01 December 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 Skilled Worker Eligibility Checker is a new tool which enables prospective employers and workers to check if a particular job is eligible under the Skilled Worker route, giving users confidence that they may meet eligibility criteria before they apply.
The changes are part of our ambitious plans to simplify and reform the UK’s border and immigration system.
>>> Priority visa services – for those able to apply using the ID Check app
From 30 November, priority visa (PV) services will be available to EU nationals holding a biometric passport from an EU country (including Iceland, Liechtenstein, Norway or Switzerland) and who are applying via the UK Immigration: ID Check app available both in and out of the UK for the following routes:
Skilled worker
Health and Care worker
Student
For applications made via the ID Check app, the PV processing time is usually a 5 UK working day service. PV starts on the beginning of the next working day (not including weekends) once the customer has completed all actions and have uploaded all their supporting documents.
The Visa fees tool on GOV.UK is a helpful guide to quickly find the cost of a visa application. By entering the country you are making your application from, the visa category and the type of visa required, a results table with the visa application fee(s) will be displayed.
Any extra payments associated with visa routes, for example the health surcharge, are not displayed in the table but remain applicable in addition to the visa application fee.
02 December 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 overturned last year’s ruling that EU citizens with pre-settled status should be able to claim Universal Credit without having to jump through hoops. The case is Fratila and another v Secretary of State for Work and Pensions [2021] UKSC 53.
Pre-settled status allows EU citizens living in the UK before Brexit took effect to stay here legally. It lasts for five years, after which people can upgrade to full settled status. The conditions for getting pre-settled status were not particularly onerous: residence, even for a short period, was the main thing.
But when it comes to claiming benefits, the government brought in regulations saying that pre-settled status was not enough to satisfy the residence condition for the likes of Universal Credit. People with pre-settled status can still claim Universal Credit, but have to prove that they have a stronger “right to reside” than pre-settled status alone — such as being a “worker” under EU law.
Ms Fratila and Mr Tanase, both Romanian citizens living in the UK, challenged these regulations and eventually won a pretty bombshell ruling in their favour in the Court of Appeal. The UK government took the case to the Supreme Court. In the meantime, in July 2021, the Court of Justice of the European Union handed down a decision in a similar case that cut the rug from under their challenge. Essentially, Fratila relied on Article 18 of the Treaty on the Functioning of the European Union, and the Court of Justice held that Article 18 did not apply to people with pre-settled status.
“As a result”, the Supreme Court held today, “the first issue in this appeal has been answered by the CJEU definitively in favour of the appellant [the DWP] and the second issue does not arise”. And that’s all she wrote, pretty much. The judgment is only a few pages long. There was a last-ditch attempt to raise different legal arguments, instead of Article 18, but the Supreme Court held it would “clearly be inappropriate” to allow that.
Keen Fratila-watcher Charlotte O’Brien had anticipated this outcome in a memo written in September, and has some thoughts on other avenues of legal challenge where EU citizens in this position are facing barriers to claiming benefits. For the time being, though, the regulations stating that they have to establish a right to reside, even if they already have pre-settled status, are back.
03 December 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 use a designated professional referee for Naturalization if the referee is now retired ?
The answer is "Yes, if they were permanent when working".
Namely:
"Retired professionals can be used as referees where the list of acceptable professions specifically mentions it, i.e.: “Officer of the armed services (active or retired).” Also, civil servants who were permanent when working."
06 December 2021 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org - +44(0)3300010342, +44(0)7791145923 (WhatsApp/Viber)
Updated information on individuals currently in the UK and seeking to apply for ‘exceptional assurance’, highlighting that UKVCAS service points remain open and appointments are available and confirmation that a pause on assessing visit visas in red list locations has been introduced with for those countries added to the red list.
Updated “Coronavirus (COVID-19): student sponsors, migrants and short-term students” to reflect changes to the rules – see the “Changes since last publication” section within for a complete list.
Updated guidance. Immigration staff guidance on considering applications for entry or leave as an adopted child or a child coming to the UK for adoption.
First published news story which reports that “One year ago a new immigration system launched, with visa routes attracting skilled workers across construction, hospitality, health, social care, science and research.”
Guidance updated with additional information included regarding amendments to naturalisation and registration certificates due to internal error or when new information is supplied from the certificate holder.
07 December 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)
>>> Inflexible biometrics policy for refugee family reunion declared unlawful: JR/227/2021, 26 November 2021
In R (SGW) v Secretary of State for the Home Department (JR/227/2021, 26 November 2021) the Upper Tribunal decided that Home Office guidance on refugee family reunion applications is unlawful because it fails to accurately describe the legal discretion in relation to providing biometric information.
08 December 2021 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org - +44(0)3300010342, +44(0)7791145923 (WhatsApp/Viber)
>>> UK-born man who never left the country avoids deportation after seven-year legal battle: Akinyemi v Secretary of State for the Home Department (unreported, DA/00574/2014)
A 38-year-old man born in the UK without British citizenship cannot be deported to a country he has never even been to, the Upper Tribunal has decided.
Remi Akinyemi was born in the UK in 1983. He was not a British citizen at birth and never became one, but remains a citizen of Nigeria “by reason of his family background”. That left him open, in theory, to deportation in light of a long criminal history that began in his teens and continued until 2018.
After a conviction for causing death by dangerous driving in 2007, the Home Office warned him that he could be deported if he came to its attention again. Mr Akinyemi did reoffend and received a deportation order in 2014. He appealed, and the case went up to the Court of Appeal twice, in 2017 and 2019, on various legal issues.
The Upper Tribunal, considering the case for the third time, dismissed Mr Akinyemi’s argument that his medical condition (epilepsy) meant that deportation would breach Article 3 of the European Convention on Human Rights. But it accepted his argument based on Article 8.
First, the tribunal found that Mr Akinyemi satisfied the three conditions in section 117C(4) of the Nationality, Immigration and Asylum Act 2003. The government conceded that he was both “lawfully resident in the United Kindom for most of [his] life” and “socially and culturally integrated”. It tried to insist that were no “very significant obstacles to [his] integration” into Nigerian society, but the tribunal described this argument as “unrealistic”. Among other things, Mr Akinyemi has never been to Nigeria (nor anywhere else outside the UK). As the judgment notes in paragraph 69:
"The suggestion that such a person could integrate in a wholly alien society is fanciful."
The judges then had to decide whether there were “very compelling circumstances” allowing Mr Akinyemi to avoid deportation despite having been sentenced to at least four years’ imprisonment (section 117C(6)). Considering the rap sheet, they concluded that “the nature of the offending, while clearly serious and significant, is not at the very highest end of the scale”. His risk of nonviolent reoffending was rated “medium”; of violent reoffending, “low”.
Factors weighing against deportation included Mr Akinyemi’s length of residence in the UK: “his entire life”. Naturally enough, “in terms of culture,
education, and outlook he is completely British”. He also lacks “any meaningful ties to the destination state”.
All in all, this was a “clear case of very compelling circumstances… the balance sheet comes down firmly in favour of the appellant”. Mr Akinyemi will not, after all, be deported to a country he has never seen.
09 December 2021 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org - +44(0)3300010342, +44(0)7791145923 (WhatsApp/Viber)
The Home Office issues Country Policy and Information Notes (CPINs) on the main countries that asylum seekers come from to seek protection in the United Kingdom. CPINs aim both to summarise country of origin information and to provide guidance to asylum caseworkers on how to decide certain types of refugee and human rights claims. They currently cover 44 countries, from Afghanistan to Zimbabwe, and have significant influence over asylum outcomes.
10 December 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)
>>> Unlawful entrants can lodge an in-country EU Settlement Scheme (EUSS) application as joining family members
As announced yesterday during the ILPA conference on the EU law. See the Annex 1 of the Appendix EU.
Note that the above only applies to those, who arrived into the UK AFTER 31-01-2021.
>>> EUSS applications and children
Note change to EUSS caseworker guidance - children will always have late application accepted. Change of language from 'will normally' be accepted to 'will' be accepted.
>>> Can I travel outside of the UK after I submitted a EUSS application ?
>>> Government refuses to relax asylum seeker right to work rules
The Home Office has knocked back campaigners arguing for a relaxation of the near-total ban on asylum seekers working while they wait for a decision on their claim. The Lift the Ban coalition had produced evidence showing that allowing destitute people to support themselves is good, not least for the Treasury. Officials took three years to respond (spun as a “comprehensive review”) and concluded that “the assumptions underpinning the recommendations are highly optimistic”.
In a written statement, junior minister Tom Pursglove said:
"Having considered a wide range of available evidence the Home Office believes that a more realistic set of assumptions would present a more nuanced picture… a significant proportion of the fiscal benefits calculated by Lift the Ban are… unlikely to fully materialise…
The Home Office has therefore concluded that the fiscal benefits arising from a relaxation of the right to work policy are likely to be significantly lower than the figures claimed by Lift the Ban. In light of wider priorities to fix the broken asylum system, reduce pull factors to the UK, and ensure our policies do not encourage people to undercut the resident labour force, we are retaining our asylum seeker right to work policy with no further changes."
The average time taken to process an asylum claim last year was 15 months. People waiting for more than 12 months can apply for the right to work, but in shortage jobs only. The number of people given permission is unknown, as is the number who subsequently find employment.
15 December 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 bye the dreaded Sopra Steria biometric appointments. Welcome the UK Digital Visas for Students and Skilled Workers
From the ILPA Economic Migration meetings today:
The students and skilled workers applying for leave to remain in the UK will no longer need to attend appointments and will be issued e visas. The application process will be done via the ADV app.
Full deatails:
FOR THE ATTENTION OF SKILLED WORKER AND STUDENT SPONSORS: On 14th December 2021 we implemented improvements for Students and Skilled Workers applying to extend their stay in the UK. The new application process is slightly different from the one customers may have experienced when they first applied to work or study in the UK. For the majority of customers, the application process will be entirely digital removing the need to visit a UK Visas and Citizenship Application Services (UKVCAS) centre, and if their application is successful, we will issue them with an eVisa. For further information please refer to www.gov.uk/guidance/using-the-uk-immigration-id-check-app.
16 December 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)
Two victims of the Windrush scandal have won a High Court challenge arguing for citizenship law to be applied more leniently in special cases like theirs. Mr Justice Bourne held today that a seemingly inflexible provision of British nationality law requiring applicants to be physically in the UK exactly five years before they apply for naturalisation can be waived where insisting on it would be a human rights breach. The case is R (Vanriel & Anor) v Secretary of State for the Home Department [2021] EWHC 3415 (Admin).
20 December 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 obstructing an immigration officer:
The Home Office has issued new guidance to immigration enforcement officers, called simply Obstruction. This refers to the criminal offence of obstructing an immigration officer in section 26(1)(g) of the Immigration Act 1971, which can see activists prosecuted for interfering with raids.
A crucial element of that offence, however, is that the officer be “acting in the execution of this Act” at the time they are obstructed. The guidance emphasises this several times.
For example, the power to arrest someone for obstruction is confined to situations of “obstruction whilst acting in execution of the Act”. If they do arrest someone,
"It is essential that officers’ records are accurate and clearly detail how they were in execution of the 1971 Act. Failure to do so could lead to the arrest being deemed unlawful and a court dismissing the case."
By contrast, officers are advised that if they are obstructed “while not exercising any powers within the 1971 Act”, they should instead “consider the necessity to continue their deployment”.
Likewise, the section on use of reasonable force in response to obstruction says:
"section 146(1) of the Immigration and Asylum Act 1999 allows Immigration officers to use reasonable force where necessary when the Immigration officer is simultaneously exercising any power conferred on him by the “Immigration Acts”"
Prosecutions are rare: just ten in England and Wales since 2013, along with a similar number of prosecutions for assaulting an immigration officer under section 22 of the UK Borders Act 2007.
22 December 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 Sabina Begum v Secretary of State for the Home Department [2021] EWCA Civ 1878 the Court of Appeal considered whether an extended family member, hoping to stay in the UK with their EEA citizen sponsor, can do so when the sponsor only acquired that citizenship after the extended family member entered the UK.
24 December 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)
Signalling as a somewhat niche decision about non-payment of the Immigration Health Surcharge, R (Afzal) v Secretary of State for the Home Department [2021] EWCA Civ 1909 highlights the facts of the case that tell us that it:
- Extends the Mirza exception to retrospective invalidity beyond biometrics
- Confirms that in most cases, invalidity (and by extension validity) occurs automatically by operation of law, regardless of whether the Home Office issues a notice of invalidity
- Finds that paragraph 39E applies not just to application refusals but also notices of invalidity, regardless of whether section 3C leave is in play
- Finds that whilst “book-ended” overstaying does not break continuous residence, neither can that period be counted towards the five or ten year qualifying period
This decision represents a significant departure from the way the Home Office has historically approached long residence settlement applications, which usually entailed counting these protected periods of overstaying towards the ten-year qualifying period.
It also has wide-reaching implications for any categories not covered by Appendix Continuous Residence. It appears that any application made on the basis of completing a particular qualifying period will involve discounting any periods the applicant was without permission, even if those periods are protected by paragraph 39E.
>>> Is there a "Grace Rules" in the UK immigration law ?
Yes, there is one, called the Paragraph 39E (of the UK Immigration Rules).
Meet the Paragraph 39E. It allows overstaying to be disregarded where an immigration application is lodged within 14 days of, among other things, the refusal of a previous application.
27 December 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)
This is advice for visa customers and applicants in the UK, visa customers outside of the UK and British nationals overseas who need to apply for a passport affected by travel restrictions associated with coronavirus, has been updated as the Returning Resident refund concession has now been closed.
To apply for a Schengen visa from the UK, your UK residence permit must be valid for at least another three more months beyond the date you plan to leave the Schengen Area. If this condition is not fulfilled, the Consulate where you lodge your Schengen visa application will reject your application immediately.
For foreign students in the UK:
An official recent (less than 3 months old) letter from their school, college or university within the UK, that state:
- The type of studies
- Details of the course
- Attendance record
>>> When does the UK immigration leave start ? From the date of the decison of from the date the BRP was issued ?
The leave would have started prior to the issue of a delayed BRP. However, a delay creates other problems, such as demonstrating rights to work, etc.”
This guidance explains who needs to enter the ballot before applying for a Youth Mobility Scheme visa and how the ballot system works. The guidance has been updated with information about the January 2022 ballot.
Updated ‘Concession for granting longer periods of leave and early indefinite leave to remain’ guidance to clarify the qualification criteria for the concession.
The guidance has been updated to reflect the changes to Part 9 of the Immigration Rules on criminality, the replacement of the Tier 2 (General) route with the Skilled Worker route and amendments to the Standard Occupational Classification (SOC) Codes for this route.
10 January 2022 – 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)
>>> Would it be possible to allow students in the UK on a short-term study visa the option of either switching to a student visa (as long as the course with a student sponsor starts within a defined period) or the flexibility of doing the same course with a different provider?
In short, the answer is "NO".
The Home Office's response:
"Visitors may stay in the UK up to six months. Visitors may study up to six months at an accredited provider. Visitors must intend to leave the UK at the end of their visit, so cannot switch onto another immigration route, including the student route. Visitors are not linked to a particular sponsor, so they may change course during their stay, as long as the other conditions of their permission, including that it should be at an accredited institution, they do not work and stay no longer than six months, continue to be met. The Short-term Student (English Language) route is an unsponsored route for a person aged 16 and over who wants to study an English language course in the UK for between 6 and 11 months at an accredited institution. The applicant must intend to leave the UK within 30 days of the end of their English language course, or at the end of 11 months, whichever is sooner. A Short-term Student is not permitted to apply for another type of permission from within the UK; Students intending to study a further course within the UK must apply for the appropriate route from outside the UK."
>>> The Home Office has stated that the High Potential routewill be open to “applicants who have graduated from a top global university”. So, what might that mean in practice?
The Home Office's response:
"The High Potential Individual route will be a highly selective visa for the most highly-skilled migrants to enter the UK, with an emphasis on those with strong academic achievements and high potential to help companies grow. We will publish further details around the requirements of the route in the New Year."
11 January 2022 – 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)
>>> Tier5(Seasonal Worker) - new work catagory added
A concession for ornamental horticulture workers to access this immigration route has been now been added
>>> Can a Tier 5 (Seasonal Worker) visa be extended ?
To some extent - yes, maximum for 3 months at a time.
18 January 2022 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org - +44(0)3300010342, +44(0)7791145923 (WhatsApp/Viber)
In R (SGW) v Secretary of State for the Home Department (Biometrics , family reunion policy) [2022] UKUT 15 (IAC), the Upper Tribunal decided that Home Office guidance on refugee family reunion applications is unlawful because it fails to accurately describe the legal discretion in relation to providing biometric information.
The case was about an Eritrean national with refugee status, SGW. His brother, FGW, is in Libya and wishes to join SGW in the UK. FGW had attempted to leave Libya by boat but had been intercepted, sent back to Libya and held in detention for nearly two years. He was assisted by the UN Refugee Agency which considered him to be a minor, secured his release and provided him with accommodation.
FGW requested family reunification outside of the Immigration Rules. His solicitors asked for a waiver of the requirement for biometrics (photographs and fingerprints) to be given before the application could be considered. The Home Office refused and decided that the application was invalid for lack of biometrics.
The official headnote
"(1) The Immigration (Biometric Registration) Regulations 2008 (SI 2008/3048) (“the 2008 Regulations”) have the effect that where a person subject to immigration control makes (or purports to make) an application for entry clearance which has effect as leave to enter the United Kingdom for a limited period exceeding 6 months, and, at the same time, is required to apply for a biometric immigration document (“BID”), and where that person is required to provide biometric information but fails to do so, the application for a BID must be refused and the application for entry clearance must be treated as invalid. The 2008 Regulations themselves admit of no discretion in so far as non-compliance is concerned. In this way, the validity of an application for entry clearance based on family reunion (whether falling within or without the Rules) is contingent on legislative provisions relating first and foremost to a separate, but parallel, application, namely for a BID.
(2) However, regulations 5 and 8 of the 2008 Regulations provide for discretion as to whether biometric information is required and, if it is, the manner of its enrolment.
(3) The Immigration Rules are silent on the question of whether enrolment of biometrics goes to the validity of applications for entry clearance in general. The various Appendices to the Rules covering particular routes for entering the United Kingdom do link the validity of applications to the provision of required biometric information, but these do not include family reunion.
(4) The Secretary of State’s current guidance on family reunion (“Family reunion: for refugees and those with humanitarian protection”, version 5.0, published on 31 December 2020) fails to confirm the existence of any discretion as to the provision of biometric information when a person makes an application for entry clearance, save in respect of children under 5 years of age. To this extent, the guidance is unlawful."
>>> E-filing at the Upper Tribunal
From the 17th January 2022 an online platform called CE-File or E-Filing can be used to send documents to the Upper Tribunal in appeals and non-urgent judicial review applications.
In the chapter on ‘If you’re applying to enter the UK or remain on the basis of family or private life’, updated the ‘If you’re unable to provide specified documents’ section to extend the deadline to 31 March 2022.
19 January 2022 – 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 High Court has thrown out a challenge arguing that the free legal advice given to migrants in detention centres is rubbish. Mr Justice Calver held that statistical evidence that many legal aid firms provide a poor service was unreliable and that “the system is, by and large, functioning well”. The case is R (Detention Action) v Lord Chancellor [2022] EWHC 18 (Admin).
21 January 2022 – 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)
>>> Continued high global demand for visitor visas
From the UK BA:
"Due to continued high global demand, standard UK visitor visas are currently taking significantly longer than usual to be processed. Messages informing customers of extended processing times for visitor visas are on the https://www.gov.uk/guidance/visa-decision-waiting-times-applications-outside-the-uk page, the websites of our overseas commercial partners and are provided as a service update at the start of the visitor visa application process.
The vast majority of super priority and priority visa applications are being assessed within their service standards, where these services are available. Non-visitor visa applications (including student and work visas) are still being processed within published service standards and we are working hard to meet customer demand across all areas.
If customers need to travel urgently where there are extremely compassionate or compelling circumstances (for example, a medical emergency), they need to apply for a visa in the usual way, including submitting biometrics at a chosen Visa Application Centre (VAC). Customers should clearly explain the compelling or compassionate reason in their application form and must alert the VAC staff during biometric submission. Customers will be contacted by UKVI once their application has been received. If they do not hear from UKVI or their request is exceptionally urgent, they can contact UK Visas and Immigration (https://www.gov.uk/contact-ukvi-inside-outside-uk). Please note that this is a chargeable service for overseas customers.
03 February 2022 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org - +44(0)3300010342, +44(0)7791145923 (WhatsApp/Viber)
The Home Secretary does have the legal power to cancel someone’s indefinite leave to remain after all, the Court of Appeal has held. The decision in R (C1) v Secretary of State for the Home Department (Rev1) [2022] EWCA Civ 30 reverses the tentative conclusion of Mr Justice Jay last year.
There is very little information about the anonymous appellant; the case seems to be national security related. C1 had indefinite leave to remain in the UK. He left the country in 2018 and went to Iran. While he was abroad, the Home Secretary personally ordered his ILR to be cancelled and C1 excluded from the UK.
The Supreme Court has dismissed a challenge to the level at which the government has set the fees for children to register as British citizens. The court held that the government has been authorised by Parliament to set the level of the fees as it chooses. Currently, the fee is £1,012 for a child, which is simply unaffordable for many families. As a consequence, many children eligible for British citizenship because of their birth or residence never actually become citizens.
The case is R (O (a minor)) v Secretary of State for the Home Department [2022] UKSC 3, although it has often been referred to as “the PRCBC case” after the Project for the Registration of Children as British Citizens, which has led the work on it.
04 February 2022 – 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)
>>> EUSS refusal - what options are available ?
According to the Home Office, the following options after a refusal are available:
- Apply again free of charge – providing the evidence to support their application;
- Apply for an administrative review of the decision at a fee of £80 – if the review finds that the decision was incorrect the fee will be refunded;
- In addition, anyone who applied to the EUSS on or after 11pm 31 January 2020 also has a right of appeal
07 February 2022 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org - +44(0)3300010342, +44(0)7791145923 (WhatsApp/Viber)
>>> Home Office update: February 2022
- Visit visas – update on processing times
Due to the ongoing impact of Covid and global travel restrictions, UKVI are experiencing unpredictable demand across all visa routes and standard visitor visa applications are taking on average 6 weeks to process. UK Visas and Immigration are working to reduce the current processing time as quickly as possible.
An updated message informing customers of the extended processing times has been placed on the visa decision waiting times GOV.UK page. This is a global picture and we appreciate this will vary on regional demand.
Customers will be contacted by the Visa Application Centre (VAC) when their passport is ready for collection and should not attend a VAC until they have been invited to do so.
The vast majority of super priority and priority visa applications are being assessed within their service standards, where these services are available. Non-visitor visa applications (including study and work visas) are still being processed within published service standards and we are working hard to meet customer demand across all areas.
Where there are extremely compassionate or compelling circumstances (for example, a medical emergency), customers need to apply for a visa in the usual way, including submitting biometrics at a chosen VAC. Customers should clearly explain the compelling or compassionate reasons in their application form and must alert the VAC staff during biometric submission. Customers will be contacted by UKVI once their application has been received. If they do not hear from UKVI or their request is exceptionally urgent, they can contact UK Visas and Immigration. Please note that this is a chargeable service for overseas customers.
- Immigration Heath Surcharge portal
From the 1 February 2022, when customers use the Immigration Health Surcharge (IHS) portal when applying for T2, T5, Skilled Worker and Intra-Company routes, the portal will now calculate the total length of permission granted based on the details entered and the Immigration Rules.
IHS has previously been calculated on the basis of Certificate of Sponsorship (CoS) dates. As most customers are automatically granted extra permission after their CoS end date as per the Immigration Rules, the total length granted will now be included in the IHS calculation. This will remove the need for any additional top-up amounts that may be required for some customers once the permission has been calculated.
- VFS global website domain
Our commercial partner, VFS global have changed their website domain from .co.uk to .com. An automatic re-direct is in place.
If you have this address saved as a favourite, you may want to update this to the new direct address - www.vfsglobal.com.
10 February 2022 – 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 in the rich vein of legacy EU law appeals lodged pre-Brexit. FE v HMRC (CHB) [2022] UKUT 4 (AAC) is about the right of Chen parents — the primary carers of self-sufficient EU citizen children — to claim benefits, in this case child benefit.
The appellant FE is Nigerian. His daughter F is an Irish citizen with spina bifida. FE had the right to reside as a Zambrano carer, but this didn’t entitle him to child benefit: for that, he needed to be a Chen carer. To qualify under the Chen case, he would normally need to have “sufficient resources and comprehensive sickness insurance cover”, which the First-tier Tribunal determined that he did not.
But F had, in December 2009, acquired the right of permanent residence under EU law. That complicated the picture:
"The issue for me is whether, F having obtained a right of permanent residence by virtue of having previously been a Chen child, the appellant as her primary carer is required to have sufficient resources and comprehensive sickness insurance cover."
The judge’s conclusion, as set out in the headnote, is that the appellant did qualify as a Chen parent until F turned 18, on 16 January 2020:
"He had such a right until the latter date as the primary carer of his daughter F when a minor, in order to give useful effect to the right of permanent residence she enjoyed under art.16 of Directive 2004/38."
As such, he was entitled to claim backdated child benefit up to that date, although not after F turned 18.
The Upper Tribunal (Immigration and Asylum Chamber) has updated its guidance on exceptions to open justice. Guidance Note 2022 No 2: Anonymity Orders and Hearings in Private runs to 53 paragraphs, twice the length of its 2013 predecessor, issued under President Blake.
The note reminds judges:
"Given the importance of open justice, the general principle is that an anonymity order should only be made by UTIAC to the extent that the law requires it or it is found necessary to do so."
Situations where “the law requires it” include to protect alleged victims of sexual offences or human trafficking, or children involved in Family or Youth Court cases.
Situations where it is “necessary” relate to human rights or the best interests of children. Such situations “may require the weighing of the competing interests of an individual and their rights (for example, under Articles 3 or 8 of the ECHR or their ability to present their case in full without hindrance) against the need for open justice”. Anonymity should not be granted merely because an appellant or witness has done something “social embarrassing” or committed a crime.
The guidance note also covers applications to hold all or part of a hearing in private.
16 February 2022 – 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 while my EU Settled Status application is being considered ?
An application made under Appendix EU will not be treated as automatically withdrawn if the applicant travels outside the Common Travel Area before the application has been decided."
18 February 2022 – 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)
“Where an individual would be at risk if forcibly returned to a part of his country of nationality, is it a valid answer to a protection claim that he might nevertheless avoid any such risk by returning voluntarily to another part of that country, even where he does not wish to do so?”
No, says Upper Tribunal Judge Blundell in the case of SA (Removal destination; Iraq; undertakings) Iraq [2022] UKUT 37 (IAC). That individual would not be eligible for refugee status, but would be protected by Article 3 of the European Convention on Human Rights (ECHR).
21 February 2022 – 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 President of the First-tier Tribunal has put out new guidance on witnesses dialling in to give evidence from abroad. It is decidedly negative, stressing the need to get consent — via the Foreign Office, in a prescribed manner — from the government of the country in question. Even if there is consent, the judge can simply refuse to allow it. Witnesses are strongly encouraged to give evidence in writing instead.
22 February 2022 – 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)
>>> Mandatory GPS tagging for people on immigration bail
The new style tags are GPS devices which can track where a person is at any given time. They are fitted on a person’s leg and must be charged daily.
A bail condition requiring a person to wear a GPS tag can be combined with restrictions on their movements, including curfews and conditions on where they can go (called inclusion or exclusion zones).
03 March 2022 – 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)
>>> Note that the national Insurance Numbers (NIN) are not being issued with digital immigration status documents and must be applied separately
03 March 2022 – 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)
>>> Sole representative visa route is expected to be closed in mid April 2022
This was hinted at the ILPA – Home Office meeting yesterday, on the 2nd March 2022.
The Sole Representative route, which is leading to Settlement (ILR), is likely to be replaced by the UK Expansion Visa route, which may require sponsorship and which will NOT lead to Settlement.
09 March 2022 – 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 category will replace a Tier 1(Investor) route ?
According to the Home Office in their response to the ILPA’s enquiry, “…the alternative provision for investment-related migration will be delivered through the Innovator route in Autumn 2022”.
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>>> Skilled Worker Eligibility Calculator: https://visas-immigration.service.gov.uk/skilled-worker-points-calculator
The Skilled Worker Eligibility Checker is a new tool which enables prospective employers and workers to check if a particular job is eligible under the Skilled Worker route, giving users confidence that they may meet eligibility criteria before they apply.
The changes are part of our ambitious plans to simplify and reform the UK’s border and immigration system.
>>> Priority visa services – for those able to apply using the ID Check app
From 30 November, priority visa (PV) services will be available to EU nationals holding a biometric passport from an EU country (including Iceland, Liechtenstein, Norway or Switzerland) and who are applying via the UK Immigration: ID Check app available both in and out of the UK for the following routes:
Skilled worker
Health and Care worker
Student
For applications made via the ID Check app, the PV processing time is usually a 5 UK working day service. PV starts on the beginning of the next working day (not including weekends) once the customer has completed all actions and have uploaded all their supporting documents.
>>> Visa application fee tool: https://www.gov.uk/visa-fees
The Visa fees tool on GOV.UK is a helpful guide to quickly find the cost of a visa application. By entering the country you are making your application from, the visa category and the type of visa required, a results table with the visa application fee(s) will be displayed.
Any extra payments associated with visa routes, for example the health surcharge, are not displayed in the table but remain applicable in addition to the visa application fee.
>>> Supreme Court overturns expansion of benefits rights for EU citizens:https://www.supremecourt.uk/cases/uksc-2021-0008.html
The Supreme Court has overturned last year’s ruling that EU citizens with pre-settled status should be able to claim Universal Credit without having to jump through hoops. The case is Fratila and another v Secretary of State for Work and Pensions [2021] UKSC 53.
Pre-settled status allows EU citizens living in the UK before Brexit took effect to stay here legally. It lasts for five years, after which people can upgrade to full settled status. The conditions for getting pre-settled status were not particularly onerous: residence, even for a short period, was the main thing.
But when it comes to claiming benefits, the government brought in regulations saying that pre-settled status was not enough to satisfy the residence condition for the likes of Universal Credit. People with pre-settled status can still claim Universal Credit, but have to prove that they have a stronger “right to reside” than pre-settled status alone — such as being a “worker” under EU law.
Ms Fratila and Mr Tanase, both Romanian citizens living in the UK, challenged these regulations and eventually won a pretty bombshell ruling in their favour in the Court of Appeal. The UK government took the case to the Supreme Court. In the meantime, in July 2021, the Court of Justice of the European Union handed down a decision in a similar case that cut the rug from under their challenge. Essentially, Fratila relied on Article 18 of the Treaty on the Functioning of the European Union, and the Court of Justice held that Article 18 did not apply to people with pre-settled status.
“As a result”, the Supreme Court held today, “the first issue in this appeal has been answered by the CJEU definitively in favour of the appellant [the DWP] and the second issue does not arise”. And that’s all she wrote, pretty much. The judgment is only a few pages long. There was a last-ditch attempt to raise different legal arguments, instead of Article 18, but the Supreme Court held it would “clearly be inappropriate” to allow that.
Keen Fratila-watcher Charlotte O’Brien had anticipated this outcome in a memo written in September, and has some thoughts on other avenues of legal challenge where EU citizens in this position are facing barriers to claiming benefits. For the time being, though, the regulations stating that they have to establish a right to reside, even if they already have pre-settled status, are back.
>>> Can I use a designated professional referee for Naturalization if the referee is now retired ?
The answer is "Yes, if they were permanent when working".
Namely:
"Retired professionals can be used as referees where the list of acceptable professions specifically mentions it, i.e.: “Officer of the armed services (active or retired).” Also, civil servants who were permanent when working."
See https://www.forum.ukcen.com/resources/uk-citizenship/naturalisation/referees/970-professional-referees
>>> 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=9a164598-8266-4a68-9673-ea1b6a224dfe&utm_content=immediately
Updated information on individuals currently in the UK and seeking to apply for ‘exceptional assurance’, highlighting that UKVCAS service points remain open and appointments are available and confirmation that a pause on assessing visit visas in red list locations has been introduced with for those countries added to the red list.
>>> Coronavirus (COVID-19): student sponsors, migrants and short-term students: https://www.gov.uk/government/publications/coronavirus-covid-19-student-sponsors-migrants-and-short-term-students/coronavirus-covid-19-student-sponsors-migrants-and-short-term-students-accessible-version
Updated “Coronavirus (COVID-19): student sponsors, migrants and short-term students” to reflect changes to the rules – see the “Changes since last publication” section within for a complete list.
>>> Adopted children and children coming to the UK for adoption caseworker guidance: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwijjqeW9870AhVSolwKHUGcCqIQFnoECAIQAQ&url=https://www.gov.uk/government/publications/adopted-children&usg=AOvVaw3RIfGa7YRqDrbbcwRyiCr8
Updated guidance. Immigration staff guidance on considering applications for entry or leave as an adopted child or a child coming to the UK for adoption.
>>> Tier 1 (Investor) caseworker guidance: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwj3o8ax9870AhVJecAKHTefBR0QFnoECAcQAQ&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1038357/Tier_1__Investor_.pdf&usg=AOvVaw1qNIN9GuaQS-JT8qLof993
Immigration staff guidance on how to consider applications in the Tier 1 (Investor) category of the points-based system.
>>> News story: “Points-based immigration system: delivering on people’s priorities”: https://www.gov.uk/government/news/points-based-immigration-system-delivering-on-peoples-priorities?utm_medium=email&utm_campaign=govuk-notifications&utm_source=be7bed53-5f2b-49c6-aa98-7bc53f31e663&utm_content=immediately
First published news story which reports that “One year ago a new immigration system launched, with visa routes attracting skilled workers across construction, hospitality, health, social care, science and research.”
>>> Terms and conditions for booking and taking the Life in the UK Test: https://www.gov.uk/government/publications/terms-and-conditions-for-booking-and-taking-the-life-in-the-uk-test
Identification requirements document updated to include EEA & Swiss ID cards (formerly omitted) and additions to meet accessibility requirements.
>>> Identity: nationality policy guidance: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwj1iO2D9s70AhWUfMAKHak8D98QFnoECAcQAQ&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1036678/Nationality_policy_-_identity.pdf&usg=AOvVaw39vLmuU61q3oxxxtpiDcx6
Guidance updated with additional information included regarding amendments to naturalisation and registration certificates due to internal error or when new information is supplied from the certificate holder.
>>> Inflexible biometrics policy for refugee family reunion declared unlawful: JR/227/2021, 26 November 2021
In R (SGW) v Secretary of State for the Home Department (JR/227/2021, 26 November 2021) the Upper Tribunal decided that Home Office guidance on refugee family reunion applications is unlawful because it fails to accurately describe the legal discretion in relation to providing biometric information.
>>> UK-born man who never left the country avoids deportation after seven-year legal battle: Akinyemi v Secretary of State for the Home Department (unreported, DA/00574/2014)
A 38-year-old man born in the UK without British citizenship cannot be deported to a country he has never even been to, the Upper Tribunal has decided.
Remi Akinyemi was born in the UK in 1983. He was not a British citizen at birth and never became one, but remains a citizen of Nigeria “by reason of his family background”. That left him open, in theory, to deportation in light of a long criminal history that began in his teens and continued until 2018.
After a conviction for causing death by dangerous driving in 2007, the Home Office warned him that he could be deported if he came to its attention again. Mr Akinyemi did reoffend and received a deportation order in 2014. He appealed, and the case went up to the Court of Appeal twice, in 2017 and 2019, on various legal issues.
The Upper Tribunal, considering the case for the third time, dismissed Mr Akinyemi’s argument that his medical condition (epilepsy) meant that deportation would breach Article 3 of the European Convention on Human Rights. But it accepted his argument based on Article 8.
First, the tribunal found that Mr Akinyemi satisfied the three conditions in section 117C(4) of the Nationality, Immigration and Asylum Act 2003. The government conceded that he was both “lawfully resident in the United Kindom for most of [his] life” and “socially and culturally integrated”. It tried to insist that were no “very significant obstacles to [his] integration” into Nigerian society, but the tribunal described this argument as “unrealistic”. Among other things, Mr Akinyemi has never been to Nigeria (nor anywhere else outside the UK). As the judgment notes in paragraph 69:
"The suggestion that such a person could integrate in a wholly alien society is fanciful."
The judges then had to decide whether there were “very compelling circumstances” allowing Mr Akinyemi to avoid deportation despite having been sentenced to at least four years’ imprisonment (section 117C(6)). Considering the rap sheet, they concluded that “the nature of the offending, while clearly serious and significant, is not at the very highest end of the scale”. His risk of nonviolent reoffending was rated “medium”; of violent reoffending, “low”.
Factors weighing against deportation included Mr Akinyemi’s length of residence in the UK: “his entire life”. Naturally enough, “in terms of culture,
education, and outlook he is completely British”. He also lacks “any meaningful ties to the destination state”.
All in all, this was a “clear case of very compelling circumstances… the balance sheet comes down firmly in favour of the appellant”. Mr Akinyemi will not, after all, be deported to a country he has never seen.
>>> Asylum by numbers: UK policies on granting refugee status rely too much on statistics: https://www.gov.uk/government/collections/country-policy-and-information-notes
The Home Office issues Country Policy and Information Notes (CPINs) on the main countries that asylum seekers come from to seek protection in the United Kingdom. CPINs aim both to summarise country of origin information and to provide guidance to asylum caseworkers on how to decide certain types of refugee and human rights claims. They currently cover 44 countries, from Afghanistan to Zimbabwe, and have significant influence over asylum outcomes.
>>> Unlawful entrants can lodge an in-country EU Settlement Scheme (EUSS) application as joining family members
As announced yesterday during the ILPA conference on the EU law. See the Annex 1 of the Appendix EU.
Note that the above only applies to those, who arrived into the UK AFTER 31-01-2021.
>>> EUSS applications and children
Note change to EUSS caseworker guidance - children will always have late application accepted. Change of language from 'will normally' be accepted to 'will' be accepted.
>>> Can I travel outside of the UK after I submitted a EUSS application ?
The answer is probably "No" and it some cases even "You must not". See the Home Office's reply in relation to this issue: http://legalcentre.org/files/Certificate of Application - Messaging to Stakeholders.pdf
>>> Government refuses to relax asylum seeker right to work rules
The Home Office has knocked back campaigners arguing for a relaxation of the near-total ban on asylum seekers working while they wait for a decision on their claim. The Lift the Ban coalition had produced evidence showing that allowing destitute people to support themselves is good, not least for the Treasury. Officials took three years to respond (spun as a “comprehensive review”) and concluded that “the assumptions underpinning the recommendations are highly optimistic”.
In a written statement, junior minister Tom Pursglove said:
"Having considered a wide range of available evidence the Home Office believes that a more realistic set of assumptions would present a more nuanced picture… a significant proportion of the fiscal benefits calculated by Lift the Ban are… unlikely to fully materialise…
The Home Office has therefore concluded that the fiscal benefits arising from a relaxation of the right to work policy are likely to be significantly lower than the figures claimed by Lift the Ban. In light of wider priorities to fix the broken asylum system, reduce pull factors to the UK, and ensure our policies do not encourage people to undercut the resident labour force, we are retaining our asylum seeker right to work policy with no further changes."
The average time taken to process an asylum claim last year was 15 months. People waiting for more than 12 months can apply for the right to work, but in shortage jobs only. The number of people given permission is unknown, as is the number who subsequently find employment.
>>> Good bye the dreaded Sopra Steria biometric appointments. Welcome the UK Digital Visas for Students and Skilled Workers
From the ILPA Economic Migration meetings today:
The students and skilled workers applying for leave to remain in the UK will no longer need to attend appointments and will be issued e visas. The application process will be done via the ADV app.
Full deatails:
FOR THE ATTENTION OF SKILLED WORKER AND STUDENT SPONSORS: On 14th December 2021 we implemented improvements for Students and Skilled Workers applying to extend their stay in the UK. The new application process is slightly different from the one customers may have experienced when they first applied to work or study in the UK. For the majority of customers, the application process will be entirely digital removing the need to visit a UK Visas and Citizenship Application Services (UKVCAS) centre, and if their application is successful, we will issue them with an eVisa. For further information please refer to www.gov.uk/guidance/using-the-uk-immigration-id-check-app.
>>> Windrush victims win ruling that citizenship laws can be waived in special cases: https://www.bailii.org/ew/cases/EWHC/Admin/2021/3415.html
Two victims of the Windrush scandal have won a High Court challenge arguing for citizenship law to be applied more leniently in special cases like theirs. Mr Justice Bourne held today that a seemingly inflexible provision of British nationality law requiring applicants to be physically in the UK exactly five years before they apply for naturalisation can be waived where insisting on it would be a human rights breach. The case is R (Vanriel & Anor) v Secretary of State for the Home Department [2021] EWHC 3415 (Admin).
>>> New guidance on obstructing an immigration officer:
The Home Office has issued new guidance to immigration enforcement officers, called simply Obstruction. This refers to the criminal offence of obstructing an immigration officer in section 26(1)(g) of the Immigration Act 1971, which can see activists prosecuted for interfering with raids.
A crucial element of that offence, however, is that the officer be “acting in the execution of this Act” at the time they are obstructed. The guidance emphasises this several times.
For example, the power to arrest someone for obstruction is confined to situations of “obstruction whilst acting in execution of the Act”. If they do arrest someone,
"It is essential that officers’ records are accurate and clearly detail how they were in execution of the 1971 Act. Failure to do so could lead to the arrest being deemed unlawful and a court dismissing the case."
By contrast, officers are advised that if they are obstructed “while not exercising any powers within the 1971 Act”, they should instead “consider the necessity to continue their deployment”.
Likewise, the section on use of reasonable force in response to obstruction says:
"section 146(1) of the Immigration and Asylum Act 1999 allows Immigration officers to use reasonable force where necessary when the Immigration officer is simultaneously exercising any power conferred on him by the “Immigration Acts”"
Prosecutions are rare: just ten in England and Wales since 2013, along with a similar number of prosecutions for assaulting an immigration officer under section 22 of the UK Borders Act 2007.
>>> No EU citizenship, no extended family members: https://www.bailii.org/ew/cases/EWCA/Civ/2021/1878.html
In Sabina Begum v Secretary of State for the Home Department [2021] EWCA Civ 1878 the Court of Appeal considered whether an extended family member, hoping to stay in the UK with their EEA citizen sponsor, can do so when the sponsor only acquired that citizenship after the extended family member entered the UK.
The answer is no, they can’t.
>>> Ground breaking Court of Appeal decision about the validity and continuous residence: https://www.bailii.org/ew/cases/EWCA/Civ/2021/1909.html
Signalling as a somewhat niche decision about non-payment of the Immigration Health Surcharge, R (Afzal) v Secretary of State for the Home Department [2021] EWCA Civ 1909 highlights the facts of the case that tell us that it:
- Extends the Mirza exception to retrospective invalidity beyond biometrics
- Confirms that in most cases, invalidity (and by extension validity) occurs automatically by operation of law, regardless of whether the Home Office issues a notice of invalidity
- Finds that paragraph 39E applies not just to application refusals but also notices of invalidity, regardless of whether section 3C leave is in play
- Finds that whilst “book-ended” overstaying does not break continuous residence, neither can that period be counted towards the five or ten year qualifying period
This decision represents a significant departure from the way the Home Office has historically approached long residence settlement applications, which usually entailed counting these protected periods of overstaying towards the ten-year qualifying period.
It also has wide-reaching implications for any categories not covered by Appendix Continuous Residence. It appears that any application made on the basis of completing a particular qualifying period will involve discounting any periods the applicant was without permission, even if those periods are protected by paragraph 39E.
>>> Is there a "Grace Rules" in the UK immigration law ?
Yes, there is one, called the Paragraph 39E (of the UK Immigration Rules).
Meet the Paragraph 39E. It allows overstaying to be disregarded where an immigration application is lodged within 14 days of, among other things, the refusal of a previous application.
>>> 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=008fcfb1-6843-44d3-84be-d470c285e70e&utm_content=immediately
This is advice for visa customers and applicants in the UK, visa customers outside of the UK and British nationals overseas who need to apply for a passport affected by travel restrictions associated with coronavirus, has been updated as the Returning Resident refund concession has now been closed.
>>> Who can apply for a Schengen visa in the UK?
See https://www.schengenvisainfo.com/apply-from-uk/
Who can apply for a Schengen visa in the UK?
To apply for a Schengen visa from the UK, your UK residence permit must be valid for at least another three more months beyond the date you plan to leave the Schengen Area. If this condition is not fulfilled, the Consulate where you lodge your Schengen visa application will reject your application immediately.
For foreign students in the UK:
An official recent (less than 3 months old) letter from their school, college or university within the UK, that state:
- The type of studies
- Details of the course
- Attendance record
>>> When does the UK immigration leave start ? From the date of the decison of from the date the BRP was issued ?
The leave would have started prior to the issue of a delayed BRP. However, a delay creates other problems, such as demonstrating rights to work, etc.”
>>> Youth Mobility Scheme visa: ballot system aka UK Immigration Lottery: https://www.gov.uk/guidance/youth-mobility-scheme-visa-ballot-system?utm_medium=email&utm_campaign=govuk-notifications&utm_source=53c38069-6ee7-461d-9b34-4dd1974672fc&utm_content=immediately
This guidance explains who needs to enter the ballot before applying for a Youth Mobility Scheme visa and how the ballot system works. The guidance has been updated with information about the January 2022 ballot.
>>> Skilled Worker visa caseworker guidance: https://www.gov.uk/government/publications/skilled-worker-visa-caseworker-guidance
This guidance has been updated to reflect changes to digital status for non-EEA nationals who are extending, switching or updating their visa within the UK.
>>> Family life (as a partner or parent), private life and exceptional circumstances: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1042405/Concession_on_longer_periods_of_leave_and_ILR.pdf
Updated ‘Concession for granting longer periods of leave and early indefinite leave to remain’ guidance to clarify the qualification criteria for the concession.
>>> Dependent family members in work routes: https://www.gov.uk/government/publications/dependent-family-members-in-work-routes-immigration-staff-guidance
Guidance on considering applications from people who wish to enter or remain in the UK as the dependent family member.
>>> Criminal record certificate requirement:https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1042475/Criminal_record_certificate.pdf
The guidance has been updated to reflect the changes to Part 9 of the Immigration Rules on criminality, the replacement of the Tier 2 (General) route with the Skilled Worker route and amendments to the Standard Occupational Classification (SOC) Codes for this route.
>>> Would it be possible to allow students in the UK on a short-term study visa the option of either switching to a student visa (as long as the course with a student sponsor starts within a defined period) or the flexibility of doing the same course with a different provider?
In short, the answer is "NO".
The Home Office's response:
"Visitors may stay in the UK up to six months. Visitors may study up to six months at an accredited provider. Visitors must intend to leave the UK at the end of their visit, so cannot switch onto another immigration route, including the student route. Visitors are not linked to a particular sponsor, so they may change course during their stay, as long as the other conditions of their permission, including that it should be at an accredited institution, they do not work and stay no longer than six months, continue to be met. The Short-term Student (English Language) route is an unsponsored route for a person aged 16 and over who wants to study an English language course in the UK for between 6 and 11 months at an accredited institution. The applicant must intend to leave the UK within 30 days of the end of their English language course, or at the end of 11 months, whichever is sooner. A Short-term Student is not permitted to apply for another type of permission from within the UK; Students intending to study a further course within the UK must apply for the appropriate route from outside the UK."
>>> The Home Office has stated that the High Potential routewill be open to “applicants who have graduated from a top global university”. So, what might that mean in practice?
The Home Office's response:
"The High Potential Individual route will be a highly selective visa for the most highly-skilled migrants to enter the UK, with an emphasis on those with strong academic achievements and high potential to help companies grow. We will publish further details around the requirements of the route in the New Year."
>>> Tier5(Seasonal Worker) - new work catagory added
A concession for ornamental horticulture workers to access this immigration route has been now been added
>>> Can a Tier 5 (Seasonal Worker) visa be extended ?
To some extent - yes, maximum for 3 months at a time.
>>> Inflexible biometrics policy for refugee family reunion declared unlawful: https://www.bailii.org/uk/cases/UKUT/IAC/2022/15.html
In R (SGW) v Secretary of State for the Home Department (Biometrics , family reunion policy) [2022] UKUT 15 (IAC), the Upper Tribunal decided that Home Office guidance on refugee family reunion applications is unlawful because it fails to accurately describe the legal discretion in relation to providing biometric information.
The case was about an Eritrean national with refugee status, SGW. His brother, FGW, is in Libya and wishes to join SGW in the UK. FGW had attempted to leave Libya by boat but had been intercepted, sent back to Libya and held in detention for nearly two years. He was assisted by the UN Refugee Agency which considered him to be a minor, secured his release and provided him with accommodation.
FGW requested family reunification outside of the Immigration Rules. His solicitors asked for a waiver of the requirement for biometrics (photographs and fingerprints) to be given before the application could be considered. The Home Office refused and decided that the application was invalid for lack of biometrics.
The official headnote
"(1) The Immigration (Biometric Registration) Regulations 2008 (SI 2008/3048) (“the 2008 Regulations”) have the effect that where a person subject to immigration control makes (or purports to make) an application for entry clearance which has effect as leave to enter the United Kingdom for a limited period exceeding 6 months, and, at the same time, is required to apply for a biometric immigration document (“BID”), and where that person is required to provide biometric information but fails to do so, the application for a BID must be refused and the application for entry clearance must be treated as invalid. The 2008 Regulations themselves admit of no discretion in so far as non-compliance is concerned. In this way, the validity of an application for entry clearance based on family reunion (whether falling within or without the Rules) is contingent on legislative provisions relating first and foremost to a separate, but parallel, application, namely for a BID.
(2) However, regulations 5 and 8 of the 2008 Regulations provide for discretion as to whether biometric information is required and, if it is, the manner of its enrolment.
(3) The Immigration Rules are silent on the question of whether enrolment of biometrics goes to the validity of applications for entry clearance in general. The various Appendices to the Rules covering particular routes for entering the United Kingdom do link the validity of applications to the provision of required biometric information, but these do not include family reunion.
(4) The Secretary of State’s current guidance on family reunion (“Family reunion: for refugees and those with humanitarian protection”, version 5.0, published on 31 December 2020) fails to confirm the existence of any discretion as to the provision of biometric information when a person makes an application for entry clearance, save in respect of children under 5 years of age. To this extent, the guidance is unlawful."
>>> E-filing at the Upper Tribunal
From the 17th January 2022 an online platform called CE-File or E-Filing can be used to send documents to the Upper Tribunal in appeals and non-urgent judicial review applications.
>>> 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-topic&utm_source=7661a973-51d9-4268-a330-358f5cd02c4e&utm_content=immediately
In the chapter on ‘If you’re applying to enter the UK or remain on the basis of family or private life’, updated the ‘If you’re unable to provide specified documents’ section to extend the deadline to 31 March 2022.
>>> High Court dismisses concerns about legal aid in detention centres: https://www.bailii.org/ew/cases/EWHC/Admin/2022/18.html
The High Court has thrown out a challenge arguing that the free legal advice given to migrants in detention centres is rubbish. Mr Justice Calver held that statistical evidence that many legal aid firms provide a poor service was unreliable and that “the system is, by and large, functioning well”. The case is R (Detention Action) v Lord Chancellor [2022] EWHC 18 (Admin).
>>> Continued high global demand for visitor visas
From the UK BA:
"Due to continued high global demand, standard UK visitor visas are currently taking significantly longer than usual to be processed. Messages informing customers of extended processing times for visitor visas are on the https://www.gov.uk/guidance/visa-decision-waiting-times-applications-outside-the-uk page, the websites of our overseas commercial partners and are provided as a service update at the start of the visitor visa application process.
The vast majority of super priority and priority visa applications are being assessed within their service standards, where these services are available. Non-visitor visa applications (including student and work visas) are still being processed within published service standards and we are working hard to meet customer demand across all areas.
If customers need to travel urgently where there are extremely compassionate or compelling circumstances (for example, a medical emergency), they need to apply for a visa in the usual way, including submitting biometrics at a chosen Visa Application Centre (VAC). Customers should clearly explain the compelling or compassionate reason in their application form and must alert the VAC staff during biometric submission. Customers will be contacted by UKVI once their application has been received. If they do not hear from UKVI or their request is exceptionally urgent, they can contact UK Visas and Immigration (https://www.gov.uk/contact-ukvi-inside-outside-uk). Please note that this is a chargeable service for overseas customers.
>>> Visa decision waiting times: applications outside the UK: https://www.gov.uk/guidance/visa-decision-waiting-times-applications-outside-the-uk
Check how quickly you’ll receive a decision on your UK visa application if you are applying from outside the UK.
>>> Settlement (ILR) can be cancelled while holder is outside the UK: https://www.bailii.org/ew/cases/EWCA/Civ/2022/30.html
The Home Secretary does have the legal power to cancel someone’s indefinite leave to remain after all, the Court of Appeal has held. The decision in R (C1) v Secretary of State for the Home Department (Rev1) [2022] EWCA Civ 30 reverses the tentative conclusion of Mr Justice Jay last year.
There is very little information about the anonymous appellant; the case seems to be national security related. C1 had indefinite leave to remain in the UK. He left the country in 2018 and went to Iran. While he was abroad, the Home Secretary personally ordered his ILR to be cancelled and C1 excluded from the UK.
>>> UK Supreme Court upholds government’s right to set child citizenship fees as it chooses: https://www.bailii.org/uk/cases/UKSC/2022/3.html
The Supreme Court has dismissed a challenge to the level at which the government has set the fees for children to register as British citizens. The court held that the government has been authorised by Parliament to set the level of the fees as it chooses. Currently, the fee is £1,012 for a child, which is simply unaffordable for many families. As a consequence, many children eligible for British citizenship because of their birth or residence never actually become citizens.
The case is R (O (a minor)) v Secretary of State for the Home Department [2022] UKSC 3, although it has often been referred to as “the PRCBC case” after the Project for the Registration of Children as British Citizens, which has led the work on it.
>>> EUSS refusal - what options are available ?
According to the Home Office, the following options after a refusal are available:
- Apply again free of charge – providing the evidence to support their application;
- Apply for an administrative review of the decision at a fee of £80 – if the review finds that the decision was incorrect the fee will be refunded;
- In addition, anyone who applied to the EUSS on or after 11pm 31 January 2020 also has a right of appeal
>>> Home Office update: February 2022
- Visit visas – update on processing times
Due to the ongoing impact of Covid and global travel restrictions, UKVI are experiencing unpredictable demand across all visa routes and standard visitor visa applications are taking on average 6 weeks to process. UK Visas and Immigration are working to reduce the current processing time as quickly as possible.
An updated message informing customers of the extended processing times has been placed on the visa decision waiting times GOV.UK page. This is a global picture and we appreciate this will vary on regional demand.
Customers will be contacted by the Visa Application Centre (VAC) when their passport is ready for collection and should not attend a VAC until they have been invited to do so.
The vast majority of super priority and priority visa applications are being assessed within their service standards, where these services are available. Non-visitor visa applications (including study and work visas) are still being processed within published service standards and we are working hard to meet customer demand across all areas.
Where there are extremely compassionate or compelling circumstances (for example, a medical emergency), customers need to apply for a visa in the usual way, including submitting biometrics at a chosen VAC. Customers should clearly explain the compelling or compassionate reasons in their application form and must alert the VAC staff during biometric submission. Customers will be contacted by UKVI once their application has been received. If they do not hear from UKVI or their request is exceptionally urgent, they can contact UK Visas and Immigration. Please note that this is a chargeable service for overseas customers.
- Immigration Heath Surcharge portal
From the 1 February 2022, when customers use the Immigration Health Surcharge (IHS) portal when applying for T2, T5, Skilled Worker and Intra-Company routes, the portal will now calculate the total length of permission granted based on the details entered and the Immigration Rules.
IHS has previously been calculated on the basis of Certificate of Sponsorship (CoS) dates. As most customers are automatically granted extra permission after their CoS end date as per the Immigration Rules, the total length granted will now be included in the IHS calculation. This will remove the need for any additional top-up amounts that may be required for some customers once the permission has been calculated.
- VFS global website domain
Our commercial partner, VFS global have changed their website domain from .co.uk to .com. An automatic re-direct is in place.
If you have this address saved as a favourite, you may want to update this to the new direct address - www.vfsglobal.com.
- Travel to England guidance
Guidance on the ‘Travel to England from another country during coronavirus’ page on GOV.UK: https://www.gov.uk/guidance/travel-to-england-from-another-country-during-coronavirus-covid-19 will continue to be kept up to date with the latest rules required for travel to England. This includes changes to international travel rules from 11 February 2022.
>>> Visa decision waiting times: applications inside the UK: https://www.gov.uk/guidance/visa-decision-waiting-times-applications-inside-the-uk?utm_medium=email&utm_campaign=govuk-notifications-topic&utm_source=42ca38ff-3bb8-4703-be99-1b97d1e38e3a&utm_content=immediately
>>> 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-topic&utm_source=1280b93d-fae0-4cb7-aee1-cc076155b4c4&utm_content=immediately
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>>> “Chen parent” could claim child benefit once daughter had permanent residence: https://www.bailii.org/uk/cases/UKUT/AAC/2022/4.html
Another in the rich vein of legacy EU law appeals lodged pre-Brexit. FE v HMRC (CHB) [2022] UKUT 4 (AAC) is about the right of Chen parents — the primary carers of self-sufficient EU citizen children — to claim benefits, in this case child benefit.
The appellant FE is Nigerian. His daughter F is an Irish citizen with spina bifida. FE had the right to reside as a Zambrano carer, but this didn’t entitle him to child benefit: for that, he needed to be a Chen carer. To qualify under the Chen case, he would normally need to have “sufficient resources and comprehensive sickness insurance cover”, which the First-tier Tribunal determined that he did not.
But F had, in December 2009, acquired the right of permanent residence under EU law. That complicated the picture:
"The issue for me is whether, F having obtained a right of permanent residence by virtue of having previously been a Chen child, the appellant as her primary carer is required to have sufficient resources and comprehensive sickness insurance cover."
The judge’s conclusion, as set out in the headnote, is that the appellant did qualify as a Chen parent until F turned 18, on 16 January 2020:
"He had such a right until the latter date as the primary carer of his daughter F when a minor, in order to give useful effect to the right of permanent residence she enjoyed under art.16 of Directive 2004/38."
As such, he was entitled to claim backdated child benefit up to that date, although not after F turned 18.
>>> Anonymous appellants and secret hearings: https://www.judiciary.uk/publications/upper-tribunals-immigration-and-asylum-chamber-anonymity-guidance/
The Upper Tribunal (Immigration and Asylum Chamber) has updated its guidance on exceptions to open justice. Guidance Note 2022 No 2: Anonymity Orders and Hearings in Private runs to 53 paragraphs, twice the length of its 2013 predecessor, issued under President Blake.
The note reminds judges:
"Given the importance of open justice, the general principle is that an anonymity order should only be made by UTIAC to the extent that the law requires it or it is found necessary to do so."
Situations where “the law requires it” include to protect alleged victims of sexual offences or human trafficking, or children involved in Family or Youth Court cases.
Situations where it is “necessary” relate to human rights or the best interests of children. Such situations “may require the weighing of the competing interests of an individual and their rights (for example, under Articles 3 or 8 of the ECHR or their ability to present their case in full without hindrance) against the need for open justice”. Anonymity should not be granted merely because an appellant or witness has done something “social embarrassing” or committed a crime.
The guidance note also covers applications to hold all or part of a hearing in private.
>>> Can I leave the UK while my EU Settled Status application is being considered ?
Apparently, the answer is "yes": https://www.gov.uk/government/publications/eu-settlement-scheme-caseworker-guidance
"Travel outside the Common Travel Area
An application made under Appendix EU will not be treated as automatically withdrawn if the applicant travels outside the Common Travel Area before the application has been decided."
>>> Article 3 protects asylum seekers against removal even if they could leave voluntarily: https://www.bailii.org/uk/cases/UKUT/IAC/2022/37.html
“Where an individual would be at risk if forcibly returned to a part of his country of nationality, is it a valid answer to a protection claim that he might nevertheless avoid any such risk by returning voluntarily to another part of that country, even where he does not wish to do so?”
No, says Upper Tribunal Judge Blundell in the case of SA (Removal destination; Iraq; undertakings) Iraq [2022] UKUT 37 (IAC). That individual would not be eligible for refugee status, but would be protected by Article 3 of the European Convention on Human Rights (ECHR).
>>> First-tier Tribunal discourages oral evidence from abroad: https://www.judiciary.uk/announcements/guidance-from-the-president-of-the-first-tier-tribunals-immigration-and-asylum-chamber-witnesses-giving-evidence-from-abroad/
The President of the First-tier Tribunal has put out new guidance on witnesses dialling in to give evidence from abroad. It is decidedly negative, stressing the need to get consent — via the Foreign Office, in a prescribed manner — from the government of the country in question. Even if there is consent, the judge can simply refuse to allow it. Witnesses are strongly encouraged to give evidence in writing instead.
>>> Mandatory GPS tagging for people on immigration bail
The new style tags are GPS devices which can track where a person is at any given time. They are fitted on a person’s leg and must be charged daily.
A bail condition requiring a person to wear a GPS tag can be combined with restrictions on their movements, including curfews and conditions on where they can go (called inclusion or exclusion zones).
>>> Note that the national Insurance Numbers (NIN) are not being issued with digital immigration status documents and must be applied separately
>>> Sole representative visa route is expected to be closed in mid April 2022
This was hinted at the ILPA – Home Office meeting yesterday, on the 2nd March 2022.
The Sole Representative route, which is leading to Settlement (ILR), is likely to be replaced by the UK Expansion Visa route, which may require sponsorship and which will NOT lead to Settlement.
>>> Which category will replace a Tier 1(Investor) route ?
According to the Home Office in their response to the ILPA’s enquiry, “…the alternative provision for investment-related migration will be delivered through the Innovator route in Autumn 2022”.