UK BA планирует сканировать и возвращать паспорта.
По информации из ILPA, UK BA планирует сканировать и возвращать паспорта заявителям по заявлениям на продление статуса (не ILR).
Разумеется, выезжать из страны в момент рассмотрения заявления даже после возвращения паспорта будет нельзя, т.к. в таком случае иммиграционное заявление будет стразу аннулированно.
On 5 July 2013 the High Court delivered its judgment on a legal challenge to the minimum income threshold for spouses/partners and children applying in the family route.
The Home Office has paused decision-making on some spouse/partner and child settlement visa and leave to remain applications to enable us to consider the implications of the judgment.
The pause applies to applications made under Appendix FM to the Immigration Rules where the application would be refused solely because the rules relating to the minimum income threshold are not met, including where relevant the evidence requirements in Appendix FM-SE.
The same approach is being applied to a small number of adoption cases which would be refused on this ground alone.
Applications which meet the Rules or which fall to be refused on other grounds,such as requirements for English language or a genuine and subsisting relationship, will continue to be processed and decided as normal.
A further announcement will be made in due course.
Can I still submit a spouse/partner or child application under Appendix FM?
Yes.You can continue to apply, but you should take into account the fact that if the income threshold is the only requirement you do not meet,the Home Office will pause consideration of your application pending further consideration of the High Court judgment.
Can I still submit my application in person at a public enquiry office in the UK?
Yes,but you should take into account the fact that if the income threshold is the only requirement you do not meet, the Home Officewill pause consideration of your application pending further consideration of the High Court judgment.
What happens if my case is on hold and I want to withdraw my application or get my passport returned because I need to travel?
If you have already applied and now wish to withdraw your application,you may do so. The Home Office will not refund your application fee.
If you are seeking the return of your passport to travel, you may do sobut the Home Office will treat your application as withdrawn. TheHome Office will not refund your application fee.
How long will cases be paused?
We will provide further information in due course.
What happens if I meet the income threshold requirement?
If we assess that you meet all the rules which apply to your case,including the income threshold requirement where this applies, your application will be granted.
Am I still required to meet the income threshold requirement or can I apply knowing that I do not meet it?
You can apply, but if the income threshold is the only requirement you donot meet, the Home Office will pause consideration of your application pending further consideration of the High Court judgment.
Does this pause affect all adoption cases?
No.This only applies to applications required to meet the minimum income threshold under paragraph 314(i)(a), 314(i)(d), 316A(i)(d) or 316A(i)(e) of Part 8 of the Immigration Rules made on or after 9 July 2012. Adoption applications which do not have to meet the minimum income threshold are unaffected.
Does this pause on decisions affect other categories like adult dependent relatives or spouses on the two-year probationary period?
No.This pause has no effect on applications which do not need to meet the income threshold requirement. Those cases will continue to be assessed against the rules which apply to them.
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Update 26-07-2013
Home Office решил, что решение High Court от 5 июля 2013 года незаконно и подал иск в в более высокий суд оспорить предыдущее решение High Court. Т.е. UK BA решили "идти до конца".
Собственно говоря:
"The Home Office today, 26 July 2013, filed its appeal against a High Court judgment on the minimum income threshold for spouses/partners and children applying in the family route.
The judgment affects non-EEA national spouses/partners and children applying to settle in the UK with someone who is already resident here.
The Home Office will continue to put on hold decisions in some spouse/partner and child settlement visa and leave to remain applications until the case is finally determined by the Courts.".
Хорошая новость для легализующихся overstayes - изменения в Параграфе 320 (11).
До недавнего времени нелегал, кто хотел вернуться в свою страну для того, чтобы легализоваться и потом въехать в Великобританию как супруг(а)/партнер/жених/невеста лица с ПМЖ или гражданина/гражданки Великобритании практически автоматически мог получить отказ по т.н. Additional Grounds of Refusal по параграфу 320(11) правил. Т.е. человек выполнял все условия по, например, супружеской визе жены гражданина Великобритании, но мог легко получить отказ по дополнительным причинам на основании того, что в свое время был нелегально в Великобритании.
Недавно параграф 320(11) Правил был изменен так, что теперь для его применения просто т.н. overstay недостаточен - нужно еще совершить другие нарушения закона (пример выделен), Конкретно:
11) where the applicant has previously contrived in a significant way to frustrate the intentions of the Rules by:
(i) overstaying; or
(ii) breaching a condition attached to his leave; or
(iii) being an illegal entrant; or
(iv) using deception in an application for entry clearance, leave to enter or remain or in order to obtain documents from the Secretary of State or a third party required in support of the application (whether successful or not); and
there are other aggravating circumstances, such as absconding, not meeting temporary admission/reporting restrictions or bail conditions, using an assumed identity or multiple identities, switching nationality, making frivolous applications or not complying with the re-documentation process.
Проверено на практике на основании последних заявлений клиентов, рассмотренных в июне и июле на Украине, Белоруссии и России. Средний срок overstay был 3 года.
В частности один из пунктов Правил, который UK BA наконец-то исправил:
"Amend the current Rules for Tier 4 dependants. On 1 July the Rules were changed to make them clearer and easier to use. Those amendments specify that a Tier 4 migrant may bring dependants if they are studying a postgraduate level course at a Higher Education Institution (HEI) for "longer than 12 months". These changes will amend the Rules so that they properly reflect the policy position, which is that postgraduate students at HEIs may bring dependants if they are studying a course of duration "12 months or longer".
Граждане EU могут находиться в состоянии поиска работы более чем 1 раз и тем самым не нарушая продолжительность своей резиденции в той или иной стране Евросоюза
Суд так же постановил, что non-EEA опекун ребенка-гражданина/гражданки EU может получить право пребывания в Великобритании (derivative right of residence) даже тогда когда опекаемый ребенок из EU идет в т. н. «подготовительный» (reception) класс.
Essa (EEA: rehabilitation/integration) (2013) UKUT 00316 (IAC)
Интересное решение Upper Tribunal в отношении криминали и права получения и вероятности потери ПМЖ гражданами EU.
Суд уточнил, что (NB: в контексте для граждан EU):
Для получения ПМЖ гражданам EU нужно пробыть в Великобритании c соблюдением необходимых требований 5 лет
Служба в армии (за рубежом) не обрывает срок для получения ПМЖ в Великобритании
Нахождение в заключении «обрывает» срок для получения ПМЖ — в случае если человек осужден судом
Великобритании
Нахождение в заключении НЕ «обрывает» срок для получения ПМЖ — в случае если человек НЕ осужден судом
Если в течение 10 лет такое лицо смогло комбинированно «набрать» срок из 5 лет между заключением в тюрьмах — такое лицо может получить ПМЖ
После легального пребывания в стране в течение 10 лет тюремный срок не прерывает действия статуса ПМЖ заключенного вплоть до получения таким лицом депортационого ордера
Today we have published new points-based system (PBS) versions of:
Guidance:
PBS (Dependant) Policy Guidance
Application forms:
Tier 4 (Child) application form
Tier 2 Priority Dependant application form
Tier 1, 2 or 5 Dependant application form
Tier 4 Dependant application form
All these forms are for use by applicants who are already in the UK. You should use the new forms if you apply on or after 7 August 2013.
In line with paragraph 34(i) of the Immigration Rules, we will continue to accept applications made on the previous version of these forms up to and including 28 August 2013.
PEO Appointments - appointment fees to be paid upfront
"Порадовал" UK BA, объявив, что с 18-08-2013 во время бронирования слота для подачи документов в PEO они будут брать ПОЛНУЮ сумму за услуги UK BA + депозит в размере £100.00:
"From 18 August, those booking a premium appointment at a PEO will now be asked to pay their whole fee upfront, using a new automated system. This includes the premium fee of £375 and non-refundable appointment fee of £100.
Appointments can be managed in the normal way through an online account. If applicants fail to attend their appointment, or cancel it with 5 or less working days notic
e, the £100 fee will not be refunded.".
<С сегодняшнего дня детали судебных решений будут на языке оригинала, т.е. на английском языке. Это должно сэкономить время, которое раньше уходило на перевод с английского на русский>
POINTS BASED SYSTEM: POST-STUDY WORK: INTERPRETATION OF TERMS
SSHD v Raju & ors[2013] EWCA Civ 754, Court of Appeal
The Upper Tribunal was wrong in Khatel to suppose that a qualification awarded to an applicant for Post-Study Work after his application has been lodged with the Home Office can bring his total of points up to the requisite 75 in Appendix A. The rule clearly means that the award must have been made prior to the application, and the application itself does not continue until it is decided. Paragraph 34G of HC 395 specifies the date when an application is made.
DOMICILE: FOREIGN MARRIAGE VALIDITY: LEGITIMACY
MB (Bangladesh) by her mother and litigation friend JB v SSHD, [2013] EWCA Civ 220, Court of Appeal
A polygamous marriage celebrated abroad is void under English law if, at the time of the wedding, either of the parties to it was domiciled in England & Wales. But a child born overseas before July 2006 to a polygamously married father is to be regarded as legitimate under section 1 of the Legitimacy Act 1976, and hence may be British by descent from her father, if, at the time she was conceived, either of her parents reasonably believed their marriage to be valid. Such reasonable belief is actually presumed by the Act, so he who wishes to rebut that presumption must adduce evidence that both parents were aware that their marriage was invalid under English law when their child was conceived.
E.U. LAW : DEPORTATION : RESIDENCE
EEA nationals and their family members can acquire a right of permanent residence if they reside in the United Kingdom for a continuous period of five years “lawfully”, i.e. in line with the EEA Regulations 2006/ Citizens Directive. They can then also be regarded as “genuinely integrated” in the host Member State, and as explained by the Court of Justice in Tsakouridis, if thereafter they face expulsion on serious grounds of public policy or public security, a factor in the assessment of whether expulsion is proportionate will be whether their prospects of rehabilitation are better in the host State than in the State to which they will be expelled.
A period of imprisonment interrupts the continuity of the five years’ residence needed in order to acquire a right of permanent residence. But it may be that a total of five years as a ‘qualified person’, even if it is not a continuous period because of an intervening custodial sentence, can nevertheless lead to permanent residence. In any event, once permanent residence has been achieved, a period of imprisonment does not stop the accumulation of ten years’ residence, after which a Union citizen can only be expelled on “imperative grounds of public security.”
The ten years are counted back from the date of the expulsion decision. The highest level of protection from expulsion is afforded by Article 28(3)(a) of the Citizens Directive to those who “have resided in the host Member State for the previous ten years”, and those ten years are not interrupted by a period of imprisonment served after the Union citizen has acquired a permanent right of residence.
Tier 2 (General) and Tier 2 (Intra-Company Transfer) Migrants
Senior staff in the Long Term subcategory of Intra-Company Transferees can now stay for a maximum of nine years instead of five, if they are earning at least £152,100 per annum. This stops short of the ten-year threshold, after which settlement can be achieved under the Long Residence Rule. The link between the Intra-Company Transfer route and settlement remains broken. On the other hand, the ‘cooling off period’ of one year which must elapse before a Tier 2 Migrant can come back to the UK in this category has been recalibrated, so as to begin as soon as the migrant departs from the United Kingdom, rather than when his leave expires. This benefits migrants who go home before their leave has come to an end. Very senior staff, earning at least £152,100 per annum, are now exempt from the ‘cooling off period’ altogether.
If a Tier 2 (General) Sponsor wants to fill a vacancy for a PhD-level post, he does not need to appoint a suitable settled worker when carrying out the Resident Labour Market Test, if a migrant is better qualified for the post.
Students
Only postgraduate students doing a course at NQF level 7 or a PhD can have spouses and children with them as dependants in the UK.
It used to be possible for students and their families to achieve settlement through the ‘Long Residence Rule’ (para 276B HC 395) after ten years’ lawful residence, but it is now unlikely that students will be here that long. They can only spend three years in the United Kingdom studying courses below degree level, while five years is normally the maximum that can be spent on a BA/BSc followed by an MA/MSc. (A longer time is allowed for certain subjects, such as Law, Architecture and Medicine.) If, on completion of a PhD, a student has already spent eight years studying in the United Kingdom, he will not be allowed to undertake any further Tier 4 studies.
Since 6 April 2013 international students successfully completing a PhD at a UK Higher Education Institution (‘HEI’) have been able to stay in the UK for another twelve months under Tier 5, sponsored by their HEI. They can use this period in order to find work with a Tier 2 employer, to set up as an entrepreneur before switching into Tier 1, or to gain practical work experience in their field before returning home.
Family migration vs family court proceedings etc
People with leave of six months or less, such as visitors, are not allowed to ‘switch’ into the spouse/partner route unless they are fiancé(e)s/ proposed civil partners. To this exception are now added people who have been granted six months’ discretionary leave while court proceedings are pending. It sometimes happens that a parent is the subject of a removal or deportation decision, and at the same time a family court is having to decide whether a child ought to reside with, or have contact with, that parent. Until the family court has decided what is in the best interests of the child, it may not be possible to determine whether removal or deportation of the parent would be proportionate under Article 8. So the parent is given limited leave to remain in the meantime.
It has been clarified that, where a person has been granted an initial period of 2½ years’ leave as the parent of a child who is British or settled, or who has been living here for at least seven years, that person can get further leave to remain, even if the child has turned 18 by that time. Thus, a parent who would have to wait five years (or ten, under Section EX) before qualifying for settlement, will not be disadvantaged if his child is a teenager rather than a toddler when the first period of leave is granted. But the child must not have formed an independent family unit, and must not be leading an independent life, even if he is well over 18 by the time the parent is eligible for settlement.
R (app. JB (Jamaica)) v SSHD, [2013] EWCA Civ 666, Court of Appeal
The designation of Jamaica as a country where there is “in general … no serious risk of persecution” in terms of section 94(5)(a) of the Nationality, Immigration and Asylum Act 2002 is unlawful, because a large section of the population – the LGBT community, constituting as much as 10% - is indeed at risk. Homosexuals in Jamaica do not form as large a ‘social group’ as, for example, women in Pakistan, but large enough to make it wholly inappropriate for the Secretary of State to have to certify a Jamaican asylum claim as ‘clearly unfounded’, unless satisfied that it is not clearly unfounded.
To be suitable for the Detained Fast Track, an asylum claim must be one in which a fair and sustainable decision can be made within about two weeks. That will not be possible where, in order to substantiate the claim, evidence has to be obtained from abroad. In the instant case, the claimant could not prove that he was gay without evidence from people who knew him in Jamaica. It should have been obvious, therefore, that this case fell outside the criteria for assessing suitability for detention under the ‘DFT/DNSA’ policy. The claimant was therefore detained unlawfully
[align=justify]R (app. New London College) & R (app. West London Vocational Training College) v SSHD, Migrants’ Rights Network and JCWI intervening
[2013] UKSC 51
Supreme Court
Summary of decision : The scheme for licensing educational providers who wish to sponsor Tier 4 Migrants is set out in Sponsor Guidance, and includes numerous mandatory requirements. Although these requirements partake of the nature of “rules”, they are not rules which the Secretary of State must lay before Parliament under section 3(2) of the Immigration Act 1971. They are not rules governing the entry and stay of migrants, but are ancillary or incidental to the administration of immigration control. What exactly the source is of the power to run such a scheme, it is certainly not unlawful.
Thus the Secretary of State was entitled to revoke the sponsor licence of one of the appellant colleges, and to refuse the application of the other college for Highly Trusted Sponsor status.
R (app. JB (Jamaica)) v SSHD
[2013] EWCA Civ 666
Court of Appeal
Summary of decision : The designation of Jamaica as a country where there is “in general … no serious risk of persecution” in terms of section 94(5)(a) of the Nationality, Immigration and Asylum Act 2002 is unlawful, because a large section of the population – the LGBT community, constituting as much as 10% - is indeed at risk. Homosexuals in Jamaica do not form as large a ‘social group’ as, for example, women in Pakistan, but large enough to make it wholly inappropriate for the Secretary of State to have to certify a Jamaican asylum claim as ‘clearly unfounded’, unless satisfied that it is not clearly unfounded.
To be suitable for the Detained Fast Track, an asylum claim must be one in which a fair and sustainable decision can be made within about two weeks. That will not be possible where, in order to substantiate the claim, evidence has to be obtained from abroad. In the instant case, the claimant could not prove that he was gay without evidence from people who knew him in Jamaica. It should have been obvious, therefore, that this case fell outside the criteria for assessing suitability for detention under the ‘DFT/DNSA’ policy. The claimant was therefore detained unlawfully.
SS (Malaysia) v SSHD
[2013] EWCA Civ 888
Court of Appeal
Summary of decision : It is not a flagrant breach of their human rights for a Catholic woman and her young son to be returned to the country of their nationality, where the boy’s father, who has converted to Islam, will insist that he be circumcised and brought up as a Moslem. It is only in an extreme case that international protection can be offered when the system of family law in the applicant’s country produces results that would be objectionable here.
ML (Nigeria) v SSHD
[2013] EWCA Civ 844
Court of Appeal
Summary of decision : When a first-instance judge has got some of his facts badly wrong, it cannot be said that his determination contains no material error of law, because the outcome would have been the same even if he had not made those errors. Errors of fact can constitute errors of law, and in the present case the errors were such that it could not be said that the appellant had had a fair hearing of his appeal at all.
There is no equivalent to level A1 of the CEFR in the International English Language Test System. The nearest thing is an IELTS score of 4.0 for level B1, which must therefore be used for level A1 too. Paragraph 281(ii) of HC 395 only requires level A1 in speaking and listening from applicants for entry clearance as a spouse, but this means that a score of at least 4.0 must be achieved in each of those components
Exclusion from international protection
Article 1F
In Al-Sirri & DD (Afghanistan) [2012] UKSC 54, the Supreme Court has given guidance on the interpretation of Art 1F(c), which excludes from the protection of the Refugee Convention “any person with respect to whom there are serious reasons for considering that … he has been guilty of acts contrary to the purposes and principles of the United Nations.”
Stateless persons
A new Part 14 has also been added to HC 395, to cater for the small number of stateless people who are not eligible for asylum. The criteria are based upon the 1954 UN Convention on the Status of Stateless Persons, and require that such persons must not be considered a national by any state under the operation of its law, and must not be able to reside in the country of their former habitual residence or in any other country. This addition to the Rules stems from a report issued by the UNHCR and Asylum Aid in November 2011, Mapping statelessness in the United Kingdom.
Deportation order revocation periods
If the sentence was less than 4 years, ten years must have elapsed since the deportation order was made, before it can be revoked. If the sentence was 4 years or more, it can never be revoked, unless its continuation would be contrary to the Refugee or Human Rights Convention, or there are “exceptional circumstances” giving rise to “compelling factors”. Similar considerations may shorten the ten-year re-entry ban for those sentenced to less than 4 years.
These periods (‘ten years’ and ‘never’) correspond with the re-entry bans imposed by para 320(2), except for the five-year ban where the sentence was less than 12 months. Under para 391, the re-entry ban is for ten years, even if the sentence was very short. Curiously, where a person is seeking indefinite leave to remain rather than leave to enter, the periods which must have elapsed since the end of the sentence are even longer. Para 322(1C) lays down 15 years for a sentence between one year and four years, and 7 years for a sentence of less than a year, as well as a two-year period before the date of application for a non-custodial sentence. The Explanatory Memorandum to HC 760 does not explain this variation in the time frames, but it becomes clear when looking at para 399B.
Where a deportation order has been made against someone who has not been sent to prison at all – a fairly uncommon occurrence – para 391A requires the deportation order to continue “unless the situation has been materially altered, either by a change of circumstances since the order was made, or by fresh information coming to light which was not before the appellate authorities or the Secretary of State.” The passage of time can itself amount to a change of circumstances.
For people who have managed to avoid deportation on human rights grounds, para 399B provides that they can be given leave to remain in blocks of 2½ years at a time. Can they ever achieve settlement by building up enough of these 2½-year chunks? An addition to para 399B now provides that they can get indefinite leave to remain, after the time periods have elapsed which are laid down in para 322(1C), i.e. 15 years and 7 years, depending on the length of their sentence.
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Kabia (MF: para 398 - “exceptional circumstances”) 2013 UKUT 00569 (IAC)
(1) The new rules relating to article 8 claims advanced by foreign criminals seeking to resist
deportation are a complete code and the exceptional circumstances to be considered in the
balancing exercise involve the application of a proportionality test as required by the
Strasbourg jurisprudence: MF (Nigeria) v Secretary of State for the Home Department
[2013] EWCA Civ 1192 at para 43.
(2) The question being addressed by a decision maker applying the new rules set out at
paragraph 398 of HC 395 in considering a claim founded upon article 8 of the ECHR and
that being addressed by the judge who carries out what was referred to in MF (Article 8 -
New Rules) Nigeria [2012] UKUT 393 (IAC) as the second step in a two-stage process is
the same one that, properly executed, will return the same answer.
(3) The new rules speak of “exceptional circumstances” but, as has been made clear by the
Court of Appeal in MF (Nigeria), exceptionality is a likely characteristic of a claim that
properly succeeds rather than a legal test to be met. In this context, ”exceptional” means
circumstances in which deportation would result in unjustifiably harsh consequences for the
individual or their family such that a deportation would not be proportionate”.
Bali (Family member: 3 month visit) [2013] UKUT 00570 (IAC), 14 November 2013
A non - EEA national family member travelling to the United Kingdom accompanied by the EEA national family member concerned for the purpose of a visit of not more than three months’ duration is entitled to enter, pursuant to regulations 11(2), 12(1) and 13(1) and (2) of the Immigration (European Economic Area) Regulations 2006, read together.
(1) In finding that the weight to be accorded to the historic wrong in Ghurkha ex-servicemen cases was not to be regarded as less than that to be accorded the historic wrong suffered by British Overseas citizens, the Court of Appeal in Gurung and others [2013] EWCA Civ 8 did not hold that, in either Gurkha or BOC cases, the effect of the historic wrong is to reverse or otherwise alter the burden of proof that applies in Article 8 proportionality assessments.
(2) When an Appellant has shown that there is family/private life and the decision made by the Respondent amounts to an interference with it, the burden lies with the Respondent to show that a decision to remove is proportionate (although Appellants will, in practice, bear the responsibility of adducing evidence that lies within their remit and about which the Respondent may be unaware).
(3) What concerned the Court in Gurung and others was not the burden of proof but, rather, the issue of weight in a proportionality assessment. The Court held that, as in the case of BOCs, the historic wrong suffered by Gurkha ex-servicemen should be given substantial weight.
(4) Accordingly, where it is found that Article 8 is engaged and, but for the historic wrong, the Appellant would have been settled in the UK long ago, this will ordinarily determine the outcome of the Article 8 proportionality assessment in an Appellant’s favour, where the matters relied on by the Secretary of State/ entry clearance officer consist solely of the public interest in maintaining a firm immigration policy.
(5) It can therefore be seen that Appellants in Gurkha (and BOC) cases will not necessarily succeed, even though (i) their family life engages Article 8(1); and (ii) the evidence shows they would have come to the United Kingdom with their father, but for the injustice that prevented the latter from settling here earlier. If the Respondent can point to matters over and above the public interest in maintaining a firm immigration policy, which argue in favour of removal or the refusal of leave to enter, these matters must be given appropriate weight in the balance in the Respondent’s favour. Thus, a bad immigration history and/or criminal behaviour may still be sufficient to outweigh the powerful factors bearing on the Appellant’s side of the balance.
Важное решение Веховного Суда в отношении лишения гражданства
SSHD v Al-Jedda (2013) UKSC62
"After 5 years and more litigation, the Supreme Court has confirmed that taking away British citizenship is impermissible if it results in statelessness".
Subject to there being no abuse of rights, the jurisprudence of the Court of Justice allows for dependency of choice. Whilst the jurisprudence has not to date dealt with dependency of choice in the form of choosing not to live off savings, it has expressly approved dependency of choice in the form of choosing not take up employment (see Centre Publique d’Aide Social de Courcelles v Lebon [1987] ECR 2811 (“Lebon”) at [22]) and it may be very difficult to discern any principled basis for differentiating between the two different forms of dependency of choice when the test is a question of fact and the reasons why there is dependency are irrelevant.
(1) An appeal under section 40A of the British Nationality Act 1981 against a decision to deprive a person of British citizenship requires the Tribunal to consider whether the Secretary of State’s discretionary decision to deprive should be exercised differently. This will involve (but not be limited to) ECHR Article 8 issues, as well as the question whether deprivation would be a disproportionate interference with a person’s EU rights.
(2) Although, unlike section 84(1)(g) of the Nationality, Immigration and Asylum Act 2002, section 40A of the 1981 Act does not involve any statutory hypothesis that the appellant will be removed from the United Kingdom in consequence of the deprivation decision, the Tribunal is required to determine the reasonably foreseeable consequences of deprivation, which may, depending on the facts, include removal.
(3) A person who, immediately before becoming a British citizen, had indefinite leave to remain in the United Kingdom, does not automatically become entitled to such leave, upon being deprived of such citizenship.
Okonkwo (legacy/Hakemi; health claim) [2013] UKUT 00401 (IAC)
(1) It may be unfair for the Secretary of State to fail to apply the terms of a policy to a case that fell within the terms of the policy when it was in existence: Hakemi and others [2012] EWHC 1967 (Admin), and Mohammed [2012] EWHC 3091 Admin considered.
(2) Chapter 53 of the EIG Instructions as in force December 2011 did not mean that any adult who had lawfully resided in the UK for six years had an expectation of discretionary leave to remain, applying former rule 395C together with the policy then in force.
(3) An appellant who has been provided with an organ transplant during a period of lawful leave to remain, and the viability of the success of the transplant would be prejudiced by loss of effective access to immune-suppressant medication may well have a good claim to remain under Article 8 ECHR: see JA (Ivory Coast) ES (Tanzania) v SSHD [2009] EWCA Civ 1353; GS and EO (Article 3- health cases) [2012] UKUT 397; and Akhalu (health claim: ECHR Article 8)[2013] UKUT 400 (IAC) considered; but the argument must be advanced to the First tier judge before it can be said that there was an error of law in failing to deal with it.
Geraldo & Ors, R (on the application of) v SSHD [2013] EWHC 2763 (Admin) 6 September 2013
King J rejected the claims of three failed asylum seekers that they should have been granted immediate indefinite leave to remain (ILR) under the 'legacy programme' rather than three years discretionary leave, and that the delay in granting them leave until after the change of policy on 20 July 2011 was unlawful. In particular, King J rejected the propositions that failure to grant the claimants ILR was inconsistent with the very rationale of the legacy programme under which their cases were being considered and that there was, in effect, an undertaking not to change that policy during the currency of the legacy programme.
Naeem (Para 120A of Appendix A) [2013] UKUT 00465 (IAC)
Points obtained "under paragraphs 113-120 of Appendix A" to the Rules are not so obtained if paragraph 120A prevents them being obtained.
Singh (No immigration decision- jurisdiction) [2013] UKUT 00440 (IAC)
(i) An appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 requires there to be an immigration decision, as there defined. Where no immigration decision has been made, the First-tier Tribunal has no jurisdiction to hear the appeal.
(ii) Judges considering an appeal (or applications for permission to appeal) should ensure that a copy of the notice of the immigration decision under appeal exists and is produced.
Islam (Para 245X(ha): five years' study) [2013] UKUT 00608 (IAC)
Paragraph 245X(ha) of HC 395 must be read as requiring the calculation of the five years spent in the UK as a Tier 4 (General) Migrant or as a student studying at degree level or above to include time spent as a student before the introduction of Tier 4. Nothing in relevant Guidance permits a contrary result.
Nasim and others (Raju: reasons not to follow) [2013] UKUT 00610(IAC)
(1) It is not legally possible for the First-tier Tribunal or the Upper Tribunal to decline to follow the judgment in Raju and others v Secretary of State for the Home Department [2013] EWCA Civ 754 on the basis that the Secretary of State's Tier 1 (Post-Study Work) policy of July 2010 (concerning the approach to be taken to "late" submission of certain educational awards) continued to apply in respect of decisions taken by the Secretary of State on or after 6 April 2012, when the Immigration Rules were changed by abolishing the Tier 1 PSW route.
(2) The Secretary of State was under no duty to determine Post Study Work applications made before that date by reference to that policy, the rationale for which disappeared on 6 April. In particular:
(a) a person making such an application had no vested right or legitimate expectation to have his or her application so determined;
(b) it was not legally unfair of the Secretary of State to proceed as she did;
(c) the de minimis principle cannot be invoked to counter the failure of applications that were unaccompanied by requisite evidence regarding the award;
(d) the Secretary of State's May 2012 Casework Instruction did not gloss or modify the Immigration Rules but merely told caseworkers to apply those Rules;
(e) evidential flexibility has no bearing on the matter;
(f) an application was not varied by the submission of evidence of the conferring of an award on or after 6 April 2012; but even if it were, the application would fail on the basis that it would have to have been decided under the Rules in force at the date of the variation; and
(g) an application under the Immigration Rules falls to be determined by reference to policies in force at the date of decision, not those in force at the date of application.
(3) The date of "obtaining the relevant qualification" for the purposes of Table 10 of Appendix A to the Immigration Rules as in force immediately before 6 April 2012 is the date on which the University or other institution responsible for conferring the award (not the institution where the applicant physically studied, if different) actually conferred that award, whether in person or in absentia.
(4) As held in Khatel and others (s85A; effect of continuing application) [2013] UKUT 00044 (IAC), section 85A of the Nationality, Immigration and Asylum Act 2002 precludes a tribunal, in a points-based appeal, from considering evidence as to compliance with points-based Rules, where that evidence was not before the Secretary of State when she took her decision; but the section does not prevent a tribunal from considering evidence that was before the Secretary of State when she took the decision, whether or not that evidence reached her only after the date of application for the purposes of paragraph 34F of the Immigration Rules.
MS (Coptic Christians) Egypt CG [2013] UKUT 00611 (IAC)
Law
In relation to a country which is in a state of emergency affecting the life of the nation and which takes measures strictly required by the exigencies of the situation, its ability to afford adequacy of protection under Directive 2004/83/EC (the Qualification Directive) is to be assessed by reference to its general securement of non-derogable rights as set out in the ECHR.
Country guidance
1. Notwithstanding that there is inadequate state protection of Coptic Christians in Egypt, they are not at a general risk of persecution or ill-treatment contrary to Article 3, ECHR.
2. However, on current evidence there are some areas where Coptic Christians will face a real risk of persecution or ill-treatment contrary to Article 3. In general these will be (a) areas outside the large cities; (b) where radical Islamists have a strong foothold; and (c) there have been recent attacks on Coptic Christians or their churches, businesses or properties.
3. On the evidence before the Upper Tribunal, the following are particular risk categories in the sense that those falling within them will generally be able to show a real risk of persecution or treatment contrary to Article 3, at least in their home area:
(i) converts to Coptic Christianity;
(ii) persons who are involved in construction or reconstruction/repair of churches that have been the target for an attack or attacks;
(iii) those accused of proselytising where the accusation is serious and not casual;
(iv) those accused of being physically or emotionally involved with a Muslim woman, where the accusation is made seriously and not casually.
4. Coptic Christian women in Egypt are not in general at real risk of persecution or ill-treatment, although they face difficulties additional to other women, in the form of sometimes being the target of disappearances, forced abduction and forced conversion.
5. However, depending on the particular circumstances of the case, Coptic Christian women in Egypt aged between 14-25 years who lack a male protector, may be at such risk.
6. If a claimant is able to establish that in their home area they fall within one or more of the risk categories identified in 3 (i)-(iv) above or that they come from an area where the local Coptic population faces a real risk of persecution, it will not necessarily follow that they qualify as refugees or as beneficiaries of subsidiary protection or Article 3 ECHR protection. That will depend on whether they can show they would not have a viable internal relocation alternative. In such cases there will be need for a fact-specific assessment but, in general terms, resettlement in an area where Islamists are not strong would appear to be a viable option.
7. None of the above necessarily precludes a Coptic Christian in Egypt from being able to establish a real risk of persecution or ill-treatment in the particular circumstances of their case, e.g. if such an individual has been the target of attacks because he or she is a Coptic Christian.
Home Office Statement of Changes in Immigration Rules HC 887
Written ministerial statement (WMS) laid in Parliament on 9 December 2013, and delivered in the House of Commons by Theresa May and in the House of Lords by Lord Taylor of Holbeach
Takes effect from 30 December 2013 (1 January 2014 for changes pertaining to the electronic visa waiver). Make changes to the arrangements for holders of Oman, Qatar, the United Arab Emirates passports and documents issued by the Holy See (set out in Appendix 1 to the Immigration Rules)
Passport holders of Oman, Qatar and the United Arab Emirates will be able to obtain an ‘Electronic Visa Waiver’ document in advance of travel to the UK. Holders of the document used and held in accordance with the specified requirements will not require a short-stay visa for travel to the United Kingdom. There is no fee, there will be no requirement to give biometrics or attend a visa application centre. Special arrangements apply to Eurostar journeys and to crossing the land border from the Republic of Ireland.
A person who holds a Service, Temporary Service or Diplomatic passport issued by the Holy See will no longer require a visa to visit the United Kingdom.
Also make technical amendments to the Immigration Rules arising from the inclusion of a new Appendix Armed Forces (see statement of changes presented to Parliament on 8 November 2013). In other words these rules were not drafted properly in the first place. These are consequential changes to the general grounds for refusal, “clarification” that the four-year limit on the duration of leave granted to members of the armed forces who are not exempt from immigration control includes leave granted under the concession which previously applied to these applicants, and “clarification” that former members of HM Forces who have been granted limited leave under the current concession to allow for a recovery period following medical discharge are able to sponsor a partner or child. A further amendment replaces the income threshold with a maintenance and accommodation requirement for a child applicant where neither parent is themselves subject to the income threshold e.g. because both parents are serving or have leave on discharge from HM Forces.
Also make a change relating to Tier 1 (Graduate Entrepreneur) applicants endorsed by UK Trade and Investment. The statement of changes relax the requirement that an applicant have been awarded a degree within the last 12 months for applicants endorsed by UK Trade and Investment, allowing them to have graduated at any time before they apply.
Разъяснение UK BA по поводу студентов Tier4, кто являются директорами компаний.
Был задан вопрос:
“Tier 4 students are of course prohibited from being employed on a self-employed basis. Please can you confirm UKVI's position in relation to students who are classed as employed directors of UK companies who take salaries (NI/PAYE) as well as dividend payments.
Are they entitled to work under the conditions of their stay?”
Ответ UK BA (важное выделено):
“The Immigration Rules gives the following definition of “Self-Employed” as follows:
Under Part 6A of these Rules, "Self-Employed" means an applicant is registered as self-employed with HM Revenue & Customs, or is employed by a company of which the applicant is a controlling shareholder.
Therefore, although he may not be registered as self-employed with HMRC, if he is a Director, you will need to check if he is a controlling shareholder. Anyone who owns 10% or more of the company’s shares would be a controlling shareholder.”
Important Upper Tribunal judgment in Shen (Paper appeals; proving dishonesty) [2014] UKUT 00236 (IAC). The Tribunal gives guidance as to the correct approach to be applied when the Secretary of State alleges dishonesty (reaffirming that the burden in on her to establish the assertion). It emphasises that such a finding is not to be made lightly, given the consequences for the applicant concerned.
(1) In terms of the approach that a tribunal should adopt towards decisions of the Secretary of State in which dishonesty or deception is alleged against an applicant for leave to remain, the starting point should be, as the Court of Appeal in Adedoyin (formerly AA (Nigeria) v SSHD) [2010] EWCA Civ 773 have made clear, that pursuant to paragraph 322 of the Immigration Rules, the reference to "false" means "dishonestly" false.
(2) Where an application form etc is false in a material way, this may be relied on by the Secretary of State as prima facie evidence establishing dishonesty. The inference of deliberate deception can be strengthened by other facts: eg if a criminal conviction (not disclosed in an application) occurred shortly before completion of the application form. Here, the conviction must have been high in the applicant’s mind and any explanation based on oversight would carry little weight. But it is always open to an appellant to proffer an innocent explanation and if that explanation meets a basic level of plausibility, the burden switches back to the Secretary of State to answer that evidence. At the end of the day the Secretary of State bears the burden of proving dishonesty.
(3) The internal organisational decision by the Secretary of State not to engage with paper appeals means that the appellant's evidence goes unchallenged. In that regard, it must be remembered, that in the absence of evidence from the Secretary of State putting the appellant's prima facie plausible explanation into doubt, it would be wrong to find dishonesty. Thus, in view of the possible evidential difficulties confronting a judge when deciding a paper application, where the appellant's evidence is not met (see para (2) above), a tribunal should be slow to find dishonesty, particularly without hearing evidence and submissions on the point from the appellant and/or the Secretary of State.
(4) A finding of dishonesty can have catastrophic consequences for the appellant in social and economic terms and is not to be made lightly. Thus, in a paper case, if a judge entertains doubts as to the appellant's account, he or she should be mindful of the powers of rule 45 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 to give directions regarding supporting documentary evidence, or for the Secretary of State to respond to the appellant's evidence as she considers appropriate.
Другие правила по категории Unmarried Partners для беженцев.
Суд (UK UT) постановил, что на беженцев распостраняются "другие" понятия/правила в отношении привоза партнеров по категории unmarried partners:
Fetle (Partners: two year requirement) [2014] UKUT 00267 (IAC)
Concerns Refugee Family Reunion applications with unmarried partners
In contrast to the requirement of para GEN 1.2(iv) of Appendix FM, a requirement (such as in paragraph 352AA of the Immigration Rules) that “parties have been living together in a relationship akin to either a marriage or a civil partnership which has subsisted for two years or more” does not require two years cohabitation, but two years subsistence of the relationship. Whether the relationship still subsists, as required by the tense of that requirement and as may be separately required, is a different issue.<>
Минимальный уровень дохода для спорнсоров в размере £18600 остается на том же уровне.
E-mail из UK BA:
"Today, 11 July 2014, a major Court of Appeal judgement upheld the lawfulness of the minimum income threshold under the new family migration rules.
The minimum income threshold for British citizens to sponsor a non-EEA spouse or partner and children to come to live in the UK was introduced in July 2012. It aims to ensure that family migrants do not become reliant on the taxpayer for financial support and are able to integrate effectively.
The minimum income threshold was set, following advice from the independent Migration Advisory Committee, at £18,600 for sponsoring a spouse or partner, rising to £22,400 for also sponsoring a child and an additional £2,400 for each further child.
Today's judgement overturns an earlier High Court judgement from July 2013, which was supportive of the approach but found that the impact of the minimum income threshold on family life could be disproportionate.
The judgement will mean that, from the 28 July, the 4,000 individuals whose applications are currently on hold, pending this judgement, will now receive a decision. These are cases which met all the requirements apart from the minimum income threshold and now stand to be refused unless there are exceptional circumstances.
UK BA выплатил £125 000 компенсации за отказ во въезде в UK и нелегальное задержание
Radha Naran Patel v Secretary of State for the Home Department [2014] EWHC 501 (Admin) (30 July 2014)
Radha Naran Patel v Secretary of State for the Home Department [2014] EWHC 501 (Admin) (30 July 2014)
Permission to bring the judicial review was given by Clive Lewis QC sitting as judge and judge Anthony Thornton QC dealt with the case.
An award of £125,000 in general, aggravated and exemplary damages for this young woman denied entry as a visitor and detained on the basis that she was coming, unlawfully, to work. Includes the observations:
69. ...the notes were not a contemporary record of Radha's preliminary interview. I also conclude that the passage that the SSHD principally rely on to justify the temporary detention and the decision to conduct a further interview, namely: "will help sister sew curtains at home", was never stated by Radha but was instead invented by IO Newton and made to look like an admission that she had made when he subsequently wrote up the notes. I finally conclude that the decision to detain he temporarily was taken solely because IO Newton was determined to refuse Radha leave to enter and wished to take her to a private interview room to force her to admit that she was unlawfully entering to take paid employment.
...
90. The overall conclusion from the absence of any evidence relating to the circumstances in which Radha's case was handed over to IO Newton at 22.30 is that the case was not handed over to him at that time, it had been with him from the outset and that he had invented this evidence so that it would look as if he had had no involvement with her in the earlier stages of her detention.
...
117. CIO Khan's role in the attempted cover-up of the circumstances under which the further interview was conducted and in the absence of any evidence that Radha was intending to be employed is of considerable significance. These matters are dealt with below.
...
118. this evidence is considered as a whole, only one conclusion is possible: Radha's evidence in relation to this interview is to be accepted in its entirety and the SSHD's case about it is to be rejected. Radha was bullied, she never made the admissions attributed to her, she continuously denied she had any intention to work or to help or assist Hansha in sewing curtains and the notes were deliberately written up to record her so-called admissions when it was known that she had not provided answers in that form and was vehemently denying any intention to take employment or to do anything other than visit her family.
133....
Comment:
7. The reference to paragraph 321A of the IRs as being the only basis for cancelling Radha's entry clearance was a material error and both IO Newton and CIO Khan must have known that this statement was erroneous. ..
..
What has never been explained is why CIO Khan was contemplating reissuing the decision so as to give Radha a right of appeal at all. The decision was either sustainable and therefore carried no rights of appeal or, as he had decided, it was not sustainable and should be withdrawn. There was no halfway house save for him to have admitted that it was not sustainable that Radha had changed the purpose of her visit but that, having been granted entry clearance, there had subsequently been a change of circumstances which warranted the cancellation of her leave to enter. That change of circumstances would have had to have been something other than a change of purpose since if there had been a change of purpose, there was no reason to grant her a right of appeal – she already had one.
Furthermore, it is incomprehensible for CIO Khan to attempt to negotiate the withdrawal of Radha's judicial review. He was solely concerned with the cancellation of her leave to enter and the refusal of leave to enter, neither of which formed part of the subject-matter of the judicial review. Moreover, it was not his business to become involved in the judicial review – unless for ulterior purposes he wished to have it withdrawn. The on-going judicial review was the concern of the SSHD's legal representative, as an IO he was solely concerned with immigration matters including immigration detention which he had dealt with by granting Radha temporary admission and releasing her from detention.
It was also incomprehensible for CIO Khan to have granted Radha temporary admission having withdrawn the decision to refuse her leave to enter and not having issued a further decision re-imposing that refusal on different grounds. Since, as was subsequently held to be the case by the second FtT appeal, no outstanding decision was in place, it was not lawful to release Radha on temporary admission, she could only have been released with 6-months leave to enter.
..
160. CIO Khan's actions and motives on 28 May 2011 – conclusions.In short, the explanatory statement appeared to be a further attempt to cover up the error in issuing the cancellation decision in the first place.
...
163. CIO Khan's "decision" which had the effect of "dismissing Radha's appeal". ...The explanatory statement suggested that CIO Khan reviewed the file in great detail. There is no evidence on the file or on the CID log that this review took place and no reference to it was placed in the hearing bundle or provided to the FtT immigration judge at the hearing of Radha's second appeal. There is no evidence to support the suggestion in the explanatory statement that this review took place and the suggestion appears to have been made in an attempt to provide support for the conclusion that the original decision was lawful. In reality, it would seem that this suggestion that a further review took place is untrue and that the review that is referred to never took place.
...
192.Second refusal decision – conclusion. The inevitable conclusion is that CIO Khan issued the decision in an attempt to manufacture a defence to a judicial review claim that he must have considered would otherwise be likely to succeed.
...
295. It follows not only was Radha credible in stating that she had never made any relevant admission during this interview, as the immigration judge found in the third FtT appeal, but that the decision that she had made those admissions was based on unlawfully and concocted evidence obtained by the principal decision-maker. Thus, the relevant decisions to cancel her leave to enter, to refuse her leave to enter, to detain her in immigration detention, to continue to impound her passport and to remove her as soon as possible from the UK were all ultra vires, unlawful, irrational, unreasonable, based on extraneous considerations and in breach of the SSHD's policies concerning administrative detention.
...
311.The explanation for the nature and content of CIO Khan's instructions to the Treasury Solicitor can only be that he was again seeking to cover up the unlawful nature of the decisions taken by IO Newton.
312. Fresh decision. The fresh decision should never have been issued and was, as the third FtT appeal demonstrated, unlawful in any event. It should never have been issued since its ulterior purpose was to be used as a means of misleading the Administrative Court, it had no prospects of success since it was based on the same facts as the original decisions yet it could only be justified if fresh facts had come to light since the decision of 28 May 2011 which showed that there was a change of circumstances since the deemed leave to enter had been granted on 28 May 2011 and it was issued by CIO Khan with full knowledge that the only evidence that Radha intended to seek paid employment was concocted and unlawful.
...
317. ...(14) All these actions, decisions and omissions were intended by the CIOs and the IO or IOs who were responsible for them intended to procure unlawfully decisions from the FtT and fro this judicial review that would have confirmed the unlawful decisions that they had previously taken and to cover up the unlawful features of those decisions.
The Immigration Act 2014 (Commencement No. 2) Order 2014, SI 2014/1943 (C. 89), 28 July 2014 deals with the opening of current bank accounts for persons under immigration control. Into effect 12 December 2014. Bankers are clearly considered deserving of more notice than lawyers :http://www.legislation.gov.uk/ukdsi/2014/9780111119105
Interesting letter by the Minister to Lord Taylor, identifying two new scenarios in which an application could succeed under the Adult Dependent Relatives route: http://www.legalcentre.org/files/ADDREL.pdf
Теперь без права апелляции – заявление по почте в UK BA
Напоминаю подающим заявления в UK BA по почте на основании UK Immigration Law (заявления по категориям Tier 1-5, FLM, FLRO, SETO, SETM и т.п.), что с конца июля 2014 в случае отказа заявители не имеют права оспорить такие отказы в суде (IAC). Вместо этого в случае отказа у заявителя есть право попросить UK BA пересмотреть решение об отказе. Учитывая, что такая просьба будет рассматриваться той же организацией, что и выдала отказ, я скептически отношусь к шансам на успех таких заявлений на пересмотр.
Право апелляции осталось у просителей убежища или гуманитарной защиты. Простым языком – у беженцев.
Для граждан EU и членов их семей ничего не изменилось – право апелляции у них остается, т.к. их заявления (EEA1-EEA4) подаются не на основании UK Immigration Law, а на основании Immigration (EEA) Regulations 2006.
Получается, что для подающих заявления в UK BA на основании UK Immigration Law безопасней и, честно говоря, быстрее (т.е. как бы есть «второй шанс») подавать заявления в личном визите через UK BA Premium Service Centre (то, что раньше называлось PEO = Public Enquiry Office). В случае отказа через PEO есть возможность перепадать заявление до окончания визы (в случае почтового отказа отказ зачастую приходит через несколько месяцев после окончания визы).
Изменения в Законе с 01-12-2014 в отношении нелегалов, желающих снять жилье
Собственно говоря:
Immigration Act 2014: residential tenancies and Draft Code of Practice on Illegal Immigrants and privately rented accommodation: civil penalty scheme for landlords and their agents and "right to rent tool", 3 September 2014
The scheme under Part 3, chapter 1 of the Immigration Act 2014 is to be implemented first in Birmingham, Wolverhampton, Dudley, Walsall and Sandwell. The new measures will commence from 1 December.
Обратился клиент. Подавал заявление EEA4 на основании развода (Retained Right of Residence) через одну контору. Получил отказ.
Вводные данные. Развод был через 5 лет, но не было доказательств работы и проживания ex-спонсора в Великобритании в течение 5 лет. Были только стандратные доказательства для RRR по категории EEA2, т.е. 3 года в браке, развод и работа ОБОИХ во время развода.
Я ранее писал о EEA case-law, где non-EEA может получить Permanent Residence после развода (на основании RRR) ПОСЛЕ 5 лет проживания в стране, и тогда не нужно показывать работу и проживание ex-спонсора в Великобритании.
Рекомендовал клиенту показать (документы были) документы, что ОН прожил в Великобритани 5 лет, но рекомендовал подавать анкету EEA2 (в таком случае есть 2 шанса, т.е. если UK BA примет нашу версию - то можно получить Permanent Residence, если нет - то тогда RRR на 5 лет; если просто подать EEA4 - то тогда "выбора" у UK BA нет). Со стороны ex-спонсора были только зарплатные квитанции за период, когда оформлялся развод.
Q: “…according to the Bank, the child cannot hold an investment portfolio legally at the age of 16 and therefore the portfolio must be set up in the name of the parent and the child, unless the child is 18 years of age.
The Tier 1 guidance does not on the face of it allow this…is there any way around this?”.
UK BA:
“There is not any obvious way around this. It is an ongoing requirement of the Immigration Rules that the funds and investment must be wholly under the applicant’s control. A portfolio set up in their parent’s name would not meet this requirement. While the child may turn 18 before they need to apply for an extension, the requirement is an ongoing one and a caseworker at extension will look back at the whole history to establish that the investment has been maintained continuously. Technically, they would also be liable to curtailment while the funds are not invested solely under their control.
We are looking at the wider issue here. We do emphasise the control of funds/investment point as much as we can already. However, if it is the case that those under 18 cannot invest in the permitted forms of investment in the UK, this may argue for raising the qualifying age to 18. But it is not clear that the same rules apply in Scotland (where, for example, you can enter a legally binding contract at age 16) as in the rest of the UK.”.
UK BA and Landlords
The government has announced the area: Birmingham, Wolverhampton, Dudley, Walsall and Sandwell and the date: 1 December 2014 where it will start to implement Part 3 Chapter 1 of the Immigration Act 2014, the provisions on residential tenancies. It has also produced a draft code of practice and a “right to rent tool” that landlords and landladies allegedly will use (instead of just renting to some nice chap with a British passport): https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/350211/Landlords_scheme_-_draft_Code_of_Practice.pdf
UK BA on a fiancé(e) travelling on honeymoon before applying for a spouse visa:
UK BA: “A spouse or civil partner can re-enter the UK following a honeymoon abroad during the remaining validity of their entry clearance as a fiancé(e)/PCP if they can satisfy the IO, in the light of the change in their marital/CP status (which they should evidence with a copy of the marriage/CP certificate), of their intention, within the remaining validity of that entry clearance, to regularise their status in the UK as a spouse/CP.”.
Upper Tribunal (Immigration and Asylum Chamber) (Family Court proceedings-outcome) Mohammed v Secretary of State for the Home Department [2014] UKUT 00419 (IAC) 21 July 2014
Whilst it may be that in the Family Court jurisdiction prior to the coming into force on 22 April 2014 of the Children and Families Act 2014 there was always the possibility of a parent making a fresh application relating to contact, there is nothing in the guidance given in RS (Immigration and Family Court) India [2012] UKUT 00218 (IAC) (which was approved by the Court of Appeal inMohan v Secretary of State for the Home Department [2012] EWCA Civ 1363) that supports the notion that the mere possibility of such an application being made (or pursued) is a relevant criterion in the case of an immigration appeal when deciding whether to adjourn an appeal or to direct a grant of discretionary leave in order for such proceedings to be pursued. The guidance is concerned with whether there is a realistic prospect of the Family Court making a decision that will have a material impact on the relationship between a child and the parent facing immigration measures such as deportation.
Комментарии
UK BA завершает понсультацию по "Tackling illegal immigration in privately rented accommodation".
Собственно говоря: http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/consultations/33-landlords/
По информации из ILPA, UK BA планирует сканировать и возвращать паспорта заявителям по заявлениям на продление статуса (не ILR).
Разумеется, выезжать из страны в момент рассмотрения заявления даже после возвращения паспорта будет нельзя, т.к. в таком случае иммиграционное заявление будет стразу аннулированно.
Приостановлено требование зарабатывать £18600 и т.п. для спонсоров — заявления на ПМЖдля жен/мужей/невест/партнеров и т. п.
Первоисточник:http://www.ukba.homeoffice.gov.uk/si...come-threshold
Дословно:
On 5 July 2013 the High Court delivered its judgment on a legal challenge to the minimum income threshold for spouses/partners and children applying in the family route.
The Home Office has paused decision-making on some spouse/partner and child settlement visa and leave to remain applications to enable us to consider the implications of the judgment.
The pause applies to applications made under Appendix FM to the Immigration Rules where the application would be refused solely because the rules relating to the minimum income threshold are not met, including where relevant the evidence requirements in Appendix FM-SE.
The same approach is being applied to a small number of adoption cases which would be refused on this ground alone.
Applications which meet the Rules or which fall to be refused on other grounds,such as requirements for English language or a genuine and subsisting relationship, will continue to be processed and decided as normal.
A further announcement will be made in due course.
Can I still submit a spouse/partner or child application under Appendix FM?
Yes.You can continue to apply, but you should take into account the fact that if the income threshold is the only requirement you do not meet,the Home Office will pause consideration of your application pending further consideration of the High Court judgment.
Can I still submit my application in person at a public enquiry office in the UK?
Yes,but you should take into account the fact that if the income threshold is the only requirement you do not meet, the Home Officewill pause consideration of your application pending further consideration of the High Court judgment.
What happens if my case is on hold and I want to withdraw my application or get my passport returned because I need to travel?
If you have already applied and now wish to withdraw your application,you may do so. The Home Office will not refund your application fee.
If you are seeking the return of your passport to travel, you may do sobut the Home Office will treat your application as withdrawn. TheHome Office will not refund your application fee.
How long will cases be paused?
We will provide further information in due course.
What happens if I meet the income threshold requirement?
If we assess that you meet all the rules which apply to your case,including the income threshold requirement where this applies, your application will be granted.
Am I still required to meet the income threshold requirement or can I apply knowing that I do not meet it?
You can apply, but if the income threshold is the only requirement you donot meet, the Home Office will pause consideration of your application pending further consideration of the High Court judgment.
Does this pause affect all adoption cases?
No.This only applies to applications required to meet the minimum income threshold under paragraph 314(i)(a), 314(i)(d), 316A(i)(d) or 316A(i)(e) of Part 8 of the Immigration Rules made on or after 9 July 2012. Adoption applications which do not have to meet the minimum income threshold are unaffected.
Does this pause on decisions affect other categories like adult dependent relatives or spouses on the two-year probationary period?
No.This pause has no effect on applications which do not need to meet the income threshold requirement. Those cases will continue to be assessed against the rules which apply to them.
============
Update 26-07-2013
Home Office решил, что решение High Court от 5 июля 2013 года незаконно и подал иск в в более высокий суд оспорить предыдущее решение High Court. Т.е. UK BA решили "идти до конца".
Собственно говоря:
"The Home Office today, 26 July 2013, filed its appeal against a High Court judgment on the minimum income threshold for spouses/partners and children applying in the family route.
The judgment affects non-EEA national spouses/partners and children applying to settle in the UK with someone who is already resident here.
The Home Office will continue to put on hold decisions in some spouse/partner and child settlement visa and leave to remain applications until the case is finally determined by the Courts.".
До недавнего времени нелегал, кто хотел вернуться в свою страну для того, чтобы легализоваться и потом въехать в Великобританию как супруг(а)/партнер/жених/невеста лица с ПМЖ или гражданина/гражданки Великобритании практически автоматически мог получить отказ по т.н. Additional Grounds of Refusal по параграфу 320(11) правил. Т.е. человек выполнял все условия по, например, супружеской визе жены гражданина Великобритании, но мог легко получить отказ по дополнительным причинам на основании того, что в свое время был нелегально в Великобритании.
Недавно параграф 320(11) Правил был изменен так, что теперь для его применения просто т.н. overstay недостаточен - нужно еще совершить другие нарушения закона (пример выделен), Конкретно:
11) where the applicant has previously contrived in a significant way to frustrate the intentions of the Rules by:
(i) overstaying; or
(ii) breaching a condition attached to his leave; or
(iii) being an illegal entrant; or
(iv) using deception in an application for entry clearance, leave to enter or remain or in order to obtain documents from the Secretary of State or a third party required in support of the application (whether successful or not); and
there are other aggravating circumstances, such as absconding, not meeting temporary admission/reporting restrictions or bail conditions, using an assumed identity or multiple identities, switching nationality, making frivolous applications or not complying with the re-documentation process.
Проверено на практике на основании последних заявлений клиентов, рассмотренных в июне и июле на Украине, Белоруссии и России. Средний срок overstay был 3 года.
http://www.official-documents.gov.uk/document/cm86/8690/8690.pdf
В частности один из пунктов Правил, который UK BA наконец-то исправил:
"Amend the current Rules for Tier 4 dependants. On 1 July the Rules were changed to make them clearer and easier to use. Those amendments specify that a Tier 4 migrant may bring dependants if they are studying a postgraduate level course at a Higher Education Institution (HEI) for "longer than 12 months". These changes will amend the Rules so that they properly reflect the policy position, which is that postgraduate students at HEIs may bring dependants if they are studying a course of duration "12 months or longer".
Граждане EU могут находиться в состоянии поиска работы более чем 1 раз и тем самым не нарушая продолжительность своей резиденции в той или иной стране Евросоюза
Суд так же постановил, что non-EEA опекун ребенка-гражданина/гражданки EU может получить право пребывания в Великобритании (derivative right of residence) даже тогда когда опекаемый ребенок из EU идет в т. н. «подготовительный» (reception) класс.
Essa (EEA: rehabilitation/integration) (2013) UKUT 00316 (IAC)
Интересное решение Upper Tribunal в отношении криминали и права получения и вероятности потери ПМЖ гражданами EU.
Суд уточнил, что (NB: в контексте для граждан EU):
Ссылка: http://www.ukba.homeoffice.gov.uk/sitecontent/newsarticles/2013/august/06-pbs-forms
Today we have published new points-based system (PBS) versions of:
Guidance:
PBS (Dependant) Policy Guidance
Application forms:
Tier 4 (Child) application form
Tier 2 Priority Dependant application form
Tier 1, 2 or 5 Dependant application form
Tier 4 Dependant application form
All these forms are for use by applicants who are already in the UK. You should use the new forms if you apply on or after 7 August 2013.
In line with paragraph 34(i) of the Immigration Rules, we will continue to accept applications made on the previous version of these forms up to and including 28 August 2013.
"Порадовал" UK BA, объявив, что с 18-08-2013 во время бронирования слота для подачи документов в PEO они будут брать ПОЛНУЮ сумму за услуги UK BA + депозит в размере £100.00:
"From 18 August, those booking a premium appointment at a PEO will now be asked to pay their whole fee upfront, using a new automated system. This includes the premium fee of £375 and non-refundable appointment fee of £100.
Appointments can be managed in the normal way through an online account. If applicants fail to attend their appointment, or cancel it with 5 or less working days notic
e, the £100 fee will not be refunded.".
POINTS BASED SYSTEM: POST-STUDY WORK: INTERPRETATION OF TERMS
SSHD v Raju & ors[2013] EWCA Civ 754, Court of Appeal
The Upper Tribunal was wrong in Khatel to suppose that a qualification awarded to an applicant for Post-Study Work after his application has been lodged with the Home Office can bring his total of points up to the requisite 75 in Appendix A. The rule clearly means that the award must have been made prior to the application, and the application itself does not continue until it is decided. Paragraph 34G of HC 395 specifies the date when an application is made.
DOMICILE: FOREIGN MARRIAGE VALIDITY: LEGITIMACY
MB (Bangladesh) by her mother and litigation friend JB v SSHD, [2013] EWCA Civ 220, Court of Appeal
A polygamous marriage celebrated abroad is void under English law if, at the time of the wedding, either of the parties to it was domiciled in England & Wales. But a child born overseas before July 2006 to a polygamously married father is to be regarded as legitimate under section 1 of the Legitimacy Act 1976, and hence may be British by descent from her father, if, at the time she was conceived, either of her parents reasonably believed their marriage to be valid. Such reasonable belief is actually presumed by the Act, so he who wishes to rebut that presumption must adduce evidence that both parents were aware that their marriage was invalid under English law when their child was conceived.
E.U. LAW : DEPORTATION : RESIDENCE
Essa (EEA : rehabilitation/ integration), [2013] UKUT 316 (IAC), Upper Tribunal
EEA nationals and their family members can acquire a right of permanent residence if they reside in the United Kingdom for a continuous period of five years “lawfully”, i.e. in line with the EEA Regulations 2006/ Citizens Directive. They can then also be regarded as “genuinely integrated” in the host Member State, and as explained by the Court of Justice in Tsakouridis, if thereafter they face expulsion on serious grounds of public policy or public security, a factor in the assessment of whether expulsion is proportionate will be whether their prospects of rehabilitation are better in the host State than in the State to which they will be expelled.
A period of imprisonment interrupts the continuity of the five years’ residence needed in order to acquire a right of permanent residence. But it may be that a total of five years as a ‘qualified person’, even if it is not a continuous period because of an intervening custodial sentence, can nevertheless lead to permanent residence. In any event, once permanent residence has been achieved, a period of imprisonment does not stop the accumulation of ten years’ residence, after which a Union citizen can only be expelled on “imperative grounds of public security.”
The ten years are counted back from the date of the expulsion decision. The highest level of protection from expulsion is afforded by Article 28(3)(a) of the Citizens Directive to those who “have resided in the host Member State for the previous ten years”, and those ten years are not interrupted by a period of imprisonment served after the Union citizen has acquired a permanent right of residence.
Tier 2 (General) and Tier 2 (Intra-Company Transfer) Migrants
Senior staff in the Long Term subcategory of Intra-Company Transferees can now stay for a maximum of nine years instead of five, if they are earning at least £152,100 per annum. This stops short of the ten-year threshold, after which settlement can be achieved under the Long Residence Rule. The link between the Intra-Company Transfer route and settlement remains broken. On the other hand, the ‘cooling off period’ of one year which must elapse before a Tier 2 Migrant can come back to the UK in this category has been recalibrated, so as to begin as soon as the migrant departs from the United Kingdom, rather than when his leave expires. This benefits migrants who go home before their leave has come to an end. Very senior staff, earning at least £152,100 per annum, are now exempt from the ‘cooling off period’ altogether.
If a Tier 2 (General) Sponsor wants to fill a vacancy for a PhD-level post, he does not need to appoint a suitable settled worker when carrying out the Resident Labour Market Test, if a migrant is better qualified for the post.
Students
Only postgraduate students doing a course at NQF level 7 or a PhD can have spouses and children with them as dependants in the UK.
It used to be possible for students and their families to achieve settlement through the ‘Long Residence Rule’ (para 276B HC 395) after ten years’ lawful residence, but it is now unlikely that students will be here that long. They can only spend three years in the United Kingdom studying courses below degree level, while five years is normally the maximum that can be spent on a BA/BSc followed by an MA/MSc. (A longer time is allowed for certain subjects, such as Law, Architecture and Medicine.) If, on completion of a PhD, a student has already spent eight years studying in the United Kingdom, he will not be allowed to undertake any further Tier 4 studies.
Since 6 April 2013 international students successfully completing a PhD at a UK Higher Education Institution (‘HEI’) have been able to stay in the UK for another twelve months under Tier 5, sponsored by their HEI. They can use this period in order to find work with a Tier 2 employer, to set up as an entrepreneur before switching into Tier 1, or to gain practical work experience in their field before returning home.
Family migration vs family court proceedings etc
People with leave of six months or less, such as visitors, are not allowed to ‘switch’ into the spouse/partner route unless they are fiancé(e)s/ proposed civil partners. To this exception are now added people who have been granted six months’ discretionary leave while court proceedings are pending. It sometimes happens that a parent is the subject of a removal or deportation decision, and at the same time a family court is having to decide whether a child ought to reside with, or have contact with, that parent. Until the family court has decided what is in the best interests of the child, it may not be possible to determine whether removal or deportation of the parent would be proportionate under Article 8. So the parent is given limited leave to remain in the meantime.
It has been clarified that, where a person has been granted an initial period of 2½ years’ leave as the parent of a child who is British or settled, or who has been living here for at least seven years, that person can get further leave to remain, even if the child has turned 18 by that time. Thus, a parent who would have to wait five years (or ten, under Section EX) before qualifying for settlement, will not be disadvantaged if his child is a teenager rather than a toddler when the first period of leave is granted. But the child must not have formed an independent family unit, and must not be leading an independent life, even if he is well over 18 by the time the parent is eligible for settlement.
The designation of Jamaica as a country where there is “in general … no serious risk of persecution” in terms of section 94(5)(a) of the Nationality, Immigration and Asylum Act 2002 is unlawful, because a large section of the population – the LGBT community, constituting as much as 10% - is indeed at risk. Homosexuals in Jamaica do not form as large a ‘social group’ as, for example, women in Pakistan, but large enough to make it wholly inappropriate for the Secretary of State to have to certify a Jamaican asylum claim as ‘clearly unfounded’, unless satisfied that it is not clearly unfounded.
To be suitable for the Detained Fast Track, an asylum claim must be one in which a fair and sustainable decision can be made within about two weeks. That will not be possible where, in order to substantiate the claim, evidence has to be obtained from abroad. In the instant case, the claimant could not prove that he was gay without evidence from people who knew him in Jamaica. It should have been obvious, therefore, that this case fell outside the criteria for assessing suitability for detention under the ‘DFT/DNSA’ policy. The claimant was therefore detained unlawfully
[2013] UKSC 51
Supreme Court
Summary of decision : The scheme for licensing educational providers who wish to sponsor Tier 4 Migrants is set out in Sponsor Guidance, and includes numerous mandatory requirements. Although these requirements partake of the nature of “rules”, they are not rules which the Secretary of State must lay before Parliament under section 3(2) of the Immigration Act 1971. They are not rules governing the entry and stay of migrants, but are ancillary or incidental to the administration of immigration control. What exactly the source is of the power to run such a scheme, it is certainly not unlawful.
Thus the Secretary of State was entitled to revoke the sponsor licence of one of the appellant colleges, and to refuse the application of the other college for Highly Trusted Sponsor status.
R (app. JB (Jamaica)) v SSHD
[2013] EWCA Civ 666
Court of Appeal
Summary of decision : The designation of Jamaica as a country where there is “in general … no serious risk of persecution” in terms of section 94(5)(a) of the Nationality, Immigration and Asylum Act 2002 is unlawful, because a large section of the population – the LGBT community, constituting as much as 10% - is indeed at risk. Homosexuals in Jamaica do not form as large a ‘social group’ as, for example, women in Pakistan, but large enough to make it wholly inappropriate for the Secretary of State to have to certify a Jamaican asylum claim as ‘clearly unfounded’, unless satisfied that it is not clearly unfounded.
To be suitable for the Detained Fast Track, an asylum claim must be one in which a fair and sustainable decision can be made within about two weeks. That will not be possible where, in order to substantiate the claim, evidence has to be obtained from abroad. In the instant case, the claimant could not prove that he was gay without evidence from people who knew him in Jamaica. It should have been obvious, therefore, that this case fell outside the criteria for assessing suitability for detention under the ‘DFT/DNSA’ policy. The claimant was therefore detained unlawfully.
SS (Malaysia) v SSHD
[2013] EWCA Civ 888
Court of Appeal
Summary of decision : It is not a flagrant breach of their human rights for a Catholic woman and her young son to be returned to the country of their nationality, where the boy’s father, who has converted to Islam, will insist that he be circumcised and brought up as a Moslem. It is only in an extreme case that international protection can be offered when the system of family law in the applicant’s country produces results that would be objectionable here.
ML (Nigeria) v SSHD
[2013] EWCA Civ 844
Court of Appeal
Summary of decision : When a first-instance judge has got some of his facts badly wrong, it cannot be said that his determination contains no material error of law, because the outcome would have been the same even if he had not made those errors. Errors of fact can constitute errors of law, and in the present case the errors were such that it could not be said that the appellant had had a fair hearing of his appeal at all.
Akhtar (CEFR; UKBA Guidance and IELTS)
[2013] UKUT 306 (IAC)
Upper Tribunal
There is no equivalent to level A1 of the CEFR in the International English Language Test System. The nearest thing is an IELTS score of 4.0 for level B1, which must therefore be used for level A1 too. Paragraph 281(ii) of HC 395 only requires level A1 in speaking and listening from applicants for entry clearance as a spouse, but this means that a score of at least 4.0 must be achieved in each of those components
Exclusion from international protection
Article 1F
In Al-Sirri & DD (Afghanistan) [2012] UKSC 54, the Supreme Court has given guidance on the interpretation of Art 1F(c), which excludes from the protection of the Refugee Convention “any person with respect to whom there are serious reasons for considering that … he has been guilty of acts contrary to the purposes and principles of the United Nations.”
Stateless persons
A new Part 14 has also been added to HC 395, to cater for the small number of stateless people who are not eligible for asylum. The criteria are based upon the 1954 UN Convention on the Status of Stateless Persons, and require that such persons must not be considered a national by any state under the operation of its law, and must not be able to reside in the country of their former habitual residence or in any other country. This addition to the Rules stems from a report issued by the UNHCR and Asylum Aid in November 2011, Mapping statelessness in the United Kingdom.
Deportation order revocation periods
If the sentence was less than 4 years, ten years must have elapsed since the deportation order was made, before it can be revoked. If the sentence was 4 years or more, it can never be revoked, unless its continuation would be contrary to the Refugee or Human Rights Convention, or there are “exceptional circumstances” giving rise to “compelling factors”. Similar considerations may shorten the ten-year re-entry ban for those sentenced to less than 4 years.
These periods (‘ten years’ and ‘never’) correspond with the re-entry bans imposed by para 320(2), except for the five-year ban where the sentence was less than 12 months. Under para 391, the re-entry ban is for ten years, even if the sentence was very short. Curiously, where a person is seeking indefinite leave to remain rather than leave to enter, the periods which must have elapsed since the end of the sentence are even longer. Para 322(1C) lays down 15 years for a sentence between one year and four years, and 7 years for a sentence of less than a year, as well as a two-year period before the date of application for a non-custodial sentence. The Explanatory Memorandum to HC 760 does not explain this variation in the time frames, but it becomes clear when looking at para 399B.
Where a deportation order has been made against someone who has not been sent to prison at all – a fairly uncommon occurrence – para 391A requires the deportation order to continue “unless the situation has been materially altered, either by a change of circumstances since the order was made, or by fresh information coming to light which was not before the appellate authorities or the Secretary of State.” The passage of time can itself amount to a change of circumstances.
For people who have managed to avoid deportation on human rights grounds, para 399B provides that they can be given leave to remain in blocks of 2½ years at a time. Can they ever achieve settlement by building up enough of these 2½-year chunks? An addition to para 399B now provides that they can get indefinite leave to remain, after the time periods have elapsed which are laid down in para 322(1C), i.e. 15 years and 7 years, depending on the length of their sentence.
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(1) The new rules relating to article 8 claims advanced by foreign criminals seeking to resist
deportation are a complete code and the exceptional circumstances to be considered in the
balancing exercise involve the application of a proportionality test as required by the
Strasbourg jurisprudence: MF (Nigeria) v Secretary of State for the Home Department
[2013] EWCA Civ 1192 at para 43.
(2) The question being addressed by a decision maker applying the new rules set out at
paragraph 398 of HC 395 in considering a claim founded upon article 8 of the ECHR and
that being addressed by the judge who carries out what was referred to in MF (Article 8 -
New Rules) Nigeria [2012] UKUT 393 (IAC) as the second step in a two-stage process is
the same one that, properly executed, will return the same answer.
(3) The new rules speak of “exceptional circumstances” but, as has been made clear by the
Court of Appeal in MF (Nigeria), exceptionality is a likely characteristic of a claim that
properly succeeds rather than a legal test to be met. In this context, ”exceptional” means
circumstances in which deportation would result in unjustifiably harsh consequences for the
individual or their family such that a deportation would not be proportionate”.
Bali (Family member: 3 month visit) [2013] UKUT 00570 (IAC), 14 November 2013
A non - EEA national family member travelling to the United Kingdom accompanied by the EEA national family member concerned for the purpose of a visit of not more than three months’ duration is entitled to enter, pursuant to regulations 11(2), 12(1) and 13(1) and (2) of the Immigration (European Economic Area) Regulations 2006, read together.
Ghising and others (Ghurkhas/BOCs: historic wrong; weight) [2013] UKUT 00567 (IAC)
(1) In finding that the weight to be accorded to the historic wrong in Ghurkha ex-servicemen cases was not to be regarded as less than that to be accorded the historic wrong suffered by British Overseas citizens, the Court of Appeal in Gurung and others [2013] EWCA Civ 8 did not hold that, in either Gurkha or BOC cases, the effect of the historic wrong is to reverse or otherwise alter the burden of proof that applies in Article 8 proportionality assessments.
(2) When an Appellant has shown that there is family/private life and the decision made by the Respondent amounts to an interference with it, the burden lies with the Respondent to show that a decision to remove is proportionate (although Appellants will, in practice, bear the responsibility of adducing evidence that lies within their remit and about which the Respondent may be unaware).
(3) What concerned the Court in Gurung and others was not the burden of proof but, rather, the issue of weight in a proportionality assessment. The Court held that, as in the case of BOCs, the historic wrong suffered by Gurkha ex-servicemen should be given substantial weight.
(4) Accordingly, where it is found that Article 8 is engaged and, but for the historic wrong, the Appellant would have been settled in the UK long ago, this will ordinarily determine the outcome of the Article 8 proportionality assessment in an Appellant’s favour, where the matters relied on by the Secretary of State/ entry clearance officer consist solely of the public interest in maintaining a firm immigration policy.
(5) It can therefore be seen that Appellants in Gurkha (and BOC) cases will not necessarily succeed, even though (i) their family life engages Article 8(1); and (ii) the evidence shows they would have come to the United Kingdom with their father, but for the injustice that prevented the latter from settling here earlier. If the Respondent can point to matters over and above the public interest in maintaining a firm immigration policy, which argue in favour of removal or the refusal of leave to enter, these matters must be given appropriate weight in the balance in the Respondent’s favour. Thus, a bad immigration history and/or criminal behaviour may still be sufficient to outweigh the powerful factors bearing on the Appellant’s side of the balance.
SSHD v Al-Jedda (2013) UKSC62
"After 5 years and more litigation, the Supreme Court has confirmed that taking away British citizenship is impermissible if it results in statelessness".
Subject to there being no abuse of rights, the jurisprudence of the Court of Justice allows for dependency of choice. Whilst the jurisprudence has not to date dealt with dependency of choice in the form of choosing not to live off savings, it has expressly approved dependency of choice in the form of choosing not take up employment (see Centre Publique d’Aide Social de Courcelles v Lebon [1987] ECR 2811 (“Lebon”) at [22]) and it may be very difficult to discern any principled basis for differentiating between the two different forms of dependency of choice when the test is a question of fact and the reasons why there is dependency are irrelevant.
Deliallisi (British citizen: deprivation appeal: Scope) [2013] UKUT 00439(IAC)
(1) An appeal under section 40A of the British Nationality Act 1981 against a decision to deprive a person of British citizenship requires the Tribunal to consider whether the Secretary of State’s discretionary decision to deprive should be exercised differently. This will involve (but not be limited to) ECHR Article 8 issues, as well as the question whether deprivation would be a disproportionate interference with a person’s EU rights.
(2) Although, unlike section 84(1)(g) of the Nationality, Immigration and Asylum Act 2002, section 40A of the 1981 Act does not involve any statutory hypothesis that the appellant will be removed from the United Kingdom in consequence of the deprivation decision, the Tribunal is required to determine the reasonably foreseeable consequences of deprivation, which may, depending on the facts, include removal.
(3) A person who, immediately before becoming a British citizen, had indefinite leave to remain in the United Kingdom, does not automatically become entitled to such leave, upon being deprived of such citizenship.
Okonkwo (legacy/Hakemi; health claim) [2013] UKUT 00401 (IAC)
(1) It may be unfair for the Secretary of State to fail to apply the terms of a policy to a case that fell within the terms of the policy when it was in existence: Hakemi and others [2012] EWHC 1967 (Admin), and Mohammed [2012] EWHC 3091 Admin considered.
(2) Chapter 53 of the EIG Instructions as in force December 2011 did not mean that any adult who had lawfully resided in the UK for six years had an expectation of discretionary leave to remain, applying former rule 395C together with the policy then in force.
(3) An appellant who has been provided with an organ transplant during a period of lawful leave to remain, and the viability of the success of the transplant would be prejudiced by loss of effective access to immune-suppressant medication may well have a good claim to remain under Article 8 ECHR: see JA (Ivory Coast) ES (Tanzania) v SSHD [2009] EWCA Civ 1353; GS and EO (Article 3- health cases) [2012] UKUT 397; and Akhalu (health claim: ECHR Article 8)[2013] UKUT 400 (IAC) considered; but the argument must be advanced to the First tier judge before it can be said that there was an error of law in failing to deal with it.
Geraldo & Ors, R (on the application of) v SSHD [2013] EWHC 2763 (Admin) 6 September 2013
King J rejected the claims of three failed asylum seekers that they should have been granted immediate indefinite leave to remain (ILR) under the 'legacy programme' rather than three years discretionary leave, and that the delay in granting them leave until after the change of policy on 20 July 2011 was unlawful. In particular, King J rejected the propositions that failure to grant the claimants ILR was inconsistent with the very rationale of the legacy programme under which their cases were being considered and that there was, in effect, an undertaking not to change that policy during the currency of the legacy programme.
Naeem (Para 120A of Appendix A) [2013] UKUT 00465 (IAC)
Points obtained "under paragraphs 113-120 of Appendix A" to the Rules are not so obtained if paragraph 120A prevents them being obtained.
Singh (No immigration decision- jurisdiction) [2013] UKUT 00440 (IAC)
(i) An appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 requires there to be an immigration decision, as there defined. Where no immigration decision has been made, the First-tier Tribunal has no jurisdiction to hear the appeal.
(ii) Judges considering an appeal (or applications for permission to appeal) should ensure that a copy of the notice of the immigration decision under appeal exists and is produced.
Paragraph 245X(ha) of HC 395 must be read as requiring the calculation of the five years spent in the UK as a Tier 4 (General) Migrant or as a student studying at degree level or above to include time spent as a student before the introduction of Tier 4. Nothing in relevant Guidance permits a contrary result.
Nasim and others (Raju: reasons not to follow) [2013] UKUT 00610(IAC)
(1) It is not legally possible for the First-tier Tribunal or the Upper Tribunal to decline to follow the judgment in Raju and others v Secretary of State for the Home Department [2013] EWCA Civ 754 on the basis that the Secretary of State's Tier 1 (Post-Study Work) policy of July 2010 (concerning the approach to be taken to "late" submission of certain educational awards) continued to apply in respect of decisions taken by the Secretary of State on or after 6 April 2012, when the Immigration Rules were changed by abolishing the Tier 1 PSW route.
(2) The Secretary of State was under no duty to determine Post Study Work applications made before that date by reference to that policy, the rationale for which disappeared on 6 April. In particular:
(a) a person making such an application had no vested right or legitimate expectation to have his or her application so determined;
(b) it was not legally unfair of the Secretary of State to proceed as she did;
(c) the de minimis principle cannot be invoked to counter the failure of applications that were unaccompanied by requisite evidence regarding the award;
(d) the Secretary of State's May 2012 Casework Instruction did not gloss or modify the Immigration Rules but merely told caseworkers to apply those Rules;
(e) evidential flexibility has no bearing on the matter;
(f) an application was not varied by the submission of evidence of the conferring of an award on or after 6 April 2012; but even if it were, the application would fail on the basis that it would have to have been decided under the Rules in force at the date of the variation; and
(g) an application under the Immigration Rules falls to be determined by reference to policies in force at the date of decision, not those in force at the date of application.
(3) The date of "obtaining the relevant qualification" for the purposes of Table 10 of Appendix A to the Immigration Rules as in force immediately before 6 April 2012 is the date on which the University or other institution responsible for conferring the award (not the institution where the applicant physically studied, if different) actually conferred that award, whether in person or in absentia.
(4) As held in Khatel and others (s85A; effect of continuing application) [2013] UKUT 00044 (IAC), section 85A of the Nationality, Immigration and Asylum Act 2002 precludes a tribunal, in a points-based appeal, from considering evidence as to compliance with points-based Rules, where that evidence was not before the Secretary of State when she took her decision; but the section does not prevent a tribunal from considering evidence that was before the Secretary of State when she took the decision, whether or not that evidence reached her only after the date of application for the purposes of paragraph 34F of the Immigration Rules.
MS (Coptic Christians) Egypt CG [2013] UKUT 00611 (IAC)
Law
In relation to a country which is in a state of emergency affecting the life of the nation and which takes measures strictly required by the exigencies of the situation, its ability to afford adequacy of protection under Directive 2004/83/EC (the Qualification Directive) is to be assessed by reference to its general securement of non-derogable rights as set out in the ECHR.
Country guidance
1. Notwithstanding that there is inadequate state protection of Coptic Christians in Egypt, they are not at a general risk of persecution or ill-treatment contrary to Article 3, ECHR.
2. However, on current evidence there are some areas where Coptic Christians will face a real risk of persecution or ill-treatment contrary to Article 3. In general these will be (a) areas outside the large cities; (b) where radical Islamists have a strong foothold; and (c) there have been recent attacks on Coptic Christians or their churches, businesses or properties.
3. On the evidence before the Upper Tribunal, the following are particular risk categories in the sense that those falling within them will generally be able to show a real risk of persecution or treatment contrary to Article 3, at least in their home area:
(i) converts to Coptic Christianity;
(ii) persons who are involved in construction or reconstruction/repair of churches that have been the target for an attack or attacks;
(iii) those accused of proselytising where the accusation is serious and not casual;
(iv) those accused of being physically or emotionally involved with a Muslim woman, where the accusation is made seriously and not casually.
4. Coptic Christian women in Egypt are not in general at real risk of persecution or ill-treatment, although they face difficulties additional to other women, in the form of sometimes being the target of disappearances, forced abduction and forced conversion.
5. However, depending on the particular circumstances of the case, Coptic Christian women in Egypt aged between 14-25 years who lack a male protector, may be at such risk.
6. If a claimant is able to establish that in their home area they fall within one or more of the risk categories identified in 3 (i)-(iv) above or that they come from an area where the local Coptic population faces a real risk of persecution, it will not necessarily follow that they qualify as refugees or as beneficiaries of subsidiary protection or Article 3 ECHR protection. That will depend on whether they can show they would not have a viable internal relocation alternative. In such cases there will be need for a fact-specific assessment but, in general terms, resettlement in an area where Islamists are not strong would appear to be a viable option.
7. None of the above necessarily precludes a Coptic Christian in Egypt from being able to establish a real risk of persecution or ill-treatment in the particular circumstances of their case, e.g. if such an individual has been the target of attacks because he or she is a Coptic Christian.
Citizenship (Armed Forces) Bill: http://services.parliament.uk/bills/2013-14/citizenshiparmedforces.html
Ссылка:
https://www.gov.uk/government/speeches/statement-of-changes-in-immigration-rules--6
Резюме:
Home Office Statement of Changes in Immigration Rules HC 887
Written ministerial statement (WMS) laid in Parliament on 9 December 2013, and delivered in the House of Commons by Theresa May and in the House of Lords by Lord Taylor of Holbeach
Takes effect from 30 December 2013 (1 January 2014 for changes pertaining to the electronic visa waiver). Make changes to the arrangements for holders of Oman, Qatar, the United Arab Emirates passports and documents issued by the Holy See (set out in Appendix 1 to the Immigration Rules)
Passport holders of Oman, Qatar and the United Arab Emirates will be able to obtain an ‘Electronic Visa Waiver’ document in advance of travel to the UK. Holders of the document used and held in accordance with the specified requirements will not require a short-stay visa for travel to the United Kingdom. There is no fee, there will be no requirement to give biometrics or attend a visa application centre. Special arrangements apply to Eurostar journeys and to crossing the land border from the Republic of Ireland.
A person who holds a Service, Temporary Service or Diplomatic passport issued by the Holy See will no longer require a visa to visit the United Kingdom.
Also make technical amendments to the Immigration Rules arising from the inclusion of a new Appendix Armed Forces (see statement of changes presented to Parliament on 8 November 2013). In other words these rules were not drafted properly in the first place. These are consequential changes to the general grounds for refusal, “clarification” that the four-year limit on the duration of leave granted to members of the armed forces who are not exempt from immigration control includes leave granted under the concession which previously applied to these applicants, and “clarification” that former members of HM Forces who have been granted limited leave under the current concession to allow for a recovery period following medical discharge are able to sponsor a partner or child. A further amendment replaces the income threshold with a maintenance and accommodation requirement for a child applicant where neither parent is themselves subject to the income threshold e.g. because both parents are serving or have leave on discharge from HM Forces.
Also make a change relating to Tier 1 (Graduate Entrepreneur) applicants endorsed by UK Trade and Investment. The statement of changes relax the requirement that an applicant have been awarded a degree within the last 12 months for applicants endorsed by UK Trade and Investment, allowing them to have graduated at any time before they apply.
Был задан вопрос:
“Tier 4 students are of course prohibited from being employed on a self-employed basis. Please can you confirm UKVI's position in relation to students who are classed as employed directors of UK companies who take salaries (NI/PAYE) as well as dividend payments.
Are they entitled to work under the conditions of their stay?”
Ответ UK BA (важное выделено):
“The Immigration Rules gives the following definition of “Self-Employed” as follows:
Under Part 6A of these Rules, "Self-Employed" means an applicant is registered as self-employed with HM Revenue & Customs, or is employed by a company of which the applicant is a controlling shareholder.
Therefore, although he may not be registered as self-employed with HMRC, if he is a Director, you will need to check if he is a controlling shareholder. Anyone who owns 10% or more of the company’s shares would be a controlling shareholder.”
Shen (Paper appeals; proving dishonesty) [2014] UKUT 00236 (IAC)
Headnote:
(1) In terms of the approach that a tribunal should adopt towards decisions of the Secretary of State in which dishonesty or deception is alleged against an applicant for leave to remain, the starting point should be, as the Court of Appeal in Adedoyin (formerly AA (Nigeria) v SSHD) [2010] EWCA Civ 773 have made clear, that pursuant to paragraph 322 of the Immigration Rules, the reference to "false" means "dishonestly" false.
(2) Where an application form etc is false in a material way, this may be relied on by the Secretary of State as prima facie evidence establishing dishonesty. The inference of deliberate deception can be strengthened by other facts: eg if a criminal conviction (not disclosed in an application) occurred shortly before completion of the application form. Here, the conviction must have been high in the applicant’s mind and any explanation based on oversight would carry little weight. But it is always open to an appellant to proffer an innocent explanation and if that explanation meets a basic level of plausibility, the burden switches back to the Secretary of State to answer that evidence. At the end of the day the Secretary of State bears the burden of proving dishonesty.
(3) The internal organisational decision by the Secretary of State not to engage with paper appeals means that the appellant's evidence goes unchallenged. In that regard, it must be remembered, that in the absence of evidence from the Secretary of State putting the appellant's prima facie plausible explanation into doubt, it would be wrong to find dishonesty. Thus, in view of the possible evidential difficulties confronting a judge when deciding a paper application, where the appellant's evidence is not met (see para (2) above), a tribunal should be slow to find dishonesty, particularly without hearing evidence and submissions on the point from the appellant and/or the Secretary of State.
(4) A finding of dishonesty can have catastrophic consequences for the appellant in social and economic terms and is not to be made lightly. Thus, in a paper case, if a judge entertains doubts as to the appellant's account, he or she should be mindful of the powers of rule 45 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 to give directions regarding supporting documentary evidence, or for the Secretary of State to respond to the appellant's evidence as she considers appropriate.
Суд (UK UT) постановил, что на беженцев распостраняются "другие" понятия/правила в отношении привоза партнеров по категории unmarried partners:
Fetle (Partners: two year requirement) [2014] UKUT 00267 (IAC)
Concerns Refugee Family Reunion applications with unmarried partners
In contrast to the requirement of para GEN 1.2(iv) of Appendix FM, a requirement (such as in paragraph 352AA of the Immigration Rules) that “parties have been living together in a relationship akin to either a marriage or a civil partnership which has subsisted for two years or more” does not require two years cohabitation, but two years subsistence of the relationship. Whether the relationship still subsists, as required by the tense of that requirement and as may be separately required, is a different issue.<>
These changes will implement restrictions on the ability of those already present in the UK as a Tier 4 (Student) or Tier 1 (Post Study Work) migrant to make an in-country application for an extension of stay as a Tier 1 (Entrepreneur).
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/329137/hc-532.pdf[/align]
E-mail из UK BA:
"Today, 11 July 2014, a major Court of Appeal judgement upheld the lawfulness of the minimum income threshold under the new family migration rules.
The minimum income threshold for British citizens to sponsor a non-EEA spouse or partner and children to come to live in the UK was introduced in July 2012. It aims to ensure that family migrants do not become reliant on the taxpayer for financial support and are able to integrate effectively.
The minimum income threshold was set, following advice from the independent Migration Advisory Committee, at £18,600 for sponsoring a spouse or partner, rising to £22,400 for also sponsoring a child and an additional £2,400 for each further child.
Today's judgement overturns an earlier High Court judgement from July 2013, which was supportive of the approach but found that the impact of the minimum income threshold on family life could be disproportionate.
The judgement will mean that, from the 28 July, the 4,000 individuals whose applications are currently on hold, pending this judgement, will now receive a decision. These are cases which met all the requirements apart from the minimum income threshold and now stand to be refused unless there are exceptional circumstances.
Home Office Communications".
Radha Naran Patel v Secretary of State for the Home Department [2014] EWHC 501 (Admin) (30 July 2014)
Radha Naran Patel v Secretary of State for the Home Department [2014] EWHC 501 (Admin) (30 July 2014)
Permission to bring the judicial review was given by Clive Lewis QC sitting as judge and judge Anthony Thornton QC dealt with the case.
An award of £125,000 in general, aggravated and exemplary damages for this young woman denied entry as a visitor and detained on the basis that she was coming, unlawfully, to work. Includes the observations:
69. ...the notes were not a contemporary record of Radha's preliminary interview. I also conclude that the passage that the SSHD principally rely on to justify the temporary detention and the decision to conduct a further interview, namely: "will help sister sew curtains at home", was never stated by Radha but was instead invented by IO Newton and made to look like an admission that she had made when he subsequently wrote up the notes. I finally conclude that the decision to detain he temporarily was taken solely because IO Newton was determined to refuse Radha leave to enter and wished to take her to a private interview room to force her to admit that she was unlawfully entering to take paid employment.
...
90. The overall conclusion from the absence of any evidence relating to the circumstances in which Radha's case was handed over to IO Newton at 22.30 is that the case was not handed over to him at that time, it had been with him from the outset and that he had invented this evidence so that it would look as if he had had no involvement with her in the earlier stages of her detention.
...
117. CIO Khan's role in the attempted cover-up of the circumstances under which the further interview was conducted and in the absence of any evidence that Radha was intending to be employed is of considerable significance. These matters are dealt with below.
...
118. this evidence is considered as a whole, only one conclusion is possible: Radha's evidence in relation to this interview is to be accepted in its entirety and the SSHD's case about it is to be rejected. Radha was bullied, she never made the admissions attributed to her, she continuously denied she had any intention to work or to help or assist Hansha in sewing curtains and the notes were deliberately written up to record her so-called admissions when it was known that she had not provided answers in that form and was vehemently denying any intention to take employment or to do anything other than visit her family.
133....
Comment:
7. The reference to paragraph 321A of the IRs as being the only basis for cancelling Radha's entry clearance was a material error and both IO Newton and CIO Khan must have known that this statement was erroneous. ..
..
What has never been explained is why CIO Khan was contemplating reissuing the decision so as to give Radha a right of appeal at all. The decision was either sustainable and therefore carried no rights of appeal or, as he had decided, it was not sustainable and should be withdrawn. There was no halfway house save for him to have admitted that it was not sustainable that Radha had changed the purpose of her visit but that, having been granted entry clearance, there had subsequently been a change of circumstances which warranted the cancellation of her leave to enter. That change of circumstances would have had to have been something other than a change of purpose since if there had been a change of purpose, there was no reason to grant her a right of appeal – she already had one.
Furthermore, it is incomprehensible for CIO Khan to attempt to negotiate the withdrawal of Radha's judicial review. He was solely concerned with the cancellation of her leave to enter and the refusal of leave to enter, neither of which formed part of the subject-matter of the judicial review. Moreover, it was not his business to become involved in the judicial review – unless for ulterior purposes he wished to have it withdrawn. The on-going judicial review was the concern of the SSHD's legal representative, as an IO he was solely concerned with immigration matters including immigration detention which he had dealt with by granting Radha temporary admission and releasing her from detention.
It was also incomprehensible for CIO Khan to have granted Radha temporary admission having withdrawn the decision to refuse her leave to enter and not having issued a further decision re-imposing that refusal on different grounds. Since, as was subsequently held to be the case by the second FtT appeal, no outstanding decision was in place, it was not lawful to release Radha on temporary admission, she could only have been released with 6-months leave to enter.
..
160. CIO Khan's actions and motives on 28 May 2011 – conclusions.In short, the explanatory statement appeared to be a further attempt to cover up the error in issuing the cancellation decision in the first place.
...
163. CIO Khan's "decision" which had the effect of "dismissing Radha's appeal". ...The explanatory statement suggested that CIO Khan reviewed the file in great detail. There is no evidence on the file or on the CID log that this review took place and no reference to it was placed in the hearing bundle or provided to the FtT immigration judge at the hearing of Radha's second appeal. There is no evidence to support the suggestion in the explanatory statement that this review took place and the suggestion appears to have been made in an attempt to provide support for the conclusion that the original decision was lawful. In reality, it would seem that this suggestion that a further review took place is untrue and that the review that is referred to never took place.
...
192.Second refusal decision – conclusion. The inevitable conclusion is that CIO Khan issued the decision in an attempt to manufacture a defence to a judicial review claim that he must have considered would otherwise be likely to succeed.
...
295. It follows not only was Radha credible in stating that she had never made any relevant admission during this interview, as the immigration judge found in the third FtT appeal, but that the decision that she had made those admissions was based on unlawfully and concocted evidence obtained by the principal decision-maker. Thus, the relevant decisions to cancel her leave to enter, to refuse her leave to enter, to detain her in immigration detention, to continue to impound her passport and to remove her as soon as possible from the UK were all ultra vires, unlawful, irrational, unreasonable, based on extraneous considerations and in breach of the SSHD's policies concerning administrative detention.
...
311.The explanation for the nature and content of CIO Khan's instructions to the Treasury Solicitor can only be that he was again seeking to cover up the unlawful nature of the decisions taken by IO Newton.
312. Fresh decision. The fresh decision should never have been issued and was, as the third FtT appeal demonstrated, unlawful in any event. It should never have been issued since its ulterior purpose was to be used as a means of misleading the Administrative Court, it had no prospects of success since it was based on the same facts as the original decisions yet it could only be justified if fresh facts had come to light since the decision of 28 May 2011 which showed that there was a change of circumstances since the deemed leave to enter had been granted on 28 May 2011 and it was issued by CIO Khan with full knowledge that the only evidence that Radha intended to seek paid employment was concocted and unlawful.
...
317. ...(14) All these actions, decisions and omissions were intended by the CIOs and the IO or IOs who were responsible for them intended to procure unlawfully decisions from the FtT and fro this judicial review that would have confirmed the unlawful decisions that they had previously taken and to cover up the unlawful features of those decisions.
The English language test for long term residents of a country listed by the Home Office as having no approved A1 English test is withdrawn: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/336497/A1_english_exemption.pdf
The Immigration Act 2014 (Commencement No. 2) Order 2014, SI 2014/1943 (C. 89), 28 July 2014 deals with the opening of current bank accounts for persons under immigration control. Into effect 12 December 2014. Bankers are clearly considered deserving of more notice than lawyers :http://www.legislation.gov.uk/ukdsi/2014/9780111119105
Interesting letter by the Minister to Lord Taylor, identifying two new scenarios in which an application could succeed under the Adult Dependent Relatives route: http://www.legalcentre.org/files/ADDREL.pdf
Напоминаю подающим заявления в UK BA по почте на основании UK Immigration Law (заявления по категориям Tier 1-5, FLM, FLRO, SETO, SETM и т.п.), что с конца июля 2014 в случае отказа заявители не имеют права оспорить такие отказы в суде (IAC). Вместо этого в случае отказа у заявителя есть право попросить UK BA пересмотреть решение об отказе. Учитывая, что такая просьба будет рассматриваться той же организацией, что и выдала отказ, я скептически отношусь к шансам на успех таких заявлений на пересмотр.
Право апелляции осталось у просителей убежища или гуманитарной защиты. Простым языком – у беженцев.
Для граждан EU и членов их семей ничего не изменилось – право апелляции у них остается, т.к. их заявления (EEA1-EEA4) подаются не на основании UK Immigration Law, а на основании Immigration (EEA) Regulations 2006.
Получается, что для подающих заявления в UK BA на основании UK Immigration Law безопасней и, честно говоря, быстрее (т.е. как бы есть «второй шанс») подавать заявления в личном визите через UK BA Premium Service Centre (то, что раньше называлось PEO = Public Enquiry Office). В случае отказа через PEO есть возможность перепадать заявление до окончания визы (в случае почтового отказа отказ зачастую приходит через несколько месяцев после окончания визы).
Попал в руки интересный документ в отношении способности UK BA правильно рассматривать дела, поданные по почте:
Цитата:
(UK BA):
"...Sampling suggests we currently lose approximately 60% of Points Based System Appeals due to case working errors...".
Однако !
New modernised guidance on general grounds for refusal
Refusal and Refusal wording
Considering leave to remain
Considering Entry Clearance
- https://www.gov.uk/government/publications/general-grounds-for-refusal-considering-entry-clearance
- https://www.gov.uk/government/publications/general-grounds-for-refusal-considering-leave-to-remain
- https://www.gov.uk/government/publications/general-grounds-for-refusal-refusing-and-refusal-wording
Собственно говоря:
Immigration Act 2014: residential tenancies and Draft Code of Practice on Illegal Immigrants and privately rented accommodation: civil penalty scheme for landlords and their agents and "right to rent tool", 3 September 2014
The scheme under Part 3, chapter 1 of the Immigration Act 2014 is to be implemented first in Birmingham, Wolverhampton, Dudley, Walsall and Sandwell. The new measures will commence from 1 December.
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/350211/Landlords_scheme_-_draft_Code_of_Practice.pdf
Вводные данные. Развод был через 5 лет, но не было доказательств работы и проживания ex-спонсора в Великобритании в течение 5 лет. Были только стандратные доказательства для RRR по категории EEA2, т.е. 3 года в браке, развод и работа ОБОИХ во время развода.
Я ранее писал о EEA case-law, где non-EEA может получить Permanent Residence после развода (на основании RRR) ПОСЛЕ 5 лет проживания в стране, и тогда не нужно показывать работу и проживание ex-спонсора в Великобритании.
Рекомендовал клиенту показать (документы были) документы, что ОН прожил в Великобритани 5 лет, но рекомендовал подавать анкету EEA2 (в таком случае есть 2 шанса, т.е. если UK BA примет нашу версию - то можно получить Permanent Residence, если нет - то тогда RRR на 5 лет; если просто подать EEA4 - то тогда "выбора" у UK BA нет). Со стороны ex-спонсора были только зарплатные квитанции за период, когда оформлялся развод.
Через 1.5 месяца получили Permanent Residence.
Делюсь опытом.
Q: “…according to the Bank, the child cannot hold an investment portfolio legally at the age of 16 and therefore the portfolio must be set up in the name of the parent and the child, unless the child is 18 years of age.
The Tier 1 guidance does not on the face of it allow this…is there any way around this?”.
UK BA:
“There is not any obvious way around this. It is an ongoing requirement of the Immigration Rules that the funds and investment must be wholly under the applicant’s control. A portfolio set up in their parent’s name would not meet this requirement. While the child may turn 18 before they need to apply for an extension, the requirement is an ongoing one and a caseworker at extension will look back at the whole history to establish that the investment has been maintained continuously. Technically, they would also be liable to curtailment while the funds are not invested solely under their control.
We are looking at the wider issue here. We do emphasise the control of funds/investment point as much as we can already. However, if it is the case that those under 18 cannot invest in the permitted forms of investment in the UK, this may argue for raising the qualifying age to 18. But it is not clear that the same rules apply in Scotland (where, for example, you can enter a legally binding contract at age 16) as in the rest of the UK.”.
UK BA and Landlords
The government has announced the area: Birmingham, Wolverhampton, Dudley, Walsall and Sandwell and the date: 1 December 2014 where it will start to implement Part 3 Chapter 1 of the Immigration Act 2014, the provisions on residential tenancies. It has also produced a draft code of practice and a “right to rent tool” that landlords and landladies allegedly will use (instead of just renting to some nice chap with a British passport): https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/350211/Landlords_scheme_-_draft_Code_of_Practice.pdf
Long Residence guidance
From 28 July, the guidance on the 10-year private life route (which was previously combined with the guidance on long residence) is at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/340423/Private_Life_-_10-year_routes_guidance.pdf
UK BA on a fiancé(e) travelling on honeymoon before applying for a spouse visa:
UK BA: “A spouse or civil partner can re-enter the UK following a honeymoon abroad during the remaining validity of their entry clearance as a fiancé(e)/PCP if they can satisfy the IO, in the light of the change in their marital/CP status (which they should evidence with a copy of the marriage/CP certificate), of their intention, within the remaining validity of that entry clearance, to regularise their status in the UK as a spouse/CP.”.
Tier 2 and Tier 5 Guidance for Sponsors
UK Visas and Immigration, Home Office, Tier 2 and 5 of the Points Based System - Guidance for Sponsors for applications made on or after 4 September 2014
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/351053/Tier_2_and_5_Sponsor_Guidance_09-14.pdf
House of Commons Library Standard Note 12 September 2014: Unemployment by ethnic background:
http://www.parliament.uk/business/publications/research/briefing-papers/SN06385/unemployment-by-ethnic-background
Upper Tribunal (Immigration and Asylum Chamber) (Family Court proceedings-outcome) Mohammed v Secretary of State for the Home Department [2014] UKUT 00419 (IAC) 21 July 2014
Whilst it may be that in the Family Court jurisdiction prior to the coming into force on 22 April 2014 of the Children and Families Act 2014 there was always the possibility of a parent making a fresh application relating to contact, there is nothing in the guidance given in RS (Immigration and Family Court) India [2012] UKUT 00218 (IAC) (which was approved by the Court of Appeal inMohan v Secretary of State for the Home Department [2012] EWCA Civ 1363) that supports the notion that the mere possibility of such an application being made (or pursued) is a relevant criterion in the case of an immigration appeal when deciding whether to adjourn an appeal or to direct a grant of discretionary leave in order for such proceedings to be pursued. The guidance is concerned with whether there is a realistic prospect of the Family Court making a decision that will have a material impact on the relationship between a child and the parent facing immigration measures such as deportation.