20 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)
>>> More on the positive changes for family members applying under the EU Settlement Scheme (EUSS)
This is a more detailed follow up to the Legal Centre last week’s update.
Namely, changes to Appendix EU and Appendix EU (Family Permit) to the Immigration Rules come into force on 6 October 2021. Let’s have a look at the significant changes that are likely to impact on current and future applications.
Joining family members
As far as Appendix EU is concerned, the first major change concerns those seeking indefinite leave to enter or remain under paragraph EU11A as a joining family member, or limited leave under Para EU14A. Such applicants still need to meet the same family relationship and residence requirements, but the requirement not to be in the UK as a visitor will be removed.
It is not clear how much of an impact this amendment will have but it is welcome in principle. Family members will have been affected by travel disruptions and restrictions resulting from the Covid-19 pandemic and this easing may assist those seeking to re-establish their rights of residence in the UK who may have ended up returning here as visitors.
As a consequence, the definition of “visitor” will also be deleted from Annex 1.
Family permits
One set of changes, which is significant, is the insertion of express references to absences caused by Covid-19.
The next set of changes all relate to the definition (in Annex 1) and the use (in all other relevant paragraphs of Appendix EU) of a “relevant document”. This is a document that some categories of applicants, such as dependent relatives, must have in order to have their family relationship recognised.
The main types of “relevant document” have so far included the following:
(a)(i)(aa) a family permit, registration certificate, residence card, document certifying permanent residence, permanent residence card or derivative residence card issued by the UK under the EEA Regulations on the basis of an application made under the EEA Regulations before (in the case, where the applicant is not a dependent relative, of a family permit) 1 July 2021 and otherwise before the specified date;
From 6 October 2021, this will instead read “a family permit (or a letter from the Secretary of State, issued after 30 June 2021, confirming their qualification for one)”. This may be a response to litigation begun earlier this summer to provide a solution to all of the applicants overseas who applied for a family permit before the end of the Brexit transition period on 31 December 2020, but who have not yet been issued with one.
Until recently, such applicants were being told that since 30 June 2021 there has been no power for the Home Secretary to issue family permits to enable their travel to the UK or even if such a power still exists, permits would not be valid for onward travel to the UK. One can only hope that the change will help smooth this issue out, but it is unclear how a “letter” will enable such applicants to come to the UK and there are bound to be applicants facing these issues in-country as well.
22 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)
In Velaj (EEA Regulations – interpretation; Reg 16(5); Zambrano) [2021] UKUT 235 (IAC) the Upper Tribunal looked at whether the Home Office accidentally liberalised the regulations on when the primary carer of a British child can be removed from the UK.
The tribunal concluded that it did not. As a result, the law on these “Zambrano” rights remains unchanged.
In any case, Zambrano rights will soon be of purely historic interest due to Brexit.
24 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)
1. When a court or tribunal is considering whether the revocation of P’s protection status breaches the UK’s obligations in relation to persons eligible for a grant of Humanitarian Protection, the first question is whether P is eligible for a grant of Humanitarian Protection.
2. P is not eligible for a grant of Humanitarian Protection if he is excluded from eligibility for any one of the reasons in paragraph 339GB(i)-(v) of the Immigration Rules (which transposed Article 17(1) of the Qualification Directive), including his commission of a serious crime or the fact that he constitutes a danger to the community or security of the UK.
3. The Secretary of State’s guidance on Humanitarian Protection (version 5, 7 March 2017) does not disclose an intention to adopt standards more favourable to P as regards exclusion from Humanitarian Protection. In particular, that guidance does not require that, in order to be excluded from Humanitarian Protection, an individual who has committed a serious crime must also represent a danger to the UK.
27 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)
28 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)
>>> Good news for extended family members of EU citziens
From ILPA:
“Dear Members,
With many thanks to the3million for sharing it, we are writing to bring to your attention a letter from Kevin Foster MP, the Minister for Future Borders and Immigration, regarding the position of extended family members following the closure of the EEA family permit route. The letter can be read here. The Home Office's change of position followed legal action including matters in which Emma Daykin and Eva Doerr at One Pump Court and Here for Good have been acting. ILPA provided a witness statement further to a call for evidence to Members.
The Minister's letter recognises that "Article 10(3) of the Withdrawal Agreement requires the facilitation of entry and residence for extended family members whose application for an EEA family permit, made by the end of the transition period, was successful, including on appeal" and that the current arrangement, whereby extended family members (other than durable partners) are outside the scope of the relevant Immigration Rules in Appendix EU (Family Permit), "has created a lacuna in respect of Article 10(3) of the Withdrawal Agreement".
The letter states that "pending the next appropriate set of Rules changes, we are creating a concession outside Appendix EU (Family Permit), which will be set out in the published EUSS family permit guidance. This will enable an EUSS family permit to be granted to an extended family member who applied for an EEA family permit by 31 December 2020 and would have been granted this, including on appeal, had the route not closed".
The Minister also writes that "We will be in contact accordingly with those extended family members you mention who have received a letter following a successful appeal advising they would have qualified for an EEA family permit had the route remained open but are ineligible for an EUSS family permit" and "We will also make arrangements, pending the next appropriate set of Rules changes, to enable an extended family member issued with an EUSS family permit on this basis to apply to the EUSS once they have arrived in the UK if they wish to remain here".
>>> Deprivation of citizenship for fraud after Begum
In Ciceri (deprivation of citizenship appeals: principles) [2021] UKUT 238 (IAC), the Upper Tribunal has applied the guidance given in R (Begum) v Special Immigration Appeals Commission [2021] UKSC 7 to deprivation of citizenship appeals on grounds of fraud. It does so in a way which inflicts maximum damage on the ability of appellants to challenge the decisions of the Secretary of State.
01 October 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)
Customers using the ‘UK Immigration: ID Check’ app when applying to work, study or live in the UK as part of their identity stage of their application, will not receive a vignette (sticker) in their passport, if their application is successful.
The guidance on using the UK Immigration: ID check app including how to use the app and completing your applications can be found on GOV.UK.
>>> Travel documents to enter the UK are changing from 1 October 2021
From 1 October 2021, most EU, EEA and Swiss citizens can only travel to the UK using a valid passport, unless they have:
⦁ applied to the EU Settlement Scheme, or have an application pending
⦁ or otherwise have protected rights under the Citizens’ Rights Agreements
A new International Sportsperson visa route for illustrious award winners and sport stars will open next month, providing a dedicated and simplified visa for sportspeople and their sponsors.
These immigration changes are part of the UK’s points-based immigration system to attract the brightest and best to the country, delivering on the government’s New Plan for Immigration.
>>> New system for international travel
The rules for international travel to England will change on 4 October 2021 at 04:00am.
The current traffic light system will be replaced by a single red list of countries and territories which will continue to be crucial in order to protect public health and simplify travel measures for arrivals.
All travellers should continue to check GOV.UK travel guidance including FCDO travel advice before, during and after travel to keep up to date and ensure compliance with the latest COVID-19 and non-COVID-19 regulations.
If an applicant finds, after they have arrived in the UK, that their visa has been issued with an incorrect endorsement they can request to have it amended. This can be done directly or through a representative or sponsor.
If an applicant finds, before they have arrived in the UK, that their visa has been issued with an incorrect endorsement they must contact their visa application centre immediately to correct it.
⦁ If the error is on a biometric residence permit (BRP) the applicant must report the problem ⦁ online.
⦁ If the error relates to a vignette endorsement and is raised within 3 months of arrival in the UK the applicant should contact ⦁ UKVI International Sheffield.
>>> Service Standards
UK Visas and Immigration (UKVI) are experiencing very high global demand, meaning that some visa categories are taking longer than normal to be processed.
UKVI apologise for any inconvenience caused. We are working hard to resolve this situation and ensure all customers get their passports back as quickly as possible.
We regret that VFS Global and TLS are unable to expedite or track applications.
04 October 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)
>>> Sopra Steria Update
From ILPA:
"We have been informed that Sopra Steria will be introducing improvements to their service which will become visible on their website on Tuesday 5 October 2021. We understand that as of 1 November 2021 , there will be an increase in the number of free appointments available and it will be possible to book a free appointment at all UKVCAS service points apart from premium lounges (and not just at core sites). We also understand that the cost of chargeable appointments will be standardised to one fixed fee of £125 including VAT".
>>> Immigration checks within the Common Travel Area
Immigration officials may stop people travelling from Ireland to Great Britain and ask to see their papers despite the Common Travel Area, the Home Office has confirmed.
A newly updated version (10.0) of the Common Travel Area guidance says:
"Whilst there are no routine immigration controls when travelling to Great Britain (GB) via Ireland individuals may be required to provide a document to confirm their nationality and identity if they are encountered by an official as part of an intelligence led control on arrival from Ireland into GB."
This does not apply to journeys into Northern Ireland from the Republic of Ireland across the land border: “There will continue to be no immigration controls on those journeys”. (The Irish immigration authorities do not take that position and often board the Belfast to Dublin buses to ask passengers for ID.)
British and Irish citizens asked by Border Force for “proof of nationality and identity” do not have to present a passport necessarily, but in practice few will carry alternative “evidence of having obtained British or Irish citizenship”. EU citizens with pre-settled or settled status can show an ID card from their home countries. Most other foreign nationals will need to present a passport.
The documentary requirements for people travelling from the Crown Dependencies to the UK are lighter: proof of identity of some kind may be sufficient.
04 October 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)
Certain foreign citizens who can drive fuel tankers can enter the UK without a visa until 15 October under a new immigration concession.
This concession applies if you arrive between 1 October 2021 and 15 October 2021.
You’ll be granted permission to enter and work in the UK as a fuel tanker driver until 31 March 2022, if a Border Force officer is satisfied that you meet the eligibility requirements at the UK border.
The Home Office published the Concession for temporary leave to allow employment as HGV fuel drivers on Saturday 2 October, 2101. It allows entry outside the normal Immigration Rules until 15 October, with permission lasting until 31 March 2022, for people who:
-Are not visa nationals -Have an EU licence to drive HGV fuel tankers
-Have an “endorsement letter” from the Department for Business, Energy and Industrial Strategy
-Will be employed as a fuel tanker driver
-Will not need to claim benefits
-Intend to leave the UK afterwards
The scheme has been split up: 4,700 Seasonal Worker visas for drivers in the food haulage sector (expiring on 28 February 2022, not Christmas Eve as previously announced), and 300 places for fuel drivers under this concession. The terms of the concession itself do not mention such a limit, but presumably the business department will only issue 300 letters.
Meanwhile, the 5,500 Seasonal Worker visas for poultry workers will expire on 31 December (again instead of 24 December). Both they and the food haulage drivers “will arrive from late October”; or not, as it might be. It is not clear whether the application process will be in place any earlier than late October.
Ministers are also discussing whether “to allow up to 1,000 foreign butchers into the country”, according to the Times.
Advocate General Hogan’s opinion in case C‑247/20 VI v Commissioners for Her Majesty’s Revenue & Customs concludes that someone no longer requires Comprehensive Sickness Insurance (CSI) once they have permanent residence under EU law.
The opinion is only advisory; it is not legally binding. But the opinion of the Advocate General is taken into account, and often followed, by the Court of Justice of the European Union when it issues its final decision. That final decision will not be binding in the UK due to Brexit; British judges can however take it into account in similar cases.
05 October 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)
08 October 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 I leave the UK after submitting my immigration application to the Home Office at all ?
The answer is "No", under the Para 34K of the UK Immigration Rules:
"34K. Where a decision on an application for permission to stay has not been made and the applicant travels outside the common travel area their application will be treated as withdrawn on the date the applicant left the common travel area."
13 October 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 Letter Re: Rights of EU Settlement Scheme Applicants with a Pending Application
From the Home Office:
"The Home Office have recently noted a large number of queries relating to the rights of EUSS applicants; in particular, whether ‘late’ applicants hold the right to study in the UK whilst their application is pending.
Please find the following information which will hopefully address some of these queries:
Applicants who applied by 30 June 2021:
EEA citizens and their family members, who were resident in the UK by the end of the transition period on 31 December 2020 and who applied by 30 June 2021 to the EU Settlement Scheme, are advised not to travel outside the UK/to the UK until they are in possession of a Certificate of Application, confirming they have made a valid in-time application to the scheme. If travel before then is necessary, they may experience delays at the border whilst their application is confirmed. In such cases, where it can be confirmed that the pending application has been made by an EEA citizen or their family member, who was resident in the UK by the end of the transition period on 31 December 2020, they will be admitted.
Applicants who applied by the deadline of 30 June 2021 have their rights in the UK protected pending the outcome of the application and any appeal, by the Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020: https://www.legislation.gov.uk/ukdsi/2020/9780348212204
Applicants who applied after 30 June 2021:
EEA citizens and their family members, who were resident in the UK by the end of the transition period on 31 December 2020 and who applied to the EU Settlement Scheme after the 30 June 2021 deadline, must not travel outside the UK/to the UK until they are in possession of a Certificate of Application, confirming they have made a valid application to the scheme. They may also be asked to provide evidence they were resident in the UK by the end of the transition period on 31 December 2020 in order to be admitted.
Applicants who apply after the deadline of 30 June 2021 also have their rights in the UK protected pending the outcome of the application and any appeal. They require a Certificate of Application to prove those rights whilst their application and any appeal are pending.
A Certificate of Application is issued as soon as an application is valid in accordance with paragraph EU9 of the Immigration Rules for the EUSS in Appendix EU. Applicants who have a digital Certificate of Application can log into the online View and Prove service using their UKVI account, and generate a share code to prove their rights. This includes share codes for the right to work, study or rent and other purposes.
In the case of ‘late’ applicants, they are unable to prove their right to study in the UK without their Certificate of Application. As such, this document is required before a ‘late’ EUSS applicant can be enrolled on a course. "
14 October 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 a student run a business or be a self-employed person ?
The answer is "No" under para ST 26.5.:
- ST 26.5. A Student is not allowed to do any of the following:
(a) be self-employed or engage in business activity unless ST 26.8 applies; or
(b) work as a professional sportsperson (including as a sports coach); or
(c) work as an entertainer; or
(d) work in a position which would fill a permanent full-time vacancy unless ST 26.6. applies.
- ST 26.6. If a Student has permission and makes an application for permission to stay under the Skilled Worker route, supported by a Certificate of Sponsorship assigned by a licensed sponsor, the Student can start the employment for which the Certificate of Sponsorship was assigned, for up to 3 months prior to the course completion date, provided:
(a) the Student is studying a full-time course of study at degree level or above with a higher education provider with a track record of compliance; and
(b) the application as a Skilled Worker was made when the applicant had permission as a Student; and
(c) a decision has not been made on the Skilled Worker application, or where a decision has been made, any Administrative Review against a refusal has not been finally determined.
18 October 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)
800 temporary Seasonal Worker visas will be made available to pork butchers, the government has announced. They will last for six months, with applications open until 31 December 2021.
20 October 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 an immigration decision be (long) delayed during a criminal investigation?
22 October 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 Supreme Court has this recently handed down judgment in R (Majera) (formerly SM Rwanda) v Secretary of State for the Home Department [2021] UKSC 46. The appeal, as Lord Reed states in his opening sentence, raised a “question of constitutional importance”. That question was whether the government (or anyone else) can lawfully act in a manner inconsistent with a defective order of a court or tribunal without first having that order set aside or varied.
The answer, the Supreme Court has concluded unanimously, is "no".
The Court of Appeal has given its long-awaited decision in the case of MY (Pakistan) v Secretary of State for the Home Department [2021] EWCA Civ 1500. Unfortunately, it confirms that the Home Office can refuse to engage with a human rights claim for permission to stay in the UK which is not made using the specified form or process. That leaves the applicant with no right of appeal.
26 October 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)
>>> May a person be admitted at the border with the expired ILR BRP card ?
The answer is "may be", on the basis of the para 18 of the UK Immigration Rules:
"18. A person may resume their residence in the UK provided the Immigration Officer is satisfied that the person concerned:
(i) had indefinite leave to enter or remain in the United Kingdom when he last left; and
(ii) has not been away from the United Kingdom for more than 2 years; and
(iii) did not receive assistance from public funds towards the cost of leaving the United Kingdom; and
(iv) now seeks admission for the purpose of settlement."
28 October 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)
>>> Another Russian name creates a case-law
In R (Gornovskiy) v Secretary of State for the Home Department (unreported, JR/582/2021) the Upper Tribunal quashed the Home Secretary’s decision to grant 12 months’ restricted leave to a man who has been on either restricted or discretionary leave since 2008.
In Re Ní Chuinneagain [2021] NIQB 79 the High Court in Northern Ireland has thrown out a challenge to automatic British citizenship for people who reject it.
The claimant is from Belfast and regards herself as 100% Irish, from passport to first language. Section 1(1) of the British Nationality Act 1981 says that she is also a British citizen. Ms Ní Chuinneagain objects, and refuses to renounce her unwanted second nationality, saying that “doing so would represent an acceptance that she was born a British citizen, in addition to having to pay the administrative cost involved”.
Mr Justice Scoffield found that being legally British “takes nothing away” from Ms Ní Chuinneagain’s rights as an Irish (and EU) citizen: “she is effectively free to ignore it”. Unlike in De Souza [2019] UKUT 355 (IAC), there was no “concrete detriment” to dual nationality. It could not “seriously be suggested” that filling in the renunciation paperwork would be a breach of her human rights.
Nor was the Good Friday Agreement any help:
"it is a matter of well-established law that the Belfast Agreement (or the British-Irish Agreement), as an international agreement, is not enforceable as a matter of domestic law, unless and until (and only insofar as) it is incorporated into domestic law."
The Northern Ireland Protocol didn’t change this, as it “does not seek to give independent legal effect” to the Agreement.
Scoffield J added that, even if the Good Friday Agreement were enforceable in court, it’s not clear that it actually forbids automatic British citizenship for Irish people.
03 November 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)
>>> Is switching from a Short Term Student visa into a UK spouse visa possible ?
Potentially, if the visa was issued for a period longer than 6 months (some of the Short Term Student visas to study English are issued for 9 months.
04 November 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 guidance on fresh Asylum claims:
The official headnote
Paragraph 353 of the Immigration Rules
1. The importance of paragraph 353 of the Immigration Rules (“Paragraph 353”) is as a “gate-keeping” function to shut out from the appeals system unmeritorious second or subsequent appeals. An appeal is generated under the current form of section 82 Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) whenever a protection or human rights “claim” is made and refused. However, the Respondent is not obliged to treat repeat submissions as a “claim” leading to a “decision” generating a right of appeal in every case (Robinson v Secretary of State for the Home Department [2020] AC 942).
2. The words “if rejected” in Paragraph 353 specifically contemplate that the Respondent must form a view on the merits of the further submissions, in the sense that she may decide the submissions are such as to warrant the grant of leave to enter or remain (and to recognise the person as a refugee or otherwise entitled to international protection). It is only if she does not do so that Paragraph 353 requires her to determine if the (ex hypothesi) rejected submissions are a fresh claim, the refusal of which constitutes a decision falling within section 82 of the 2002 Act. It is artificial to separate the underlying merits of what is put forward from the question whether something “significantly different” is being advanced for the purposes of Paragraph 353. It is not the case, therefore, that the Respondent has “decided” a “claim” under section 82 of the 2002 Act in any case where she considers further submissions or a further application and concludes that the submissions or application do not merit the grant of leave.
3. The end-to-end process where Paragraph 353 applies is as follows:
Stage 1: The Applicant makes human rights or protection claim.
Stage 2: That claim is refused by the Respondent, giving rise to a right of appeal under section 82 of the 2002 Act.
Stage 3: The Applicant’s appeal is unsuccessful; or the Applicant does not appeal or withdraws his appeal; or the refusal is certified under section 94 of the 2002 Act.
Stage 4: The Applicant makes second or subsequent submissions by way of written submissions or application (“the Further Submissions”).
Stage 5: The Respondent considers whether to accept or reject the Further Submissions on their merits.
Stage 6: If the Further Submissions are accepted on their merits, the Respondent grants leave/recognises Applicant’s status.
Stage 7: If the Further Submissions are rejected, the Respondent goes on to consider whether they nonetheless amount to a fresh protection or human rights claim; i.e. a categorisation decision is made.
Stage 8: If the Respondent determines that the Further Submissions do not amount to a fresh claim, she rejects them as such. No refusal of a human rights or protection claim arises, within the meaning of section 82(1)(a) or (b) of the 2002 Act. If, however, she determines that they do amount to a fresh claim, then a “decision” has been made to refuse a “claim” for the purposes of Section 82 (1)(a) or (b) of the 2002 Act and a right of appeal arises against that decision
4. The guidance given in Sheidu (further submissions; appealable decisions; Sudan) [2016] UKUT 412 (IAC) is that if the effect of a decision is a refusal of a claim under section 82 of the 2002 Act, then there is a right of appeal even if the Respondent had intended to refuse further submissions applying Paragraph 353. That guidance turns on the interpretation of the particular decision letter under consideration in that case. In some (albeit extreme) cases such as Sheidu, the Upper Tribunal may conclude in the context of a judicial review challenge that what the Respondent actually did was not what she intended to do. Such cases are nevertheless likely to be rare.
5. Whether a decision of the Respondent is a decision to refuse to treat submissions as a fresh claim or the refusal of what is accepted to be a fresh claim is a matter of substance and not form. The nature of the decision does not depend where in the decision letter Paragraph 353 is raised. It is
necessary to look at a Paragraph 353 decision under challenge as a whole. It must be interpreted objectively, considered fairly in the round and in substance.
The Role of the Tribunal in Judicial Review Challenges to Paragraph 353 Decisions
6. Balajigari and others v Secretary of State for the Home Department [2019] 1 WLR 4647 and R (oao BAA and Another) v Secretary of State for the Home Department (Dublin III: judicial review; SoS’s duties) [2020] UKUT 00227 (IAC) did not involve fresh claim decisions. As such they are distinguishable from fresh claims cases. The case law in relation to fresh claims has consistently stated that the role of the Tribunal is only to consider whether the decision is Wednesbury unreasonable or involves other public law error: (WM (DRC) v Secretary of State for the Home Department [2007] Imm AR 337).
7. In a Judicial Review of a decision made under Paragraph 353, the Upper Tribunal is tasked with considering the Respondent’s decision for rejecting the submissions as a fresh claim. The Tribunal is not required to reach a decision for itself whether the Respondent’s decision breaches an applicant’s human rights. The position in this regard is akin to that where an appellate court or tribunal is examining the legality of the mixed legal and factual conclusion reached by a fact-finding tribunal on whether a decision violates Article 8 rights.
8. In the event that further material comes to light, the remedy for an applicant is to make further submissions to the Respondent and not seek to place the Tribunal in the role of primary decision-maker.
05 November 2021 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org - +44(0)3300010342, +44(0)7791145923 (WhatsApp/Viber)
>>> The UK Government to deprive British citizens of their citizenship without telling them
The Home Secretary can take away anyone’s British citizenship when it would be “conducive to the public good”, but would not make that person stateless. She can also take away naturalised citizenship if obtained by fraud, false representation or concealment of a material fact.
The circumstances in which the Home Secretary has exercised this power for “the public good” have largely concerned Brits who travelled to foreign countries to join Islamist terrorist groups. The power has had the practical effect of preventing them from re-entering the UK, meaning they do not become a terrorist threat on domestic soil.
The government is now about to change the law so that people will no longer need to be notified about being stripped of their citizenship.
08 November 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 new UK Scale-Up Visa to be available in spring 2022
The Scale-up Visa, also referred to as an 'elite points-based visa', will be open to applicants who pass the language proficiency requirements and have an offer of a highly-skilled job paying at least £33,000 from an eligible business. The sponsoring company would benefit from a fast track verification process but would need to meet special criteria to do so. An annual average revenue or employment growth rate over a three year period of greater than 20% with a minimum of 10 employees at the start of that three year period. The scale-up visa will launch in spring 2022.
>>> Court of Appeal declines to re-open MY (Pakistan) human rights ruling:https://www.bailii.org/ew/cases/EWCA/Civ/2021/1615.html
The Court of Appeal has added a rider to last month’s decision in MY (Pakistan). On 15 October, the court held that the Home Office can refuse to engage with human rights claims bolted on to normal immigration applications.
10 November 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)
11 November 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)
Immigration Enforcement has been given the power to decide whether or not someone is a victim of human trafficking. An update to the Modern Slavery guidance, published on 8 November, includes an “Immigration Enforcement Competent Authority” alongside what was the sole, centralised decision-making body, the “Single Competent Authority”.
The Immigration Enforcement Competent Authority is responsible for:
"- All adult Foreign National Offenders (FNOs) detained in an Immigration Removal Centre.
- All adult FNOs in prison where a decision to deport has been made.
- All adult FNOs in prison where a decision has yet to be made on deportation.
- Non-detained adult FNOs where action to pursue cases towards deportation is taken in the community .
- All individuals detained in an Immigration Removal Centre (IRC) managed by the National Returns Command (NRC), including those in the Detained Asylum Casework (DAC) process.
- All individuals in the Third Country Unit (TCU)/inadmissible process irrespective of whether detained or non-detained."
That leaves the Single Competent Authority with all other trafficking cases, including any concerned with children.
That leaves the Single Competent Authority with all other trafficking cases, including any concerned with children.
The Home Office professes to believe that the trafficking system is being abused. 90% of trafficking referrals from detention centres in 2019 saw the person pass the first stage, the “reasonable grounds” decision, according to internal analysis. Giving the department’s enforcement arm its own decision-making powers is likely intended to foster a culture of greater scepticism about trafficking claims from people being lined up for deportation.
12 November 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 important points on inconsistency and credibility in trafficking cases from David Lock QC, sitting as a deputy High Court judge:
"The expert evidence in this case from Mr Steve Harvey, who has long experience in the police and in Europol in trafficking matters, is that he has never known a trafficking case where there were no inconsistencies in the account of events given by the victim. Inconsistencies may, of course, be evidence to suggest that a person is lying but in this context it is important decision makers recognise that there are many other potential explanations for inconsistencies."
And:
"In a case where a person has suffered substantial trauma from repeated beatings and other unspeakable behaviour at the hands of those who controlled him, the psychological consequences of those events may result in the applicant’s recollection of events being entirely incoherent and thus of no value at all in deciding what had happened to him or he may continue to be so fearful of those who were controlling him that he may deny there was any abuse, coercion or forced labour. This is expressly recognised in the Guidance. In such a case, the applicant may be lying or his account of events may have no value whatsoever but the evidence of the physical or psychological condition of the individual will nonetheless be more than sufficient evidence that the person was a victim of trafficking."
15 November 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)
Co-habitation requirements for unmarried partners have been clarified; guidance on exceptional circumstances for parents where the other parent cannot travel; clarifying the status requirement of a second parent; updating references in line with recent rules changes; clarifying how to address children from previous relationships.
16 November 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)
Immigration appeals can last a long time: often years and years. What happens when things change during the appeal? This is the question answered by the Upper Tribunal in Akter (appellate jurisdiction; E and R challenges) [2021] UKUT 272 (IAC).
The main take away from this case is: don’t appeal to the Upper Tribunal on the basis of new evidence. Send it to the Home Office instead. This can be frustrating, as it essentially means starting the whole process all over again. But given the Upper Tribunal’s reluctance to consider anything that was not before the First-tier Tribunal, it is likely to be the only way to get anyone to look at it and consider the case afresh.
The official headnote
"(1) GM (Sri Lanka) v Secretary of State for the Home Department [2019] EWCA Civ 1630 is not authority for the proposition that an appellate court or tribunal has a free-standing duty, derived from section 6 of the Human Rights Act 1998 (public authority not to act incompatibly with ECHR right), to disturb a decision of a lower tribunal. The jurisdiction of the appellate court or tribunal is governed by sections 12 and 14 of the Tribunals, Courts and Enforcement Act 2007, which depends on the lower tribunal having made an error of law before its decision can be disturbed on appeal.
(2) A party who wishes to submit that a decision of a tribunal which is otherwise free from legal error should be disturbed on appeal on the basis identified by Carnwath LJ in E and R v Secretary of State for the Home Department [2004] EWCA Civ 49 should do so clearly, when seeking permission to appeal on that basis.
(3) In deciding whether the principles in Ladd v Marshall [1954] 1 WLR 1489, as applied by E & R, should be modified in exceptional circumstances, the ability to make fresh submissions to the Secretary of State, pursuant to paragraph 353 of the immigration rules, is highly material to the question of whether those principles should be diluted."
22 November 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)
Information on applying for a visitor visa has been updated:
"Standard UK visitor visas are currently taking longer than usual to be processed due to high global demand. You should bear this in mind when making travel arrangements.
UKVI are working hard to process applications as soon as possible.
You will be contacted by the Visa Application Centre (VAC) when your passport is ready for collection. Do not attend the VAC until you have been invited to do so.
You are not required to book any travel before you apply or before a decision is made on your application. You’ll only be refunded if we have not started processing your application."
Updated version of “EU Settlement Scheme: EU, other EEA and Swiss citizens and their family members”, which has been published. It also includes guidance from the deleted document “EU Settlement Scheme: coronavirus (COVID-19)”.
23 November 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)
>>> Which immigration form may be used to apply for the early settlement concession for young people living half their lives in the UK ?
Currently, there is no clarity from the Home Office. Yet the present wording of the policy indicates that the concession will be considered at the time of an ‘application’ and refers back to the policy that ILR can be considered exceptionally where an application for further leave to remain is made if requested. Therefore, the general understanding is that as the concession is accessed, by making the request for ILR at the time of making an application for further leave to remain using Form FLR(FP) if applicants have accrued 5 years lawful residence and prior to the expiry of their existing leave.
The Upper Tribunal published its decision in Agbabiaka (evidence from abroad, Nare guidance) Nigeria [2021] UKUT 286 (IAC). The tribunal found that a party seeking to have oral evidence given from abroad needs to “make the necessary enquiries” with the Foreign, Commonwealth and Development Office to check whether the foreign government in question has any objection. The full headnote is set out below.
The official headnote
(1) There is an understanding among Nation States that one State should not seek to exercise the powers of its courts within the territory of another, without having the permission of that other State to do so. Any breach of that understanding by a court or tribunal in the United Kingdom risks damaging this country’s relationship with other States with which it has diplomatic relations and is, thus, contrary to the public interest. The potential damage includes harm to the interests of justice.
(2) The position of the Secretary of State for Foreign, Commonwealth and Development Affairs is that it is accordingly necessary for there to be permission from such a foreign State (whether on an individual or general basis) before oral evidence can be taken from that State by a court or tribunal in the United Kingdom. Such permission is not considered necessary in the case of written evidence or oral submissions.
(3) Henceforth, it will be for the party to proceedings before the First-tier Tribunal who is seeking to have oral evidence given from abroad to make the necessary enquiries with the Taking of Evidence Unit of the Foreign, Commonwealth and Development Office (FCDO), in order to ascertain whether the government of the foreign State has any objection to the giving of evidence to the Tribunal from its territory.
(4) The First-tier Tribunal will need to be informed at an early stage of the wish to give evidence from abroad. The party concerned will need to give the Tribunal an indication of the nature of the proposed evidence (which need not, at this stage, be in the form of a witness statement).
(5) The Tribunal’s duty to seek to give effect to the overriding objective may require it, in particular, to consider alternatives to the giving of oral evidence where (for example) there are delays in the FCDO obtaining an answer from the foreign State. Each case will need to be considered on its merits.
(6) The experience gained by the First-tier Tribunal in hearing oral evidence given in the United Kingdom by remote means during the Covid-19 pandemic is such that there should no longer be a general requirement for such evidence to be given from another court or tribunal hearing centre.
(7) The guidance given by the Upper Tribunal in Nare (evidence by electronic means) Zimbabwe [2011] UKUT 443 (IAC) is amended to the above extent.
29 November 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)
Geci (EEA Regs: transitional provisions, appeal rights) Albania [2021] UKUT 285 (IAC) is another appeal under the Immigration (European Economic Area) Regulations 2016, but with “highly unusual” facts. Mr Geci had returned to the UK in breach of a deportation order (twice). Rather than seeking to enforce the deportation order, the Home Office decided to refuse to issue a residence card pursuant to regulation 24 of the EEA Regulations. The Upper Tribunal found that it had no power to do so.
The official headnote
(1) The Immigration (European Economic Area) Regulations 2016 (“the EEA Regulations”) were revoked in their entirety on 31 December 2020 by paragraph 2(2) of Schedule 1(1) to the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020.
(2) Many of the provisions of the EEA Regulations are preserved (although subject to amendment) for the purpose of appeals pending as at 31 December 2020 by the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations (SI 2020 1309), (“the EEA Transitional Regulations”). The preserved provisions and amendments made are set out in paragraphs 5 and 6 of Schedule 3 to the EEA Transitional Regulations.
(3) The effect of the amendments is that the sole ground of appeal is now, in effect, whether the decision under appeal breaches the appellant’s rights under the EU Treaties as they applied in the United Kingdom prior to 31 December 2020.
(4) The issue of a residence card is an administrative matter. Although the Secretary of State does have power under the EEA Regulations to refuse to issue a residence card on grounds of public policy, public security or public health, she does not have the right to do so under Directive 2004/38/EC or the EU Treaties.
Secretary of State for the Home Department v P3 [2021] EWCA Civ 1642 is about how much SIAC should defer to the Home Secretary’s view about national security concerns. The answer is quite a lot, but not too much.
The background to this case is the Supreme Court decision in Begum, which was decided after the SIAC judgment under appeal. In that case, the Supreme Court ruled that when assessing the Home Secretary’s view of the national security risk posed by an appellant, SIAC should apply ordinary public law principles to the decision rather than making its own assessment of the risk.
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>>> More on the positive changes for family members applying under the EU Settlement Scheme (EUSS)
This is a more detailed follow up to the Legal Centre last week’s update.
Namely, changes to Appendix EU and Appendix EU (Family Permit) to the Immigration Rules come into force on 6 October 2021. Let’s have a look at the significant changes that are likely to impact on current and future applications.
Joining family members
As far as Appendix EU is concerned, the first major change concerns those seeking indefinite leave to enter or remain under paragraph EU11A as a joining family member, or limited leave under Para EU14A. Such applicants still need to meet the same family relationship and residence requirements, but the requirement not to be in the UK as a visitor will be removed.
It is not clear how much of an impact this amendment will have but it is welcome in principle. Family members will have been affected by travel disruptions and restrictions resulting from the Covid-19 pandemic and this easing may assist those seeking to re-establish their rights of residence in the UK who may have ended up returning here as visitors.
As a consequence, the definition of “visitor” will also be deleted from Annex 1.
Family permits
One set of changes, which is significant, is the insertion of express references to absences caused by Covid-19.
The next set of changes all relate to the definition (in Annex 1) and the use (in all other relevant paragraphs of Appendix EU) of a “relevant document”. This is a document that some categories of applicants, such as dependent relatives, must have in order to have their family relationship recognised.
The main types of “relevant document” have so far included the following:
(a)(i)(aa) a family permit, registration certificate, residence card, document certifying permanent residence, permanent residence card or derivative residence card issued by the UK under the EEA Regulations on the basis of an application made under the EEA Regulations before (in the case, where the applicant is not a dependent relative, of a family permit) 1 July 2021 and otherwise before the specified date;
From 6 October 2021, this will instead read “a family permit (or a letter from the Secretary of State, issued after 30 June 2021, confirming their qualification for one)”. This may be a response to litigation begun earlier this summer to provide a solution to all of the applicants overseas who applied for a family permit before the end of the Brexit transition period on 31 December 2020, but who have not yet been issued with one.
Until recently, such applicants were being told that since 30 June 2021 there has been no power for the Home Secretary to issue family permits to enable their travel to the UK or even if such a power still exists, permits would not be valid for onward travel to the UK. One can only hope that the change will help smooth this issue out, but it is unclear how a “letter” will enable such applicants to come to the UK and there are bound to be applicants facing these issues in-country as well.
>>> The Home Office seemed to inadvertently strengthen the rights of Zambrano carers in 2018: https://www.bailii.org/uk/cases/UKUT/IAC/2021/235.html
In Velaj (EEA Regulations – interpretation; Reg 16(5); Zambrano) [2021] UKUT 235 (IAC) the Upper Tribunal looked at whether the Home Office accidentally liberalised the regulations on when the primary carer of a British child can be removed from the UK.
The tribunal concluded that it did not. As a result, the law on these “Zambrano” rights remains unchanged.
In any case, Zambrano rights will soon be of purely historic interest due to Brexit.
>>> Serious crime enough for humanitarian protection to be revoked: https://www.bailii.org/uk/cases/UKUT/IAC/2021/236.html
The official headnote
1. When a court or tribunal is considering whether the revocation of P’s protection status breaches the UK’s obligations in relation to persons eligible for a grant of Humanitarian Protection, the first question is whether P is eligible for a grant of Humanitarian Protection.
2. P is not eligible for a grant of Humanitarian Protection if he is excluded from eligibility for any one of the reasons in paragraph 339GB(i)-(v) of the Immigration Rules (which transposed Article 17(1) of the Qualification Directive), including his commission of a serious crime or the fact that he constitutes a danger to the community or security of the UK.
3. The Secretary of State’s guidance on Humanitarian Protection (version 5, 7 March 2017) does not disclose an intention to adopt standards more favourable to P as regards exclusion from Humanitarian Protection. In particular, that guidance does not require that, in order to be excluded from Humanitarian Protection, an individual who has committed a serious crime must also represent a danger to the UK.
>>> Home Office conceding 30% of appeals: https://www.westminsterforumprojects.co.uk/publication/Asylum-System
The Home Office is now conceding three out of every ten immigration appeals before the hearing, a senior immigration judge has said.
>>> 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=ee5e68c3-749b-400a-bc11-33af56081a03&utm_content=immediately
List of approved test centres inside and outside the UK updated on the GOV.UK website
>>> Family asylum claims: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1019394/Family_asylum_claims.pdf
First published asylum policy guidance on family asylum claims.
>>> Facilitated returns scheme:
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1020415/The_Facilitated_Return_Scheme__FRS_.pdf
>>> Good news for extended family members of EU citziens
From ILPA:
“Dear Members,
With many thanks to the3million for sharing it, we are writing to bring to your attention a letter from Kevin Foster MP, the Minister for Future Borders and Immigration, regarding the position of extended family members following the closure of the EEA family permit route. The letter can be read here. The Home Office's change of position followed legal action including matters in which Emma Daykin and Eva Doerr at One Pump Court and Here for Good have been acting. ILPA provided a witness statement further to a call for evidence to Members.
The Minister's letter recognises that "Article 10(3) of the Withdrawal Agreement requires the facilitation of entry and residence for extended family members whose application for an EEA family permit, made by the end of the transition period, was successful, including on appeal" and that the current arrangement, whereby extended family members (other than durable partners) are outside the scope of the relevant Immigration Rules in Appendix EU (Family Permit), "has created a lacuna in respect of Article 10(3) of the Withdrawal Agreement".
The letter states that "pending the next appropriate set of Rules changes, we are creating a concession outside Appendix EU (Family Permit), which will be set out in the published EUSS family permit guidance. This will enable an EUSS family permit to be granted to an extended family member who applied for an EEA family permit by 31 December 2020 and would have been granted this, including on appeal, had the route not closed".
The Minister also writes that "We will be in contact accordingly with those extended family members you mention who have received a letter following a successful appeal advising they would have qualified for an EEA family permit had the route remained open but are ineligible for an EUSS family permit" and "We will also make arrangements, pending the next appropriate set of Rules changes, to enable an extended family member issued with an EUSS family permit on this basis to apply to the EUSS once they have arrived in the UK if they wish to remain here".
>>> Deprivation of citizenship for fraud after Begum
In Ciceri (deprivation of citizenship appeals: principles) [2021] UKUT 238 (IAC), the Upper Tribunal has applied the guidance given in R (Begum) v Special Immigration Appeals Commission [2021] UKSC 7 to deprivation of citizenship appeals on grounds of fraud. It does so in a way which inflicts maximum damage on the ability of appellants to challenge the decisions of the Secretary of State.
>>> Digital vignette issued using the ‘UK Immigration: ID Check’ app: https://www.gov.uk/guidance/using-the-uk-immigration-id-check-app
Customers using the ‘UK Immigration: ID Check’ app when applying to work, study or live in the UK as part of their identity stage of their application, will not receive a vignette (sticker) in their passport, if their application is successful.
The guidance on using the UK Immigration: ID check app including how to use the app and completing your applications can be found on GOV.UK.
>>> Travel documents to enter the UK are changing from 1 October 2021
From 1 October 2021, most EU, EEA and Swiss citizens can only travel to the UK using a valid passport, unless they have:
⦁ applied to the EU Settlement Scheme, or have an application pending
⦁ or otherwise have protected rights under the Citizens’ Rights Agreements
>>> Fast-track routes for gifted stars to come to the UK: https://www.gov.uk/government/news/fast-track-routes-for-gifted-stars-to-come-to-the-uk
A new International Sportsperson visa route for illustrious award winners and sport stars will open next month, providing a dedicated and simplified visa for sportspeople and their sponsors.
These immigration changes are part of the UK’s points-based immigration system to attract the brightest and best to the country, delivering on the government’s New Plan for Immigration.
>>> New system for international travel
The rules for international travel to England will change on 4 October 2021 at 04:00am.
The current traffic light system will be replaced by a single red list of countries and territories which will continue to be crucial in order to protect public health and simplify travel measures for arrivals.
All travellers should continue to check GOV.UK travel guidance including FCDO travel advice before, during and after travel to keep up to date and ensure compliance with the latest COVID-19 and non-COVID-19 regulations.
>>> Entry clearance amendments: https://www.gov.uk/government/publications/correcting-an-incorrect-endorsement-ecb19/correcting-an-incorrect-endorsement-ecb19
If an applicant finds, after they have arrived in the UK, that their visa has been issued with an incorrect endorsement they can request to have it amended. This can be done directly or through a representative or sponsor.
If an applicant finds, before they have arrived in the UK, that their visa has been issued with an incorrect endorsement they must contact their visa application centre immediately to correct it.
⦁ If the error is on a biometric residence permit (BRP) the applicant must report the problem ⦁ online.
⦁ If the error relates to a vignette endorsement and is raised within 3 months of arrival in the UK the applicant should contact ⦁ UKVI International Sheffield.
>>> Service Standards
UK Visas and Immigration (UKVI) are experiencing very high global demand, meaning that some visa categories are taking longer than normal to be processed.
UKVI apologise for any inconvenience caused. We are working hard to resolve this situation and ensure all customers get their passports back as quickly as possible.
We regret that VFS Global and TLS are unable to expedite or track applications.
>>> Sopra Steria Update
From ILPA:
"We have been informed that Sopra Steria will be introducing improvements to their service which will become visible on their website on Tuesday 5 October 2021. We understand that as of 1 November 2021 , there will be an increase in the number of free appointments available and it will be possible to book a free appointment at all UKVCAS service points apart from premium lounges (and not just at core sites). We also understand that the cost of chargeable appointments will be standardised to one fixed fee of £125 including VAT".
>>> Immigration checks within the Common Travel Area
Immigration officials may stop people travelling from Ireland to Great Britain and ask to see their papers despite the Common Travel Area, the Home Office has confirmed.
A newly updated version (10.0) of the Common Travel Area guidance says:
"Whilst there are no routine immigration controls when travelling to Great Britain (GB) via Ireland individuals may be required to provide a document to confirm their nationality and identity if they are encountered by an official as part of an intelligence led control on arrival from Ireland into GB."
This does not apply to journeys into Northern Ireland from the Republic of Ireland across the land border: “There will continue to be no immigration controls on those journeys”. (The Irish immigration authorities do not take that position and often board the Belfast to Dublin buses to ask passengers for ID.)
British and Irish citizens asked by Border Force for “proof of nationality and identity” do not have to present a passport necessarily, but in practice few will carry alternative “evidence of having obtained British or Irish citizenship”. EU citizens with pre-settled or settled status can show an ID card from their home countries. Most other foreign nationals will need to present a passport.
The documentary requirements for people travelling from the Crown Dependencies to the UK are lighter: proof of identity of some kind may be sufficient.
>>> Concession for temporary leave to allow employment as HGV fuel drivers: https://www.gov.uk/guidance/concession-for-temporary-leave-to-allow-employment-as-hgv-fuel-drivers
Certain foreign citizens who can drive fuel tankers can enter the UK without a visa until 15 October under a new immigration concession.
This concession applies if you arrive between 1 October 2021 and 15 October 2021.
You’ll be granted permission to enter and work in the UK as a fuel tanker driver until 31 March 2022, if a Border Force officer is satisfied that you meet the eligibility requirements at the UK border.
The Home Office published the Concession for temporary leave to allow employment as HGV fuel drivers on Saturday 2 October, 2101. It allows entry outside the normal Immigration Rules until 15 October, with permission lasting until 31 March 2022, for people who:
-Are not visa nationals
-Have an EU licence to drive HGV fuel tankers
-Have an “endorsement letter” from the Department for Business, Energy and Industrial Strategy
-Will be employed as a fuel tanker driver
-Will not need to claim benefits
-Intend to leave the UK afterwards
The scheme has been split up: 4,700 Seasonal Worker visas for drivers in the food haulage sector (expiring on 28 February 2022, not Christmas Eve as previously announced), and 300 places for fuel drivers under this concession. The terms of the concession itself do not mention such a limit, but presumably the business department will only issue 300 letters.
Meanwhile, the 5,500 Seasonal Worker visas for poultry workers will expire on 31 December (again instead of 24 December). Both they and the food haulage drivers “will arrive from late October”; or not, as it might be. It is not clear whether the application process will be in place any earlier than late October.
Ministers are also discussing whether “to allow up to 1,000 foreign butchers into the country”, according to the Times.
>>> EU court considers Comprehensive Sickness Insurance: https://curia.europa.eu/juris/document/document.jsf?text=&docid=246802&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=3287718
Advocate General Hogan’s opinion in case C‑247/20 VI v Commissioners for Her Majesty’s Revenue & Customs concludes that someone no longer requires Comprehensive Sickness Insurance (CSI) once they have permanent residence under EU law.
The opinion is only advisory; it is not legally binding. But the opinion of the Advocate General is taken into account, and often followed, by the Court of Justice of the European Union when it issues its final decision. That final decision will not be binding in the UK due to Brexit; British judges can however take it into account in similar cases.
>>> An applicant, who is exempt from Immigration control under section 8(2), can apply for naturalisation after 5 years provided they meet all the requirements without having to obtain ILR: https://www.gov.uk/government/publications/naturalisation-as-a-british-citizen-by-discretion-nationality-policy-guidance
>>> Can I leave the UK after submitting my immigration application to the Home Office at all ?
The answer is "No", under the Para 34K of the UK Immigration Rules:
"34K. Where a decision on an application for permission to stay has not been made and the applicant travels outside the common travel area their application will be treated as withdrawn on the date the applicant left the common travel area."
>>> Home Office Letter Re: Rights of EU Settlement Scheme Applicants with a Pending Application
From the Home Office:
"The Home Office have recently noted a large number of queries relating to the rights of EUSS applicants; in particular, whether ‘late’ applicants hold the right to study in the UK whilst their application is pending.
Please find the following information which will hopefully address some of these queries:
Applicants who applied by 30 June 2021:
EEA citizens and their family members, who were resident in the UK by the end of the transition period on 31 December 2020 and who applied by 30 June 2021 to the EU Settlement Scheme, are advised not to travel outside the UK/to the UK until they are in possession of a Certificate of Application, confirming they have made a valid in-time application to the scheme. If travel before then is necessary, they may experience delays at the border whilst their application is confirmed. In such cases, where it can be confirmed that the pending application has been made by an EEA citizen or their family member, who was resident in the UK by the end of the transition period on 31 December 2020, they will be admitted.
Applicants who applied by the deadline of 30 June 2021 have their rights in the UK protected pending the outcome of the application and any appeal, by the Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020: https://www.legislation.gov.uk/ukdsi/2020/9780348212204
Applicants who applied after 30 June 2021:
EEA citizens and their family members, who were resident in the UK by the end of the transition period on 31 December 2020 and who applied to the EU Settlement Scheme after the 30 June 2021 deadline, must not travel outside the UK/to the UK until they are in possession of a Certificate of Application, confirming they have made a valid application to the scheme. They may also be asked to provide evidence they were resident in the UK by the end of the transition period on 31 December 2020 in order to be admitted.
Applicants who apply after the deadline of 30 June 2021 also have their rights in the UK protected pending the outcome of the application and any appeal. They require a Certificate of Application to prove those rights whilst their application and any appeal are pending.
A Certificate of Application is issued as soon as an application is valid in accordance with paragraph EU9 of the Immigration Rules for the EUSS in Appendix EU. Applicants who have a digital Certificate of Application can log into the online View and Prove service using their UKVI account, and generate a share code to prove their rights. This includes share codes for the right to work, study or rent and other purposes.
In the case of ‘late’ applicants, they are unable to prove their right to study in the UK without their Certificate of Application. As such, this document is required before a ‘late’ EUSS applicant can be enrolled on a course. "
>>> Can a student run a business or be a self-employed person ?
The answer is "No" under para ST 26.5.:
- ST 26.5. A Student is not allowed to do any of the following:
(a) be self-employed or engage in business activity unless ST 26.8 applies; or
(b) work as a professional sportsperson (including as a sports coach); or
(c) work as an entertainer; or
(d) work in a position which would fill a permanent full-time vacancy unless ST 26.6. applies.
- ST 26.6. If a Student has permission and makes an application for permission to stay under the Skilled Worker route, supported by a Certificate of Sponsorship assigned by a licensed sponsor, the Student can start the employment for which the Certificate of Sponsorship was assigned, for up to 3 months prior to the course completion date, provided:
(a) the Student is studying a full-time course of study at degree level or above with a higher education provider with a track record of compliance; and
(b) the application as a Skilled Worker was made when the applicant had permission as a Student; and
(c) a decision has not been made on the Skilled Worker application, or where a decision has been made, any Administrative Review against a refusal has not been finally determined.
>>> Pork butchers latest to get temporary visas: https://www.gov.uk/government/publications/statement-of-changes-to-the-immigration-rules-cp-542-11-october-2021
800 temporary Seasonal Worker visas will be made available to pork butchers, the government has announced. They will last for six months, with applications open until 31 December 2021.
>>> Can an immigration decision be (long) delayed during a criminal investigation?
See https://www.bailii.org/ew/cases/EWCA/Civ/2021/1480.html
This was the question before the Court of Appeal in R (X and others) v Secretary of State for the Home Department [2021] EWCA Civ 1480.
The court decided that the answer is “yes”, with some caveats.
>>> Government must obey court orders even if invalid, Supreme Court holds: https://www.bailii.org/uk/cases/UKSC/2021/46.html
The Supreme Court has this recently handed down judgment in R (Majera) (formerly SM Rwanda) v Secretary of State for the Home Department [2021] UKSC 46. The appeal, as Lord Reed states in his opening sentence, raised a “question of constitutional importance”. That question was whether the government (or anyone else) can lawfully act in a manner inconsistent with a defective order of a court or tribunal without first having that order set aside or varied.
The answer, the Supreme Court has concluded unanimously, is "no".
>>> The Home Office can ignore human rights claims: https://www.bailii.org/ew/cases/EWCA/Civ/2021/1500.html
The Court of Appeal has given its long-awaited decision in the case of MY (Pakistan) v Secretary of State for the Home Department [2021] EWCA Civ 1500. Unfortunately, it confirms that the Home Office can refuse to engage with a human rights claim for permission to stay in the UK which is not made using the specified form or process. That leaves the applicant with no right of appeal.
>>> May a person be admitted at the border with the expired ILR BRP card ?
The answer is "may be", on the basis of the para 18 of the UK Immigration Rules:
"18. A person may resume their residence in the UK provided the Immigration Officer is satisfied that the person concerned:
(i) had indefinite leave to enter or remain in the United Kingdom when he last left; and
(ii) has not been away from the United Kingdom for more than 2 years; and
(iii) did not receive assistance from public funds towards the cost of leaving the United Kingdom; and
(iv) now seeks admission for the purpose of settlement."
>>> Apply for a Home Office travel document: https://www.gov.uk/apply-home-office-travel-document/certificate-of-travel
>>> Another Russian name creates a case-law
In R (Gornovskiy) v Secretary of State for the Home Department (unreported, JR/582/2021) the Upper Tribunal quashed the Home Secretary’s decision to grant 12 months’ restricted leave to a man who has been on either restricted or discretionary leave since 2008.
>>> Challenge to automatic British citizenship for Northern Irish people thrown out: https://www.judiciaryni.uk/judicial-decisions/2021-niqb-79
In Re Ní Chuinneagain [2021] NIQB 79 the High Court in Northern Ireland has thrown out a challenge to automatic British citizenship for people who reject it.
The claimant is from Belfast and regards herself as 100% Irish, from passport to first language. Section 1(1) of the British Nationality Act 1981 says that she is also a British citizen. Ms Ní Chuinneagain objects, and refuses to renounce her unwanted second nationality, saying that “doing so would represent an acceptance that she was born a British citizen, in addition to having to pay the administrative cost involved”.
Mr Justice Scoffield found that being legally British “takes nothing away” from Ms Ní Chuinneagain’s rights as an Irish (and EU) citizen: “she is effectively free to ignore it”. Unlike in De Souza [2019] UKUT 355 (IAC), there was no “concrete detriment” to dual nationality. It could not “seriously be suggested” that filling in the renunciation paperwork would be a breach of her human rights.
Nor was the Good Friday Agreement any help:
"it is a matter of well-established law that the Belfast Agreement (or the British-Irish Agreement), as an international agreement, is not enforceable as a matter of domestic law, unless and until (and only insofar as) it is incorporated into domestic law."
The Northern Ireland Protocol didn’t change this, as it “does not seek to give independent legal effect” to the Agreement.
Scoffield J added that, even if the Good Friday Agreement were enforceable in court, it’s not clear that it actually forbids automatic British citizenship for Irish people.
>>> Is switching from a Short Term Student visa into a UK spouse visa possible ?
Potentially, if the visa was issued for a period longer than 6 months (some of the Short Term Student visas to study English are issued for 9 months.
>>> Home Office complaints procedure: https://www.gov.uk/government/organisations/uk-visas-and-immigration/about/complaints-procedure
>>> Guidance on how to complain against the Home Office: https://www.gov.uk/government/publications/complaints-management-guidance-version-7
>>> New guidance on fresh Asylum claims:
The official headnote
Paragraph 353 of the Immigration Rules
1. The importance of paragraph 353 of the Immigration Rules (“Paragraph 353”) is as a “gate-keeping” function to shut out from the appeals system unmeritorious second or subsequent appeals. An appeal is generated under the current form of section 82 Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) whenever a protection or human rights “claim” is made and refused. However, the Respondent is not obliged to treat repeat submissions as a “claim” leading to a “decision” generating a right of appeal in every case (Robinson v Secretary of State for the Home Department [2020] AC 942).
2. The words “if rejected” in Paragraph 353 specifically contemplate that the Respondent must form a view on the merits of the further submissions, in the sense that she may decide the submissions are such as to warrant the grant of leave to enter or remain (and to recognise the person as a refugee or otherwise entitled to international protection). It is only if she does not do so that Paragraph 353 requires her to determine if the (ex hypothesi) rejected submissions are a fresh claim, the refusal of which constitutes a decision falling within section 82 of the 2002 Act. It is artificial to separate the underlying merits of what is put forward from the question whether something “significantly different” is being advanced for the purposes of Paragraph 353. It is not the case, therefore, that the Respondent has “decided” a “claim” under section 82 of the 2002 Act in any case where she considers further submissions or a further application and concludes that the submissions or application do not merit the grant of leave.
3. The end-to-end process where Paragraph 353 applies is as follows:
Stage 1: The Applicant makes human rights or protection claim.
Stage 2: That claim is refused by the Respondent, giving rise to a right of appeal under section 82 of the 2002 Act.
Stage 3: The Applicant’s appeal is unsuccessful; or the Applicant does not appeal or withdraws his appeal; or the refusal is certified under section 94 of the 2002 Act.
Stage 4: The Applicant makes second or subsequent submissions by way of written submissions or application (“the Further Submissions”).
Stage 5: The Respondent considers whether to accept or reject the Further Submissions on their merits.
Stage 6: If the Further Submissions are accepted on their merits, the Respondent grants leave/recognises Applicant’s status.
Stage 7: If the Further Submissions are rejected, the Respondent goes on to consider whether they nonetheless amount to a fresh protection or human rights claim; i.e. a categorisation decision is made.
Stage 8: If the Respondent determines that the Further Submissions do not amount to a fresh claim, she rejects them as such. No refusal of a human rights or protection claim arises, within the meaning of section 82(1)(a) or (b) of the 2002 Act. If, however, she determines that they do amount to a fresh claim, then a “decision” has been made to refuse a “claim” for the purposes of Section 82 (1)(a) or (b) of the 2002 Act and a right of appeal arises against that decision
4. The guidance given in Sheidu (further submissions; appealable decisions; Sudan) [2016] UKUT 412 (IAC) is that if the effect of a decision is a refusal of a claim under section 82 of the 2002 Act, then there is a right of appeal even if the Respondent had intended to refuse further submissions applying Paragraph 353. That guidance turns on the interpretation of the particular decision letter under consideration in that case. In some (albeit extreme) cases such as Sheidu, the Upper Tribunal may conclude in the context of a judicial review challenge that what the Respondent actually did was not what she intended to do. Such cases are nevertheless likely to be rare.
5. Whether a decision of the Respondent is a decision to refuse to treat submissions as a fresh claim or the refusal of what is accepted to be a fresh claim is a matter of substance and not form. The nature of the decision does not depend where in the decision letter Paragraph 353 is raised. It is
necessary to look at a Paragraph 353 decision under challenge as a whole. It must be interpreted objectively, considered fairly in the round and in substance.
The Role of the Tribunal in Judicial Review Challenges to Paragraph 353 Decisions
6. Balajigari and others v Secretary of State for the Home Department [2019] 1 WLR 4647 and R (oao BAA and Another) v Secretary of State for the Home Department (Dublin III: judicial review; SoS’s duties) [2020] UKUT 00227 (IAC) did not involve fresh claim decisions. As such they are distinguishable from fresh claims cases. The case law in relation to fresh claims has consistently stated that the role of the Tribunal is only to consider whether the decision is Wednesbury unreasonable or involves other public law error: (WM (DRC) v Secretary of State for the Home Department [2007] Imm AR 337).
7. In a Judicial Review of a decision made under Paragraph 353, the Upper Tribunal is tasked with considering the Respondent’s decision for rejecting the submissions as a fresh claim. The Tribunal is not required to reach a decision for itself whether the Respondent’s decision breaches an applicant’s human rights. The position in this regard is akin to that where an appellate court or tribunal is examining the legality of the mixed legal and factual conclusion reached by a fact-finding tribunal on whether a decision violates Article 8 rights.
8. In the event that further material comes to light, the remedy for an applicant is to make further submissions to the Respondent and not seek to place the Tribunal in the role of primary decision-maker.
>>> The UK Government to deprive British citizens of their citizenship without telling them
The Home Secretary can take away anyone’s British citizenship when it would be “conducive to the public good”, but would not make that person stateless. She can also take away naturalised citizenship if obtained by fraud, false representation or concealment of a material fact.
The circumstances in which the Home Secretary has exercised this power for “the public good” have largely concerned Brits who travelled to foreign countries to join Islamist terrorist groups. The power has had the practical effect of preventing them from re-entering the UK, meaning they do not become a terrorist threat on domestic soil.
The government is now about to change the law so that people will no longer need to be notified about being stripped of their citizenship.
>>> Transfer your visa from your passport: https://www.gov.uk/transfer-visa
You might need to transfer or replace your visa if either:
- your passport has expired
- your name or personal details have changed
>>> Call for evidence: An inspection of the Home Office’s processing of applications for indefinite leave to remain in the UK as a partner of a person or parent of a child already settled in the UK (SET (M)): https://www.gov.uk/government/news/call-for-evidence-an-inspection-of-the-home-offices-processing-of-applications-for-indefinite-leave-to-remain-in-the-uk-as-a-partner-of-a-person-or
The Independent Chief Inspector invites anyone with knowledge and experience of this topic to submit evidence to inform the inspection.
>>> The new UK Scale-Up Visa to be available in spring 2022
The Scale-up Visa, also referred to as an 'elite points-based visa', will be open to applicants who pass the language proficiency requirements and have an offer of a highly-skilled job paying at least £33,000 from an eligible business. The sponsoring company would benefit from a fast track verification process but would need to meet special criteria to do so. An annual average revenue or employment growth rate over a three year period of greater than 20% with a minimum of 10 employees at the start of that three year period. The scale-up visa will launch in spring 2022.
>>> Court of Appeal declines to re-open MY (Pakistan) human rights ruling:https://www.bailii.org/ew/cases/EWCA/Civ/2021/1615.html
The Court of Appeal has added a rider to last month’s decision in MY (Pakistan). On 15 October, the court held that the Home Office can refuse to engage with human rights claims bolted on to normal immigration applications.
>>> Immigration and nationality refunds policy: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwix2-Xps470AhXh0eAKHcdkCbsQFnoECAIQAQ&url=https://www.gov.uk/government/publications/immigration-and-nationality-refunds-policy&usg=AOvVaw1XtKXPM6IBOTuGkpEHkXK9
The Guidance explains the situations when applicants can get their application fees etc refunded.
>>> Immigration Enforcement to decide human trafficking claims: https://www.gov.uk/government/publications/modern-slavery-how-to-identify-and-support-victims
Immigration Enforcement has been given the power to decide whether or not someone is a victim of human trafficking. An update to the Modern Slavery guidance, published on 8 November, includes an “Immigration Enforcement Competent Authority” alongside what was the sole, centralised decision-making body, the “Single Competent Authority”.
The Immigration Enforcement Competent Authority is responsible for:
"- All adult Foreign National Offenders (FNOs) detained in an Immigration Removal Centre.
- All adult FNOs in prison where a decision to deport has been made.
- All adult FNOs in prison where a decision has yet to be made on deportation.
- Non-detained adult FNOs where action to pursue cases towards deportation is taken in the community .
- All individuals detained in an Immigration Removal Centre (IRC) managed by the National Returns Command (NRC), including those in the Detained Asylum Casework (DAC) process.
- All individuals in the Third Country Unit (TCU)/inadmissible process irrespective of whether detained or non-detained."
That leaves the Single Competent Authority with all other trafficking cases, including any concerned with children.
That leaves the Single Competent Authority with all other trafficking cases, including any concerned with children.
The Home Office professes to believe that the trafficking system is being abused. 90% of trafficking referrals from detention centres in 2019 saw the person pass the first stage, the “reasonable grounds” decision, according to internal analysis. Giving the department’s enforcement arm its own decision-making powers is likely intended to foster a culture of greater scepticism about trafficking claims from people being lined up for deportation.
>>> Liars can still be genuine trafficking victims: https://www.bailii.org/ew/cases/EWHC/Admin/2021/3019.html
Some important points on inconsistency and credibility in trafficking cases from David Lock QC, sitting as a deputy High Court judge:
"The expert evidence in this case from Mr Steve Harvey, who has long experience in the police and in Europol in trafficking matters, is that he has never known a trafficking case where there were no inconsistencies in the account of events given by the victim. Inconsistencies may, of course, be evidence to suggest that a person is lying but in this context it is important decision makers recognise that there are many other potential explanations for inconsistencies."
And:
"In a case where a person has suffered substantial trauma from repeated beatings and other unspeakable behaviour at the hands of those who controlled him, the psychological consequences of those events may result in the applicant’s recollection of events being entirely incoherent and thus of no value at all in deciding what had happened to him or he may continue to be so fearful of those who were controlling him that he may deny there was any abuse, coercion or forced labour. This is expressly recognised in the Guidance. In such a case, the applicant may be lying or his account of events may have no value whatsoever but the evidence of the physical or psychological condition of the individual will nonetheless be more than sufficient evidence that the person was a victim of trafficking."
>>> Dependent family members in work routes: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwjJxPqe1Zr0AhWHUcAKHeYiBnkQFnoECAQQAQ&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1032583/Dependent_family_members_in_work_routes.pdf&usg=AOvVaw2FrVT1_kx5nW5nrmUUmVI0
Co-habitation requirements for unmarried partners have been clarified; guidance on exceptional circumstances for parents where the other parent cannot travel; clarifying the status requirement of a second parent; updating references in line with recent rules changes; clarifying how to address children from previous relationships.
>>> Visa decision waiting times: applications outside the UK: https://www.gov.uk/guidance/visa-decision-waiting-times-applications-outside-the-uk?utm_medium=email&utm_campaign=govuk-notifications&utm_source=52a07b70-a437-4596-bbc7-62c4b36d9ea3&utm_content=immediately
Information on extended processing times for standard visitor visas.
>>> 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=6668010b-064b-43b7-9b1d-46efa2310acf&utm_content=immediately
List of test centres in the UK and outside the UK updated on the GOV.UK website
>> Grounds for refusal: criminality: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwjUgIeC1Zr0AhWYQUEAHcCTCnYQFnoECAIQAQ&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/965508/grounds_for_refusal_criminality_casework_guidance.pdf&usg=AOvVaw2a_9GqV_DI-WcOy1Lp9Bqk
Updated guidance on criminal history for entry clearance applications in the UK.
>>> Upper Tribunal is not the place for new evidence: https://tribunalsdecisions.service.gov.uk/utiac/2021-ukut-272
Immigration appeals can last a long time: often years and years. What happens when things change during the appeal? This is the question answered by the Upper Tribunal in Akter (appellate jurisdiction; E and R challenges) [2021] UKUT 272 (IAC).
The main take away from this case is: don’t appeal to the Upper Tribunal on the basis of new evidence. Send it to the Home Office instead. This can be frustrating, as it essentially means starting the whole process all over again. But given the Upper Tribunal’s reluctance to consider anything that was not before the First-tier Tribunal, it is likely to be the only way to get anyone to look at it and consider the case afresh.
The official headnote
"(1) GM (Sri Lanka) v Secretary of State for the Home Department [2019] EWCA Civ 1630 is not authority for the proposition that an appellate court or tribunal has a free-standing duty, derived from section 6 of the Human Rights Act 1998 (public authority not to act incompatibly with ECHR right), to disturb a decision of a lower tribunal. The jurisdiction of the appellate court or tribunal is governed by sections 12 and 14 of the Tribunals, Courts and Enforcement Act 2007, which depends on the lower tribunal having made an error of law before its decision can be disturbed on appeal.
(2) A party who wishes to submit that a decision of a tribunal which is otherwise free from legal error should be disturbed on appeal on the basis identified by Carnwath LJ in E and R v Secretary of State for the Home Department [2004] EWCA Civ 49 should do so clearly, when seeking permission to appeal on that basis.
(3) In deciding whether the principles in Ladd v Marshall [1954] 1 WLR 1489, as applied by E & R, should be modified in exceptional circumstances, the ability to make fresh submissions to the Secretary of State, pursuant to paragraph 353 of the immigration rules, is highly material to the question of whether those principles should be diluted."
>>> Coronavirus (COVID-19): advice for UK visa applicants and temporary UK residents: https://www.gov.uk/guidance/coronavirus-covid-19-advice-for-uk-visa-applicants-and-temporary-uk-residents?utm_medium=email&utm_campaign=govuk-notifications&utm_source=c943e1df-3823-4602-954b-6ccef749e40d&utm_content=immediately
Information on applying for a visitor visa has been updated:
"Standard UK visitor visas are currently taking longer than usual to be processed due to high global demand. You should bear this in mind when making travel arrangements.
UKVI are working hard to process applications as soon as possible.
You will be contacted by the Visa Application Centre (VAC) when your passport is ready for collection. Do not attend the VAC until you have been invited to do so.
You are not required to book any travel before you apply or before a decision is made on your application. You’ll only be refunded if we have not started processing your application."
>>> 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=301a2e40-13ac-47d4-a899-9ed519e0db11&utm_content=immediately
The list of test centres in the UK and outside the UK updated.
>>> EU Settlement Scheme caseworker guidance: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwibjL2m8qv0AhWDnVwKHWVsCxwQFnoECAIQAQ&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1033149/EU_Settlement_Scheme_EU__other_EEA__Swiss_citizens_and_family_members.pdf&usg=AOvVaw1EA15-vJaEuKPItXHzsUnd
Updated version of “EU Settlement Scheme: EU, other EEA and Swiss citizens and their family members”, which has been published. It also includes guidance from the deleted document “EU Settlement Scheme: coronavirus (COVID-19)”.
>>> Chapter 08: Appendix FM family members (immigration staff guidance): https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwiq-7HH8qv0AhUEQEEAHZlyBoQQFnoECAkQAQ&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/948056/adult-dependent-relatives-v1.0ext.pdf&usg=AOvVaw3B8RNt9lfDUvl25AoBItbV
Updated ‘Adult dependent relatives’ guidance.
>>> Which immigration form may be used to apply for the early settlement concession for young people living half their lives in the UK ?
Currently, there is no clarity from the Home Office. Yet the present wording of the policy indicates that the concession will be considered at the time of an ‘application’ and refers back to the policy that ILR can be considered exceptionally where an application for further leave to remain is made if requested. Therefore, the general understanding is that as the concession is accessed, by making the request for ILR at the time of making an application for further leave to remain using Form FLR(FP) if applicants have accrued 5 years lawful residence and prior to the expiry of their existing leave.
>>> Upper Tribunal revisits issue of permission for video evidence from abroad: https://www.bailii.org/uk/cases/UKUT/IAC/2021/286.html
The Upper Tribunal published its decision in Agbabiaka (evidence from abroad, Nare guidance) Nigeria [2021] UKUT 286 (IAC). The tribunal found that a party seeking to have oral evidence given from abroad needs to “make the necessary enquiries” with the Foreign, Commonwealth and Development Office to check whether the foreign government in question has any objection. The full headnote is set out below.
The official headnote
(1) There is an understanding among Nation States that one State should not seek to exercise the powers of its courts within the territory of another, without having the permission of that other State to do so. Any breach of that understanding by a court or tribunal in the United Kingdom risks damaging this country’s relationship with other States with which it has diplomatic relations and is, thus, contrary to the public interest. The potential damage includes harm to the interests of justice.
(2) The position of the Secretary of State for Foreign, Commonwealth and Development Affairs is that it is accordingly necessary for there to be permission from such a foreign State (whether on an individual or general basis) before oral evidence can be taken from that State by a court or tribunal in the United Kingdom. Such permission is not considered necessary in the case of written evidence or oral submissions.
(3) Henceforth, it will be for the party to proceedings before the First-tier Tribunal who is seeking to have oral evidence given from abroad to make the necessary enquiries with the Taking of Evidence Unit of the Foreign, Commonwealth and Development Office (FCDO), in order to ascertain whether the government of the foreign State has any objection to the giving of evidence to the Tribunal from its territory.
(4) The First-tier Tribunal will need to be informed at an early stage of the wish to give evidence from abroad. The party concerned will need to give the Tribunal an indication of the nature of the proposed evidence (which need not, at this stage, be in the form of a witness statement).
(5) The Tribunal’s duty to seek to give effect to the overriding objective may require it, in particular, to consider alternatives to the giving of oral evidence where (for example) there are delays in the FCDO obtaining an answer from the foreign State. Each case will need to be considered on its merits.
(6) The experience gained by the First-tier Tribunal in hearing oral evidence given in the United Kingdom by remote means during the Covid-19 pandemic is such that there should no longer be a general requirement for such evidence to be given from another court or tribunal hearing centre.
(7) The guidance given by the Upper Tribunal in Nare (evidence by electronic means) Zimbabwe [2011] UKUT 443 (IAC) is amended to the above extent.
>>> EU law still applies in legacy appeals under the EEA Regulations: https://www.bailii.org/uk/cases/UKUT/IAC/2021/285.html
Geci (EEA Regs: transitional provisions, appeal rights) Albania [2021] UKUT 285 (IAC) is another appeal under the Immigration (European Economic Area) Regulations 2016, but with “highly unusual” facts. Mr Geci had returned to the UK in breach of a deportation order (twice). Rather than seeking to enforce the deportation order, the Home Office decided to refuse to issue a residence card pursuant to regulation 24 of the EEA Regulations. The Upper Tribunal found that it had no power to do so.
The official headnote
(1) The Immigration (European Economic Area) Regulations 2016 (“the EEA Regulations”) were revoked in their entirety on 31 December 2020 by paragraph 2(2) of Schedule 1(1) to the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020.
(2) Many of the provisions of the EEA Regulations are preserved (although subject to amendment) for the purpose of appeals pending as at 31 December 2020 by the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations (SI 2020 1309), (“the EEA Transitional Regulations”). The preserved provisions and amendments made are set out in paragraphs 5 and 6 of Schedule 3 to the EEA Transitional Regulations.
(3) The effect of the amendments is that the sole ground of appeal is now, in effect, whether the decision under appeal breaches the appellant’s rights under the EU Treaties as they applied in the United Kingdom prior to 31 December 2020.
(4) The issue of a residence card is an administrative matter. Although the Secretary of State does have power under the EEA Regulations to refuse to issue a residence card on grounds of public policy, public security or public health, she does not have the right to do so under Directive 2004/38/EC or the EU Treaties.
>>> Court of Appeal tells SIAC to pay more respect to Home Office on national security: https://www.bailii.org/ew/cases/EWCA/Civ/2021/1642.html
Secretary of State for the Home Department v P3 [2021] EWCA Civ 1642 is about how much SIAC should defer to the Home Secretary’s view about national security concerns. The answer is quite a lot, but not too much.
The background to this case is the Supreme Court decision in Begum, which was decided after the SIAC judgment under appeal. In that case, the Supreme Court ruled that when assessing the Home Secretary’s view of the national security risk posed by an appellant, SIAC should apply ordinary public law principles to the decision rather than making its own assessment of the risk.