Transparency data from Home Office for Border Force and for Migration, 28 August 2014
Positively Orwellian title. Obscured behind the word "transparency" you have "transparency" data on
• Asylum
• Border Force
• Customer Service Operations
• Historical interest
• International Operations
• Sponsorship
• Temporary Permanent Migration
UK Visas and Immigration: Criminal Investigation Guidance for Witness Summons, Modernised Guidance version 1, 21 August 2014
Stated to be based on the Criminal Procedure Rules 2013, "This guidance tells criminal investigators in immigration enforcement investigation teams what a witness summons is and how they can apply for one" https://www.gov.uk/government/publications/criminal-investigation-guidance-for-witness-summons
From the UK BA: Fiancés and PCPs may travel on honeymoon without first having to apply for leave to remain as a spouse.
“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.”.
MG (prison-Article 28(3) (a) of Citizens Directive) Portugal [2014] UKUT 00392 (IAC)
(1) Article 28(3)(a) of Directive 2004/38/EC contains the requirement that for those who have resided in the host member state for the previous 10 years, an expulsion
decision made against them must be based upon imperative grounds of public security.
(2) There is a tension in the judgment of the Court of Justice of the European Communities in Case C-400/12 Secretary of State v MG in respect of the meaning of
the “enhanced protection” provision.
(3) The judgment should be understood as meaning that a period of imprisonment during those 10 years does not necessarily prevent a person from qualifying for
enhanced protection if that person is sufficiently integrated. However, according to the same judgment, a period of imprisonment must have a negative impact in so far
as establishing integration is concerned.
Tier 1 Investor: min £2 000 000 investment possibly from Oct/Nov 2014
Данные с конференции между UK BA и иммиграционными юристами, прошедшей недавно. UK BA точно не подтвердили, но формулировка была следующей:
"...consensus is that new provisions should be in force in October 2014. A likely political decision to raise the investment required to at least £2m.".
Кто не успел тот...как бы странно это не звучало в данной ситуации.
A summary of the main changes to the policy for visitors is below:
• a more streamlined set of visitor routes (with fewer visit visa endorsements) which provides clarity and more flexibility for genuine visitors;
• rebranding student visitor routes (both the six month and the 11 month English Language routes) into short-term study to make them conceptually clearer for applicants;
• allowing permitted paid engagement visitors to also carry out unpaid activities that can be carried out by visitors e.g. attend business meetings and undertake 30 days’ incidental study;
• allowing visitors and permitted paid engagement visitors to carry out 30 days’ incidental study (currently only available to general and business visitors); widening out who can provide maintenance and accommodation support to visitors to include any third party in the UK (currently limited to friends and relatives);
• consolidating and clarifying existing permitted activities to provide greater flexibility for visitors; and
• clarifying the prohibited activities.
Изменения касаются почти всех категорий – отмена права апелляции, Tier 1, 2, 4, 5, «партнеры британцев» и т.п. - кроме граждан EU и членов их семей….
HC 693
· Administrative review
· “Foreign criminals”
· Changes relating to the validation of immigration applications
· General Visitors
· Private organ donors
· Business Visitors
· Private Medical Treatment Visitors
· Marriage/Civil Partnership Visitors
· Visitors in transit
· Establish requirements to allow visa nationals to transit landside through the UK provided they
· Commonwealth Games Family Members
· Overseas Domestic Worker in a Private Household route
· Family and private life
· Minimum income threshold requirement under Appendix FM and Appendix FM-SE:
· Partners and parents who need to meet an English language requirement for limited leave to enter or remain in the UK under Appendix FM, or partners needing to meet such a requirement in Part 8 or Appendix Armed Forces:
· In respect of Appendix FM and the private life rules from 9 July 2012
· In respect of the Part 8: pre-9 July 2012 rules for partners and parents; and the current rules for some child applicants
· Tier 1 of the Points-Based System
· Tier 1 Exceptional Talent
· Tier 1 (Investor)
· Tier 1 (Entrepreneur)
· Tier 1 (General) category (now closed)
· Tier 2
· Tier 2 (Sportsperson)
· Tier 4 (Academic Technology Approval Scheme)
· Tier 5 Youth Mobility Scheme
· Tier 5 Government Authorised Exchange category
· Cross-cutting changes
· “non-national travel document”.
· Tier 2 (Sportsperson) and Tier 5 (Temporary Worker – Creative and Sporting) (Governing Bodies)
· Secure English Language Test (SELT) providers
· Financial Institutions
· Appendix Armed Forces
· Changes to Appendix Knowledge of Language and Life
· Changes to Domestic Violence
R (on the application of Luma Sh Khairdin) v Secretary of State for the Home Department (NIA 2002: Part 5A) IJR [2014] UKUT 00566 (IAC)
(1) Section 117A of the Nationality, Immigration and Asylum Act 2002 requires the Upper Tribunal, in a judicial review involving Article 8(2) ECHR, to have regard to the considerations mentioned in section 117B and, where relevant, section 117C, when considering the question whether an interference with a person's right to respect for private and family life is justified. The nature of the proceedings is such as to require the Tribunal to determine the questions set out in section 117(1)(a) and (b).
(2) Where the Upper Tribunal is considering, pursuant to section 11 of the Tribunals, Courts and Enforcement Act 2007, whether there is an error of law in the decision of the First-tier Tribunal involving Article 8 proportionality, the task of the Upper Tribunal is confined (at that point) to deciding if the First-tier Tribunal's assessment of where to strike the balance was unlawful, according to the error of law principles set out in R (Iran) [2005] EWCA Civ 982. An Article 8(2) decision of the Secretary of State which is susceptible only to judicial review has, by definition, not received such judicial scrutiny; and it is the task of the reviewing court or tribunal to provide it, albeit via a process that remains different from that of an appeal.
R (on the application of Isaac Kimondo) v Secretary of State for the Home Department (relevant rules; AoS requirements) IJR [2014] UKUT 00565 (IAC)
(1) In judicial review applications transferred by the Administrative Court to the Upper Tribunal, the applicable procedural regime is that contained in the Tribunal Procedure (Upper Tribunal) Rules 2008. The Civil Procedure Rules have no effect thereafter; although the procedural history may be significant, particularly as regards time limits.
(2) The prohibition in rule 29(3) on a party who has not filed an acknowledgement of service from taking part in the application permission (without the Upper Tribunal’s permission) applies also to a party who has failed to provide a copy of the AoS to the applicant, as required by rule 29(2A).
ПОЗИТИВ: Surinder Singh, теперь Kamila Santos Campelo
Secretary of State for the Home Department v Kamila Santos Campelo Cain Upper Tribunal (Immigration and Asylum Chamber) Appeal Number: IA/40868/2013 (17 October 2014)
The appellant was a Brazilian national who wished to join her British partner in the UK. Her partner had been exercising EU free movement rights prior to his returning to the UK. The appellant argued that the principles laid down in Surinder Singh [1992] EUECJ C-370/90 should be applied to her case. The Tribunal agreed. It held that the EEA Regulations discriminated against British versus EEA nationals – had the appellant’s partner been an EEA national she would have been able to enter under the Regulations. The Regulations were thus out of step with the underlying principle of free movement in EU Community law. The appellant’s partner was a British national exercising Treaty Rights and fell to be treated as an EEA national as a result. The appeal was allowed, but not outright – the Tribunal noting that the Secretary of State retains a discretion as to whether or not to grant the appellant her residence card.
Obligatory referral to the UK BA in certain cases: Giving notice of marriage or civil partnership from the 2nd March 2015: https://www.gov.uk/government/upload...age_notice.pdf
“If you and/or your partner are a non-EEA national with limited or no immigration status in the UK, or if you or your partner do not provide specified evidence of your immigration status, your proposed marriage or civil partnership will be referred to the Home Office and your notice period may be extended to 70 days. In giving notice you should therefore allow sufficient time before the date of your planned marriage or civil partnership recognising that 70 days notice may be required.”
R (on the application of Jennifer Kerr) v Secretary of State for the Home Department IJR [2014] UKUT 00493(IAC)
The applicant was a Jamaican woman who had lived in Jamaica until age 37, then came to the UK on a 6-month visit visa and overstayed. She married a British national and a year later, having had 11 years unlawful residence in the UK, applied for leave to remain on Article 8 grounds outside the rules. The Secretary of State refused on the basis that she did not meet the Rules. The Court held that the decision was unlawful, because it had failed to give any consideration to the possibility of an exceptional grant outside the rules – even the barest of reference would have sufficed, but there was none. After the judicial review was lodged the Secretary of State issued a new decision, considering all of the facts that were relevant to a possible grant outside the Rules, and again refused on the basis it was not disproportionate to require the appellant to make an entry clearance application from Jamaica. The Court rejected an argument that the second decision letter should be ignored – it is relevant to the remedy the Court should grant. If the second decision is a lawful one it does not remedy the defect in the original decision under challenge, which remains unlawful. However the Court will do no more than quash it and will not order the decision to be remade if it has already been made.
R (on the application of Eruteji Ibipeju Bosomo) v Secretary of State for the Home Department IJR [2014] UKUT 00492(IAC)
This was an Article 8 case where the application for leave was subjected to a “tick box” exercise under the Immigration Rules without any consideration given to the detailed information provided by the appellant that was relevant to a possible grant of leave outside the Rules; this was unlawful. In response to the judicial review the Secretary of State issued a new decision, however this was a mere repetition of the earlier unlawful decision and similarly failed to consider the voluminous material submitted by the appellant. Judicial review was granted and the Secretary of State’s remaking of the decision had no effect on the question of relief, as the second decision was again unlawful.
R (on the application of Michael Mosinimu Mark Akande) v Secretary of State for the Home Department [2014] UKUT 00468 (IAC)
Facts: The appellant made an online application for extension of his leave as a student on the day it expired. He paid the fee on that day and lodged the application online, choosing the “premium service”. The Secretary of State argued that his actual date of application was the date of his appointment at UKBA (as it then was) offices in Sheffield, which was three days later, making his application out of time. The Secretary of State also argued that the appellant did not have enough funds to satisfy the Rules, as it was not accepted that his uncle was his legal guardian and thus his uncle’s funds could not be taken into account. The appellant argued that (i) the date of his online application was the relevant date, (ii) the Secretary of State was wrong to disregard the financial sponsorship of his uncle, who is in fact his legal guardian, and (iii) the Secretary of State failed to consider his claim under Art 8 of the ECHR.
Decision: As to the question of the date of application, the Tribunal preferred the evidence of the Secretary of State on the matter and held that the application was not submitted until the date of the in-person appointment, three days after leave had expired. On the second issue, the appellant had not provided the requisite documentation to the Secretary of State to establish his uncle’s guardianship, so this ground of challenge was not made out. Finally, the Tribunal held that the appellant’s Article 8 claim was weak and the Secretary of State could not be faulted for refusing it. The appeal was dismissed.
If you and/or your partner are a non-EEA national with limited or no immigration status in the UK, or if you or your partner do not provide specified evidence of your immigration status, your proposed marriage or civil partnership will be referred to the Home Office and your notice period may be extended to 70 days. In giving notice you should therefore allow sufficient time before the date of your planned marriage or civil partnership recognising that 70 days notice may be required.
Registration officials will be required to refer all marriage and civil partnership notices to the Home Office if one or both of the parties is a non-EEA national who does not provide specified evidence that they have (a) settled status in the UK (Indefinite Leave to Enter or Remain), (b) an EU law right of permanent residence in the UK, (c) a marriage or civil partnership visa, or (d) exemption from immigration control (e.g. with the right of abode in the UK). Registration officials will be required to tell a couple where their proposed marriage or civil partnership is to be referred to the Home Office under the scheme and to explain to them the implications of this.
• R (on the application of Mehmood Ahmed Raja) v Secretary of State for the Home Department IJR [2015] UKUT 00058 (IAC) This was an application for judicial review regarding the Secretary of State’s refusal of a long residence application and related Article 8 claim. An earlier judicial review regarding the first of three refusals to grant leave by the Secretary of State was settled. The judge held that as the relevant consent order did not specifically refer to Article 8 EHCR this omission meant that the applicant’s claim under that head (against the first decision) had come to an end. He could not now argue that the Secretary of State had breached the terms of the order. The judge however went on to consider the Secretary of State’s consideration of Article 8 in the third decision. That decision was quashed for failure to consider relevant evidence (a witness statement from the applicant’s partner – a naturalised refugee – explaining why she could not go with him to Pakistan). The judge held that the Secretary of State had treated age 18 as a as a “bright line beyond which family life is not enjoyed” and that this was “plainly incorrect”. The applicant’s partner’s son was not living independently and had arguable family life ties with the applicant as part of a family unit. The decision fell to be remade.
• Bossadi (paragraph 276ADE; suitability; ties) [2015] UKUT 00042 (IAC) (1) Being able to meet the requirements of paragraph 276ADE of the Immigration Rules requires being able to meet the suitability requirements set out in paragraph 276ADE(1). It is because this subparagraph contains suitability requirements that it is not possible for foreign criminals relying on private life grounds to circumvent the provisions of the Rules dealing with deportation of foreign criminals. (2) The requirement set out in paragraph 276ADE (vi) (in force from 9 July 2012 to 27 July 2014) to show that a person “is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK”, requires a rounded assessment as to whether a person’s familial ties could result in support to him in the event of his return, an assessment taking into account both subjective and objective considerations and also consideration of what lies within the choice of a claimant to achieve.
• MR (permission to appeal: Tribunal’s approach) Brazil [2015] UKUT 00029 (IAC) (1) A judge considering an application for permission to appeal to the Upper Tribunal must avoid granting permission on what, properly analysed, is no more than a simple quarrel with the First-tier Tribunal judge’s assessment of the evidence. (2) When granting permission to appeal to the Upper Tribunal, it is unsatisfactory merely to state that the applicant’s grounds are arguable. (3) The requirement, emphasised in Nixon (permission to appeal: grounds) [2014] UKUT 368 (IAC), to engage with each and every ground of application, need not involve anything of an unduly elaborate, burdensome or analytical nature. The reasons for granting or refusing permission to appeal, in whole or part, in any given case will almost invariably be capable of being expressed in a concise and focused manner.
• Cancino (costs – First-tier Tribunal – new powers) [2015] UKFTT 00059 (IAC) [1] Rule 9 of the 2014 Rules operates in conjunction with section 29 of the Tribunals, Courts and Enforcement Act 2007. [2] The only powers to award fees or costs available to the First-tier Tribunal (the “FtT”) are those contained in Rule 9 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (the “2014 Rules”). [3] Transitionally, Rule 9 of the 2014 Rules applies only to appeals coming into existence subsequent to the commencement date of 20 October 2014. It has no application to appeals predating this date. [4] It is essential to be alert to the distinctions between the costs awarding powers contained in Rule 9(2)(a) and Rule 9(2)(b) of the 2014 Rules. [5] Awards of costs are always discretionary, even in cases where the qualifying conditions are satisfied. [6] In the ordinary course of events, where any of the offending types of conduct to which either Rule 9(2)(a) or Rule 9(2)(b) of the 2014 Rules applies, the FtT will normally exercise its discretion to make an order against the defaulting representative or party. [7] The onus rests on the party applying for an order under Rule 9. [8] There must be a causal nexus between the conduct in question and the wasted costs claimed. [9] One of the supreme governing principles is that every case will be unavoidably fact sensitive. Accordingly, comparisons with other cases will normally be inappropriate. [10] Orders for costs under Rule 9 will be very much the exception, rather than the rule and will be reserved to the clearest cases. [11] Rule 9 of the 2014 Rules applies to conduct, whether acts or omissions, belonging to the period commencing on the date when an appeal comes into existence and ending on the date of the final determination thereof. [12] The procedure for determining applications under Rule 9 of the 2014 Rules will be governed in the main by the principles of fairness, expedition and proportionality.
• R (on the application of Kallal Taludker) v Secretary of State for the Home Department IJR [2015] UKUT 00057 (IAC) This was a student visa appeal (Tier 4) in which the applicant did not appear and the case was determined to be an abuse of process, as the matter had been previously litigated in a High Court challenge to the applicant’s removal decision.
• Recent changes to the Tier 1 (Investor) requirements. Following a report published by the Migration Advisory Committee (MAC) in 2014, the Home Office made a number of changes to the Tier 1 (Investor) category on 6 November 2014. These include: • increasing the previous £1m minimum investment threshold to £2m; • requiring the full investment sum to be invested in prescribed forms of investments (share or loan capital in active and trading UK companies, or UK Government bonds), rather than 75% of the sum as was previously the case (the remaining 25% could previously be invested in UK assets, such as property); • removing the requirement to maintain the market value of the investment.
• Post-Study Work Opportunities in the UK - New report warns UK at risk of losing foothold in crucial international student market, since Government closure of popular post study work route: http://www.appgmigration.org.uk/post-study-work-inquiry
• Immigration Act 2014: appeals; Immigration Rules Appendix AR: Administrative Review 2 March 2015; Immigration Rules Part 1
Statutory Instrument No. 371 (C. 18) The Immigration Act 2014 (Commencement No. 4, Transitional and Saving Provisions and Amendment) Order 2015, 25 February 2015
Rules Appendix AR: Administrative Review 2 March 2015; Immigration Rules Part 1
The Immigration Act 2014 (Commencement No. 4, Transitional and Saving Provisions and Amendment) Order 2015 (SI 2015/371 (C.18)) has been published and comes into effect variously on 2 March 2015 and 6 April 2015. It is the fourth commencement order made under the Immigration Act 2014. It will remove appeal rights for those who make an application under Tiers 1, 2 and 5, including dependants a Tier 2 Migrant, or a Tier 5 Migrant, or as their family member, on or after 2nd March 2015. Those persons will also become subject to the new removals regime. In other words they will be treated in the same way as Tiers 4 and foreign criminals as defined are currently treated
As to commencement on 6 April 2015, the provisions could not be more confusingly drafted. First you will be alarmed to read that the new regime will come in, according to the commencement order, for all decisions made on or after that date, in all categories. However, scroll down and you will learn that there are huge exceptions: these being decisions
• to refuse leave to enter;
• to refuse entry clearance;
• to refuse a certificate of entitlement under section 10 of the 2002 Act(a);
• to refuse to vary a person’s leave to enter or remain and where the result of that
decision is that the person has no leave to enter or remain;
(in all cases unless that decision is also a refusal of an asylum, protection or human rights claim) where the application was made before 6 April. There are also saving provisions for refusals of applications to vary leave to enter or remain made before 20 October 2014 where the person was seeking leave to remain as a Tier 4 Migrant or as their family member and where the result of that decision is that the applicant has no leave to enter or remain; refusals of applications to vary leave to enter or remain made before March 2015 where the person was seeking leave to remain as a Tier 1, Tier 2 or Tier 5 Migrant or as their family member and where the result of that decision is that the applicant has no leave to enter or remain.
The order also commences provisions relating to marriage and civil partnership on 1 and 2 March 2015. There are transitional provisions for licences granted pre 1 March 2015. It amends section 126 of the Nationality, Immigration and Asylum Act 2002 to remove provisions about the use and retention of biometric information which have been replaced by section 126(8A) of that Act, which was inserted by section 14(3) of the Act.
• Dube (ss.117A-117D) [2015] UKUT 00090 Immigration and Asylum Tribunal (IAC), 26 February 2015
(1) Key features of ss.117A-117D of the Nationality, Immigration and Asylum Act 2002 include the following:
(a) judges are required statutorily to take into account a number of enumerated considerations. Sections 117A-117D are not, therefore, an a la carte menu of considerations that it is at the discretion of the judge to apply or not apply. Judges are duty-bound to “have regard” to the specified considerations.
(b) these provisions are only expressed as being binding on a “court or tribunal”. It may be that the Secretary of State will consider it in the interests of good administration and consistency of decision-making on Article 8 claims at all levels to have express regard to ss.117A-117D considerations herself, but she is not directly bound to do so.
(c) whilst expressed in mandatory terms, the considerations specified are not expressed as being exhaustive: note use of the phrase “in particular” in s.117A(2): “ In considering the public interest question, the court or tribunal must (in particular) have regard— “.
(d) section 117B enumerates considerations that are applicable “in all cases”, which must include foreign criminal cases. Thus when s.117C (which deals with foreign criminals) states that it sets out “additional” considerations that must mean considerations in addition to those set out in s.117B.
(e) sections 117A-117D do not represent any kind of radical departure from or “override” of previous case law on Article 8 so far as concerns the need for a structured approach. In particular, they do not disturb the need for judges to ask themselves the five questions set out in Razgar [2004] UKHL 27. Sections 117A-117D are essentially a further elaboration of Razgar’s question 5 which is essentially about proportionality and justifiability.
(2) It is not an error of law to fail to refer to ss.117A-117D considerations if the judge has applied the test he or she was supposed to apply according to its terms; what matters is substance, not form.
• Cushnie v Secretary of State for Health [2014] EWHC 3626, 5 November 2014
The High Court has declared that in framing regulations for the charging of treatment provided to overseas visitors the Secretary of State for Health acted in breach of his public sector equality duty under s.149 Equality Act 2010.
The current rules are set out in the National Health Service (Charges to Overseas Visitors) Regulations 2011. These provide that former asylum seekers accommodated by the Home Office should have free access to health care but that those who are disabled, and as a result are looked after by their local authority, should not. The court held that while this did not amount to unlawful discrimination, in framing the regulations the Secretary of State had acted unlawfully by failing to have regard to the differential impact on disabled persons. The Secretary of State has confirmed that the regulations are under review.
• Mostafa (Article 8 in entry clearance) [2015] UKUT 00112 Immigration and Asylum Chamber (IAC), 19 December 2014
In the case of appeals brought against refusal of entry clearance under Article 8 ECHR, the claimant’s ability to satisfy the Immigration Rules is not the question to be determined by the Tribunal, but is capable of being a weighty, though not determinative, factor when deciding whether such refusal is proportionate to the legitimate aim of enforcing immigration control
Biometric Residence Permits (BRPs) for non-EEA nationals travelling to the UK for more than six months will begin to be issued from the 18th March 2015, starting with applications made in Pakistan.
BRPs provide a more secure, streamlined and faster method for applicants and businesses to verify someone's identity and right to be in the UK.
The rollout will continue in three further phases from mid April (inc. China and India), end May (inc. Japan and Nigeria) and end July (rest of the world).
Applicants will receive a 30 day vignette in their passport instead of a vignette with the full grant of leave. This is to allow the applicant to enter the UK and collect their
BRP from a designated post office.
The post office and 30 day travel window will be determined using information provided in the application form. Applicants will receive a letter, if their application is successful, which provides instructions on how to collect their BRP and where to go for more information - GOV.UK.
Details of the countries included in each phase of the rollout are attached for information, along with a customer-facing Q&A that can be used to answer any questions that applicants might have. Further guidance along will be published on Gov.UK on 18 March.
• Post-Study Work Opportunities in the UK - New report warns UK at risk of losing foothold in crucial international student market, since Government closure of popular post study work route: http://www.appgmigration.org.uk/post-study-work-inquiry
"The surcharge will be introduced on 6 April 2015. It will apply to applications where payment is made on or after the 6 April. The health surcharge will be set at £200 a year for temporary migrants and £150 a year for students. Dependants will generally be charged the same amount as their main applicant. The total surcharge amount for the whole period of leave granted will be payable upfront.".
• Application to register as British citizen: form RS1
• Application to register as a British citizen: form B(OS)
• Application to register as British citizen: form T
• Application to naturalise as a British citizen: form AN
• Application to register as a British citizen: form B(OTA)
• Application to register child under 18 as British citizen: form MN1
• Application to register as a British citizen: form UKM
• Application for registration as a British citizen by a person born before 1 July 2006 whose parents were not married: form UKF
• Marriage and civil partnership referral and investigation scheme: statutory guidance for Home Office staff: https://www.gov.uk/government/upload...arch_2015_.pdf
• Sponsor a Tier 4 student: guidance for educators: The UK BA included a new policy that Tier 4 sponsors that have had their licences revoked have to wait two years to reapply instead of the current 6 months. The UK BA also say they may refuse a licence application or renewal application if any of the key personnel have been involved with/linked to a licence that has been revoked: https://www.gov.uk/government/public...-for-educators
• General grounds for refusal: considering entry at UK port
• General grounds for refusal: refusing and refusal wording
• General grounds for refusal: considering leave to remain
• General grounds for refusal: about this guidance
• General grounds for refusal (modernised guidance)
• Guidance: General grounds for refusal: considering entry clearance
• Tier 2
From 6 April 2015 Tier 2 in country applications will need to be submitted via the UK BA new online application system.
The current Apply Online (AOL) facility for Tier 2 will be withdrawn to make way for the new system, and the Tier 2 paper form will be removed from use for Standard and Priority Postal application routes.
The Tier 2 paper form will remain in use for Premium Service Centre (PSC) customers only. Customers wishing to use a PSC should continue to book their appointment via GOV.UK and then download the paper form to take with them to their appointment.
Premium Sponsors who use their Account Manager to secure a PSC appointment will be able to use the new online application. The link will be sent to them by their Account Manager when an appointment has been confirmed.
Customers and their legal representatives are encouraged to use the new online service as soon as possible.
•Tier 5
The current Apply Online facility for Tier 5 will be withdrawn from 6 April 2015. Customers should use the paper form until further notice.
For further information about the Tier 2 & 5 application process, please visit the Visas and Immigration section on GOV.UK. If you are a Premium Sponsor you can also contact your designated Account Manager for further information about any of the above changes.
Immigration Health Surcharge
From 6 April 2015, the UK government will introduce an immigration health surcharge:
• The health surcharge will be paid by non-European Economic Area (EEA) nationals who apply to come to the UK to work, study or join family for a period of more than 6 months. It will also be paid by non-EEA nationals who are already in the UK and apply to extend their stay after 6 April 2015.
There are some exempt groups who fall within the above categories but do not need to pay the surcharge:
• Tier 2 intra-company transfers, Australian and New Zealand nationals. If an application falls within these exempt groups, the online Immigration Health Surcharge process, via the surcharge website, must still be completed. However, the applicant will be informed the payment is nil and they will receive a unique surcharge reference number. This number is needed for their immigration application to confirm their exemption from the surcharge.
Customer guidance will be available on www.gov.uk/visas-immigration from 6 April.
• Asylum Policy Instruction Further Submissions: https://www.gov.uk/government/upload...sions_v8_0.pdf
• Tier 2, Tier 4 and Tier 5 of the Points Based System - Guidance for Sponsors – Appendix A: file:///C:/Users/Anton/Downloads/15.04.06-Tier-2-and-5-of-the-Points-Based-System-Guidance-for-Sponsors-Appendix-A.pdf
· R (on the application of Khadija BA Fakih) v Secretary of State for the Home Department IJR [2014] UKUT 00513(IAC)
The applicant challenged the imposition of a “no recourse to public funds” condition on her leave on grounds that it was made pursuant to a ‘rule’ that was unlawful by reason of not having been laid before Parliament and breached public sector equality duties. The Secretary of State’s decision to impose the condition was quashed on the basis that it was pursuant to an unlawful policy
· Home Office notification of 6 April 2015 Tier 2 and Tier 5 changes, 2 April 2015:
“Notification of changes taking place on 6 April 2015
Tier 2
From 6 April 2015 Tier 2 in country applications will need to be submitted via our new online application system.
The current Apply Online (AOL) facility for Tier 2 will be withdrawn to make way for the new system, and the Tier 2 paper form will be removed from use for Standard and Priority
Postal application routes.
The Tier 2 paper form will remain in use for Premium Service Centre (PSC) customers only. Customers wishing to use a PSC should continue to book their appointment on-line and then download the paper form to take with them to their appointment.
Premium Sponsors who use their Account Manager to secure a PSC appointment will be able to use the new online application. The link will be sent to them by their Account Manager when an appointment has been confirmed.
Customers and their legal representatives are encouraged to use the new online service as soon as possible.
Tier 5
The current Apply Online facility for Tier 5 will be withdrawn from 6 April 2015. Customers should use the paper form until further notice.
For further information about the Tier 2 & 5 application process, please visit the Visas and Immigration section on GOV.UK. If you are a Premium Sponsor you can also contact your designated Account Manager for further information about any of the above changes.
Immigration Health Surcharge
From 6 April 2015, the UK government will introduce an immigration health surcharge:
· The health surcharge will be paid by non-European Economic Area (EEA) nationals who apply to come to the UK to work, study or join family for a period of more than 6 months. It will also be paid by non-EEA nationals who are already in the UK and apply to extend their stay after 6 April 2015.
There are some exempt groups who fall within the above categories but do not need to pay the surcharge:
- Tier 2 intra-company transfers, Australian and New Zealand nationals. If an application falls within these exempt groups, the online Immigration Health Surcharge process, via the surcharge website, must still be completed. However, the applicant will be informed the payment is nil and they will receive a unique surcharge reference number. This number is needed for their immigration application to confirm their exemption from the surcharge.
Customer guidance will be available on www.gov.uk/visas-immigration from 6 April.”
· Biometric Residence Permit (BRP) overseas applicant project FAQ, Home Office, 16 March 2015. From the UK BA:
“Biometric Residence Permit (BRP) overseas applicant project FAQ, Home Office, 16 March 2015
Biometric Residence Permits (BRPs) for non-EEA nationals travelling to the UK for more than six months will begin to be issued from the 18th March 2015, starting with applications made in Pakistan.
BRPs provide a more secure, streamlined and faster method for applicants and businesses to verify someone's identity and right to be in the UK.
The rollout will continue in three further phases from mid April (inc. China and India), end May (inc. Japan and Nigeria) and end July (rest of the world).
Applicants will receive a 30 day vignette in their passport instead of a vignette with the full grant of leave. This is to allow the applicant to enter the UK and collect their BRP from a designated post office.
The post office and 30 day travel window will be determined using information provided in the application form. Applicants will receive a letter, if their application is successful, which provides instructions on how to collect their BRP and where to go for more information - GOV.UK.
Details of the countries included in each phase of the rollout are attached for information, along with a customer-facing Q&A that can be used to answer any questions that applicants might have. Further guidance along will be published on Gov.UK on 18 March.”.
Mostafa (Article 8 in entry clearance) [2015] UKUT 00112 (IAC), 5 March 2015
In the case of appeals brought against refusal of entry clearance under Article 8 ECHR, the claimant’s ability to satisfy the Immigration Rules is not the question to be determined by the Tribunal, but is capable of being a weighty, though not determinative, factor when deciding whether such refusal is proportionate to the legitimate aim of enforcing immigration control.
R (on the application of Razak) v Secretary of State for the Home Department IJR [2015] UKUT 00132 (IAC), 3 February 2015
The judicial review of refusal of application for leave to remain as a Tier 4 (General) Student Migrant. The claim was refused.
R (on the application of Singh and another) v Secretary of State for the Home Department IJR [2015] UKUT 00134(IAC), 19 February 2015
Judicial review of the decision to certify the Claimants human rights claim (on the basis of long residence and Article 8) as clearly unfounded. It was found that insufficient evidence had been put forward to justify consideration of the claim outside of the Immigration Rules. The claim was refused.
R (on the application of Amin) v Secretary of State for the Home Department IJR [2015] UKUT 00135 (IAC), 26 February 2015
Judicial review of the lawfulness of refusal of leave to remain on human rights grounds. Permission is refused on the basis that adequate consideration was given to claimants Article 8 rights.
R (on the application of Dang) v Secretary of State for the Home Department IJR [2015] UKUT 00133 (IAC), 19 February 2015
Judicial review of the decision to not grant leave to remain following an application for asylum and consideration of the Claimant’s claim under the legacy policy. The Claimant claims that she received a letter following her application from the Home Office that created a “legitimate expectation” that she would be allowed to remain in the UK. The Judge found that the Claimant had not acted to her detriment at all as a result of this letter. The claim was dismissed.
R (on the application of SB and ABD) v Secretary of State for the Home Department IJR [2015] UKUT 00136(IAC), 3 March 2015
Application to judicially review lawfulness of Secretary of State for the Home Department’s decision to prohibit recourse to public funds on a grant of limited leave to remain. The Judge found that insufficient evidence was adduced at the application stage to show that the Claimants were destitute and therefore the Secretary of State wasn’t under an obligation to exercise her discretion to allow access to public funds. The Judge found that the decision taken was one which was rationally open to her. The claim was dismissed.
R (on the application of Shahzad) v Secretary of State for the Home Department IJR [2015] UKUT 00137 (IAC), 6 March 2015
Application for judicial review of decision to refuse leave under Appendix FM. Application was dismissed.
R (on the application of Zhang) v Secretary of State for the Home Department IJR [2015] UKUT 00138(IAC), 6 March 2015
Tier 1 (Entrepreneur) refused entry clearance and requested and administrative review. Having reviewed the Applicant’s case an Entry Clearance Manager maintained the decision to refuse entry clearance. The judicial review application was dismissed as it was found that a suitable remedy, that of administrative review had been available to the Claimant.
• The Upper Tribunal has held in R( Waqar) v Secretary of State for the Home Department (statutory appeals/paragraph 353) IJR [2015] UKUT 169 that the meaning of s 82 of the Nationality, Immigration and Asylum Act 2002 as inserted by the Immigration Act 2014 is that only an application accepted as a “fresh claim” under paragraph 353 of the immigration rules will generate a right of appeal on refusal. The determination is difficult to square with the binding authority of the Supreme Court in BA (Nigeria) v Secretary of State for the Home Department & Ors [2009] UKSC 7, albeit that BA was cited in the determination. It is therefore anticipated that this approach to the Act will be the subject of challenge.
Fees
• The Home Office has sought in the Immigration and Nationality (Fees) Regulations 2015 (SI 2015/768), to remove the automatic exemption from payment a fee for those granted limited leave to remain following refusal of asylum when extending that leave and has published a new instruction on fee waivers. The Immigration and Nationality (Fees) Regulations 2015, which entered into force on 6 April 2015 may not, however, fully achieve that aim. See enclosure for full discussion: https://www.gov.uk/government/publications/chapter-1a-applications-for-fee-waiver-and-refunds
• NHS Charges
The NHS Health Surcharge came into effect on 6 April 2015 along with the National Health Service (Charges to Overseas Visitors) Regulations 2015 (SI 2015/238) which accompany the changes to the definition of ordinary residence. The surcharge is £150 per year for students and £200 per year for other applicants, payable in full at the time of application.
A whole host of problems have already been identified with the NHS surcharge payment process resulting in the overcharging of individuals. One such example is where regardless of whether a Tier 1 (investor) is applying for a two year extension of leave or a three year initial grant of leave, they will be required to pay a surcharge of £600. The Home Office has confirmed that the applicant must pay the full amount required and the overpayment will be refunded at a later date.
Similarly, where a person is applying for a new job under Tier 2 (General), the full charge will apply to a second application even if there is an unused amount of leave on the first application. It will be possible to apply for a refund on the sum paid in connection with the first application, save where this relates to a period of less than six months. It would seem that a policy of “pay now, get a refund later” is developing.
European Operational Policy
• In response to a freedom of information request, the Home Office has released the latest batch of European Operational Policy notices. Despite the regularity of requests they have so far not put these on gov.uk. The latest batch includes those issued between 21 October and 10 April 2015. These cover: disclosure of interviewers comments; the January EEA forms, the EEA Modernised guidance (guidance on the guidance! – including the fascinating comment “Masterclass sessions on the modernised guidance will be available for all decision-makers who require it over the next few weeks) and the 6 April 2015 changes to the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003).
• Human rights in visit applications
On 24 April 2015 the Home Office issued guidance on consideration of human rights in visit applications. This follows cases where refusals of visit visas have been challenged successfully on human rights grounds. The position taken is … that an application states that a human rights claim is being made does not determine whether the application is in fact a human rights claim. This distinction is important because it determines whether a right of appeal is available against the refusal of the application.
R (on the application of Patel) v Secretary of State for the Home Department (s.3C(4): simultaneous application – withdrawal) IJR [2015] UKUT 0273 (IAC)
S.3C(4) of the Immigration Act 1971 prohibits an application for leave to remain that is made on the same day as, and even if said to be simultaneous with, the applicant’s withdrawal of his appeal before the First-tier Tribunal (Immigration and Asylum Chamber).
R (on the application of Wasif) v Secretary of State for the Home Department (rule 34 – “print and send”) IJR [2015] UKUT 0270 (IAC)
(i) An application for leave to remain in the United Kingdom must comply with the requirements of paragraph A34 and all material provisions of paragraphs 34A – 34K of the Immigration Rules.
(ii) Between June 2013 and August 2014, Tier 4 applicants had the choice of submitting their applications either on line or by the “Print and Send” mechanism.
(iii) The correct construction of the Rules is as follows:
(a) The first of these options required the submission of the completed application form on line and the provision of supporting documents by post.
(b) The second option, “Print and Send”, required the applicant to print the completed application form and send it, with accompanying supporting documents, by post. The “Print and Send” instruction does not amount to an on-line application.
(iv) A failure to comply with the requirements in 34A (per paragraph 34C) invalidates the application.
R (on the application of Mushtaq) v Entry Clearance Officer of Islamabad, Pakistan (ECO – procedural fairness) IJR [2015] UKUT 00224 (IAC) 11 May 2015
(i) The common law principles of procedural fairness apply to the decision making processes of Entry Clearance Officers (“ECOs”).
(ii) ECO interviews serve the basic twofold purpose of enabling applications to be probed and investigated and, simultaneously, giving the applicant a fair opportunity to respond to potentially adverse matters. The ensuing decison must accord with the principles of procedural fairness.
(iii) A breach of the “Case Worker Guidance” may render the decision of an ECO unlawful. As a general rule, a challenge advanced on this basis will succeed only where Wednesbury irrationality or a material proceduralirregularity is established.
Adjei (visit visas – Article 8) [2015] UKUT 0261 (IAC)
1. The first question to be addressed in an appeal against refusal to grant entry clearance as a visitor where only human rights grounds are available is whether article 8 of the ECHR is engaged at all. If it is not, which will not infrequently be the case, the Tribunal has no jurisdiction to embark upon an assessment of the decision of the ECO under the rules and should not do so. If article 8 is engaged, the Tribunal may need to look at the extent to which the claimant is said to have failed to meet the requirements of the rule because that may inform the proportionality balancing exercise that must follow.[1] Mostafa (Article 8 in entry clearance) [2015] UKUT 112 (IAC) is not authority for any contrary proposition.
2. As compliance with para 41 of HC 395 is not a ground of appeal to be decided by the Tribunal, any findings concerning that will carry little weight, especially if based upon arguments advanced only by the appellant. If the appellant were to make a fresh application for entry clearance the ECO will, if requested to do so, have regard to the assessment carried out by the judge but will not be bound by those findings to treat the appellant as a person who, at least at the date of the appeal hearing, met the requirements of paragraph 41.
AM (S 117B) Malawi [2015] UKUT 0260 (IAC)
(1) The statutory duty to consider the matters set out in s 117B of the 2002 Act is satisfied if the Tribunal’s decision shows that it has had regard to such parts of it as are relevant.
(2) An appellant can obtain no positive right to a grant of leave to remain from either s117B (2) or (3), whatever the degree of his fluency in English, or the strength of his financial resources.
(3) Parliament has now drawn a sharp distinction between any period of time during which a person has been in the UK “unlawfully”, and any period of time during which that person’s immigration status in the UK was merely “precarious”.
(4) Those who at any given date held a precarious immigration status must have held at that date an otherwise lawful grant of leave to enter or to remain. A person’s immigration status is “precarious” if their continued presence in the UK will be dependent upon their obtaining a further grant of leave.
(5) In some circumstances it may also be that even a person with indefinite leave to remain, or a person who has obtained citizenship, enjoys a status that is “precarious” either because that status is revocable by the Secretary of State as a result of their deception, or because of their criminal conduct. In such circumstances the person will be well aware that he has imperilled his status and cannot viably claim thereafter that his status is other than precarious.
(6) When the question posed by s117B(6) is the same question posed in relation to children by paragraph 276ADE(1)(iv) it must be posed and answered in the proper context of whether it was reasonable to expect the child to follow its parents to their country of origin; EV (Philippines). It is not however a question that needs to be posed and answered in relation to each child more than once.
R (on the application of Zia and Another) v Secretary of State for the Home Department IJR [2015] UKUT 00191 (IAC) 11 May 2015
1. Where the Immigration Rules are silent as to interpretation, it may be necessary to refer to the Children Act 1989 (as amended) and other family legislation in order to construe those parts of the Rules which provide a route to entry clearance or leave to remain as a parent.
2. “Access” in the latest version of the Immigration Rules means the same as “contact” in the previous paragraph 284A. Neither term is now used in the Family Court where Child Arrangements Orders are made to regulate “(a) with whom a child is to live, spend time or otherwise have contact; and (b) where a child is to live, spend time or otherwise have contact with any person.”
3. The expression “access rights” in paragraph E-LTRPT.2.4 (a) (i) may refer equally to parents who have “indirect” access to a child by means of letters, telephone calls etc as well as to those who spend time with a child (“direct” access). A parent may also have “access rights” where there is no court order at all, for example, where parents agree access arrangements (the “no order” principle; section 1(5) of the Children Act 1989 (as amended)).
4. Having satisfied the requirements of paragraph E-LTRPT.2.4 (a) (i), an appellant must still prove that he/she “is taking and intend to continue to take an active role in the child’s upbringing”(paragraph E-LTRPT.2.4 (a) (ii)). Whether he/she will be able to do so will depend upon the evidence rather than the nature of the “access rights.” However, it is likely to be unusual that a person having only “indirect” access rights will be able to satisfy this provision. In some cases, Tribunals may need to examine the reasons why the Family Court has ordered “indirect” rather then “direct” access.
UK & EEA Immigration law update. June 2015. Part 1
1. Following the announcement in the Queen’s Speech of legislation that will be introduced, we now have further details of the Government’s parliamentary agenda for the forthcoming year.
Absent from the Queen’s speech was any Bill to repeal the Human Rights Act and replace it with a British Bill of Rights. Instead, the Government will “bring forward proposals” for a British Bill of Rights although it is not yet clear what form this consultation will take. The work starts now to maintain the principle of the universality of human rights in line with international standards and to resist discourses that descend into considerations of who should be able to access rights and on what conditions.
As expected based on the Conservative Party Manifesto discussed in last month’s mailing, there will be another Immigration Bill this parliamentary year. The Government has confirmed that the clauses of the Bill will seek to extend non-suspensive appeals from deportation cases to all immigration appeals and judicial review where removal would not cause serious irreversible harm. This would not include asylum cases. We anticipate that it will not include those with 3C leave, but shall wait to see that this is confirmed.
The Bill will propose making illegal working a crime and, it is stated, allowing the wages of migrant workers to be seized as proceeds of crime although whether the latter will require new powers is unclear. The Bill will propose the creation of a new single enforcement agency to tackle employers who exploit or coerce people into work in the UK. However, the proposal appears to be for a new monolithic agency rather than multi-disciplinary working. It is intended to create a new offence aimed at employment agencies who recruit solely from abroad without advertising those jobs in Britain and in English. There will be consultation on funding apprenticeship schemes for resident labour market workers (popularly referred to as “British workers”) through the implementation of a visa levy on businesses that use non EEA labour and the introduction of such a levy is intended for this parliamentary session. Through these measures, the Government intends to reduce the demand for skilled migrant labour.
The Bill will propose a requirement that that all foreign offenders released on bail be tagged. Enforcement is to be stepped up although we do not yet know which legislative measures will support this. It is intended to extend throughout the country the residential tenancies scheme whereby landlords and landladies check the immigration status of their tenants. This does not require primary legislation but what does is the Government’s intention to build on this by making it easier to evict persons under immigration control. It is intended to ensure that banks take action on existing current accounts held by those in the UK unlawfully.
Other areas of the legislative programme may potentially have an impact on persons under immigration control and also provide opportunities to make a positive case. The Refugee Children’s Consortium will be keeping a close eye on the Education and Adoption Bill and all those concerned with asylum support on the Full Employment and Welfare Benefits Bill. There is a proposal for an Extremism Bill to deal with “extremism” that is not extreme enough to fall within the ambit of counter-terrorism legislation, with proposals for new powers for the Home Secretary to ban “extremist” groups and to enable employers to check whether an individual is an “extremist”.
Tier 1 Entrepreneurs
The Home Office has confirmed that all Tier 1 (Entrepreneur) applicants must meet the Immigration Rules in force at the date of their application and thus that where they have not held the required level of funds for a consecutive period of 90 days, ending no earlier than 31 days before the date of the application as per Appendix A of the Immigration Rules they must provide the additional specified evidence required under paragraph 41-SD of that Appendix. Those who have liquidated assets less than 90 days before their proposed date of application, and are not able to provide the specified third party evidence must wait until they have had the funds under their control for 90 days.
Biometric Residence Permits
UK Visas and Immigration are offering larger sponsors or legal representatives new options for the collection of Biometric Residence Permits on behalf of their overseas staff or clients, depending on their expected volumes of Biometric Residence Permit applications.
Large firms may either register as a Biometric Residence Permit Alternative Collection Location and receive Biometric Residence Permits at their office or nominate specific staff members to collect Biometric Residence Permits from the Post Office. Security requirements similar to those imposed on the Post Office will apply, including the need for nominated staff to be nationals of the EEA or Switzerland. The Home Office will start the scheme with a small number of firms or organisations before extending the offer more widely. The letter from Phillip Smith, Head of Immigration Checking & Enquiry Services at UK Visas and Immigration in the enclosures provides information on registration and guidance about the scheme.
• Home Office to UKCISA of 12 June 2015 re response to Freedom of Information request for caseworker guidance on the immigration health charge and, in particular, how caseworkers are instructed to deal with incorrect assessments by the portal: http://legalcentre.org/files/FOI-res...r-guidance.pdf
1. By virtue of rules 45 and 46 of the Tribunal Procedure (Upper Tribunal) Rules 2008 a condition precedent to a review is an application for permission to appeal against the decision of the Upper Tribunal.
2. Pursuant to s.10 of the Tribunals, Courts and Enforcement Act 2007, rules 45 and 46 make no provision for an application for a review; the power is exercisable only on the initiative of the Upper Tribunal.
3. The clear purpose behind rule 45, which is to provide a filter mechanism to help ensure that obvious errors based on oversight of a legislative provision or binding authority can be corrected (and set aside under rule 47) without unnecessarily burdening the Court of Appeal.
Whilst s.65 of the Immigration Act 2014, which came into force on 6 April 2015 inserts new provisions into the British Nationality Act 1981 for persons born before 1 July 2006 that create a registration route for those who would currently have an entitlement to registration under the British Nationality 1981 Act but for the fact that their parents are not married, those provisions (like the pre-existing policy set out in Chapter 9 of the UK Visas and Immigration and Nationality Instructions), are predicated on there having been an application made under s. 3(1) of the British Nationality Act 1981.
Судья: совет UK BA может быть неправильным, и крайним будет иммигрант
Собственно говоря:
R (on the application of Zia and Another) v Secretary of State for the Home Department IJR [2015] UKUT 00191 (IAC)
Judicial Review of a Home Office refusal to grant leave to remain as a Tier 1 entrepreneur dismissed. The claimants argued that they had a legitimate expectation that their leave to remain application would succeed despite being unable to provide a specified bank document following information given to them by a Home Office telephone helpline operator. It was held that a legitimate expectation did not arise. The starting point is that the claimants have an expectation from the rule that they did not meet the requirements of the rule, the application would be refused. The claimants had made two telephone calls to the Home Office helpline. They spoke with a supervisor during their first call who made it clear that the decision would be made by a caseworker and he could not indicate how the application would be decided. The Court found that when the claimants received different information from a more junior member of the helpline staff, it was reasonable to expect them to have disclosed the content of the previous contradictory statement to the second operative in order to clarify. It was also not accepted that the claimants would have relied on the information given. The claimants further submitted that it was not possible for them to comply with the rules, the bank confirming it would not provide the document in the form required, but this argument was rejected on the basis that no evidence was offered that it was the universal practice of banks to decline such requests and no applicant would be able to comply.
• R (on the application of Zia and Another) v Secretary of State for the Home Department IJR [2015] UKUT 00191 (IAC)
Judicial Review of a Home Office refusal to grant leave to remain as a Tier 1 entrepreneur dismissed. The claimants argued that they had a legitimate expectation that their leave to remain application would succeed despite being unable to provide a specified bank document following information given to them by a Home Office telephone helpline operator. It was held that a legitimate expectation did not arise. The starting point is that the claimants have an expectation from the rule that they did not meet the requirements of the rule, the application would be refused. The claimants had made two telephone calls to the Home Office helpline. They spoke with a supervisor during their first call who made it clear that the decision would be made by a caseworker and he could not indicate how the application would be decided. The Court found that when the claimants received different information from a more junior member of the helpline staff, it was reasonable to expect them to have disclosed the content of the previous contradictory statement to the second operative in order to clarify. It was also not accepted that the claimants would have relied on the information given. The claimants further submitted that it was not possible for them to comply with the rules, the bank confirming it would not provide the document in the form required, but this argument was rejected on the basis that no evidence was offered that it was the universal practice of banks to decline such requests and no applicant would be able to comply
• MK (section 55 – Tribunal options) Sierra Leone [2015] UKUT 00223 (IAC)
(i) Where it is contended that either of the duties enshrined in section 55 of the Borders, Citizenship and Immigration Act 2009 has been breached, the onus rests on the appellant and the civil standard of the balance of probabilities applies. There is no onus on the Secretary of State.
(ii) As regards the second of the statutory duties [the need to have regard to statutory guidance promulgated by the Secretary of State], it is not necessary for the decision letter to make specific reference to the statutory guidance.
(iii) The statutory guidance prescribes a series of factors and principles which case workers and decision makers must consider.
(iv) Where the Tribunal finds that there has been a breach of either of the section 55 duties, one of the options available is remittal to the Secretary of State for reconsideration and fresh decision.
(v) In considering the appropriate order, Tribunals should have regard to their adjournment and case management powers, together with the overriding objective. They will also take into account the facilities available to the Secretary of State under the statutory guidance, the desirability of finality and the undesirability of undue delay. If deciding not to remit the Tribunal must be satisfied that it is sufficiently equipped to make an adequate assessment of the best interests of any affected child
• R (on the application of Mushtaq) v Entry Clearance Officer of Islamabad, Pakistan (ECO – procedural fairness) IJR [2015] UKUT 00224 (IAC)
(i) The common law principles of procedural fairness apply to the decision making processes of Entry Clearance Officers (“ECOs”).
(ii) ECO interviews serve the basic twofold purpose of enabling applications to be probed and investigated and, simultaneously, giving the applicant a fair opportunity to respond to potentially adverse matters. The ensuing decison must accord with the principles of procedural fairness.
(iii) A breach of the “Case Worker Guidance” may render the decision of an ECO unlawful. As a general rule, a challenge advanced on this basis will succeed only where Wednesbury irrationality or a material procedural irregularity is established
NB: In this successful judicial review of a refusal to grant a Tier 4 student visa, the Court applied common law principles of procedural fairness to the assessment made by the Entry Clearance Officer as to whether the claimant was a genuine student. The decision is noteworthy as it sets out the claimant’s interview in some detail and examines each of the reasons for refusal given by the Entry Clearance Officer in context, finding both irrationality in the Wednesbury sense and procedural unfairness. The judgment concludes with the observation that entry clearance interviews require care and planning, the avoidance of ambiguous words and phrases and, in the interests of fairness, the opportunity for interviewees to clarify or expand on their answers: “The nationals of impoverished and deprived countries who have invested large sums of money and whose admission to the United Kingdom is lawful if they satisfy the requirements of the relevant legal rules are deserving of no less”.
• JA (meaning of “access rights”) India [2015] UKUT 00225 (IAC)
1. Where the Immigration Rules are silent as to interpretation, it may be necessary to refer to the Children Act 1989 (as amended) and other family legislation in order to construe those parts of the Rules which provide a route to entry clearance or leave to remain as a parent.
2. “Access” in the latest version of the Immigration Rules means the same as “contact” in the previous paragraph 284A. Neither term is now used in the Family Court where Child Arrangements Orders are made to regulate “(a) with whom a child is to live, 3 spend time or otherwise have contact; and (b) where a child is to live, spend time or otherwise have contact with any person.”
3. The expression “access rights” in paragraph E-LTRPT.2.4 (a) (i) may refer equally to parents who have “indirect” access to a child by means of letters, telephone calls etc as well as to those who spend time with a child (“direct” access). A parent may also have “access rights” where there is no court order at all, for example, where parents agree access arrangements (the “no order” principle; section 1(5) of the Children Act 1989 (as amended)).
4. Having satisfied the requirements of paragraph E-LTRPT.2.4 (a) (i), an appellant must still prove that he/she “is taking and intend to continue to take an active role in the child’s upbringing”(paragraph E-LTRPT.2.4 (a) (ii)). Whether he/she will be able to do so will depend upon the evidence rather than the nature of the “access rights.” However, it is likely to be unusual that a person having only “indirect” access rights will be able to satisfy this provision. In some cases, Tribunals may need to examine the reasons why the Family Court has ordered “indirect” rather then “direct” access.
• R (on the application of Sultana) v Secretary of State for the Home Department (mandatory order – basic principles) IJR [2015] UKUT 00226 (IAC) 1. In the great majority of cases where the court decides that the impugned decision is contaminated by some public law misdemeanour, the remedy granted is a quashing order whereby the respondent is obliged to make a fresh decision, taking into account the judgment of the court. 2. The remedy of a mandatory order is rarely granted. It is appropriate only in cases where it is clear to the court that the respondent is legally obliged to take a certain course of action, normally involving the conferral of some benefit or advantage on the challenging party, with no choice or discretion. The course that the respondent is ordered by the court to take in a mandatory order must be “the sole result that is legally permissible”.
• R (on the application of SN) v Secretary of State for the Home Department (striking out – principles) IJR [2015] UKUT 00227(IAC)
(i) Rule 7(2) of the Tribunal Procedure (Upper Tribunal) Rules 2008 empowers the Upper Tribunal to take such action as it considers just, which may include striking out a party’s case under rule 8, where there has been a failure to comply with a requirement of the rules, a practice direction or a tribunal direction.
(ii) Under rule 8 proceedings are automatically struck out in the event of failure to comply with an order or direction which specifies that non-compliance will attract this sanction, viz an “unless” order. In other cases the power to strike out is discretionary.
(iii) In considering whether to exercise its discretionary strike out power under rule 8, the 4 main factors which the Upper Tribunal will weigh are the interests of the administration of justice; whether there has been a prompt application for relief; whether the failure was intentional; whether there is a good explanation for the failure; the number and importance of multiple failures; whether the failure was caused by the party or his legal representative; whether the trial date will be jeopardised by the grant of relief; the effect on every party of the relevant failure; and the effect on every party of granting relief. Further, the interests of the administration of justice will be weighed and applied.
(iv) In addition, the Tribunal will apply the following principles: public authorities and private litigants are to be treated alike; excessive work burdens will rarely excuse a defaulting solicitor; and the mere factor of a party being unrepresented does not constitute good reason. In asylum and humanitarian protection claims, particular care must be taken to ensure that appeals are not frustrated by a failure on the part of a party’s legal representative to comply with time limits.
(v) In considering the exercise of its discretionary strike out power under rule 8, the Tribunal will be mindful of the draconian nature of such orders and will take into account the availability of any other appropriate and adequate sanction such as a wasted costs order under rule 10(3). Repeated defaults will almost invariably be considered more serious than a single act of non-compliance. In every case the Tribunal will consider the question of whether its process is being misused.
(vi) In an application under rule 8(5) to reinstate a struck out case, the main factors to be considered are the reason for the failure which gave rise to the strike out order, whether there has been any undue delay in applying for reinstatement and whether reinstatement would prejudice the other party.
(vii) The values of efficiency and expedition will be promoted and due observance of the overriding objective will be enhanced by adherence to the principles and standards of pleading rehearsed in [28] – [32].
(viii) In judicial review cases, applications to amend so as to enable a new or later decision to be challenged must be made proactively and timeously. Such applications will be determined on their merits and giving effect to the overriding objective.
• R (on the application of RA (and by his litigation friend) and another) v Secretary of State for the Home Department IJR [2015] UKUT 00242 (IAC)
NB:This key case considers when there needs to be an independent review of the merits of a distinct asylum and human rights claim by a dependent child whom the Secretary of State is seeking to remove with their adult parent and gives guidance on the application of the principle of the best interests of the child. A judicial review was brought on behalf of a 5 year-old child (RA) removed with his mother to Nigeria, the Office of the Children’s Commissioner intervening. The claimants challenged the refusal of the Secretary of State to treat further submissions relating to the child either as an asylum and human rights application in his own right or as a fresh claim, which would have given rise to an in-country right of appeal. 5
The Court accepted in principle that where no separate claim was expressly advanced on behalf of a child, the circumstances may be such as to warrant independent treatment. In doing so, the Court was mindful of submissions made that there were no written procedures or applications for asylum and human rights claims and the Secretary of State’s policy required a purposive approach to such claims; that an individual could simultaneously be a dependent on an application and advance a claim in their right and caseworkers had to be sensitive to these; that the Secretary of State’s guidance required her to be alert to the rights and interests of children to ensure that their position is separately and distinctly considered from that of adults; that children may be at risk of harm on return in circumstances where an adult might not be at risk; and the ‘invisibility’ of accompanied children may lead to their claims being overlooked.
The Court further stated that whether the Secretary of State must identify a separate claim will be fact sensitive. While clear and obvious conflict between the interests of a parent and child would justify separate treatment, this would be unusual and differences in claims may be accommodated within the family claim. The child’s interests would be protected as a result of a best interests inquiry under s.55 of the Borders, Citizenship and Immigration Act 2009. On the facts of this case, a separate claim was not found.
The Court subsequently considered the refusal to accept the representations put forward in relation to the child as amounting to a fresh claim as advanced by his parent. The Court considered the best interests inquiry conducted by the Secretary of State but found in this case found that she had failed to take account of the implications for the child of the parent’s deteriorating mental health, the risk of that degenerating in the Nigerian context and the likely consequences on removal and so failed to have regard to the child’s best interests as a primary consideration. As this meant that the Secretary of State did not take into account material considerations or employ the anxious scrutiny required, her decision that the representations did not represent a realistic prospect of success in the fresh claim was flawed and judicial review was granted.
• R (on the application of RA) v Secretary of State for the Home Department IJR [2015] UKUT 00292 (IAC)
NB: Following its judgment in R(on the application of RA (and by his litigation friend and another) v Secretary of State for the Home Department [2015] UKUT 00242 (IAC) 30 March 2015 above, the Upper Tribunal made an Order for the return of the child and her mother to the UK after they were removed to Nigeria. The Secretary of State for the Home Department was subsequently unsuccessful in her appeal to the Court of Appeal to challenge this Order.
• AB and Others (internet activity – state of evidence) Iran [2015] UKUT 0257 (IAC) The material put before the tribunal did not disclose a sufficient evidential basis for giving country or other guidance upon what, reliably, can be expected in terms of the reception in Iran for those returning otherwise than with a “regular” passport in relation to whom interest may be excited from the authorities into internet activity as might be revealed by an examination of blogging activity or a Facebook account. However, this determination is reported so that the evidence considered by the Upper Tribunal is available in the public domain.
• AM (S 117B) Malawi [2015] UKUT 0260 (IAC)
(1) The statutory duty to consider the matters set out in s 117B of the 2002 Act is satisfied if the Tribunal’s decision shows that it has had regard to such parts of it as are relevant.
(2) An appellant can obtain no positive right to a grant of leave to remain from either s117B (2) or (3), whatever the degree of his fluency in English, or the strength of his financial resources.
(3) Parliament has now drawn a sharp distinction between any period of time during which a person has been in the UK “unlawfully”, and any period of time during which that person’s immigration status in the UK was merely “precarious”.
(4) Those who at any given date held a precarious immigration status must have held at that date an otherwise lawful grant of leave to enter or to remain. A person’s immigration status is “precarious” if their continued presence in the UK will be dependent upon their obtaining a further grant of leave.
(5) In some circumstances it may also be that even a person with indefinite leave to remain, or a person who has obtained citizenship, enjoys a status that is “precarious” either because that status is revocable by the Secretary of State as a result of their deception, or because of their criminal conduct. In such circumstances the person will be well aware that he has imperilled his status and cannot viably claim thereafter that his status is other than precarious.
(6) When the question posed by s117B(6) is the same question posed in relation to children by paragraph 276ADE(1)(iv) it must be posed and answered in the proper context of whether it was reasonable to expect the child to follow its parents to their country of origin; EV (Philippines). It is not however a question that needs to be posed and answered in relation to each child more than once.
• Adjei (visit visas – Article 8) [2015] UKUT 0261 (IAC)
1. The first question to be addressed in an appeal against refusal to grant entry clearance as a visitor where only human rights grounds are available is whether article 8 of the ECHR is engaged at all. If it is not, which will not infrequently be the case, the Tribunal has no jurisdiction to embark upon an assessment of the decision of the ECO under the 7 rules and should not do so. If article 8 is engaged, the Tribunal may need to look at the extent to which the claimant is said to have failed to meet the requirements of the rule because that may inform the proportionality balancing exercise that must follow.[1] Mostafa (Article 8 in entry clearance) [2015] UKUT 112 (IAC) is not authority for any contrary proposition.
2. As compliance with para 41 of HC 395 is not a ground of appeal to be decided by the Tribunal, any findings concerning that will carry little weight, especially if based upon arguments advanced only by the appellant. If the appellant were to make a fresh application for entry clearance the ECO will, if requested to do so, have regard to the assessment carried out by the judge but will not be bound by those findings to treat the appellant as a person who, at least at the date of the appeal hearing, met the requirements of paragraph 41. [1] Footnote: Now see SS (Congo) v Secretary of State for the Home Department [2015] EWCA Civ 387.
• R (on the application of Wasif) v Secretary of State for the Home Department (rule 34 – “print and send”) IJR [2015] UKUT 0270 (IAC)
(i) An application for leave to remain in the United Kingdom must comply with the requirements of paragraph A34 and all material provisions of paragraphs 34A – 34K of the Immigration Rules.
(ii) Between June 2013 and August 2014, Tier 4 applicants had the choice of submitting their applications either on line or by the “Print and Send” mechanism.
(iii) The correct construction of the Rules is as follows: (a) The first of these options required the submission of the completed application form on line and the provision of supporting documents by post. (b) The second option, “Print and Send”, required the applicant to print the completed application form and send it, with accompanying supporting documents, by post. The “Print and Send” instruction does not amount to an on-line application. (iv) A failure to comply with the requirements in 34A (per paragraph 34C) invalidates the application.
• R (on the application of Patel) v Secretary of State for the Home Department (s.3C(4): simultaneous application – withdrawal) IJR [2015] UKUT 0273 (IAC) S.3C(4) of the Immigration Act 1971 prohibits an application for leave to remain that is made on the same day as, and even if said to be simultaneous with, the applicant’s withdrawal of his appeal before the First-tier Tribunal (Immigration and Asylum Chamber).
- New students at publicly funded colleges will be prevented from being able to work in the UK
- From "the autumn", "college students" will be unable to switch to a work visa or extend their study visa whilst they are in the UK
The rules around academic progression are being tightened so that university students are only permitted to extend their studies at the same academic level if the course they wish to study is linked to their previous course, or the university confirms the course supports the student’s career aspirations. The time limit on further education study will be reduced from three years to two years in "the autumn".
The maintenance requirement for Tier 4 students is increasing, along with the maximum amount paid for accommodation which can be offset against the maintenance requirement. The rule around established presence which allowed students applying to extend their leave within the UK to show only two months’ maintenance is being removed.
The application of the rules on time limits is being "clarified" so that the time a student has already spent studying in the UK is calculated using the full length of the leave they have previously been granted.
Changes are being made to allow a Tier 4 visa to be issued in line with a student’s intended date of travel.
Conditions of study are being changed, to prevent those in Tier 4 from studying at academies or schools maintained by a local authority. Those who wish to study a foundation course to prepare for entry to higher education are also being prevented from doing so under the Tier 4 (Child) route.
Where responsibilities of sponsor organisations and terminology have recently changed, the rules are being updated.
The suspension comes as a result of legal challenges. First, in R (Detention Action v First-Tier Tribunal) (Immigration and Asylum Chamber) & Ors [2015] EWHC 1689 (Admin) (12 June 2015), Nicol J held that the fast-track procedure rules were ultra vires the powers of the Tribunal Procedure Committee which has power to make procedure rules securing that justice be done and that the tribunal system is fair. By ‘allowing one party to the appeal to put the other at serious procedural disadvantage without sufficient judicial supervision’, the rules were not securing these objectives and the Committee was acting out with its powers.
• R (on the application of Badalge) v Secretary of State for the Home Department IJR [2015] UKUT 00325 (IAC)
The Claimant made an in-time application for further leave to remain as a student and his leave was extended pursuant to Section 3C of the Immigration Act 1971. The Secretary of State issued a decision to remove the applicant under section 10 of the Immigration and Asylum Act 1999 and refused the outstanding application for leave to remain under paragraph 322(1A) of the Immigration Rules following alleged use of deception in providing a fraudulently obtained certificate from the Educational Testing Service. The Secretary of State informed the claimant that he only had an out-of-country right of appeal as the decision was not an immigration decision under section 82 of the Nationality, Immigration and Asylum Act 2002. Section 82(2)(d) did not apply as the decision did not vary his leave such that he had no leave to enter or remain as a result. This was because his existing leave to enter or remain in the UK was invalidated by the removal decision pursuant to section 10(8) of the Immigration and Asylum Act 1999. The Court confirmed that this was the correct position, holding that the facts were similar to Shahbaz Ali v Secretary of State for the Home Department and that the case of Ahmadi relied upon by the claimant was consistent with that decision. The claim for judicial review was therefore dismissed.
• R (on the application of FBL) v Secretary of State for the Home Department IJR [2015] UKUT 00328 (IAC)
The claimant was unsuccessful in his judicial review challenging the Secretary of State’s decision to refuse or accept as a fresh claim his application for leave to remain relying on the private and family life, established whilst living unlawfully in the UK, with his partner and two children aged 3 and 4 years who were subsequently granted Discretionary Leave to Remain. The claimant failed to demonstrate that the Secretary of State unlawfully applied an ‘exceptionality’ test when considering his rights under Article 8 European Convention on Human Rights. The Court considered Secretary of State for the Home Department v SS (Congo) and others where a test of exceptionality was held to be applicable in two specific contexts: where the family relationship had been established in the context of precariousness and in the deportation of foreign criminals. The Court considered that this approach may be restricted to cases where no children were involved but did not rely on the point, having not heard submissions on the case and having concluded that the claimant had not established that an exceptionality test had been applied. References to ‘exceptional’ in the language of the refusal letter was shorthand for considering whether there were exceptional circumstances that may properly be required to outweigh the public interest and the refusal letter had to be read as a whole. Similar arguments made by the claimant had been considered and rejected in R (Chen) v Secretary of State for the Home Department.
Grounds of review based on failure to consider the children’s best interests and to take into account all relevant factors in the assessment of proportionality also failed. Both parents were Chinese nationals and would not have difficulty reintegrating in China. Their children were of an age where their principal relationships were within the family unit rather than having wider social ties. The Secretary of State was entitled to reach the conclusion that there were no obstacles to family life in China on the evidence before her without further enquiries given the ages of the children who were not in the position of having spent 7 years in the UK and developed social ties. The Secretary of State’s delay of just over 1 year in taking a decision was not a significant factor to be weighed in the context of the claimant having lived in the UK without leave to remain since 2007 and absconded between 2008- 2012 and there being no evidence of the children having developed social ties outside the family unit.
The correct approach to be applied by tribunal judges in relation to ss.117A-D of the Nationality, Immigration and Asylum 2002 (as amended) in the context of EEA removal decisions is: (i) first to decide if a person satisfies requirements of the Immigration (European Economic Area) Regulations 2006. In this context ss.117A-D has no application; (ii) second where a person has raised Article 8 as a ground of appeal, ss.117A-D applies.
• RK (Allowed appeals – service on respondent) Albania [2015] UKUT 00331 (IAC)
1. Service by the First-tier Tribunal of a determination allowing the appeal on the Presenting Officers’ Unit in Cardiff rather than on the Specialist Appeals Team in Angel Square was good service despite what was said to be an agreement to serve all allowed appeals on the Angel Square team.
2. Accordingly on the evidence before it, the Upper Tribunal upheld the decision of the First-tier Tribunal to refuse to admit the Secretary of State’s appeal from the decision of the First-tier Tribunal as the appeal was out of time and it was not in the interests of justice to extend time.
• R (on the application of HRP and Others) v Secretary of State for the Home Department IJR [2015] UKUT 00351(IAC)
Refusal by the Secretary of State of an application for leave to remain under paragraph 276ADE Immigration Rules (long residence) was unlawful as the decision failed to engage with the issue of whether the claimants, a couple with two children, had lost their ties to their country of origin. Whilst the decision on this issue need not be detailed, it must demonstrate that the salient features of the claim have been considered and tested against the requirements of the rules. Nor can the decision be read across from one of the joined applicants to another; they are entitled to individual consideration of their case. The failure to lawfully consider the applicants’ long residence meant that the Secretary of State cannot have lawfully considered the children’s best interests. The Court rejected the argument of the Secretary of State that since the Immigration Rules take into account s.55 Borders, Citizenship and Immigration Act 2009 she discharges her duty to consider the best interests of the children by considering the application under the Immigration Rules. The discharge of the Secretary of State’s duty to consider th children’s best interests is fact sensitive and while there may be cases where this duty may be discharged by considering the case generally under the immigration rules, this will not be the norm. The instant case is not one that may be discharged by general consideration of the application under the rules as there are numerous features of evidence relevant to the children’s best interests.
• R (on the application of AB) v Secretary of State for the Home Department IJR [2015] UKUT 00352 (IAC)
The Secretary of State’s decision to refuse to revoke a deportation order and certify the application as clearly unfounded was held to be unlawful due to her failure to give proper consideration to the best interests of the child. The decision to certify the application as clearly unfounded was therefore quashed.
The claimant had been deported from the UK in 2000 following a sentence of 7 years imprisonment for indecent assault. He returned in the same year in breach of the order and lived unlawfully in the UK, developing a family life with his current wife, their two children and his wife’s child from a previous relationship. He was arrested in 2006 following a domestic dispute and applied for leave to remain on Article 8 European Convention of Human Rights grounds. His case was considered by the Court of Appeal in 2012 which identified strong reasons why the public interest was in favour of deporting the claimant.
The claimant made a further application for leave to remain in 2013, submitting an independent social worker report commenting on the negative impact of separation, particularly on the applicant’s daughter who has significant learning difficulties and on his wife who has a history of depression and self harm and would suffer a deterioration in her emotional/mental health, affecting her ability to meet her children’s needs.
The Court considered that although the children’s best interests were considered during the previous proceedings, the additional expert evidence and passage of time meant the situation could have changed. Supplementary reasons for refusal given by the Secretary of State following the claimant’s application for permission were to be treated with scepticism as they advanced a different basis for their decision well into the course of litigation. The Secretary of State did not take sufficient account of the level harm caused by separation in balancing this against the public interest given that the best interests of the children were the central concern. Whilst the Secretary of State states in supplementary reasons that the mother may be able to access help if her condition deteriorates, she failed to give sufficient consideration to the impact on her children of her consequent inability to care for them.
• R (on the application of Khan) v Secretary of State for the Home Department (right of appeal – alternative remedy) IJR [2015] UKUT 00353 (IAC)
Although each case must be determined on its own facts, in cases where a person seeks to dispute the Secretary of State’s assertions as to the availability of an appeal to the First-tier Tribunal, the appropriate course is for such person to lodge a notice of appeal with the First-tier Tribunal requesting that it determine this issue. Given the existence of this suitable alternative remedy, it will only be in exceptional circumstances that the Upper Tribunal will exercise its discretion and grant relief to a person who seeks to raise this same issue before it in judicial review proceedings brought against the Secretary of State.
Ранее студентам, кто отучился в UK от 6 и более месяцев позволялось при продлении показывать т.н. maintenance в размере 2-х месячной суммы.
С 11 ноября 2015 года т.н. established student status отменяется и при продлении визы студенту нужно будет показывать т.н. maintenance в размере 9-и месячной суммы.
Комментарии
https://www.gov.uk/government/publications/chapter-13-criminality-guidance-in-article-8-echr-cases
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
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/350211/Landlords_scheme_-_draft_Code_of_Practice.pdf
Right to Rent Tool: https://eforms.homeoffice.gov.uk/outreach/lcs-application.ofml
Powers of Immigration Officers: Criminal investigation guidance: powers under Crime & Courts Act 2013 [s 55], Modernised Guidance, 15 August 2014
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/345232/Powers_of_an_immigration_officer_v3.0_EXT.pdf
Transparency data from Home Office for Border Force and for Migration, 28 August 2014
Positively Orwellian title. Obscured behind the word "transparency" you have "transparency" data on
• Asylum
• Border Force
• Customer Service Operations
• Historical interest
• International Operations
• Sponsorship
• Temporary Permanent Migration
UK Visas and Immigration Home page on gov.uk
https://www.gov.uk/government/organisations/uk-visas-and-immigration
Long Residence Guidance has been moved to: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/340423/Private_Life_-_10-year_routes_guidance.pdf
Home Office Travel document interview process and prosecution under section 35 version 3.0 valid from 3 September 2014
Modernised guidance for how UK Visas and Immigration refers cases for prosecution under the asylum and immigration act 2004.
https://www.gov.uk/government/publications/travel-document-interview-process-and-prosecution-under-section-35
New guidance on general grounds for refusal, 27 August 2014
• 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
UK Visas and Immigration: Criminal Investigation Guidance for Witness Summons, Modernised Guidance version 1, 21 August 2014
Stated to be based on the Criminal Procedure Rules 2013, "This guidance tells criminal investigators in immigration enforcement investigation teams what a witness summons is and how they can apply for one"
https://www.gov.uk/government/publications/criminal-investigation-guidance-for-witness-summons
Conditional cautions with foreign offender conditions, version 6 of 31 July with an 18 August 2014 update (unspecified)
https://www.gov.uk/government/publications/conditional-cautions-for-foreign-offenders
From the UK BA: Fiancés and PCPs may travel on honeymoon without first having to apply for leave to remain as a spouse.
“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.”.
MG (prison-Article 28(3) (a) of Citizens Directive) Portugal [2014] UKUT 00392 (IAC)
(1) Article 28(3)(a) of Directive 2004/38/EC contains the requirement that for those who have resided in the host member state for the previous 10 years, an expulsion
decision made against them must be based upon imperative grounds of public security.
(2) There is a tension in the judgment of the Court of Justice of the European Communities in Case C-400/12 Secretary of State v MG in respect of the meaning of
the “enhanced protection” provision.
(3) The judgment should be understood as meaning that a period of imprisonment during those 10 years does not necessarily prevent a person from qualifying for
enhanced protection if that person is sufficiently integrated. However, according to the same judgment, a period of imprisonment must have a negative impact in so far
as establishing integration is concerned.
Данные с конференции между UK BA и иммиграционными юристами, прошедшей недавно. UK BA точно не подтвердили, но формулировка была следующей:
"...consensus is that new provisions should be in force in October 2014. A likely political decision to raise the investment required to at least £2m.".
Кто не успел тот...как бы странно это не звучало в данной ситуации.
- Draft of the NEW immigration Rules for visitors (October 2014): http://www.legalcentre.org/files/VR.pdf
- Draft visitor guidance (October 2014): http://www.legalcentre.org/files/DVG.pdf
A summary of the main changes to the policy for visitors is below:
• a more streamlined set of visitor routes (with fewer visit visa endorsements) which provides clarity and more flexibility for genuine visitors;
• rebranding student visitor routes (both the six month and the 11 month English Language routes) into short-term study to make them conceptually clearer for applicants;
• allowing permitted paid engagement visitors to also carry out unpaid activities that can be carried out by visitors e.g. attend business meetings and undertake 30 days’ incidental study;
• allowing visitors and permitted paid engagement visitors to carry out 30 days’ incidental study (currently only available to general and business visitors); widening out who can provide maintenance and accommodation support to visitors to include any third party in the UK (currently limited to friends and relatives);
• consolidating and clarifying existing permitted activities to provide greater flexibility for visitors; and
• clarifying the prohibited activities.
Ссылка на первоисточник: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/364371/hc-693.pdf (93 страницы).
Резюме – 11 страниц, на форум не влазит, поэтому резюме изменений на 11 страницах можно загрузить с нашего сайта: http://www.legalcentre.org/files/HC693.docx
Изменения касаются почти всех категорий – отмена права апелляции, Tier 1, 2, 4, 5, «партнеры британцев» и т.п. - кроме граждан EU и членов их семей….
HC 693
· Administrative review
· “Foreign criminals”
· Changes relating to the validation of immigration applications
· General Visitors
· Private organ donors
· Business Visitors
· Private Medical Treatment Visitors
· Marriage/Civil Partnership Visitors
· Visitors in transit
· Establish requirements to allow visa nationals to transit landside through the UK provided they
· Commonwealth Games Family Members
· Overseas Domestic Worker in a Private Household route
· Family and private life
· Minimum income threshold requirement under Appendix FM and Appendix FM-SE:
· Partners and parents who need to meet an English language requirement for limited leave to enter or remain in the UK under Appendix FM, or partners needing to meet such a requirement in Part 8 or Appendix Armed Forces:
· In respect of Appendix FM and the private life rules from 9 July 2012
· In respect of the Part 8: pre-9 July 2012 rules for partners and parents; and the current rules for some child applicants
· Tier 1 of the Points-Based System
· Tier 1 Exceptional Talent
· Tier 1 (Investor)
· Tier 1 (Entrepreneur)
· Tier 1 (General) category (now closed)
· Tier 2
· Tier 2 (Sportsperson)
· Tier 4 (Academic Technology Approval Scheme)
· Tier 5 Youth Mobility Scheme
· Tier 5 Government Authorised Exchange category
· Cross-cutting changes
· “non-national travel document”.
· Tier 2 (Sportsperson) and Tier 5 (Temporary Worker – Creative and Sporting) (Governing Bodies)
· Secure English Language Test (SELT) providers
· Financial Institutions
· Appendix Armed Forces
· Changes to Appendix Knowledge of Language and Life
· Changes to Domestic Violence
https://www.gov.uk/government/publications/long-residence
‘Visa bans’: Powers to refuse or revoke immigration permission for reasons of character, conduct or associations - Commons Library Standard Note: http://www.parliament.uk/briefing-papers/SN07035/visa-bans-powers-to-refuse-or-revoke-immigration-permission-for-reasons-of-character-conduct-or-associations
Immigration Statistics, July to September 2014: https://www.gov.uk/government/publications/immigration-statistics-july-to-september-2014/immigration-statistics-july-to-september-2014
New SET(LR) form: https://www.gov.uk/government/publications/application-to-settle-in-uk-form-setlr & Guidance: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/343323/SET_LR__guidance_notes_08-14.pdf
Tier 2 Modernized Guidance: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/371593/Tier_2_v18_Ext.pdf
An Inspection of Nationality Casework April - May 2014, Independent Chief Inspector of Borders and Immigration and response from Home Office, 11 December 2014: http://icinspector.independent.gov.uk/wp-content/uploads/2014/12/Nationality-Report-web.pdf
Application for certificate showing right of abode: https://www.gov.uk/government/publications/application-for-certificate-showing-right-of-abode
R (on the application of Luma Sh Khairdin) v Secretary of State for the Home Department (NIA 2002: Part 5A) IJR [2014] UKUT 00566 (IAC)
(1) Section 117A of the Nationality, Immigration and Asylum Act 2002 requires the Upper Tribunal, in a judicial review involving Article 8(2) ECHR, to have regard to the considerations mentioned in section 117B and, where relevant, section 117C, when considering the question whether an interference with a person's right to respect for private and family life is justified. The nature of the proceedings is such as to require the Tribunal to determine the questions set out in section 117(1)(a) and (b).
(2) Where the Upper Tribunal is considering, pursuant to section 11 of the Tribunals, Courts and Enforcement Act 2007, whether there is an error of law in the decision of the First-tier Tribunal involving Article 8 proportionality, the task of the Upper Tribunal is confined (at that point) to deciding if the First-tier Tribunal's assessment of where to strike the balance was unlawful, according to the error of law principles set out in R (Iran) [2005] EWCA Civ 982. An Article 8(2) decision of the Secretary of State which is susceptible only to judicial review has, by definition, not received such judicial scrutiny; and it is the task of the reviewing court or tribunal to provide it, albeit via a process that remains different from that of an appeal.
R (on the application of Isaac Kimondo) v Secretary of State for the Home Department (relevant rules; AoS requirements) IJR [2014] UKUT 00565 (IAC)
(1) In judicial review applications transferred by the Administrative Court to the Upper Tribunal, the applicable procedural regime is that contained in the Tribunal Procedure (Upper Tribunal) Rules 2008. The Civil Procedure Rules have no effect thereafter; although the procedural history may be significant, particularly as regards time limits.
(2) The prohibition in rule 29(3) on a party who has not filed an acknowledgement of service from taking part in the application permission (without the Upper Tribunal’s permission) applies also to a party who has failed to provide a copy of the AoS to the applicant, as required by rule 29(2A).
Employer's guidance right to work checks, 23 December 2014: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/390363/an_employers_guide_to_right_to_work_checks_december_2014_v4.pdf
The Home Office is weeding the nationality instructions and has removed some from Volume 2 Part 1 (Procedural section)
Secretary of State for the Home Department v Kamila Santos Campelo Cain Upper Tribunal (Immigration and Asylum Chamber) Appeal Number: IA/40868/2013 (17 October 2014)
The appellant was a Brazilian national who wished to join her British partner in the UK. Her partner had been exercising EU free movement rights prior to his returning to the UK. The appellant argued that the principles laid down in Surinder Singh [1992] EUECJ C-370/90 should be applied to her case. The Tribunal agreed. It held that the EEA Regulations discriminated against British versus EEA nationals – had the appellant’s partner been an EEA national she would have been able to enter under the Regulations. The Regulations were thus out of step with the underlying principle of free movement in EU Community law. The appellant’s partner was a British national exercising Treaty Rights and fell to be treated as an EEA national as a result. The appeal was allowed, but not outright – the Tribunal noting that the Secretary of State retains a discretion as to whether or not to grant the appellant her residence card.
“If you and/or your partner are a non-EEA national with limited or no immigration status in the UK, or if you or your partner do not provide specified evidence of your immigration status, your proposed marriage or civil partnership will be referred to the Home Office and your notice period may be extended to 70 days. In giving notice you should therefore allow sufficient time before the date of your planned marriage or civil partnership recognising that 70 days notice may be required.”
R (on the application of Jennifer Kerr) v Secretary of State for the Home Department IJR [2014] UKUT 00493(IAC)
The applicant was a Jamaican woman who had lived in Jamaica until age 37, then came to the UK on a 6-month visit visa and overstayed. She married a British national and a year later, having had 11 years unlawful residence in the UK, applied for leave to remain on Article 8 grounds outside the rules. The Secretary of State refused on the basis that she did not meet the Rules. The Court held that the decision was unlawful, because it had failed to give any consideration to the possibility of an exceptional grant outside the rules – even the barest of reference would have sufficed, but there was none. After the judicial review was lodged the Secretary of State issued a new decision, considering all of the facts that were relevant to a possible grant outside the Rules, and again refused on the basis it was not disproportionate to require the appellant to make an entry clearance application from Jamaica. The Court rejected an argument that the second decision letter should be ignored – it is relevant to the remedy the Court should grant. If the second decision is a lawful one it does not remedy the defect in the original decision under challenge, which remains unlawful. However the Court will do no more than quash it and will not order the decision to be remade if it has already been made.
R (on the application of Eruteji Ibipeju Bosomo) v Secretary of State for the Home Department IJR [2014] UKUT 00492(IAC)
This was an Article 8 case where the application for leave was subjected to a “tick box” exercise under the Immigration Rules without any consideration given to the detailed information provided by the appellant that was relevant to a possible grant of leave outside the Rules; this was unlawful. In response to the judicial review the Secretary of State issued a new decision, however this was a mere repetition of the earlier unlawful decision and similarly failed to consider the voluminous material submitted by the appellant. Judicial review was granted and the Secretary of State’s remaking of the decision had no effect on the question of relief, as the second decision was again unlawful.
R (on the application of Michael Mosinimu Mark Akande) v Secretary of State for the Home Department [2014] UKUT 00468 (IAC)
Facts: The appellant made an online application for extension of his leave as a student on the day it expired. He paid the fee on that day and lodged the application online, choosing the “premium service”. The Secretary of State argued that his actual date of application was the date of his appointment at UKBA (as it then was) offices in Sheffield, which was three days later, making his application out of time. The Secretary of State also argued that the appellant did not have enough funds to satisfy the Rules, as it was not accepted that his uncle was his legal guardian and thus his uncle’s funds could not be taken into account. The appellant argued that (i) the date of his online application was the relevant date, (ii) the Secretary of State was wrong to disregard the financial sponsorship of his uncle, who is in fact his legal guardian, and (iii) the Secretary of State failed to consider his claim under Art 8 of the ECHR.
Decision: As to the question of the date of application, the Tribunal preferred the evidence of the Secretary of State on the matter and held that the application was not submitted until the date of the in-person appointment, three days after leave had expired. On the second issue, the appellant had not provided the requisite documentation to the Secretary of State to establish his uncle’s guardianship, so this ground of challenge was not made out. Finally, the Tribunal held that the appellant’s Article 8 claim was weak and the Secretary of State could not be faulted for refusing it. The appeal was dismissed.
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/377482/Marriage_notice.pdf
If you and/or your partner are a non-EEA national with limited or no immigration status in the UK, or if you or your partner do not provide specified evidence of your immigration status, your proposed marriage or civil partnership will be referred to the Home Office and your notice period may be extended to 70 days. In giving notice you should therefore allow sufficient time before the date of your planned marriage or civil partnership recognising that 70 days notice may be required.
Registration officials will be required to refer all marriage and civil partnership notices to the Home Office if one or both of the parties is a non-EEA national who does not provide specified evidence that they have (a) settled status in the UK (Indefinite Leave to Enter or Remain), (b) an EU law right of permanent residence in the UK, (c) a marriage or civil partnership visa, or (d) exemption from immigration control (e.g. with the right of abode in the UK). Registration officials will be required to tell a couple where their proposed marriage or civil partnership is to be referred to the Home Office under the scheme and to explain to them the implications of this.
• The total number of rejections made on Long Residence category in 2014: 845 cases rejected : https://www.gov.uk/government/publications/the-total-number-of-rejections-made-on-long-residence-category-in-2014/total-number-of-rejections-made-on-ilr-long-residence-category-from-1-january-2013-to-30-september-2014
• Applications for naturalisation received from 1 May 2014 to 30 June 2014: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/397098/33753.pdf
Current FLR(M) (11-2014) version error: UK BA: “A box for the original certificate to confirm evidence of a degree studied in English has been included in the FLR(M) application form since the introduction of the English language requirement. But it appears that this option was lost when a recent update to that section of the form was made”
• Current guidance on Section 3C and 3D Leave: https://www.gov.uk/government/publications/3c-and-3d-leave
• New EEA Forms: EEA(EFM) https://www.gov.uk/government/publications/apply-for-a-registration-certificate-or-residence-card-for-an-extended-family-member-form-eea-efm ,EEA(QP) https://www.gov.uk/government/publications/apply-for-a-registration-certificate-as-a-qualified-person-form-eea-qp , EEA(PR) https://www.gov.uk/government/publications/apply-for-a-document-certifying-permanent-residence-or-permanent-residence-card-form-eea-pr, EEA(DRF1) https://www.gov.uk/government/publications/application-for-derivative-residence-card-in-uk-form-drf1 , EEA(FM) https://www.gov.uk/government/publications/apply-for-a-registration-certificate-or-residence-card-for-a-family-member-form-eea-fm
• Marriage or civil partnership of detainees outside the centre https://www.gov.uk/government/publications/marriage-or-civil-partnership-of-detainees-outside-the-centre
mmigration Directorates' Instructions Deporting non-EEA foreign criminals: https://www.gov.uk/government/publications/deporting-non-eea-foreign-criminals
• The number of applications received in the last 5 years (Jan-2010 to Jun-2014), - split by whether the applicant was an adult or a child: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/396448/FOI_33561.pdf
• The term “settled worker” for a Tier 1 (Entrepreneur) ILR application may include the family members of an EEA national
• Asylum Policy Instruction Assessing credibility and refugee status: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/397778/ASSESSING_CREDIBILITY_AND_REFUGEE_STATUS_V9_0.pdf
• R (on the application of Mehmood Ahmed Raja) v Secretary of State for the Home Department IJR [2015] UKUT 00058 (IAC) This was an application for judicial review regarding the Secretary of State’s refusal of a long residence application and related Article 8 claim. An earlier judicial review regarding the first of three refusals to grant leave by the Secretary of State was settled. The judge held that as the relevant consent order did not specifically refer to Article 8 EHCR this omission meant that the applicant’s claim under that head (against the first decision) had come to an end. He could not now argue that the Secretary of State had breached the terms of the order. The judge however went on to consider the Secretary of State’s consideration of Article 8 in the third decision. That decision was quashed for failure to consider relevant evidence (a witness statement from the applicant’s partner – a naturalised refugee – explaining why she could not go with him to Pakistan). The judge held that the Secretary of State had treated age 18 as a as a “bright line beyond which family life is not enjoyed” and that this was “plainly incorrect”. The applicant’s partner’s son was not living independently and had arguable family life ties with the applicant as part of a family unit. The decision fell to be remade.
• Bossadi (paragraph 276ADE; suitability; ties) [2015] UKUT 00042 (IAC) (1) Being able to meet the requirements of paragraph 276ADE of the Immigration Rules requires being able to meet the suitability requirements set out in paragraph 276ADE(1). It is because this subparagraph contains suitability requirements that it is not possible for foreign criminals relying on private life grounds to circumvent the provisions of the Rules dealing with deportation of foreign criminals. (2) The requirement set out in paragraph 276ADE (vi) (in force from 9 July 2012 to 27 July 2014) to show that a person “is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK”, requires a rounded assessment as to whether a person’s familial ties could result in support to him in the event of his return, an assessment taking into account both subjective and objective considerations and also consideration of what lies within the choice of a claimant to achieve.
• MR (permission to appeal: Tribunal’s approach) Brazil [2015] UKUT 00029 (IAC) (1) A judge considering an application for permission to appeal to the Upper Tribunal must avoid granting permission on what, properly analysed, is no more than a simple quarrel with the First-tier Tribunal judge’s assessment of the evidence. (2) When granting permission to appeal to the Upper Tribunal, it is unsatisfactory merely to state that the applicant’s grounds are arguable. (3) The requirement, emphasised in Nixon (permission to appeal: grounds) [2014] UKUT 368 (IAC), to engage with each and every ground of application, need not involve anything of an unduly elaborate, burdensome or analytical nature. The reasons for granting or refusing permission to appeal, in whole or part, in any given case will almost invariably be capable of being expressed in a concise and focused manner.
• Cancino (costs – First-tier Tribunal – new powers) [2015] UKFTT 00059 (IAC) [1] Rule 9 of the 2014 Rules operates in conjunction with section 29 of the Tribunals, Courts and Enforcement Act 2007. [2] The only powers to award fees or costs available to the First-tier Tribunal (the “FtT”) are those contained in Rule 9 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (the “2014 Rules”). [3] Transitionally, Rule 9 of the 2014 Rules applies only to appeals coming into existence subsequent to the commencement date of 20 October 2014. It has no application to appeals predating this date. [4] It is essential to be alert to the distinctions between the costs awarding powers contained in Rule 9(2)(a) and Rule 9(2)(b) of the 2014 Rules. [5] Awards of costs are always discretionary, even in cases where the qualifying conditions are satisfied. [6] In the ordinary course of events, where any of the offending types of conduct to which either Rule 9(2)(a) or Rule 9(2)(b) of the 2014 Rules applies, the FtT will normally exercise its discretion to make an order against the defaulting representative or party. [7] The onus rests on the party applying for an order under Rule 9. [8] There must be a causal nexus between the conduct in question and the wasted costs claimed. [9] One of the supreme governing principles is that every case will be unavoidably fact sensitive. Accordingly, comparisons with other cases will normally be inappropriate. [10] Orders for costs under Rule 9 will be very much the exception, rather than the rule and will be reserved to the clearest cases. [11] Rule 9 of the 2014 Rules applies to conduct, whether acts or omissions, belonging to the period commencing on the date when an appeal comes into existence and ending on the date of the final determination thereof. [12] The procedure for determining applications under Rule 9 of the 2014 Rules will be governed in the main by the principles of fairness, expedition and proportionality.
• R (on the application of Kallal Taludker) v Secretary of State for the Home Department IJR [2015] UKUT 00057 (IAC) This was a student visa appeal (Tier 4) in which the applicant did not appear and the case was determined to be an abuse of process, as the matter had been previously litigated in a High Court challenge to the applicant’s removal decision.
• Recent changes to the Tier 1 (Investor) requirements. Following a report published by the Migration Advisory Committee (MAC) in 2014, the Home Office made a number of changes to the Tier 1 (Investor) category on 6 November 2014. These include: • increasing the previous £1m minimum investment threshold to £2m; • requiring the full investment sum to be invested in prescribed forms of investments (share or loan capital in active and trading UK companies, or UK Government bonds), rather than 75% of the sum as was previously the case (the remaining 25% could previously be invested in UK assets, such as property); • removing the requirement to maintain the market value of the investment.
• Post-Study Work Opportunities in the UK - New report warns UK at risk of losing foothold in crucial international student market, since Government closure of popular post study work route: http://www.appgmigration.org.uk/post-study-work-inquiry
• List of tests approved by UK Visas and Immigration to show that applicants have the required level of English for their visa: https://www.gov.uk/government/publications/guidance-on-applying-for-uk-visa-approved-english-language-tests
• Immigration Act 2014: appeals; Immigration Rules Appendix AR: Administrative Review 2 March 2015; Immigration Rules Part 1
Statutory Instrument No. 371 (C. 18) The Immigration Act 2014 (Commencement No. 4, Transitional and Saving Provisions and Amendment) Order 2015, 25 February 2015
Rules Appendix AR: Administrative Review 2 March 2015; Immigration Rules Part 1
The Immigration Act 2014 (Commencement No. 4, Transitional and Saving Provisions and Amendment) Order 2015 (SI 2015/371 (C.18)) has been published and comes into effect variously on 2 March 2015 and 6 April 2015. It is the fourth commencement order made under the Immigration Act 2014. It will remove appeal rights for those who make an application under Tiers 1, 2 and 5, including dependants a Tier 2 Migrant, or a Tier 5 Migrant, or as their family member, on or after 2nd March 2015. Those persons will also become subject to the new removals regime. In other words they will be treated in the same way as Tiers 4 and foreign criminals as defined are currently treated
As to commencement on 6 April 2015, the provisions could not be more confusingly drafted. First you will be alarmed to read that the new regime will come in, according to the commencement order, for all decisions made on or after that date, in all categories. However, scroll down and you will learn that there are huge exceptions: these being decisions
• to refuse leave to enter;
• to refuse entry clearance;
• to refuse a certificate of entitlement under section 10 of the 2002 Act(a);
• to refuse to vary a person’s leave to enter or remain and where the result of that
decision is that the person has no leave to enter or remain;
(in all cases unless that decision is also a refusal of an asylum, protection or human rights claim) where the application was made before 6 April. There are also saving provisions for refusals of applications to vary leave to enter or remain made before 20 October 2014 where the person was seeking leave to remain as a Tier 4 Migrant or as their family member and where the result of that decision is that the applicant has no leave to enter or remain; refusals of applications to vary leave to enter or remain made before March 2015 where the person was seeking leave to remain as a Tier 1, Tier 2 or Tier 5 Migrant or as their family member and where the result of that decision is that the applicant has no leave to enter or remain.
The order also commences provisions relating to marriage and civil partnership on 1 and 2 March 2015. There are transitional provisions for licences granted pre 1 March 2015. It amends section 126 of the Nationality, Immigration and Asylum Act 2002 to remove provisions about the use and retention of biometric information which have been replaced by section 126(8A) of that Act, which was inserted by section 14(3) of the Act.
• Children of British citizen fathers: become a British citizen: https://www.gov.uk/government/publications/children-of-british-citizen-fathers-become-a-british-citizen
• Dube (ss.117A-117D) [2015] UKUT 00090 Immigration and Asylum Tribunal (IAC), 26 February 2015
(1) Key features of ss.117A-117D of the Nationality, Immigration and Asylum Act 2002 include the following:
(a) judges are required statutorily to take into account a number of enumerated considerations. Sections 117A-117D are not, therefore, an a la carte menu of considerations that it is at the discretion of the judge to apply or not apply. Judges are duty-bound to “have regard” to the specified considerations.
(b) these provisions are only expressed as being binding on a “court or tribunal”. It may be that the Secretary of State will consider it in the interests of good administration and consistency of decision-making on Article 8 claims at all levels to have express regard to ss.117A-117D considerations herself, but she is not directly bound to do so.
(c) whilst expressed in mandatory terms, the considerations specified are not expressed as being exhaustive: note use of the phrase “in particular” in s.117A(2): “ In considering the public interest question, the court or tribunal must (in particular) have regard— “.
(d) section 117B enumerates considerations that are applicable “in all cases”, which must include foreign criminal cases. Thus when s.117C (which deals with foreign criminals) states that it sets out “additional” considerations that must mean considerations in addition to those set out in s.117B.
(e) sections 117A-117D do not represent any kind of radical departure from or “override” of previous case law on Article 8 so far as concerns the need for a structured approach. In particular, they do not disturb the need for judges to ask themselves the five questions set out in Razgar [2004] UKHL 27. Sections 117A-117D are essentially a further elaboration of Razgar’s question 5 which is essentially about proportionality and justifiability.
(2) It is not an error of law to fail to refer to ss.117A-117D considerations if the judge has applied the test he or she was supposed to apply according to its terms; what matters is substance, not form.
• Cushnie v Secretary of State for Health [2014] EWHC 3626, 5 November 2014
The High Court has declared that in framing regulations for the charging of treatment provided to overseas visitors the Secretary of State for Health acted in breach of his public sector equality duty under s.149 Equality Act 2010.
The current rules are set out in the National Health Service (Charges to Overseas Visitors) Regulations 2011. These provide that former asylum seekers accommodated by the Home Office should have free access to health care but that those who are disabled, and as a result are looked after by their local authority, should not. The court held that while this did not amount to unlawful discrimination, in framing the regulations the Secretary of State had acted unlawfully by failing to have regard to the differential impact on disabled persons. The Secretary of State has confirmed that the regulations are under review.
In the case of appeals brought against refusal of entry clearance under Article 8 ECHR, the claimant’s ability to satisfy the Immigration Rules is not the question to be determined by the Tribunal, but is capable of being a weighty, though not determinative, factor when deciding whether such refusal is proportionate to the legitimate aim of enforcing immigration control
• BIOMETRIC RESIDENCE PERMIT (BRP) – OVERSEAS APPLICANT PROJECT FAQ: http://www.legalcentre.org/files/BRP.pdf
Biometric Residence Permits (BRPs) for non-EEA nationals travelling to the UK for more than six months will begin to be issued from the 18th March 2015, starting with applications made in Pakistan.
BRPs provide a more secure, streamlined and faster method for applicants and businesses to verify someone's identity and right to be in the UK.
The rollout will continue in three further phases from mid April (inc. China and India), end May (inc. Japan and Nigeria) and end July (rest of the world).
Applicants will receive a 30 day vignette in their passport instead of a vignette with the full grant of leave. This is to allow the applicant to enter the UK and collect their
BRP from a designated post office.
The post office and 30 day travel window will be determined using information provided in the application form. Applicants will receive a letter, if their application is successful, which provides instructions on how to collect their BRP and where to go for more information - GOV.UK.
Details of the countries included in each phase of the rollout are attached for information, along with a customer-facing Q&A that can be used to answer any questions that applicants might have. Further guidance along will be published on Gov.UK on 18 March.
• Tier 4 Sponsor Guidance: https://www.gov.uk/government/publications/sponsor-a-tier-4-student-guidance-for-educators
• Immigration Rules – Introductions – Consolidated Version 2015: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/409656/20150302_Immigration_Rules_-_Introduction.pdf
• Summary of responses to the consultation on proposed amendments to the Code of Practice about the sanctions for non-compliance with the biometric registration regulations March 2015: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/409039/Code_of_Practice_-_biometric_regulations_compliance_-_public_consultation_response_3_March_2015.pdf
• Chapters 46 to 62: detention and removals: https://www.gov.uk/government/publications/chapters-46-to-62-detention-and-removals
• Immigration Rules Part 11 Asylum: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/406330/20150227_Immigration_Rules_-_Part_11.pdf
• HOME OFFICE VISITOR SIMPLIFICATION CONSULTATION RESPONSE: http://www.legalcentre.org/files/visitor simplification process.pdf
• Chapter 18: naturalisation at discretion (nationality instructions): https://www.gov.uk/government/publications/chapter-18-naturalisation-at-discretion-nationality-instructions
• Post-Study Work Opportunities in the UK - New report warns UK at risk of losing foothold in crucial international student market, since Government closure of popular post study work route: http://www.appgmigration.org.uk/post-study-work-inquiry
• Section 65 of the Immigration Act 2014 – Children of British Citizen Fathers: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/408524/Section_65_of_the_Immigration_Act_2014_-_Feb_2015.pdf
• Business applications under the Turkish EC Association Agreement: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/406049/Turkish_ECAA_business_guidance_v2_0.pdf
• Derivative rights of residence guidance: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/405843/Derivative_rights_of_residence_v1_0.pdf
• Informal consultation on introducing a proforma template for an asylum, nationality and immigration Pre-Action Protocol letter: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/361452/home-office-consultation-on-pap.pdf
• Judicial Review (JR) guidance: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/409631/Judicial_review_guidance1_v0_11.pdf
• UK BA complaints management guidance: https://www.gov.uk/government/publications/complaints-management-guidance-version-7
• Processing statistics for EEA3, EEA4 and AN application forms for 2014: https://www.gov.uk/government/publications/processing-statistics-for-eea3-eea4-and-an-application-forms-for-2014
• Request for a change of conditions of leave granted on the basis of family or private life: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/286132/change-condition.pdf
Собственно говоря: https://www.gov.uk/government/publications/immigration-health-surcharge-information-for-migrants
Цитата:
"The surcharge will be introduced on 6 April 2015. It will apply to applications where payment is made on or after the 6 April. The health surcharge will be set at £200 a year for temporary migrants and £150 a year for students. Dependants will generally be charged the same amount as their main applicant. The total surcharge amount for the whole period of leave granted will be payable upfront.".
• Section 65 of the Immigration Act 2014 Guidance – Children of British Citizen Fathers: https://www.gov.uk/government/upload...March_2015.pdf
• Application to register as British citizen: form RS1
• Application to register as a British citizen: form B(OS)
• Application to register as British citizen: form T
• Application to naturalise as a British citizen: form AN
• Application to register as a British citizen: form B(OTA)
• Application to register child under 18 as British citizen: form MN1
• Application to register as a British citizen: form UKM
• Application for registration as a British citizen by a person born before 1 July 2006 whose parents were not married: form UKF
• Marriage and civil partnership referral and investigation scheme: statutory guidance for Home Office staff: https://www.gov.uk/government/upload...arch_2015_.pdf
• Sponsor a Tier 4 student: guidance for educators: The UK BA included a new policy that Tier 4 sponsors that have had their licences revoked have to wait two years to reapply instead of the current 6 months. The UK BA also say they may refuse a licence application or renewal application if any of the key personnel have been involved with/linked to a licence that has been revoked: https://www.gov.uk/government/public...-for-educators
• General grounds for refusal: considering entry at UK port
• General grounds for refusal: refusing and refusal wording
• General grounds for refusal: considering leave to remain
• General grounds for refusal: about this guidance
• General grounds for refusal (modernised guidance)
• Guidance: General grounds for refusal: considering entry clearance
• UK BA latest documents: https://www.gov.uk/government/latest?departments[]=uk-visas-and-immigration
• Tier 2
From 6 April 2015 Tier 2 in country applications will need to be submitted via the UK BA new online application system.
The current Apply Online (AOL) facility for Tier 2 will be withdrawn to make way for the new system, and the Tier 2 paper form will be removed from use for Standard and Priority Postal application routes.
The Tier 2 paper form will remain in use for Premium Service Centre (PSC) customers only. Customers wishing to use a PSC should continue to book their appointment via GOV.UK and then download the paper form to take with them to their appointment.
Premium Sponsors who use their Account Manager to secure a PSC appointment will be able to use the new online application. The link will be sent to them by their Account Manager when an appointment has been confirmed.
Customers and their legal representatives are encouraged to use the new online service as soon as possible.
•Tier 5
The current Apply Online facility for Tier 5 will be withdrawn from 6 April 2015. Customers should use the paper form until further notice.
For further information about the Tier 2 & 5 application process, please visit the Visas and Immigration section on GOV.UK. If you are a Premium Sponsor you can also contact your designated Account Manager for further information about any of the above changes.
Immigration Health Surcharge
From 6 April 2015, the UK government will introduce an immigration health surcharge:
• The health surcharge will be paid by non-European Economic Area (EEA) nationals who apply to come to the UK to work, study or join family for a period of more than 6 months. It will also be paid by non-EEA nationals who are already in the UK and apply to extend their stay after 6 April 2015.
There are some exempt groups who fall within the above categories but do not need to pay the surcharge:
• Tier 2 intra-company transfers, Australian and New Zealand nationals. If an application falls within these exempt groups, the online Immigration Health Surcharge process, via the surcharge website, must still be completed. However, the applicant will be informed the payment is nil and they will receive a unique surcharge reference number. This number is needed for their immigration application to confirm their exemption from the surcharge.
Customer guidance will be available on www.gov.uk/visas-immigration from 6 April.
• Asylum Policy Instruction Further Submissions: https://www.gov.uk/government/upload...sions_v8_0.pdf
• UK BA Appeals policy: https://www.gov.uk/government/upload...e_v2.0_EXT.pdf
• Curtailment of leave: https://www.gov.uk/government/public...lment-of-leave
• The Latest Consolidated Immigration (European Economic Area) Regulations: http://www.eearegulations.co.uk/Latest
• Modernized guidance on appeals: https://www.gov.uk/government/publications/appeals
• Tier 2 and 5 of the Points Based System Guidance for Sponsors: https://www.gov.uk/government/upload...ance_04-15.pdf
• Tier 2, Tier 4 and Tier 5 of the Points Based System - Guidance for Sponsors – Appendix A: file:///C:/Users/Anton/Downloads/15.04.06-Tier-2-and-5-of-the-Points-Based-System-Guidance-for-Sponsors-Appendix-A.pdf
· R (on the application of Khadija BA Fakih) v Secretary of State for the Home Department IJR [2014] UKUT 00513(IAC)
The applicant challenged the imposition of a “no recourse to public funds” condition on her leave on grounds that it was made pursuant to a ‘rule’ that was unlawful by reason of not having been laid before Parliament and breached public sector equality duties. The Secretary of State’s decision to impose the condition was quashed on the basis that it was pursuant to an unlawful policy
· Updated Tier 2 Policy Guidance: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/421842/Tier_2_Guidance_04_2015.pdf
· Updated Tier 4 Policy Guidance: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/422731/2015-04-17_T4_Migrant_Guidance_April_15_f.pdf
· Register of Tier 2 and Tier 5 sponsors list: https://www.gov.uk/government/publications/register-of-licensed-sponsors-workers
· Updated Tier 1 Entrepreneur Guidance: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/422401/Tier_1_Entrepreneur_11_0.pdf
·
· Policy paper: Immigration Rules part 9: grounds for refusal, UK Visas and Immigration, Immigration Enforcement and Home Office 21 April 2015: https://www.gov.uk/government/publications/immigration-rules-part-9
· Home Office guidance: Where to apply: ECB05, UK Visas and Immigration, 24 April 2015: https://www.gov.uk/government/publications/where-to-apply-ecb05
· Home Office guidance: Considering human rights claims in visit applications, UK Visas and Immigration, 24 April 2015: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/424016/considering_hr_claims_from_visitors_guidance_v1_0_ext.pdf
· Policy paper: Chapter 8, section 1: spouses, UK Visas and Immigration, 27 April 2015: https://www.gov.uk/government/publications/chapter-8-section-1spouses
· Home Office Immigration Directorate Instructions - Family Migration: Part 8: Annex F and Appendix FM Section 1.7A, Adequate Maintenance and Accommodation, 27 April 2015: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/424187/IDI_Adequate_maintenance_and_accommodation_Appendix_FM_Annex_1.7A.pdf
· Original BRPs are now required to be submitted to the UK BA with the naturalization applications
· Home Office Guidance: Indefinite leave to remain: calculating continuous period in UK, UK Visas and Immigration, 22 April 2015: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/423225/ILRcont_periods_v12.0_EXT.pdf
· Guidance: appeals policy, UK Visas and Immigration, 2 March 2015: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/417724/Apeals_Policy_guidance_v2.0_EXT.pdf
· Guidance: Section 65 of the Immigration Act 2014 – Children of British citizen fathers, UK Visas and Immigration, 26 March 2015: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/418010/Section_65_of_the_Immigration_Act_2014_-_web_page_-_update_March_2015.pdf
· Immigration Bill: part 4 - marriage and civil partnership, UK Visas and Immigration and Enforcement, 31 March 2015 and Marriage and civil partnership referral and investigation scheme: statutory guidance for Home Office staff, 31 March 2015: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/419313/Statutory_guidance__March_2015_.pdf and https://www.gov.uk/government/publications/immigration-bill-part-4-marriage-and-civil-partnership
· Administrative Review Guidance, UK Visas and Immigration, 8 April 2015: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/421798/admin_review_guidance_v4_0_ext.pdf
· Guidance: Immigration Act 2014: appeals, UK Visas and Immigration, 10 April 2015: https://www.gov.uk/government/publications/appeals
· UK visa fees from 6 April 2015, Home Office, 31 March 2015: https://www.gov.uk/government/publications/visa-regulations-revised-table
· Immigration and asylum: changes made by the Coalition Government 2010 - 2015, House of Commons Library Standard Note, 24 March 2015: http://researchbriefings.parliament.uk/ResearchBriefing/Summary/SN05829
· Guidance: Chapter 1a: applications for fee waiver and refunds, UK Visas and Immigration, 7 April 2015: https://www.gov.uk/government/publications/chapter-1a-applications-for-fee-waiver-and-refunds
· Tier 2 and 5 of the Points Based System, Guidance for Sponsors, UK Visas and Immigration 6 April 2015. New Tiers 2 and 5 Sponsor Guidance has been released effective from 6 April 2015: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/428196/Tier_2__5_Sponsor_Guidance__v_1_1.pdf and https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/420164/Appendix_A_04-15.pdf
· Home Office notification of 6 April 2015 Tier 2 and Tier 5 changes, 2 April 2015:
“Notification of changes taking place on 6 April 2015
Tier 2
From 6 April 2015 Tier 2 in country applications will need to be submitted via our new online application system.
The current Apply Online (AOL) facility for Tier 2 will be withdrawn to make way for the new system, and the Tier 2 paper form will be removed from use for Standard and Priority
Postal application routes.
The Tier 2 paper form will remain in use for Premium Service Centre (PSC) customers only. Customers wishing to use a PSC should continue to book their appointment on-line and then download the paper form to take with them to their appointment.
Premium Sponsors who use their Account Manager to secure a PSC appointment will be able to use the new online application. The link will be sent to them by their Account Manager when an appointment has been confirmed.
Customers and their legal representatives are encouraged to use the new online service as soon as possible.
Tier 5
The current Apply Online facility for Tier 5 will be withdrawn from 6 April 2015. Customers should use the paper form until further notice.
For further information about the Tier 2 & 5 application process, please visit the Visas and Immigration section on GOV.UK. If you are a Premium Sponsor you can also contact your designated Account Manager for further information about any of the above changes.
Immigration Health Surcharge
From 6 April 2015, the UK government will introduce an immigration health surcharge:
· The health surcharge will be paid by non-European Economic Area (EEA) nationals who apply to come to the UK to work, study or join family for a period of more than 6 months. It will also be paid by non-EEA nationals who are already in the UK and apply to extend their stay after 6 April 2015.
There are some exempt groups who fall within the above categories but do not need to pay the surcharge:
- Tier 2 intra-company transfers, Australian and New Zealand nationals. If an application falls within these exempt groups, the online Immigration Health Surcharge process, via the surcharge website, must still be completed. However, the applicant will be informed the payment is nil and they will receive a unique surcharge reference number. This number is needed for their immigration application to confirm their exemption from the surcharge.
Customer guidance will be available on www.gov.uk/visas-immigration from 6 April.”
· USA: Apply for a UK visa in the USA: https://www.gov.uk/government/publications/usa-apply-for-a-uk-visa
· Guidance: Transit visitors, UK Visas and Immigration, 17 March 2015: https://www.gov.uk/government/publications/transit-visitors
· Biometric Residence Permit (BRP) overseas applicant project FAQ, Home Office, 16 March 2015. From the UK BA:
“Biometric Residence Permit (BRP) overseas applicant project FAQ, Home Office, 16 March 2015
Biometric Residence Permits (BRPs) for non-EEA nationals travelling to the UK for more than six months will begin to be issued from the 18th March 2015, starting with applications made in Pakistan.
BRPs provide a more secure, streamlined and faster method for applicants and businesses to verify someone's identity and right to be in the UK.
The rollout will continue in three further phases from mid April (inc. China and India), end May (inc. Japan and Nigeria) and end July (rest of the world).
Applicants will receive a 30 day vignette in their passport instead of a vignette with the full grant of leave. This is to allow the applicant to enter the UK and collect their BRP from a designated post office.
The post office and 30 day travel window will be determined using information provided in the application form. Applicants will receive a letter, if their application is successful, which provides instructions on how to collect their BRP and where to go for more information - GOV.UK.
Details of the countries included in each phase of the rollout are attached for information, along with a customer-facing Q&A that can be used to answer any questions that applicants might have. Further guidance along will be published on Gov.UK on 18 March.”.
· Immigration Rules archive, UK Visas and Immigration, 6 March 2015: https://www.gov.uk/government/collections/archive-immigration-rules
· Comprehensive sickness insurance for family members of EEA students: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/431618/comprehensive_sickness_insurance_for_family_members_of_students.pdf
· The Immigration (European Economic Area) (Amendment) Regulations 2015, Consolidated Version at 6 April 2015: http://www.eearegulations.co.uk/Archive/V20150406
Case-law:
Mostafa (Article 8 in entry clearance) [2015] UKUT 00112 (IAC), 5 March 2015
In the case of appeals brought against refusal of entry clearance under Article 8 ECHR, the claimant’s ability to satisfy the Immigration Rules is not the question to be determined by the Tribunal, but is capable of being a weighty, though not determinative, factor when deciding whether such refusal is proportionate to the legitimate aim of enforcing immigration control.
R (on the application of Razak) v Secretary of State for the Home Department IJR [2015] UKUT 00132 (IAC), 3 February 2015
The judicial review of refusal of application for leave to remain as a Tier 4 (General) Student Migrant. The claim was refused.
R (on the application of Singh and another) v Secretary of State for the Home Department IJR [2015] UKUT 00134(IAC), 19 February 2015
Judicial review of the decision to certify the Claimants human rights claim (on the basis of long residence and Article 8) as clearly unfounded. It was found that insufficient evidence had been put forward to justify consideration of the claim outside of the Immigration Rules. The claim was refused.
R (on the application of Amin) v Secretary of State for the Home Department IJR [2015] UKUT 00135 (IAC), 26 February 2015
Judicial review of the lawfulness of refusal of leave to remain on human rights grounds. Permission is refused on the basis that adequate consideration was given to claimants Article 8 rights.
R (on the application of Dang) v Secretary of State for the Home Department IJR [2015] UKUT 00133 (IAC), 19 February 2015
Judicial review of the decision to not grant leave to remain following an application for asylum and consideration of the Claimant’s claim under the legacy policy. The Claimant claims that she received a letter following her application from the Home Office that created a “legitimate expectation” that she would be allowed to remain in the UK. The Judge found that the Claimant had not acted to her detriment at all as a result of this letter. The claim was dismissed.
R (on the application of SB and ABD) v Secretary of State for the Home Department IJR [2015] UKUT 00136(IAC), 3 March 2015
Application to judicially review lawfulness of Secretary of State for the Home Department’s decision to prohibit recourse to public funds on a grant of limited leave to remain. The Judge found that insufficient evidence was adduced at the application stage to show that the Claimants were destitute and therefore the Secretary of State wasn’t under an obligation to exercise her discretion to allow access to public funds. The Judge found that the decision taken was one which was rationally open to her. The claim was dismissed.
R (on the application of Shahzad) v Secretary of State for the Home Department IJR [2015] UKUT 00137 (IAC), 6 March 2015
Application for judicial review of decision to refuse leave under Appendix FM. Application was dismissed.
R (on the application of Zhang) v Secretary of State for the Home Department IJR [2015] UKUT 00138(IAC), 6 March 2015
Tier 1 (Entrepreneur) refused entry clearance and requested and administrative review. Having reviewed the Applicant’s case an Entry Clearance Manager maintained the decision to refuse entry clearance. The judicial review application was dismissed as it was found that a suitable remedy, that of administrative review had been available to the Claimant.
• The Upper Tribunal has held in R( Waqar) v Secretary of State for the Home Department (statutory appeals/paragraph 353) IJR [2015] UKUT 169 that the meaning of s 82 of the Nationality, Immigration and Asylum Act 2002 as inserted by the Immigration Act 2014 is that only an application accepted as a “fresh claim” under paragraph 353 of the immigration rules will generate a right of appeal on refusal. The determination is difficult to square with the binding authority of the Supreme Court in BA (Nigeria) v Secretary of State for the Home Department & Ors [2009] UKSC 7, albeit that BA was cited in the determination. It is therefore anticipated that this approach to the Act will be the subject of challenge.
Fees
• The Home Office has sought in the Immigration and Nationality (Fees) Regulations 2015 (SI 2015/768), to remove the automatic exemption from payment a fee for those granted limited leave to remain following refusal of asylum when extending that leave and has published a new instruction on fee waivers. The Immigration and Nationality (Fees) Regulations 2015, which entered into force on 6 April 2015 may not, however, fully achieve that aim. See enclosure for full discussion: https://www.gov.uk/government/publications/chapter-1a-applications-for-fee-waiver-and-refunds
• NHS Charges
The NHS Health Surcharge came into effect on 6 April 2015 along with the National Health Service (Charges to Overseas Visitors) Regulations 2015 (SI 2015/238) which accompany the changes to the definition of ordinary residence. The surcharge is £150 per year for students and £200 per year for other applicants, payable in full at the time of application.
A whole host of problems have already been identified with the NHS surcharge payment process resulting in the overcharging of individuals. One such example is where regardless of whether a Tier 1 (investor) is applying for a two year extension of leave or a three year initial grant of leave, they will be required to pay a surcharge of £600. The Home Office has confirmed that the applicant must pay the full amount required and the overpayment will be refunded at a later date.
Similarly, where a person is applying for a new job under Tier 2 (General), the full charge will apply to a second application even if there is an unused amount of leave on the first application. It will be possible to apply for a refund on the sum paid in connection with the first application, save where this relates to a period of less than six months. It would seem that a policy of “pay now, get a refund later” is developing.
European Operational Policy
• In response to a freedom of information request, the Home Office has released the latest batch of European Operational Policy notices. Despite the regularity of requests they have so far not put these on gov.uk. The latest batch includes those issued between 21 October and 10 April 2015. These cover: disclosure of interviewers comments; the January EEA forms, the EEA Modernised guidance (guidance on the guidance! – including the fascinating comment “Masterclass sessions on the modernised guidance will be available for all decision-makers who require it over the next few weeks) and the 6 April 2015 changes to the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003).
• Human rights in visit applications
On 24 April 2015 the Home Office issued guidance on consideration of human rights in visit applications. This follows cases where refusals of visit visas have been challenged successfully on human rights grounds. The position taken is … that an application states that a human rights claim is being made does not determine whether the application is in fact a human rights claim. This distinction is important because it determines whether a right of appeal is available against the refusal of the application.
If the application does not provide any supporting reasons or further detail about the human rights claim, for example if it says no more than “I am making a human rights claim” or “It is a breach of my rights under Article 8 not to allow me to come to the UK”, the application is not a human rights claim: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/424016/considering_hr_claims_from_visitors_guidance_v1_0_ext.pdf
• Policy paper: Chapter 8, section 1: spouses, UK Visas and Immigration, 27 April 2015: https://www.gov.uk/government/publications/chapter-8-section-1spouses
• Removal and deportation policy: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/424253/Chapter50_non_EEA_V12__external_final_.pdf
• Home Office Guidance: Indefinite leave to remain: calculating continuous period in UK, UK Visas and Immigration, 22 April 2015: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/423225/ILRcont_periods_v12.0_EXT.pdf
• Policy paper: Immigration Rules part 9: grounds for refusal, UK Visas and Immigration, Immigration Enforcement and Home Office 17 April 2015: https://www.gov.uk/government/publications/immigration-rules-part-9
• Guidance -Tier 1 (Entrepreneur), UK Visas and Immigration, May 2015: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/427993/Tier_1_Entrepreneur_12.0_EXT.pdf
• Tier 4 of the Points Based System – Policy Guidance, UK Visas and Immigration, 15 April 2015: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/422731/2015-04-17_T4_Migrant_Guidance_April_15_f.pdf
• UK Visas and Immigration Guidance: Chapter 57: Right of abode (nationality instructions) April 2015: https://www.gov.uk/government/publications/chapter-57-right-of-abode-nationality-instructions
• Tier 2 of the Points Based System - Policy Guidance, UK Visas and Immigration, 13 April 2015: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/421842/Tier_2_Guidance_04_2015.pdf
• Guidance: Croatian casework - purple registration certificates, UK Visas and Immigration, 9 April 2015: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/421309/Croatia__Chapter_4_purple__v3_0.pdf
• Guidance: Turkish ECAA business guidance, UK Visas and Immigration, 8 April 2015: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/429185/Turkish_ECAA_business_v5_0.pdf
R (on the application of Patel) v Secretary of State for the Home Department (s.3C(4): simultaneous application – withdrawal) IJR [2015] UKUT 0273 (IAC)
S.3C(4) of the Immigration Act 1971 prohibits an application for leave to remain that is made on the same day as, and even if said to be simultaneous with, the applicant’s withdrawal of his appeal before the First-tier Tribunal (Immigration and Asylum Chamber).
R (on the application of Wasif) v Secretary of State for the Home Department (rule 34 – “print and send”) IJR [2015] UKUT 0270 (IAC)
(i) An application for leave to remain in the United Kingdom must comply with the requirements of paragraph A34 and all material provisions of paragraphs 34A – 34K of the Immigration Rules.
(ii) Between June 2013 and August 2014, Tier 4 applicants had the choice of submitting their applications either on line or by the “Print and Send” mechanism.
(iii) The correct construction of the Rules is as follows:
(a) The first of these options required the submission of the completed application form on line and the provision of supporting documents by post.
(b) The second option, “Print and Send”, required the applicant to print the completed application form and send it, with accompanying supporting documents, by post. The “Print and Send” instruction does not amount to an on-line application.
(iv) A failure to comply with the requirements in 34A (per paragraph 34C) invalidates the application.
R (on the application of Mushtaq) v Entry Clearance Officer of Islamabad, Pakistan (ECO – procedural fairness) IJR [2015] UKUT 00224 (IAC) 11 May 2015
(i) The common law principles of procedural fairness apply to the decision making processes of Entry Clearance Officers (“ECOs”).
(ii) ECO interviews serve the basic twofold purpose of enabling applications to be probed and investigated and, simultaneously, giving the applicant a fair opportunity to respond to potentially adverse matters. The ensuing decison must accord with the principles of procedural fairness.
(iii) A breach of the “Case Worker Guidance” may render the decision of an ECO unlawful. As a general rule, a challenge advanced on this basis will succeed only where Wednesbury irrationality or a material proceduralirregularity is established.
Adjei (visit visas – Article 8) [2015] UKUT 0261 (IAC)
1. The first question to be addressed in an appeal against refusal to grant entry clearance as a visitor where only human rights grounds are available is whether article 8 of the ECHR is engaged at all. If it is not, which will not infrequently be the case, the Tribunal has no jurisdiction to embark upon an assessment of the decision of the ECO under the rules and should not do so. If article 8 is engaged, the Tribunal may need to look at the extent to which the claimant is said to have failed to meet the requirements of the rule because that may inform the proportionality balancing exercise that must follow.[1] Mostafa (Article 8 in entry clearance) [2015] UKUT 112 (IAC) is not authority for any contrary proposition.
2. As compliance with para 41 of HC 395 is not a ground of appeal to be decided by the Tribunal, any findings concerning that will carry little weight, especially if based upon arguments advanced only by the appellant. If the appellant were to make a fresh application for entry clearance the ECO will, if requested to do so, have regard to the assessment carried out by the judge but will not be bound by those findings to treat the appellant as a person who, at least at the date of the appeal hearing, met the requirements of paragraph 41.
AM (S 117B) Malawi [2015] UKUT 0260 (IAC)
(1) The statutory duty to consider the matters set out in s 117B of the 2002 Act is satisfied if the Tribunal’s decision shows that it has had regard to such parts of it as are relevant.
(2) An appellant can obtain no positive right to a grant of leave to remain from either s117B (2) or (3), whatever the degree of his fluency in English, or the strength of his financial resources.
(3) Parliament has now drawn a sharp distinction between any period of time during which a person has been in the UK “unlawfully”, and any period of time during which that person’s immigration status in the UK was merely “precarious”.
(4) Those who at any given date held a precarious immigration status must have held at that date an otherwise lawful grant of leave to enter or to remain. A person’s immigration status is “precarious” if their continued presence in the UK will be dependent upon their obtaining a further grant of leave.
(5) In some circumstances it may also be that even a person with indefinite leave to remain, or a person who has obtained citizenship, enjoys a status that is “precarious” either because that status is revocable by the Secretary of State as a result of their deception, or because of their criminal conduct. In such circumstances the person will be well aware that he has imperilled his status and cannot viably claim thereafter that his status is other than precarious.
(6) When the question posed by s117B(6) is the same question posed in relation to children by paragraph 276ADE(1)(iv) it must be posed and answered in the proper context of whether it was reasonable to expect the child to follow its parents to their country of origin; EV (Philippines). It is not however a question that needs to be posed and answered in relation to each child more than once.
R (on the application of Zia and Another) v Secretary of State for the Home Department IJR [2015] UKUT 00191 (IAC) 11 May 2015
1. Where the Immigration Rules are silent as to interpretation, it may be necessary to refer to the Children Act 1989 (as amended) and other family legislation in order to construe those parts of the Rules which provide a route to entry clearance or leave to remain as a parent.
2. “Access” in the latest version of the Immigration Rules means the same as “contact” in the previous paragraph 284A. Neither term is now used in the Family Court where Child Arrangements Orders are made to regulate “(a) with whom a child is to live, spend time or otherwise have contact; and (b) where a child is to live, spend time or otherwise have contact with any person.”
3. The expression “access rights” in paragraph E-LTRPT.2.4 (a) (i) may refer equally to parents who have “indirect” access to a child by means of letters, telephone calls etc as well as to those who spend time with a child (“direct” access). A parent may also have “access rights” where there is no court order at all, for example, where parents agree access arrangements (the “no order” principle; section 1(5) of the Children Act 1989 (as amended)).
4. Having satisfied the requirements of paragraph E-LTRPT.2.4 (a) (i), an appellant must still prove that he/she “is taking and intend to continue to take an active role in the child’s upbringing”(paragraph E-LTRPT.2.4 (a) (ii)). Whether he/she will be able to do so will depend upon the evidence rather than the nature of the “access rights.” However, it is likely to be unusual that a person having only “indirect” access rights will be able to satisfy this provision. In some cases, Tribunals may need to examine the reasons why the Family Court has ordered “indirect” rather then “direct” access.
1. Following the announcement in the Queen’s Speech of legislation that will be introduced, we now have further details of the Government’s parliamentary agenda for the forthcoming year.
Absent from the Queen’s speech was any Bill to repeal the Human Rights Act and replace it with a British Bill of Rights. Instead, the Government will “bring forward proposals” for a British Bill of Rights although it is not yet clear what form this consultation will take. The work starts now to maintain the principle of the universality of human rights in line with international standards and to resist discourses that descend into considerations of who should be able to access rights and on what conditions.
As expected based on the Conservative Party Manifesto discussed in last month’s mailing, there will be another Immigration Bill this parliamentary year. The Government has confirmed that the clauses of the Bill will seek to extend non-suspensive appeals from deportation cases to all immigration appeals and judicial review where removal would not cause serious irreversible harm. This would not include asylum cases. We anticipate that it will not include those with 3C leave, but shall wait to see that this is confirmed.
The Bill will propose making illegal working a crime and, it is stated, allowing the wages of migrant workers to be seized as proceeds of crime although whether the latter will require new powers is unclear. The Bill will propose the creation of a new single enforcement agency to tackle employers who exploit or coerce people into work in the UK. However, the proposal appears to be for a new monolithic agency rather than multi-disciplinary working. It is intended to create a new offence aimed at employment agencies who recruit solely from abroad without advertising those jobs in Britain and in English. There will be consultation on funding apprenticeship schemes for resident labour market workers (popularly referred to as “British workers”) through the implementation of a visa levy on businesses that use non EEA labour and the introduction of such a levy is intended for this parliamentary session. Through these measures, the Government intends to reduce the demand for skilled migrant labour.
The Bill will propose a requirement that that all foreign offenders released on bail be tagged. Enforcement is to be stepped up although we do not yet know which legislative measures will support this. It is intended to extend throughout the country the residential tenancies scheme whereby landlords and landladies check the immigration status of their tenants. This does not require primary legislation but what does is the Government’s intention to build on this by making it easier to evict persons under immigration control. It is intended to ensure that banks take action on existing current accounts held by those in the UK unlawfully.
Other areas of the legislative programme may potentially have an impact on persons under immigration control and also provide opportunities to make a positive case. The Refugee Children’s Consortium will be keeping a close eye on the Education and Adoption Bill and all those concerned with asylum support on the Full Employment and Welfare Benefits Bill. There is a proposal for an Extremism Bill to deal with “extremism” that is not extreme enough to fall within the ambit of counter-terrorism legislation, with proposals for new powers for the Home Secretary to ban “extremist” groups and to enable employers to check whether an individual is an “extremist”.
Tier 1 Entrepreneurs
The Home Office has confirmed that all Tier 1 (Entrepreneur) applicants must meet the Immigration Rules in force at the date of their application and thus that where they have not held the required level of funds for a consecutive period of 90 days, ending no earlier than 31 days before the date of the application as per Appendix A of the Immigration Rules they must provide the additional specified evidence required under paragraph 41-SD of that Appendix. Those who have liquidated assets less than 90 days before their proposed date of application, and are not able to provide the specified third party evidence must wait until they have had the funds under their control for 90 days.
Biometric Residence Permits
UK Visas and Immigration are offering larger sponsors or legal representatives new options for the collection of Biometric Residence Permits on behalf of their overseas staff or clients, depending on their expected volumes of Biometric Residence Permit applications.
Large firms may either register as a Biometric Residence Permit Alternative Collection Location and receive Biometric Residence Permits at their office or nominate specific staff members to collect Biometric Residence Permits from the Post Office. Security requirements similar to those imposed on the Post Office will apply, including the need for nominated staff to be nationals of the EEA or Switzerland. The Home Office will start the scheme with a small number of firms or organisations before extending the offer more widely. The letter from Phillip Smith, Head of Immigration Checking & Enquiry Services at UK Visas and Immigration in the enclosures provides information on registration and guidance about the scheme.
2.Immigration statistics: http://researchbriefings.parliament.uk/ResearchBriefing/Summary/SN06077
3. Family members of students and Comprehensive Sickness Insurance – updated guidance: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/431618/comprehensive_sickness_insurance_for_family_members_of_students.pdf
4. Criminal casework – Nationality and Identity guidence: https://www.gov.uk/government/publications/nationality-and-identity-guide
5. Entering the UK as a holder of Article 10 Residence Card: https://www.gov.uk/government/publications/entering-the-uk-as-the-holder-of-an-article-10-residence-card/entering-the-uk-as-the-holder-of-an-article-10-residence-card
6. Long Residence guidance: https://www.gov.uk/government/publications/long-residence
7. Home Office Guidance: Chapter 7A of UK Visas and Immigration nationality instructions on registering people born before 1 July 2006 whose parents were not married: https://www.gov.uk/government/publications/chapter-7a-registration-of-persons-born-before-1-july-2006-whose-parents-were-not-married-nationality-instructions
• Home Office to UKCISA of 12 June 2015 re response to Freedom of Information request for caseworker guidance on the immigration health charge and, in particular, how caseworkers are instructed to deal with incorrect assessments by the portal: http://legalcentre.org/files/FOI-res...r-guidance.pdf
• AA (Upper Tribunal – review power) Uzbekistan [2015] UKUT 00330 (IAC)
1. By virtue of rules 45 and 46 of the Tribunal Procedure (Upper Tribunal) Rules 2008 a condition precedent to a review is an application for permission to appeal against the decision of the Upper Tribunal.
2. Pursuant to s.10 of the Tribunals, Courts and Enforcement Act 2007, rules 45 and 46 make no provision for an application for a review; the power is exercisable only on the initiative of the Upper Tribunal.
3. The clear purpose behind rule 45, which is to provide a filter mechanism to help ensure that obvious errors based on oversight of a legislative provision or binding authority can be corrected (and set aside under rule 47) without unnecessarily burdening the Court of Appeal.
• Oladeji (s.3(1) BNA 1981) [2015] UKUT 00326 (IAC)
Whilst s.65 of the Immigration Act 2014, which came into force on 6 April 2015 inserts new provisions into the British Nationality Act 1981 for persons born before 1 July 2006 that create a registration route for those who would currently have an entitlement to registration under the British Nationality 1981 Act but for the fact that their parents are not married, those provisions (like the pre-existing policy set out in Chapter 9 of the UK Visas and Immigration and Nationality Instructions), are predicated on there having been an application made under s. 3(1) of the British Nationality Act 1981.
• Measures to limit migrants’ access to benefits, Briefing Paper, House of Commons Library 17 June 2015: http://researchbriefings.parliament....ummary/SN06889
Собственно говоря:
R (on the application of Zia and Another) v Secretary of State for the Home Department IJR [2015] UKUT 00191 (IAC)
Judicial Review of a Home Office refusal to grant leave to remain as a Tier 1 entrepreneur dismissed. The claimants argued that they had a legitimate expectation that their leave to remain application would succeed despite being unable to provide a specified bank document following information given to them by a Home Office telephone helpline operator. It was held that a legitimate expectation did not arise. The starting point is that the claimants have an expectation from the rule that they did not meet the requirements of the rule, the application would be refused. The claimants had made two telephone calls to the Home Office helpline. They spoke with a supervisor during their first call who made it clear that the decision would be made by a caseworker and he could not indicate how the application would be decided. The Court found that when the claimants received different information from a more junior member of the helpline staff, it was reasonable to expect them to have disclosed the content of the previous contradictory statement to the second operative in order to clarify. It was also not accepted that the claimants would have relied on the information given. The claimants further submitted that it was not possible for them to comply with the rules, the bank confirming it would not provide the document in the form required, but this argument was rejected on the basis that no evidence was offered that it was the universal practice of banks to decline such requests and no applicant would be able to comply.
• R (on the application of Zia and Another) v Secretary of State for the Home Department IJR [2015] UKUT 00191 (IAC)
Judicial Review of a Home Office refusal to grant leave to remain as a Tier 1 entrepreneur dismissed. The claimants argued that they had a legitimate expectation that their leave to remain application would succeed despite being unable to provide a specified bank document following information given to them by a Home Office telephone helpline operator. It was held that a legitimate expectation did not arise. The starting point is that the claimants have an expectation from the rule that they did not meet the requirements of the rule, the application would be refused. The claimants had made two telephone calls to the Home Office helpline. They spoke with a supervisor during their first call who made it clear that the decision would be made by a caseworker and he could not indicate how the application would be decided. The Court found that when the claimants received different information from a more junior member of the helpline staff, it was reasonable to expect them to have disclosed the content of the previous contradictory statement to the second operative in order to clarify. It was also not accepted that the claimants would have relied on the information given. The claimants further submitted that it was not possible for them to comply with the rules, the bank confirming it would not provide the document in the form required, but this argument was rejected on the basis that no evidence was offered that it was the universal practice of banks to decline such requests and no applicant would be able to comply
• MK (section 55 – Tribunal options) Sierra Leone [2015] UKUT 00223 (IAC)
(i) Where it is contended that either of the duties enshrined in section 55 of the Borders, Citizenship and Immigration Act 2009 has been breached, the onus rests on the appellant and the civil standard of the balance of probabilities applies. There is no onus on the Secretary of State.
(ii) As regards the second of the statutory duties [the need to have regard to statutory guidance promulgated by the Secretary of State], it is not necessary for the decision letter to make specific reference to the statutory guidance.
(iii) The statutory guidance prescribes a series of factors and principles which case workers and decision makers must consider.
(iv) Where the Tribunal finds that there has been a breach of either of the section 55 duties, one of the options available is remittal to the Secretary of State for reconsideration and fresh decision.
(v) In considering the appropriate order, Tribunals should have regard to their adjournment and case management powers, together with the overriding objective. They will also take into account the facilities available to the Secretary of State under the statutory guidance, the desirability of finality and the undesirability of undue delay. If deciding not to remit the Tribunal must be satisfied that it is sufficiently equipped to make an adequate assessment of the best interests of any affected child
• R (on the application of Mushtaq) v Entry Clearance Officer of Islamabad, Pakistan (ECO – procedural fairness) IJR [2015] UKUT 00224 (IAC)
(i) The common law principles of procedural fairness apply to the decision making processes of Entry Clearance Officers (“ECOs”).
(ii) ECO interviews serve the basic twofold purpose of enabling applications to be probed and investigated and, simultaneously, giving the applicant a fair opportunity to respond to potentially adverse matters. The ensuing decison must accord with the principles of procedural fairness.
(iii) A breach of the “Case Worker Guidance” may render the decision of an ECO unlawful. As a general rule, a challenge advanced on this basis will succeed only where Wednesbury irrationality or a material procedural irregularity is established
NB: In this successful judicial review of a refusal to grant a Tier 4 student visa, the Court applied common law principles of procedural fairness to the assessment made by the Entry Clearance Officer as to whether the claimant was a genuine student. The decision is noteworthy as it sets out the claimant’s interview in some detail and examines each of the reasons for refusal given by the Entry Clearance Officer in context, finding both irrationality in the Wednesbury sense and procedural unfairness. The judgment concludes with the observation that entry clearance interviews require care and planning, the avoidance of ambiguous words and phrases and, in the interests of fairness, the opportunity for interviewees to clarify or expand on their answers: “The nationals of impoverished and deprived countries who have invested large sums of money and whose admission to the United Kingdom is lawful if they satisfy the requirements of the relevant legal rules are deserving of no less”.
• JA (meaning of “access rights”) India [2015] UKUT 00225 (IAC)
1. Where the Immigration Rules are silent as to interpretation, it may be necessary to refer to the Children Act 1989 (as amended) and other family legislation in order to construe those parts of the Rules which provide a route to entry clearance or leave to remain as a parent.
2. “Access” in the latest version of the Immigration Rules means the same as “contact” in the previous paragraph 284A. Neither term is now used in the Family Court where Child Arrangements Orders are made to regulate “(a) with whom a child is to live, 3 spend time or otherwise have contact; and (b) where a child is to live, spend time or otherwise have contact with any person.”
3. The expression “access rights” in paragraph E-LTRPT.2.4 (a) (i) may refer equally to parents who have “indirect” access to a child by means of letters, telephone calls etc as well as to those who spend time with a child (“direct” access). A parent may also have “access rights” where there is no court order at all, for example, where parents agree access arrangements (the “no order” principle; section 1(5) of the Children Act 1989 (as amended)).
4. Having satisfied the requirements of paragraph E-LTRPT.2.4 (a) (i), an appellant must still prove that he/she “is taking and intend to continue to take an active role in the child’s upbringing”(paragraph E-LTRPT.2.4 (a) (ii)). Whether he/she will be able to do so will depend upon the evidence rather than the nature of the “access rights.” However, it is likely to be unusual that a person having only “indirect” access rights will be able to satisfy this provision. In some cases, Tribunals may need to examine the reasons why the Family Court has ordered “indirect” rather then “direct” access.
• R (on the application of Sultana) v Secretary of State for the Home Department (mandatory order – basic principles) IJR [2015] UKUT 00226 (IAC) 1. In the great majority of cases where the court decides that the impugned decision is contaminated by some public law misdemeanour, the remedy granted is a quashing order whereby the respondent is obliged to make a fresh decision, taking into account the judgment of the court. 2. The remedy of a mandatory order is rarely granted. It is appropriate only in cases where it is clear to the court that the respondent is legally obliged to take a certain course of action, normally involving the conferral of some benefit or advantage on the challenging party, with no choice or discretion. The course that the respondent is ordered by the court to take in a mandatory order must be “the sole result that is legally permissible”.
(i) Rule 7(2) of the Tribunal Procedure (Upper Tribunal) Rules 2008 empowers the Upper Tribunal to take such action as it considers just, which may include striking out a party’s case under rule 8, where there has been a failure to comply with a requirement of the rules, a practice direction or a tribunal direction.
(ii) Under rule 8 proceedings are automatically struck out in the event of failure to comply with an order or direction which specifies that non-compliance will attract this sanction, viz an “unless” order. In other cases the power to strike out is discretionary.
(iii) In considering whether to exercise its discretionary strike out power under rule 8, the 4 main factors which the Upper Tribunal will weigh are the interests of the administration of justice; whether there has been a prompt application for relief; whether the failure was intentional; whether there is a good explanation for the failure; the number and importance of multiple failures; whether the failure was caused by the party or his legal representative; whether the trial date will be jeopardised by the grant of relief; the effect on every party of the relevant failure; and the effect on every party of granting relief. Further, the interests of the administration of justice will be weighed and applied.
(iv) In addition, the Tribunal will apply the following principles: public authorities and private litigants are to be treated alike; excessive work burdens will rarely excuse a defaulting solicitor; and the mere factor of a party being unrepresented does not constitute good reason. In asylum and humanitarian protection claims, particular care must be taken to ensure that appeals are not frustrated by a failure on the part of a party’s legal representative to comply with time limits.
(v) In considering the exercise of its discretionary strike out power under rule 8, the Tribunal will be mindful of the draconian nature of such orders and will take into account the availability of any other appropriate and adequate sanction such as a wasted costs order under rule 10(3). Repeated defaults will almost invariably be considered more serious than a single act of non-compliance. In every case the Tribunal will consider the question of whether its process is being misused.
(vi) In an application under rule 8(5) to reinstate a struck out case, the main factors to be considered are the reason for the failure which gave rise to the strike out order, whether there has been any undue delay in applying for reinstatement and whether reinstatement would prejudice the other party.
(vii) The values of efficiency and expedition will be promoted and due observance of the overriding objective will be enhanced by adherence to the principles and standards of pleading rehearsed in [28] – [32].
(viii) In judicial review cases, applications to amend so as to enable a new or later decision to be challenged must be made proactively and timeously. Such applications will be determined on their merits and giving effect to the overriding objective.
• R (on the application of RA (and by his litigation friend) and another) v Secretary of State for the Home Department IJR [2015] UKUT 00242 (IAC)
NB:This key case considers when there needs to be an independent review of the merits of a distinct asylum and human rights claim by a dependent child whom the Secretary of State is seeking to remove with their adult parent and gives guidance on the application of the principle of the best interests of the child. A judicial review was brought on behalf of a 5 year-old child (RA) removed with his mother to Nigeria, the Office of the Children’s Commissioner intervening. The claimants challenged the refusal of the Secretary of State to treat further submissions relating to the child either as an asylum and human rights application in his own right or as a fresh claim, which would have given rise to an in-country right of appeal. 5
The Court accepted in principle that where no separate claim was expressly advanced on behalf of a child, the circumstances may be such as to warrant independent treatment. In doing so, the Court was mindful of submissions made that there were no written procedures or applications for asylum and human rights claims and the Secretary of State’s policy required a purposive approach to such claims; that an individual could simultaneously be a dependent on an application and advance a claim in their right and caseworkers had to be sensitive to these; that the Secretary of State’s guidance required her to be alert to the rights and interests of children to ensure that their position is separately and distinctly considered from that of adults; that children may be at risk of harm on return in circumstances where an adult might not be at risk; and the ‘invisibility’ of accompanied children may lead to their claims being overlooked.
The Court further stated that whether the Secretary of State must identify a separate claim will be fact sensitive. While clear and obvious conflict between the interests of a parent and child would justify separate treatment, this would be unusual and differences in claims may be accommodated within the family claim. The child’s interests would be protected as a result of a best interests inquiry under s.55 of the Borders, Citizenship and Immigration Act 2009. On the facts of this case, a separate claim was not found.
The Court subsequently considered the refusal to accept the representations put forward in relation to the child as amounting to a fresh claim as advanced by his parent. The Court considered the best interests inquiry conducted by the Secretary of State but found in this case found that she had failed to take account of the implications for the child of the parent’s deteriorating mental health, the risk of that degenerating in the Nigerian context and the likely consequences on removal and so failed to have regard to the child’s best interests as a primary consideration. As this meant that the Secretary of State did not take into account material considerations or employ the anxious scrutiny required, her decision that the representations did not represent a realistic prospect of success in the fresh claim was flawed and judicial review was granted.
• R (on the application of RA) v Secretary of State for the Home Department IJR [2015] UKUT 00292 (IAC)
NB: Following its judgment in R(on the application of RA (and by his litigation friend and another) v Secretary of State for the Home Department [2015] UKUT 00242 (IAC) 30 March 2015 above, the Upper Tribunal made an Order for the return of the child and her mother to the UK after they were removed to Nigeria. The Secretary of State for the Home Department was subsequently unsuccessful in her appeal to the Court of Appeal to challenge this Order.
• AB and Others (internet activity – state of evidence) Iran [2015] UKUT 0257 (IAC) The material put before the tribunal did not disclose a sufficient evidential basis for giving country or other guidance upon what, reliably, can be expected in terms of the reception in Iran for those returning otherwise than with a “regular” passport in relation to whom interest may be excited from the authorities into internet activity as might be revealed by an examination of blogging activity or a Facebook account. However, this determination is reported so that the evidence considered by the Upper Tribunal is available in the public domain.
• AM (S 117B) Malawi [2015] UKUT 0260 (IAC)
(1) The statutory duty to consider the matters set out in s 117B of the 2002 Act is satisfied if the Tribunal’s decision shows that it has had regard to such parts of it as are relevant.
(2) An appellant can obtain no positive right to a grant of leave to remain from either s117B (2) or (3), whatever the degree of his fluency in English, or the strength of his financial resources.
(3) Parliament has now drawn a sharp distinction between any period of time during which a person has been in the UK “unlawfully”, and any period of time during which that person’s immigration status in the UK was merely “precarious”.
(4) Those who at any given date held a precarious immigration status must have held at that date an otherwise lawful grant of leave to enter or to remain. A person’s immigration status is “precarious” if their continued presence in the UK will be dependent upon their obtaining a further grant of leave.
(5) In some circumstances it may also be that even a person with indefinite leave to remain, or a person who has obtained citizenship, enjoys a status that is “precarious” either because that status is revocable by the Secretary of State as a result of their deception, or because of their criminal conduct. In such circumstances the person will be well aware that he has imperilled his status and cannot viably claim thereafter that his status is other than precarious.
(6) When the question posed by s117B(6) is the same question posed in relation to children by paragraph 276ADE(1)(iv) it must be posed and answered in the proper context of whether it was reasonable to expect the child to follow its parents to their country of origin; EV (Philippines). It is not however a question that needs to be posed and answered in relation to each child more than once.
• Adjei (visit visas – Article 8) [2015] UKUT 0261 (IAC)
1. The first question to be addressed in an appeal against refusal to grant entry clearance as a visitor where only human rights grounds are available is whether article 8 of the ECHR is engaged at all. If it is not, which will not infrequently be the case, the Tribunal has no jurisdiction to embark upon an assessment of the decision of the ECO under the 7 rules and should not do so. If article 8 is engaged, the Tribunal may need to look at the extent to which the claimant is said to have failed to meet the requirements of the rule because that may inform the proportionality balancing exercise that must follow.[1] Mostafa (Article 8 in entry clearance) [2015] UKUT 112 (IAC) is not authority for any contrary proposition.
2. As compliance with para 41 of HC 395 is not a ground of appeal to be decided by the Tribunal, any findings concerning that will carry little weight, especially if based upon arguments advanced only by the appellant. If the appellant were to make a fresh application for entry clearance the ECO will, if requested to do so, have regard to the assessment carried out by the judge but will not be bound by those findings to treat the appellant as a person who, at least at the date of the appeal hearing, met the requirements of paragraph 41. [1] Footnote: Now see SS (Congo) v Secretary of State for the Home Department [2015] EWCA Civ 387.
• R (on the application of Wasif) v Secretary of State for the Home Department (rule 34 – “print and send”) IJR [2015] UKUT 0270 (IAC)
(i) An application for leave to remain in the United Kingdom must comply with the requirements of paragraph A34 and all material provisions of paragraphs 34A – 34K of the Immigration Rules.
(ii) Between June 2013 and August 2014, Tier 4 applicants had the choice of submitting their applications either on line or by the “Print and Send” mechanism.
(iii) The correct construction of the Rules is as follows: (a) The first of these options required the submission of the completed application form on line and the provision of supporting documents by post. (b) The second option, “Print and Send”, required the applicant to print the completed application form and send it, with accompanying supporting documents, by post. The “Print and Send” instruction does not amount to an on-line application. (iv) A failure to comply with the requirements in 34A (per paragraph 34C) invalidates the application.
• R (on the application of Patel) v Secretary of State for the Home Department (s.3C(4): simultaneous application – withdrawal) IJR [2015] UKUT 0273 (IAC) S.3C(4) of the Immigration Act 1971 prohibits an application for leave to remain that is made on the same day as, and even if said to be simultaneous with, the applicant’s withdrawal of his appeal before the First-tier Tribunal (Immigration and Asylum Chamber).
http://www.parliament.uk/documents/commons-vote-office/July 2015/13 July/5-Home-Immigration.pdf
Mainly changes to Tier 4 :
- New students at publicly funded colleges will be prevented from being able to work in the UK
- From "the autumn", "college students" will be unable to switch to a work visa or extend their study visa whilst they are in the UK
The rules around academic progression are being tightened so that university students are only permitted to extend their studies at the same academic level if the course they wish to study is linked to their previous course, or the university confirms the course supports the student’s career aspirations. The time limit on further education study will be reduced from three years to two years in "the autumn".
The maintenance requirement for Tier 4 students is increasing, along with the maximum amount paid for accommodation which can be offset against the maintenance requirement. The rule around established presence which allowed students applying to extend their leave within the UK to show only two months’ maintenance is being removed.
The application of the rules on time limits is being "clarified" so that the time a student has already spent studying in the UK is calculated using the full length of the leave they have previously been granted.
Changes are being made to allow a Tier 4 visa to be issued in line with a student’s intended date of travel.
Conditions of study are being changed, to prevent those in Tier 4 from studying at academies or schools maintained by a local authority. Those who wish to study a foundation course to prepare for entry to higher education are also being prevented from doing so under the Tier 4 (Child) route.
Where responsibilities of sponsor organisations and terminology have recently changed, the rules are being updated.
• Detained fast-track suspended
The suspension comes as a result of legal challenges. First, in R (Detention Action v First-Tier Tribunal) (Immigration and Asylum Chamber) & Ors [2015] EWHC 1689 (Admin) (12 June 2015), Nicol J held that the fast-track procedure rules were ultra vires the powers of the Tribunal Procedure Committee which has power to make procedure rules securing that justice be done and that the tribunal system is fair. By ‘allowing one party to the appeal to put the other at serious procedural disadvantage without sufficient judicial supervision’, the rules were not securing these objectives and the Committee was acting out with its powers.
• Measures to limit migrants’ access to benefits: http://researchbriefings.parliament.uk/ResearchBriefing/Summary/SN06889
• Written Statement (HCWS95) announcing new statement of changes in Immigration Rules, 13 July 2015: http://www.parliament.uk/documents/commons-vote-office/July 2015/13 July/5-Home-Immigration.pdf
Recent case-law:
• R (on the application of Badalge) v Secretary of State for the Home Department IJR [2015] UKUT 00325 (IAC)
The Claimant made an in-time application for further leave to remain as a student and his leave was extended pursuant to Section 3C of the Immigration Act 1971. The Secretary of State issued a decision to remove the applicant under section 10 of the Immigration and Asylum Act 1999 and refused the outstanding application for leave to remain under paragraph 322(1A) of the Immigration Rules following alleged use of deception in providing a fraudulently obtained certificate from the Educational Testing Service. The Secretary of State informed the claimant that he only had an out-of-country right of appeal as the decision was not an immigration decision under section 82 of the Nationality, Immigration and Asylum Act 2002. Section 82(2)(d) did not apply as the decision did not vary his leave such that he had no leave to enter or remain as a result. This was because his existing leave to enter or remain in the UK was invalidated by the removal decision pursuant to section 10(8) of the Immigration and Asylum Act 1999. The Court confirmed that this was the correct position, holding that the facts were similar to Shahbaz Ali v Secretary of State for the Home Department and that the case of Ahmadi relied upon by the claimant was consistent with that decision. The claim for judicial review was therefore dismissed.
• R (on the application of FBL) v Secretary of State for the Home Department IJR [2015] UKUT 00328 (IAC)
The claimant was unsuccessful in his judicial review challenging the Secretary of State’s decision to refuse or accept as a fresh claim his application for leave to remain relying on the private and family life, established whilst living unlawfully in the UK, with his partner and two children aged 3 and 4 years who were subsequently granted Discretionary Leave to Remain. The claimant failed to demonstrate that the Secretary of State unlawfully applied an ‘exceptionality’ test when considering his rights under Article 8 European Convention on Human Rights. The Court considered Secretary of State for the Home Department v SS (Congo) and others where a test of exceptionality was held to be applicable in two specific contexts: where the family relationship had been established in the context of precariousness and in the deportation of foreign criminals. The Court considered that this approach may be restricted to cases where no children were involved but did not rely on the point, having not heard submissions on the case and having concluded that the claimant had not established that an exceptionality test had been applied. References to ‘exceptional’ in the language of the refusal letter was shorthand for considering whether there were exceptional circumstances that may properly be required to outweigh the public interest and the refusal letter had to be read as a whole. Similar arguments made by the claimant had been considered and rejected in R (Chen) v Secretary of State for the Home Department.
Grounds of review based on failure to consider the children’s best interests and to take into account all relevant factors in the assessment of proportionality also failed. Both parents were Chinese nationals and would not have difficulty reintegrating in China. Their children were of an age where their principal relationships were within the family unit rather than having wider social ties. The Secretary of State was entitled to reach the conclusion that there were no obstacles to family life in China on the evidence before her without further enquiries given the ages of the children who were not in the position of having spent 7 years in the UK and developed social ties. The Secretary of State’s delay of just over 1 year in taking a decision was not a significant factor to be weighed in the context of the claimant having lived in the UK without leave to remain since 2007 and absconded between 2008- 2012 and there being no evidence of the children having developed social ties outside the family unit.
• Badewa (ss 117A-D and EEA Regulations) [2015] UKUT 00329 (IAC)
The correct approach to be applied by tribunal judges in relation to ss.117A-D of the Nationality, Immigration and Asylum 2002 (as amended) in the context of EEA removal decisions is: (i) first to decide if a person satisfies requirements of the Immigration (European Economic Area) Regulations 2006. In this context ss.117A-D has no application; (ii) second where a person has raised Article 8 as a ground of appeal, ss.117A-D applies.
• RK (Allowed appeals – service on respondent) Albania [2015] UKUT 00331 (IAC)
1. Service by the First-tier Tribunal of a determination allowing the appeal on the Presenting Officers’ Unit in Cardiff rather than on the Specialist Appeals Team in Angel Square was good service despite what was said to be an agreement to serve all allowed appeals on the Angel Square team.
2. Accordingly on the evidence before it, the Upper Tribunal upheld the decision of the First-tier Tribunal to refuse to admit the Secretary of State’s appeal from the decision of the First-tier Tribunal as the appeal was out of time and it was not in the interests of justice to extend time.
• R (on the application of HRP and Others) v Secretary of State for the Home Department IJR [2015] UKUT 00351(IAC)
Refusal by the Secretary of State of an application for leave to remain under paragraph 276ADE Immigration Rules (long residence) was unlawful as the decision failed to engage with the issue of whether the claimants, a couple with two children, had lost their ties to their country of origin. Whilst the decision on this issue need not be detailed, it must demonstrate that the salient features of the claim have been considered and tested against the requirements of the rules. Nor can the decision be read across from one of the joined applicants to another; they are entitled to individual consideration of their case. The failure to lawfully consider the applicants’ long residence meant that the Secretary of State cannot have lawfully considered the children’s best interests. The Court rejected the argument of the Secretary of State that since the Immigration Rules take into account s.55 Borders, Citizenship and Immigration Act 2009 she discharges her duty to consider the best interests of the children by considering the application under the Immigration Rules. The discharge of the Secretary of State’s duty to consider th children’s best interests is fact sensitive and while there may be cases where this duty may be discharged by considering the case generally under the immigration rules, this will not be the norm. The instant case is not one that may be discharged by general consideration of the application under the rules as there are numerous features of evidence relevant to the children’s best interests.
• R (on the application of AB) v Secretary of State for the Home Department IJR [2015] UKUT 00352 (IAC)
The Secretary of State’s decision to refuse to revoke a deportation order and certify the application as clearly unfounded was held to be unlawful due to her failure to give proper consideration to the best interests of the child. The decision to certify the application as clearly unfounded was therefore quashed.
The claimant had been deported from the UK in 2000 following a sentence of 7 years imprisonment for indecent assault. He returned in the same year in breach of the order and lived unlawfully in the UK, developing a family life with his current wife, their two children and his wife’s child from a previous relationship. He was arrested in 2006 following a domestic dispute and applied for leave to remain on Article 8 European Convention of Human Rights grounds. His case was considered by the Court of Appeal in 2012 which identified strong reasons why the public interest was in favour of deporting the claimant.
The claimant made a further application for leave to remain in 2013, submitting an independent social worker report commenting on the negative impact of separation, particularly on the applicant’s daughter who has significant learning difficulties and on his wife who has a history of depression and self harm and would suffer a deterioration in her emotional/mental health, affecting her ability to meet her children’s needs.
The Court considered that although the children’s best interests were considered during the previous proceedings, the additional expert evidence and passage of time meant the situation could have changed. Supplementary reasons for refusal given by the Secretary of State following the claimant’s application for permission were to be treated with scepticism as they advanced a different basis for their decision well into the course of litigation. The Secretary of State did not take sufficient account of the level harm caused by separation in balancing this against the public interest given that the best interests of the children were the central concern. Whilst the Secretary of State states in supplementary reasons that the mother may be able to access help if her condition deteriorates, she failed to give sufficient consideration to the impact on her children of her consequent inability to care for them.
• R (on the application of Khan) v Secretary of State for the Home Department (right of appeal – alternative remedy) IJR [2015] UKUT 00353 (IAC)
Although each case must be determined on its own facts, in cases where a person seeks to dispute the Secretary of State’s assertions as to the availability of an appeal to the First-tier Tribunal, the appropriate course is for such person to lodge a notice of appeal with the First-tier Tribunal requesting that it determine this issue. Given the existence of this suitable alternative remedy, it will only be in exceptional circumstances that the Upper Tribunal will exercise its discretion and grant relief to a person who seeks to raise this same issue before it in judicial review proceedings brought against the Secretary of State.
Ссылка: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/268024/hc439.pdf
Что меняется.
Ранее студентам, кто отучился в UK от 6 и более месяцев позволялось при продлении показывать т.н. maintenance в размере 2-х месячной суммы.
С 11 ноября 2015 года т.н. established student status отменяется и при продлении визы студенту нужно будет показывать т.н. maintenance в размере 9-и месячной суммы.
Обратите внимание.