updated its guidance for employers carrying out right to work checks and landlords carrying out right to rent checks during the Covid-19 pandemic. The end date for the temporary adjusted checks has now been deferred to 5 April 2022 (inclusive).
>>> Asylum backlog passes 70,000
The backlog of asylum cases has passed 70,000 despite a fall in the annual number of applications.
Almost 71,000 asylum seekers, including dependants, were awaiting an initial decision on their claim for refugee status as of 30 June 2021, according to new Home Office figures. The overall backlog has doubled in just a couple of years: at the end of 2018, the figure was 36,000.
>>> EU, EEA and Swiss citizens ID Cards
From the 1 October 2021, most EU, EEA and Swiss citizens will only be able to travel to the UK using a valid passport. ID cards will no longer be accepted as a valid travel document for entry to the UK. If EU, EEA and Swiss citizens do not have a passport from 1 October, they are liable to be refused entry to the UK.
EU, EEA and Swiss citizens who hold pre-settled or settled status under the EU Settlement Scheme, or who have made a valid application under the scheme which is still pending, and those whose rights are protected under the Citizens’ Rights Agreements (such Frontier workers) will be able to use their national identity cards to enter the UK until 2025 at least.
To support you in providing essential guidance about this change to your network, we have developed a suite of products you may use to communicate this change.
>>> Court of Appeal confirms that 3C leave can be revived: https://www.bailii.org/ew/cases/EWCA/Civ/2021/1308.html
Interesting case law on the “resurrection” of the “lost” 3C leave when an out of time appeal is accepted by the court.
This is also an important decision for anyone who has lodged a late appeal, as it means they can work whilst the appeal is pending.
>>> Court of Appeal confirms that 3C leave can be revived: https://www.bailii.org/ew/cases/EWCA/Civ/2021/1308.html
Interesting case law on the “resurrection” of the “lost” 3C leave when an out of time appeal is accepted by the court.
This is also an important decision for anyone who has lodged a late appeal, as it means they can work whilst the appeal is pending.
>>> UK Economic Migration upcoming changes in 2021
Progress so far
- removal of the Resident Labour Market Test (RLMT)
- suspension of the cap on skilled workers
- introduction of the pre-licence priority service
- a paperless sponsor licence application process, and
- redesign of guidance for sponsors.
The Home Office is looking to simplify the supporting evidence required to become a sponsor with a view to speeding up the end-to-end processing of applications.
The Home Office also plans to set up a new support service for small and micro businesses. This may not require additional ‘premium sponsor’ fees for access to such a service.
A new Skilled Worker eligibility checking tool will also be introduced, to make it easier for employers and workers to check whether a particular job is eligible under the Skilled Worker route.
In terms of compliance reforms, the Home Office will pilot a new salary check mechanism, in conjunction with HMRC, to verify that employees are being paid the amount specified by their employer during the application process. Not all employees will be paid using PAYE for various reasons, so it will be important for the Home Office to ensure these checks do not result in its software generating an automatic compliance breach and instead provides an employer with an alternative way to evidence salary payments.
Finally, the Home Office will be conducting a review of its fees to ensure they remain ‘fair’ as the new system is rolled out.
The outlook for 2022 and beyond
The Home Office plans to implement a range of technological and system reforms between 2022 and 2024 with the intention of creating, so the Home Office says, a faster and simpler end-to-end journey for sponsors and workers, with a more user-friendly system and less bureaucracy. The focus of the reforms is on customer service.
Customer service reforms
There will be a quicker, simplified service for compliant ‘straightforward’ sponsors. To this end, the Home Office will be reviewing licence renewal patterns, meaning certain sponsors will no longer need to renew their sponsor licence every four years.
The Home Office is also reviewing its service standards with a view to delivering improvements by Spring 2022. Its aim is to deliver a faster end-to-end journey from sponsor licence application to approval. Prior to the introduction of the priority service, sponsor licence applications would typically take up to eight weeks to be processed, often being processed much quicker than this.
Applicants are currently seeing delays which, in part, may be due to the rise in applications.
The Home Office is also carrying out research into the barriers facing SMEs applying for a sponsor licence in order to deliver the right support package. As well as the overhaul of the Sponsor Management System (SMS), one hopes this includes a review of fees, the hefty sponsor guidance materials, and making the sponsorship requirements more accessible.
Tech reforms
A potentially exciting development for those beaten down by Sponsor Management System and application woes are the IT reforms. The changes will be delivered in three stages, with each phase being rolled out to a test group of SMEs and larger employers before gradually being extended to a larger cohort. The Home Office anticipates that it will take two years to implement the new IT system, with all sponsors being transferred to the new system by early 2024.
Phase 1: Sponsor a visa
The first stage will be delivered in mid-2022 and aims to implement a streamlined ‘customer journey’ for sponsors. Once the details of a sponsored worker’s role have been approved by the Home Office, the worker will be invited to submit their immigration application. The worker’s application will then be pre-populated with information previously submitted by the employer, removing duplication of data entry.
Phase 2: Manage a licence
The second stage to be delivered by the end of 2022 will introduce an improved online SMS for sponsors. The revised SMS will include a sponsored worker dashboard with key information about a worker’s status and actions that need to be taken. A significant change will be the way the Home Office collects and shares data with other government departments. The Home Office plans to implement automatic checks against data based on information held by other departments, such as Companies House and HMRC. This may create huge issues for sponsors if the information held by other departments is incorrect or has not been updated, particularly given the time it can often take for reported changes to be made.
Phase 3: Become a sponsor
The final phase will be delivered in early 2023 and will introduce automatic checks to verify key information about a prospective sponsor and whether certain key personnel are employed by, or are office holders of, a sponsored organization. Prospective sponsors are not currently required to provide evidence of this as part of the application, so it would be useful to know how this is currently being verified, if at all.
Sponsor compliance
Compliance checks under the new system will largely reflect those under the current system; however, the Home Office has said its compliance visits will target sponsors who present a higher risk of non-compliance or who have no track record of compliance. It is important that the Home Office provides guidance on which sponsors it deems at higher risk, not only to ensure fairness in its assessment but also to put sponsors on notice. The new salary checks will also be a way of checking employees are being paid as required, and discrepancies may trigger a visit. Again, given that certain sponsors will not typically use PAYE, and are not required to, it will be important to ensure systems in place to avoid potential discrimination.
Engagement strategy
The new system is to be accompanied by a ‘comprehensive’ engagement strategy that will inform its design and implementation. This will include customer feedback from external stakeholders, including premium sponsors, SMEs, education organisations, and advisory groups.
Global Business Mobility route
In its strategy statement for the New Plan for Immigration, the government announced the launch of a single, sponsored Global Business Mobility route in Spring 2022 that will merge, reform and expand several existing sponsored worker categories. Rather than creating something new, this sounds more like an umbrella term under which to group and revise existing work routes, such as the Intra Company Transfer route.
>>> Can children be deported from the UK?
The answer is “yes”.
Children can be removed from the UK as part of a family. They can, on paper, also be deported in their own right for criminal offending: the Home Secretary’s power of deportation under the Immigration Act 1971 is not limited to under-18s, and the Home Office has specific guidance on applying that power to children. That said, under that guidance, the physical removal will “usually” be delayed until the child turns 18.
>>> All UK Immigration Rule in one place: https://www.gov.uk/guidance/immigration-rules
>>> Check if you can become a British citizen: https://www.gov.uk/british-citizenship/born-in-uk-after-1983
Various options to register a child as a British citizen
>>> Administrative review: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1015181/Administrative_review.pdf
· to reflect the decisions that have a right of administrative review;
· to reflect that from 6 April 2021, there is a fee for administrative reviews of entry clearance decisions;
· to update references to Part 9 of the Rules; and other general housekeeping
>>> List of UKVI international application points and decision-making centres: https://www.gov.uk/government/publications/list-of-ukvi-international-application-points-and-decision-making-centres/list-of-ukvi-international-application-points-and-decision-making-centres-accessible-version
>>> The UK’s points-based immigration system: information for EU citizens: https://www.gov.uk/government/publications/uk-points-based-immigration-system-employer-information/the-uks-points-based-immigration-system-an-introduction-for-employers
The following four documents have been updated:
· An introduction for EU, EEA and Swiss workers
· An introduction for EU, EEA and Swiss students
· Information for EU, EEA and Swiss visitors
· Application guidance
>>> New statement of changes to the Immigration Rules: HC 617
Part 1
On 10 September 2021 the Home Office published a statement of changes to the Immigration Rules (HC 617). It is 183 pages long and makes adjustments in quite a number of areas. Some of the main changes are:
Banning entry to the UK with an ID card rather than a passport (with exceptions for some existing residents)
Update to existing relocation schemes for Afghans, including granting indefinite leave to remain from the outset
A new International Sportsperson route, consolidating what were the Tier 2 and Tier 5 sporting visas
Update to Global Talent, making it slightly easier to get an endorsement, and doubling the number of awards that mean no endorsement is required
Changes to EU Settlement Scheme family permits, including “to allow a joining family member to apply to the EUSS whilst in the UK as a visitor”
Iceland and India being added to the Youth Mobility Scheme
A new “Appendix Settlement Protection” for refugees to get ILR
Incorporation of some coronavirus concessions into the Rules
EU family permits
The non-EU family members of EU citizens with pre-settled or settled status under Appendix EU to the Rules need a type of visa called a “family permit” to join their sponsor in the UK. The rules governing these permits are in the inscrutable Appendix EU (Family Permit). Those rules are, according to the explanatory memo, being changed as follows:
to allow a joining family member to apply to the EUSS whilst in the UK as a visitor. From 6 October 2021, the temporary concession to this effect outside Appendix EU where certain joining family members are concerned, as currently set out in the EUSS caseworker guidance, will cease to operate.
technical changes to reflect the passing of the 30 June 2021 deadline for applications to the EUSS by those resident in the UK by the end of the transition period (though a late application can still be made where there are reasonable grounds as to why the person missed that deadline).
technical changes to reflect the fact that, as the Home Office has already confirmed to relevant stakeholders, a person who is exempt from immigration control can, if they wish, apply to the EUSS whilst they remain exempt, or they can apply once they have ceased to be exempt.
For anyone who wants to try, see pages 32 to 39 of the statement of changes document.
Part 2
ID cards are out
Last year the government announced that “From 1 October 2021, EU, EEA and Swiss national identity cards will no longer be accepted as a valid travel document and a passport will be required for entry to the UK”. The Immigration Rules are now being changed to that effect.
Paragraph 11(i) of the Rules says that someone seeking entry to the UK must produce “a valid national passport or other document satisfactorily establishing his identity and nationality”. From 1 October, this provision will be subject to a new paragraph 11A, which says that an ID card is not an acceptable alternative to a passport unless the holder is an existing resident with EU settled status or similar.
Afghan citizens
Paragraphs 276BA1 to 276BS4 in Part 7 of the Rules cover permission for Afghan citizens to come to the UK under two special schemes. These are the Afghan Relocations and Assistance Policy and the ex-gratia scheme. The paragraphs in question are being replaced by new text, rather than just amended.
One significant change is to paragraph 276BA1. This currently says that Afghans who qualify for these schemes will be granted permission to enter the UK for five years. In future, “they will be granted entry clearance, which will have effect on arrival in the UK as indefinite leave to enter”. In other words, their permission to be in the UK will not have an expiration date.
In paragraph 276BB1, the requirement for people availing of these schemes to be “in Afghanistan” is being removed. The same goes for dependants, in paragraph 276BF1. The effect is that people will be able to apply for these schemes from outside Afghanistan, which makes sense in view of recent events.
The grounds for refusing permission under these provisions are being slimmed down to just the general grounds for refusal in Part 9 of the Rules. At the moment, there are additional grounds for turning people away, including if “there are serious reasons for considering that the applicant constitutes a danger to the community or to the security of the United Kingdom”. It is hard to know what to make of this change: the Home Office is not about to let people into the UK if it considers them a security risk. It may be just a tidying-up exercise, and that any cases caught by this wording could also be addressed under the general grounds for refusal.
New International Sportsperson route
At the moment there are two possible visas for professional sportspeople. One is T2 Sportsperson and the other is T5 Creative or Sporting Worker. The names reflect the old categorisation of work visas into Tier 2 or Tier 5, which has been abolished, in the otherwise meaningless prefixes T2 and T5.
There will now be one visa called International Sportsperson, although it will continue to cater for athletes coming to the UK for 12 months or less. The T5 label is being removed from the remaining temporary routes, so they will be called “Temporary Work – Creative Worker”, “Temporary Work – Seasonal Worker”, etc.
The main requirement for getting an International Sportsperson visa is to have an endorsement from the UK governing body of the relevant sport. Those wishing to stay for longer than 12 months must also speak basic English (level A1). These requirements are expressed as “points”, but they are in reality mandatory rules, since the only way to earn the points is to tick the boxes.
This takes effect from 10 October.
Global Talent
Quite a few changes are being made to Appendix Global Talent. This is the visa for people with “exceptional talent or exceptional promise” in various fields. Generally they must have an endorsement from a specific organisation in that field: Arts Council England for the arts and culture track, Tech Nation for the digital technology track, etc.
Those organisations seem to have given feedback on how it’s all working, which is being reflected in changes to the endorsement criteria. Those changes include:
evidence of exceptional talent/promise in arts and culture can include media coverage of the applicant’s work “as a named member of a group”, not just individually (see paragraphs GTE 3.3 and 3.4).
evidence of exceptional promise in digital technology can be accompanied by just one example, rather than two (GTE 7.4).
fast track endorsement will be possible for people who have held an approved fellowship or award from the Royal Society, Royal Academy of Engineering or British Academy in the past five years, rather than the past 12 months (GTE 8.2).
Various other changes are highlighted in the explanatory memo. The broad effect is to make it a little easier to get Global Talent endorsements.
Similarly, the list of “prestigious prizes” that qualify the recipient for a Global Talent visa without the need for an endorsement at all is being expanded. At present there are 72 such awards in Appendix Global Talent: Prestigious Prizes. Five of them are Nobel Prizes and six are Oscars, so the bar is pretty high.
The new list contains twice as many awards —145 — with a big expansion in science, engineering, humanities and medicine. See page 63 of the statement of changes for the full list.
Part 4
Youth Mobility Scheme: Iceland and India
Citizens of Iceland and India will in future be able to get a Youth Mobility visa. There will be 1,000 places for Iceland (population: 366,000) and 3,000 places for India (population: 1.4 billion). Indians interested in the visa will therefore enter a lottery (“invitation to apply arrangements”), as Japanese, Taiwanese, Hongkongers and South Koreans already do.
There are also extra requirements for Indian citizens. They must satisfy either paragraph YMS 4.5B or YMS 4.5C:
YMS 4.5B. This additional requirement is met where the applicant:
(a) holds a qualification equal to or above RQF level 6; and
(b) provides evidence of that qualification in the form of written confirmation from the issuing institution that they successfully completed their studies and graduated with the required qualification
RQF level 6 means an undergraduate degree. Alternatively:
YMS 4.5C. This additional requirement is met where the applicant:
(a) has a minimum of three years’ work experience in a professional role equivalent to an eligible occupation listed in Appendix Skilled Occupations; and
(b) provides evidence of that work experience in the form of either:
(i) formal payslips from the applicant’s employer showing the applicant’s job title and employer’s name; or
(ii) payslips accompanied by a letter from the applicant’s employer, on the employer’s headed paper and signed by a senior official, confirming the payslips are authentic.
Appendix Skilled Occupations lists roles that can be sponsored for a Skilled Worker or Intra Company Transfer visas. The difference with Youth Mobility compared with those routes is that there is no need for employer sponsorship.
When the government first announced that Indians would get Youth Mobility visas, it said that they would need to “be able to express themselves in the language(s) of the host country”, but that seems to have been dropped as there is no mention of an English language requirement.
None of this takes effect until 1 January 2022.
Part 5
Settlement for refugees
People with refugee status or humanitarian protection can apply for settlement in the UK after five years. This is normally a formality, although the Home Office does reserve the right, in theory, to send people back where they came from if they are no longer in need of refuge.
The statement of changes introduces a new Appendix Settlement Protection. The explanatory memo says that this is to “provide greater clarity”, rather than to change the substance of the refugee settlement rules. These are currently in paragraphs 339R, 339S and 339T in Part 11 of the Rules, which are being deleted.
The revised rules say that, where someone is refused settlement but is still entitled to refugee status or humanitarian protection, they will get a 30-month extension of permission to stay instead. There are separate provisions for main applicants and for dependants; the rules for the latter say that a partner applying for settlement must be in a “genuine and subsisting relationship” with their sponsor.
Coronavirus concessions
Various ways in which the Home Office promises to go easy on migrants affected by coronavirus are being written into the Rules, rather than being left as guidance. The concessions being incorporated in this way cover:
Tier 1 (Entrepreneur) visa holders unable to fulfil the job creation requirement
Skilled Workers and Sportspersons who began working before their visa was granted
Covid-related absences from the UK for people with EU pre-settled status; existing guidance is being replaced by changes to Appendix EU
>>> Immigration application made during visa expiry grace period is not “in time”: https://www.bailii.org/ew/cases/EWCA/Civ/2021/1357.html
When is an immigration application made “in time”? Does it need to be submitted before the expiry of the applicant’s visa? Or is an application made after the visa expires, but within the grace period permitted under the Immigration Rules, also “in time”?
This is the issue considered by the Court of Appeal in Secretary of State for the Home Department v Ali [2021] EWCA Civ 1357.
The court confirmed that an application is only in time if it is submitted before the date of expiry of the person’s visa (in the court’s more technical language, their “leave to remain”). The effect of the decision is to prevent people from relying on the relevant grace period twice.
Grace periods for late applications
The context is paragraph 39E(2) of the Immigration Rules. This allows the Home Office to consider an application that is lodged after the refusal of an “in time” application (providing that it is submitted within 14 days of the refusal, or conclusion of any appeal or admin review).
The applicant was effectively trying to use this grace period twice. He first applied to extend his permission to be in the UK before it expired, and was refused. He applied a second time, within the grace period, and was refused again.
To try to get the application considered a third time, the applicant argued that an application submitted within the grace period was itself in time, as it was within the time limit provided by the Immigration Rules. The Upper Tribunal agreed.
The Home Office appealed, arguing that the Upper Tribunal’s…
“… approach undermines the overall scheme of paragraphs 245DD(g) and 39E of the Immigration Rules by allowing (the appellant) to have a third bite of the cherry and undermines the purpose of placing greater rigour on the aim of discouraging overstaying.”
The Court of Appeal agreed, reversing the decision of the Upper Tribunal:
“Read in context and in light of the other paragraphs, the reference to “in-time” applications is to applications made before the expiry of the deadline for making a valid application, namely the expiry of existing leave (including where applicable, as extended by 3C leave).”
So, you only get two bites of the cherry, not three. If you apply to extend your visa and the application is refused, you can apply again within 14 days, but not a third time if that second application is refused.
This leads to a simple phrase such as “in time” being open to interpretation, with Upper Tribunal and Court of Appeal judges disagreeing on what it means.