Briefly, it does not implement major changes to Tier 2.
Allows domestic workers to change employer within the currency of six month visa and allows those with a conclusive grounds decision that they are trafficked or enslaved to apply for leave to remain for up to two years.
Tier 4: time spent in the UK with leave under Tier 4 under the age of 18 will henceforth count toward calculation of the maximum period you can spend in the UK under Tier 4.
A new general ground of refusal, that client owes a litigation debt to the Home Office, costs ordered against the client in favour of the Home Office which they have failed to pay.
For a person to be excluded from refugee protection under Article 1F(c) of the Refugee Convention on the basis that they knowingly incited and encouraged acts contrary to the purposes and principles of the United Nations it is not necessary to show that such acts have actually been committed or attempted.
> Rajendran (s117B – family life) [2016] UKUT 00138 (IAC)
1. That “precariousness” is a criterion of relevance to family life as well as private life cases is an established part of Article 8 jurisprudence: see e.g. R (Nagre) v SSHD [2013] EWHC 720 (Admin) and Jeunesse v Netherlands, app.no.12738/10 (GC).
2. The “little weight” provisions of s.117B(4)(a) and (5) of the Nationality, Immigration and Asylum Act 2002 are confined to “private life” established by a person at a time when their immigration status is unlawful or precarious. However, this does not mean that when answering the “public interest question” posed by s117A(2)-(3) a court or tribunal should disregard “precarious family life” criteria set out in established Article 8 jurisprudence. Given that ss.117A-D considerations are not exhaustive, in certain cases it may be an error of law for a court or tribunal to disregard relevant public interest considerations.
> R (on the application of Dulagan) v Secretary of State for the Home Department IJR [2016] UKUT 00136 (IAC)
Judgment of McGeachy, J dismissing an application for judicial review of a decision to refuse leave to remain under article 8 of the European Convention on Human Rights.
The applicant had married a British Citizen whilst an overstayer in the UK. Though she had attempted to make an application outside the rules while a Tier 4 student, this was rejected for non-payment of a fee as was a subsequent application.
The Court held that:
1. There was no evidence of insurmountable obstacles to family life continuing in the applicant’s country of origin;
2. Overstaying is a factor that can be taken into account in the assessment of proportionality;
There was no merit in the argument concerning the historic injustice of the earlier applications not succeeded. Following TN (Afghanistan), this does not weigh heavily in the consideration of article 8 ECHR rights and the applicant did not exercise her alternative remedy when the applications were refused;
3. The applicant’s pregnancy was not known to the Secretary of State at the time of the decision and cannot be taken into account, even though the child would be British;
4. There was no merit in arguments based on Chikwamba as it was not the case that the application under paragraph EX.1.(b) of the Immigration Rules could with certainty succeed. The specified documents had not been submitted and there was nothing to indicate that there would be undue hardship for the applicant or her spouse should an application be made from outside the UK.
5. The Court concluded that the Secretary of State had dealt adequately with all relevant matters and that there were no exceptional factors in this case which would mean that it would have been appropriate to grant leave to remain outside the Rules.
UK & EEA Immigration Law digest, end of March 2016
Recent case-law:
• PD and Others (Article 8 – conjoined family claims) Sri Lanka [2016] UKUT 00108 (IAC)
In considering the conjoined Article 8 ECHR claims of multiple family members decision-makers should first apply the Immigration Rules to each individual applicant and, if appropriate, then consider Article 8 outside the Rules. This exercise will typically entail the consideration and determination of all claims jointly, so as to ensure that all material facts and considerations are taken into account in each case.
1. Those with a “litigation debt” to the Home Office (i.e. who were ordered to pay costs and who have not, including all those issued with unlawful costs orders by the Upper Tribunal will be refused further UK visas.
2. Decrease in the threshold for NHS debt being a bar to re-entry from £1000 to £500
3. Making it even harder for the self-employed to produce the necessary evidence under Appendix FM-SE
4. Changes to the overseas domestic worker rules in line with recent review and response, which I will cover next week in a full blog post
5. Further tightening of the Tier 4 student rules
6. Tweaks to the Administrative Review process
7. Widening of the circumstances in which Appendix FM applications can be refused due to previous alleged poor conduct
Some highlights on the above:
Changes across Tier 1 changes from April 2016
A minor change is being made regarding UK accounting bodies, whose evidence is accepted in various Tier 1 categories, to require confirmation that they hold the relevant licence to practise or a practising certificate.
Tier 1 Entrepreneur changes from 06 April 2016
The Immigration Rules on indefinite leave to remain (ILR) are being clarified so that applicants applying under the accelerated provision are able to appropriately demonstrate that:
• they have registered their business within six months of their specified date; and
• their business, if it was being taken over, has resulted in a net increase of at least £5 million (should they be applying for accelerated ILR on this basis).
• Changes relation to self-employed sponsor under Appendix FM (Family and Private Life)
• Clarifying that where the applicant or sponsor relies on income from self-employment, or as a director of a specified limited company, all the income relied on by the couple must relate to the same financial year(s).
Tier 4 changes from 06 April 2016
• An amendment is being made to make clear that Tier 4 (General) students may not extend their leave in the UK in order to study a course at a lower level than the previous course for which they were granted Tier 4 leave and the course must be at or above degree level. These students must be progressing academically, unless they are taking a course at the same level as their previous course and their Higher Education Institution sponsor confirms that the course is related to the previous course for which the applicant was granted leave as a Tier 4 (General) Student, or the previous course and the new course in combination support the applicant’s genuine career aspirations. A further change is being made to tighten the circumstances in which a Tier 4 (General) student, who has previously studied in the UK, can switch courses without obtaining a new visa.
• Amendments are being made to the rules relating to the time limits under Tier 4 (General). A clarification has been added to specify that for the purposes of calculating how much time has been spent contributing to the time limits, the period of leave granted, and the level of course for which the leave was granted, will be counted, rather than (if different) periods and courses actually studied. Time spent under the age of eighteen will no longer be excluded. This will mean that all time granted for study in the UK under Tier 4 (General) will be included when calculating the maximum length of time that may be spent under the route.
• A provision is being added to allow third country nationals applying under Tier 4 (General) to study a short-term study abroad programme in the UK as part of their bachelor’s or master’s degree at an overseas higher education institution in the USA to be exempt from the English language requirements in Tier 4. This change allows USA universities to assess the student’s level of English language in the same way that UK higher education institutions are permitted to.
• An amendment is being made to reduce the maintenance requirements for those applying for leave to remain under Tier 4 as a student union sabbatical officer or postgraduate doctor or dentist on a recognised Foundation Programme. These students are applying for a salaried position, which will contribute to their ability to support themselves financially. These students will be required to show funds for their living costs for each month of their course up to a maximum of two months, bringing them in line with Doctorate Extension Scheme students, who can also work full-time.
• Under current Tier 4 rules, students are not permitted to be self employed, which is defined as being registered as self-employed with HM Revenue & Customs, or being employed by a company of which the applicant is a controlling shareholder. This allows students to set up businesses, provided they are not the controlling shareholder. We are tightening the definition of self employment to prevent this, in order to reflect the policy intention that the Tier 4 visa route is for students to come to the UK to study, not to take employment. Work is allowed so that a student can supplement their income whilst studying in the UK, not to set up businesses.
• Tier 4 students are permitted to study at independent schools and sixth form colleges. Where such an institution with a Tier 4 sponsor licence becomes an academy or a school maintained by a local authority, it is not permitted to sponsor any new students under Tier 4. An amendment is being made to the rules to clarify that Tier 4 students who are sponsored by such an institution at the time of the conversion may continue to study there until they complete their current course of study. A definition of ‘school maintained by a local authority’ is also being added.
• PD and Others (Article 8 – conjoined family claims) Sri Lanka [2016] UKUT 00108 (IAC)
In considering the conjoined Article 8 ECHR claims of multiple family members decision-makers should first apply the Immigration Rules to each individual applicant and, if appropriate, then consider Article 8 outside the Rules. This exercise will typically entail the consideration and determination of all claims jointly, so as to ensure that all material facts and considerations are taken into account in each case.
• A date stamp in a passport or travel document does not confer ILR in cases of returning residents, the Upper Tribunal has held in an interesting case. The facts make it all the more interesting: it involves a recognised refugee from Libya who had returned to live in that country and obtained a Libyan passport, has been absent for more than two years and on return did not present his passport but instead his refugee travel document: http://www.bailii.org/uk/cases/UKUT/IAC/2016/135.html
• NHS Surcharge ? It is only the beginning. What about the Immigration skills charge ?
Immigration skills charge confirmed at £1,000 per year per migrant worker
The Government has confirmed that the Immigration Skills Charge will be set at £1,000 per year per migrant worker sponsored under Tier 2 of the Points Based System. A lower rate will apply for small businesses and charities. On 21 March 2016 in a House of Lords debate (http://www.publications.parliament.uk/pa/ld201516/ldhansrd/text/160321-0004.htm#16032216000116) on the Immigration Bill Lord Bates said:
«The Government have considered advice from the Migration Advisory Committee and additional views from employers. Following careful consideration, I am able to announce that the immigration skills charge of £1,000 per migrant per year will be paid by employers who sponsor tier 2 migrants. The charge will be collected by the Home Office.
A reduced rate of £364 per annum will apply to small businesses and charities as defined in the Immigration Rules. This is consistent with other lower fees applied to these organisations.».
There are also to be some exemptions for PhD level roles in science and research and for graduates switching from Tier 4 to Tier 2.
The adoption of the Immigration Skills Charge has now been confirmed in a press release (https://www.gov.uk/government/news/governments-new-immigration-skills-charge-to-incentivise-training-of-british-workers) The commencement date has been set as April 2017. There is no information yet on whether the charge will be applied only to new Tier 2 migrant recruits, which seems probable, or will also apply to existing Tier 2 workers.
• the guidance “ clarifies” that EEA applications do not qualify as applications that extend section 3C leave
• the guidance also “clarifies” that section 3C leave does not apply where the Tribunal allows an appeal out of time or the Home Office withdraws a decision where section 3C leave is not in operation at the time the decision is withdrawn
Also be aware that the guidance refers to the decision of the Court of Appeal in Iqbal [2015] EWCA 838 – a person who has made an invalid application does not have 3C leave even though they did not know and could not have known of its invalidity.
The guidance also states that if a person does not already have section 3C leave the fact that they are entitled to an in-country right of appeal against a decision does not give them section 3C leave.
This appears to profit from what was almost certainly a drafting error when the Immigration Act 2014 amended section 3C, but which the Government decided they liked when this issue was raised during the passage of the bill: that if you get your refusal before your original leave expires, and appeal it, you are not protected by 3C leave for the duration of your appeal – protection only kicks in if the refusal comes before your leave has expired.
Guidance on which groups have the requirement to pay the IHS waived
The Secretary of State has discretion to reduce, waive or refund all or part of a charge under article 8 of the Immigration (Health Charge) Order 2015.
The list below is not exhaustive and is subject to change but indicates some categories where the requirement to pay the surcharge will be waived where leave to remain is granted:
- Where the immigration application fee is waived on the grounds of destitution;
- Applications under the Afghanistan Locally Engaged Staff Ex-Gratia scheme;
- Armed Forces: discharged Foreign and Commonwealth personnel;
- Armed Forces: non exempt personnel (though Course F’s will pay if they are granted leave of more than 6 months) and Relevant Civilian Employees.
“We find ourselves in respectful disagreement with not only the Lord Ordinary but also the learned judge in Navarro. On a proper construction of section 4C(3) the petitioner is entitled to be registered as a British citizen if she can prove that she would have become a citizen of the United Kingdom and Colonies by virtue of section 5 of the 1948 Act if the assumption set out in section 4C(3A) had applied at the relevant time. For completeness we record that the appeal hearing did not address the issues potentially arising under ECHR, since they would be relevant only if the court was against the petitioner on the construction issue. The reclaiming motion will be allowed and the petitioner’s application remitted to the respondent for reconsideration. However, in the meantime we shall put the case out by order for discussion as to the appropriate terms of the court’s interlocutor, including any declaratory orders.”.
In a ministerial statement published on 24 March 2016, the Government has announced how it will reform Tier 2 of the Points Based System for skilled migration in response to the Migration Advisory Committee review of Tier 2 and its review of whether nurses should remain on the Shortage Occupation List. A timetable has also been issued setting out when each of the phased reforms will be introduced.
The Tier 2 salary threshold will increase to £25,000 in autumn 2016 and to the Migration Advisory Committee’s recommended level of £30,000 in April 2017. Nurses, medical radiographers, paramedics and secondary school teachers in mathematics, physics, chemistry, computer science and Mandarin will be exempted from the increased salary thresholds, and given additional weighting in the monthly allocation of the Tier 2 (General) limit where they are not on the Shortage Occupation List, until July 2019.
Nurses will remain on the Shortage Occupation List but employers will be required to conduct a Resident Labour Market Test before recruiting from outside the EEA. This is in line with the recommendations of the Migrant Advisory Committee which accepted that there is an immediate shortage of nurses but largely blamed the health care sector for this and expressed concern that the recruitment of non-EEA nationals masked systemic issues.
Employers will continue to be able to recruit non-EEA graduates of UK universities as currently. From autumn 2016, there will be additional weighting in the Tier 2 (General) limit for businesses sponsoring overseas graduates and graduates will be allowed to switch roles within a company once they have secured a permanent job at the end of their training programme.
From April 2017, extra weight will also be given to the allocation of certificates of sponsorship relating to the relocation of a high-value business to the UK or where these potentially support an inward investment. No resident labour market test will be required for these applications.
There will be a single, streamlined category for all intra-company transfers with a minimum salary threshold of £41,500. The salary threshold for those in the Graduate Trainee category will be reduced to £23,000, however, and employers will be permitted to bring twenty trainees to the UK instead of five. Phased changes set out in the statement will eventually lead to the closures of the Skills Transfer category and the Short Term category. The Government will seek to introduce some flexibility in the route by lowering the minimum salary threshold for intra-company transferees working in the UK for between five and nine years to £120,000 and by removing the requirement that workers paid over £73,000 demonstrate one year’s experience. All intra-company transferees will be required to pay the Immigration Health Surcharge from autumn 2016.
Tier 2 dependants will continue to be able to work without restriction, as the Migration Advisory Committee recommended. The Ministerial statement also provides further information on the Immigration Skills Charge, including a reduced rate and exemptions: https://www.gov.uk/government/news/migration-advisory-committee-reviews-of-tier-2
• ETS cases
The Upper Tribunal has ruled in the appeal heard as a lead case testing the evidence used by the Home Office to assert fraud by students in English language tests administered by Education Testing Services (ETS). Judgment was handed down by McCloskey and Saini, JJ on 23 March 2016 finding strongly in favour of the Appellants
• 3C leave
The Home Office published guidance Leave extended by section 3C (and leave extended by section 3D in transitional cases) on 21 March 2016. The guidance ‘clarifies’ that EEA applications do not qualify as applications that extend section 3C leave and ‘clarifies’ that section 3C leave does not apply where the Tribunal allows an appeal out of time or the Home Office withdraws a decision where section 3C leave is not in operation at the time
the decision is withdrawn.
The guidance refers to the decision of the Court of Appeal in Iqbal [2015] EWCA 838: a person who has made an invalid application does not have 3C leave even though they did not know and could not have known of its invalidity.
The guidance also states: ‘If a person does not already have section 3C leave the fact that they are entitled to an in-country right of appeal against a decision does not give them section 3C leave.’
This appears to profit from what was almost certainly a drafting error when the Immigration Act 2014 amended section 3C, but which the Government decided they liked when we raised it during the passage of the Immigration Bill: that if you get your refusal before your original leave expires, and appeal it, you are not protected by 3C leave for the duration of your appeal protection only kicks in if the refusal comes before your leave has expired.
UK & EEA Immigration Case Law Updates – End of April 2016
- Luu (Periods of study: degree level) [2016] UKUT 00181(IAC)
Periods of study for a qualification below degree level, are capable of being counted as time spent studying at degree level for the purpose of paragraph 245ZX(ha), if the period of study is taught at degree level, and when the qualification itself is added to other periods of study, resulting in the award of a degree
- BJ (Singh explained) Sri Lanka [2016] UKUT 00184 (IAC)
Singh (No immigration decision – jurisdiction) [2013] UKUT 00440 (IAC) is authority for proposition that the First-tier Tribunal has jurisdiction to hear an appeal only where there has been an immigration decision. It is not authority for the proposition that where an immigration decision has been made the First-tier Tribunal has no jurisdiction to hear an appeal against such decision unless the SSHD has first complied with her obligations under the Immigration (Notices) Regulations 2003.
- Chau Le (Immigration Rules - de minimis principle) [2016] UKUT 00186 (IAC)
The de minimis principle is not engaged in the construction or application of the Immigration Rules. Properly analysed, it is a mere surrogate for the discredited “near miss” or “sliding scale” principle.
The effect of paragraph 14 of Appendix J to the Immigration Rules is that other than where an applicant has contracted weekly hours or is paid an hourly rate, the appropriate salary for the purposes of paragraph 79 of Appendix A is an applicant’s gross annual salary paid by the sponsor employer, subject to the conditions set out in paragraphs 79(i)-(iii) of Appendix A.
- R (on the application of Onowu) v First-tier Tribunal (Immigration and Asylum Chamber) (extension of time for appealing: principles) IJR [2016] UKUT 00185 (IAC)
In considering whether to exercise discretion to extend time for seeking permission to appeal to the Upper Tribunal, both the First-tier Tribunal and the Upper Tribunal should apply the approach commended by the Court of Appeal in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537; Denton v White [2014] EWCA Civ 906 and R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1663.
- Chege (“is a persistent offender”) [2016] UKUT 00187 (IAC)
1. The question whether the appellant “is a persistent offender” is a question of mixed fact and law and falls to be determined by the Tribunal as at the date of the hearing before it.
2. The phrase “persistent offender” in s.117D(2)(c) of the 2002 Act must mean the same thing as “persistent offender” in paragraph 398(c) of the Immigration Rules.
3. A “persistent offender” is someone who keeps on breaking the law. That does not mean, however, that he has to keep on offending until the date of the relevant decision or that the continuity of the offending cannot be broken. A “persistent offender” is not a permanent status that can never be lost once it is acquired, but an individual can be regarded as a “persistent offender” for the purpose of the Rules and the 2002 Act even though he may not have offended for some time. The question whether he fits that description will depend on the overall picture and pattern of his offending over his entire offending history up to that date. Each case will turn on its own facts.
UK & EEA Immigration Weekly law update, April 2016/4
• Tier 1 Entrepreneur policy guidance where the Pre 6 April 2014 transitional arrangement for job creation does not apply to accelerated settlement applications. The applicants applying under the accelerated route cannot rely on 24 months to equal 2 job roles or 2 part time employees doing different roles to equate to one role, despite applying prior to April 2014
• SM and Ihsan Qadir v Secretary of State for the Home Department, IA/31380/2014 & IA/36319/2014 (ETS/TOEIC cases)
The Tribunal has marked the judgment "unreported" in status, which is disappointing as the unreported judgement cannot be used as a “precedent” in similar cases
• MS v Secretary of State for the Home Department, UTIAC, AA/07855/2013
In a strongly worded judgment, The Hon. Mr Justice McCloskey, President and Upper Tribunal Judge Blum held that tribunals are empowered to make their own decision on whether an appellant is a victim of trafficking and to review a trafficking decision on the ground that it has been reached in breach of the Secretary of State’s policy guidance. It also found that tribunals may be better equipped than a Competent Authority to make pertinent findings related to trafficking. This case lays down important guidance in trafficking cases.
Overturning the decisions of both the First-tier Tribunal and the Competent Authority, the Upper Tribunal held that MS was a victim of trafficking, a status which is current and enduring.
The Tribunal also gave instruction that those engaging expert witnesses should ensure that the expert be provided with a copy of a section appearing at Annex A from the case of MOJ & Others, as a matter of course, at the initial stage of receiving instructions.
The Tribunal however considered the asylum claim to be defeated owing to availability of internal flight alternative.
Both parties have applied for permission to appeal to the Court of Appeal: MS challenging the asylum decision and the Secretary of State challenging the jurisdiction of the Tribunal concerning the Trafficking Convention and the State's non-immigration related duties under Article 4 of the European Convention of Human Rights.
Планируется ПЯТИКРАТНОЕ увеличение цен за апелляции:
• The Government is proposing a massive FIVE FOLD increase in immigration appeal fees in order to make the immigration tribunal the only part of the court and tribunal service entirely self- funded by fees.
“We therefore propose increasing fees in the First-tier Tribunal from £80 to £490 for an application for a decision on the papers and from £140 to £800 for an application for an oral hearing. We also propose introducing a new fee of £455 for an application to the First-tier Tribunal for permission to appeal to the Upper Tribunal.
We also believe that the same principles should apply to appeals to the Upper Tribunal (Immigration and Asylum Chamber) so the consultation also seeks views on introducing fees, set at full cost recovery levels, for these proceedings. The consultation proposes a fee of £350 for an application to the Upper Tribunal for permission to appeal, where permission has been refused by the First-tier Tribunal, and a fee of £510 for an appeal hearing where permission is granted”
Briefly, this guidance tells Interventions and Sanctions Directorate (ISD) case liaison officers about the driving licence revocation process, including how to deal with a request made by a migrant with a UK driving licence, or the migrant’s representative, not to revoke the driving licence.
1. It will be for an appellant to prove that their proxy marriage was in accordance with the laws of the country in which it took place, and that both parties were free to marry. The burden of proof may be discharged by production of a marriage certificate issued by a competent authority of the country in which the marriage took place, and reliance upon the statutory presumption of validity consequent to such production. The reliability of marriage certificates and issuance by a competent authority are matters for an appellant to prove.
2. The means of proving that a proxy marriage was contracted according to the laws of the country in which it took place is not limited to the production of a marriage certificate, as is recognised in Kareem (Proxy marriages – EU law)[2014] UKUT 00024 (IAC).
3. In cases where a divorce has taken place prior to the proxy marriage and there is an issue as to whether the parties were free to marry, it is for an appellant to show that the dissolution of the previous marriage was in accordance with the laws of the country in which it occurred.
• Luu (Periods of study: degree level) [2016] UKUT 00181(IAC)
Periods of study for a qualification below degree level, are capable of being counted as time spent studying at degree level for the purpose of paragraph 245ZX(ha), if the period of study is taught at degree level, and when the qualification itself is added to other periods of study, resulting in the award of a degree.
The effect of paragraph 14 of Appendix J to the Immigration Rules is that other than where an applicant has contracted weekly hours or is paid an hourly rate, the appropriate salary for the purposes of paragraph 79 of Appendix A is an applicant’s gross annual salary paid by the sponsor employer, subject to the conditions set out in paragraphs 79(i)-(iii) of Appendix A.
• BJ (Singh explained) Sri Lanka [2016] UKUT 00184 (IAC)
Singh (No immigration decision – jurisdiction) [2013] UKUT 00440 (IAC) is authority for proposition that the First-tier Tribunal has jurisdiction to hear an appeal only where there has been an immigration decision. It is not authority for the proposition that where an immigration decision has been made the First-tier Tribunal has no jurisdiction to hear an appeal against such decision unless the SSHD has first complied with her obligations under the Immigration (Notices) Regulations 2003.
• Chamber) (extension of time for appealing: principles) IJR [2016] UKUT 00185 (IAC)
In considering whether to exercise discretion to extend time for seeking permission to appeal to the Upper Tribunal, both the First-tier Tribunal and the Upper Tribunal should apply the approach commended by the Court of Appeal in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537; Denton v White [2014] EWCA Civ 906 and R(Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1663.
• Chau Le (Immigration Rules - de minimis principle) [2016] UKUT 00186 (IAC)
The de minimis principle is not engaged in the construction or application of the
Immigration Rules. Properly analysed, it is a mere surrogate for the discredited “near miss” or “sliding scale” principle.
• Chege (“is a persistent offender”) [2016] UKUT 00187 (IAC)
1. The question whether the appellant “is a persistent offender” is a question of mixed fact and law and falls to be determined by the Tribunal as at the date of the hearing before it.
2. The phrase “persistent offender” in s.117D(2)(c) of the 2002 Act must mean the same thing as “persistent offender” in paragraph 398(c) of the Immigration Rules.
3. A “persistent offender” is someone who keeps on breaking the law. That does not mean, however, that he has to keep on offending until the date of the relevant decision or that the continuity of the offending cannot be broken. A “persistent offender” is not a permanent status that can never be lost once it is acquired, but an individual can be regarded as a “persistent offender” for the purpose of the Rules and the 2002 Act even though he may not have offended for some time. The question whether he fits that description will depend on the overall picture and pattern of his offending over his entire offending history up to
that date. Each case will turn on its own facts.
• Significant unreported Tribunal determination
SM and Ihsan Qadir v Secretary of State for the Home Department, Upper Tribunal, IA/31380 & IA/36319/2014
Judges’ headnote
The generic evidence upon which the Secretary of State has relied to date in all ETS cases has been held insufficient to discharge the legal burden of proof on the Secretary of State of proving that the TOEIC certificates were procured by dishonesty in circumstances where this evidence, via expert evidence and otherwise, has been demonstrated as suffering from multiple shortcomings and frailties and, further, the evidence of the two students concerned was found by the Tribunal to be plausible and truthful.
SM and Qadir v Secretary of State for the Home Department (ETS – Evidence – Burden of Proof) [2016] UKUT 00229 (IAC) – Updated on May 13, 2016
Please note that this determination now reported and can potentially be used as a precedent in the court cases. This is rather a good news for those (thousands) of migrant students, whose applications were previously refused and who was even removed from the UK.
UK & EEA Immigration Law Digest from the Legal Centre, www.legalcentre.org, 077 911 45 923, 0330 001 0342
Recent case-law:
• R (On the Application Of Ufot) v Secretary of State for the Home Department [2016] EWCA Civ 298.
A remarkable Court of Appeal case, which was heavily criticized by Vos LJ with the arguments like” “Technical”, “deeply unattractive”, “disingenuous”, “singularly lacks merit”, “ridiculous”, “inappropriate”, “extraordinary. One of the major blunders of the UK BA and, surprisingly, IAC, in the last years
• R (on the application of Spahiu and another) v Secretary of State for the Home Department (Judicial review – amendment – principles) IJR [2016] UKUT 00230 (IAC)
(i) The amendment of a judicial review claim form preceding the lodgement of the Acknowledgement of Service does not require the permission of the Tribunal. Such permission is required in all other instances.
(ii) In deciding whether to exercise its discretionary power to permit amendment, the Tribunal will have regard to the overriding objective, fairness, reasonableness and the public law character of the proceedings. The Tribunal will also be alert to any possible subversion or misuse of its processes.
(iii) Every application to amend should be made formally, in writing, on notice to all other parties and paying the appropriate fee which, with effect from 21 March 2016, is £255.
(iv) Where an amendment is permitted in the course of a hearing the Tribunal may, within its discretion, not require compliance with the aforementioned requirements.
(v) There is a sharp distinction between an application to amend grounds and an application to amend the Respondent’s decision under challenge: R (HM) v Secretary of State for the Home Department (JR – Scope – Evidence) IJR [2015] UKUT 437 (IAC) applied.
The determination in this case has now been reported with the following head note:
(i) Having regard to the decision of the ECtHR in Rantsev v Cyprus and Russia [2010] 51 EHRR 1, Article 4 ECHR, which outlaws slavery, servitude and forced or compulsory labour, encompasses also human trafficking.
(ii) Trafficking decisions are not immigration decisions within the compass of the 2002 Act, with the result that judicial review provides the appropriate mechanism for direct challenge.
(iii) Tribunals must take into account, where relevant, a decision that an appellant has been a victim of trafficking.
(iv) Where satisfied that a negative trafficking decision is perverse, Tribunals are empowered to make their own decision on whether an appellant was a victim of trafficking.
(v) Tribunals are also empowered to review a trafficking decision on the ground that it has been reached in breach of the Secretary of State’s policy guidance.
(vi) While, in principle it seems that other public law misdemeanours can also be considered by Tribunals, this issue does not arise for determination in the present appeal.
(vii) Tribunals may well be better equipped than the Competent Authority to make pertinent findings relating to trafficking.
(viii) The procedural obligations inherent in Article 4 ECHR are linked to those enshrined in the Trafficking Convention, Articles 10(2) and 18 in particular.
(ix) Any attempt to remove a trafficking victim from the United Kingdom in circumstances where the said procedural obligations have not been discharged will normally be unlawful.
• AT and another (Article 8 ECHR – Child Refugee – Family Reunification) Eritrea [2016] UKUT 00227 (IAC)
While the Immigration Rules make no provision for family reunification in the United Kingdom in the case of a child who has been granted asylum, a refusal to permit the family members of such child to enter and remain in the United Kingdom may constitute a disproportionate breach of the right to respect for family life enjoyed by all family members under Article 8 ECHR.
Recent case-law update from the Legal Centre, www.legalcentre.org, 077 911 45 923
Katsonga (“Slip Rule”; FtT’s general powers) [2016] UKUT 00228 (IAC)
1. The ‘Slip Rule’, rule 31 of the First-tier Tribunal Procedure Rules, cannot be used to reverse the effect of a decision.
2. Following the repeal by the 2014 Act of subsections (3) to (6) of s 86 of the 2002 Act, the First-tier Tribunal appears to have no duty or power to ‘allow’ or ‘dismiss’ an appeal.
Adult dependent relative rule - BritCits judgment, case note and further steps
Mitting, J has given judgment in the BritCits challenge to the Immigration Rules on Adult Dependant Relatives.
The BritCits challenge was dismissed on all three grounds, but on the issue of whether the rule was compatible with Article 8 ECHR, Mitting, J indicated that he felt constrained to dismiss due to Aiken LJ’s judgment in MM (Lebanon) and if he had not been bound by that authority he would have declared the rule to be unlawful as disproportionate. He granted permission to appeal to BritCits, who have issued the Appellant’s Notice, and the issue is pending before the Court of Appeal.
The judgment of Mitting, J is, however, very significant for practitioners in itself as its approach to Article 8 ECHR opens up the possibility of the success of a significant number of adult dependant relative cases pursuant to Article 8 ECHR notwithstanding refusal under the adult dependant relative rule. We are grateful to Duran Seddon of Garden Court Chambers for his detailed case note which is attached at the above resource.
R (Zafar) v SSHD [2016] EWHC 1217 (Admin) - DFT refusal struck down and SSHD required to made de novo decision
In the first judgment of its kind since the suspension of the Detained Fast Track on 2 July 2015, the High Court struck down the Home Secretary’s refusal and certification of an asylum claim which was made in the structurally unfair and unjust Detained Fast Track (DFT) and ordered the Home Secretary to remake the decision afresh without regard to material obtained in the unfair process. The High Court also directed the Home Secretary to pay substantial damages for falsely imprisoning the Claimant, a victim of torture, for 213 days as a result of subjecting him to an unlawful detained fast track asylum process and seeking to return him to Pakistan without giving him the opportunity to have his asylum claim fairly determined.
In a separate case of a female victim of torture, a similar settlement was secured in March 2016 before trial.
“You can get your documents back quicker if you ask for a faster decision your application. This costs £400, in addition to the application fee you’ve already paid.”
“Get a faster reply to your visa applicationYou may be able to get a decision within 5 working days if you’ve already sent your visa application by post.
You can use this service if you’ve applied for settlement in the UK using one of the following forms:
• SET (AF)
• SET (F)
• SET (LR)
• SET (M)
• SET (O)
You can also use this service to apply for a biometric residence permit (BRP) if you’re settled in the UK with no time limit.
Fees
You must pay £400 per person, in addition to the application fee you’ve already paid. “ etc
Response of the Immigration Law Practitioners’ Association to the Home Affairs Select Committee Inquiry into the Home Office's use of English-language testing in relation to the issuing of visas, 06 June 2016
UK & EEA Immigration Law Update from the Legal Centre, www.legalcentre.org, 077 91145 923, 0330 001 0342
• UK BA has started issuing certified refusals in relation to Appendix FM applications (“spouse” etc visas). This is all sounding like a cynical practice-run for the extension of “deport first appeal later”. Therefore a Premium/Same Day application may give a better chance of success, as it is possible to discuss the issues and probably get 14 days to sort the things out v a certified refusal (“deport first, appeal later”) situation
Recent case-law:
• Ruhumuliza (Article 1F and “undesirable”) [2016] UKUT 00284 (IAC)
The fact that a person is excluded from the Refugee Convention does not of itself mean that his presence in the UK is undesirable within the meaning of the Immigration Rules
• R (on the application of Khurram) v Secretary of State for the Home Department (effective service; 2000 Order) IJR [2016] UKUT 00281(IAC)
1. For the purposes of Art 8ZA(2) of the Immigration (Leave to Enter and Remain) Order 2000 (SI 2000/1161)(as inserted by SI 2013/174 with effect from 12 July 2013), a notice is not sent to a postal address “provided for correspondence by the person” if the address is provided to the Secretary of State by a third party such as a sponsor educational institution unless the third party is the authorised agent of the person.
2. However, where no postal address (or e-mail address) for correspondence has been provided, an address provided by a third party may be the “last-known or usual place of abode” of the person within Art 8ZA(3)(a) to which a notice may be sent.
• Johnson (deportation – 4 years imprisonment) [2016] UKUT 00282 (IAC)
When a foreign offender has been convicted of an offence for which he has been sentenced to imprisonment of at least 4 years and has successfully appealed on human rights grounds, this does not prevent the Secretary of State from relying on the conviction for the purposes of paragraph 398(a) of the Immigration Rules and s.117C of the 2002 Act if and when he re-offends even if the later offence results in less than 4 years imprisonment or, indeed, less than 12 months imprisonment
• R (on the application of MG) v First-tier Tribunal (Immigration and Asylum Chamber) (‘fresh claim’; para 353: no appeal) IJR [2016] UKUT 00283 (IAC)
1. A decision that further submissions do not amount to a ‘fresh claim’ under para 353 of the Immigration Rules is not a decision to refuse a protection or human rights claim and so does not give rise to a right of appeal to the First-tier Tribunal under s.82 of the Nationality, Immigration and Asylum Act 2002 (as amended by s.15 of the Immigration Act 2014).
2. Whilst the First-tier Tribunal must determine whether it has jurisdiction to entertain an appeal, it cannot decide whether a decision that further submissions do not amount to a fresh claim under para 353 was lawful or correct. Such a decision can only be challenged on public law principles in judicial review proceedings.
• R (on the application of Shehu) v Secretary of State for the Home Department (Citizens Directive: no suspensive appeals) IJR [2016] UKUT 00287 (IAC)
The redress procedure required by articles 31 and 35 of the Citizens Directive does not make it necessary to treat EEA appeals of any kind as suspensive, since arrangements can be made, on the conditions set out in article 31.4, for allowing the subject to submit his defence in person, which is reason enough for declining to treat the decision of the Court of Appeal in Ahmed as per incuriam for not dealing with article 35.
(i) Article 9 - the right to freedom of thought, conscience and religion – is a distinctive feature of the Human Rights Act to be considered separately from Article 8 when it applies.
(ii) Article 9 permits the same structured approach to the assessment of an Article 8 human rights claim identified by Lord Bingham in his 5-stage approach set out in paragraph 17 of Razgar[2004] UKHL 27 save for the omission of the ‘economic well-being of the country’ criterion in Article 9(2).
(iii) In an appeal where the violation is alleged to occur by reason of removal from the United Kingdom, the test of proportionality governs the exercise of Article 9 rights and not the more stringent approach involving whether the returnee is at risk of a flagrant denial or gross violation in his home country.
(iv) A further distinctive feature is the creation of a statutory right in s.13 of the Human Rights Act 1998, independent of Article 9, enabling a religious organisation to benefit from the Convention right to freedom of thought, conscience and religion alongside its members collectively and individually.
(v) Matters relied on by way of a positive contribution to the community are capable in principle of affecting the weight to be given to the maintenance of effective immigration control and should not be excluded from consideration altogether but are unlikely in practice to carry much weight.
(vi) The operation of the Immigration Rules will not amount to an unlawful interference in the selection of a religious leader when the personality of the appellant has not influenced the decision and where anybody in the same position as the appellant who fails to meet the requirements of the Rules is likely to be refused.
UK & EEA Immigration Law Update from the Legal Centre, www.legalcentre.org, 077 911 45 923
• The Home Office approach to interpreting ‘consanguineous relationship’ in family reunion applications is the same meaning as in the Marriage Act 1949, the Marriage (Prohibited Degrees of Relationship) Act 1986 and the Civil Partnership Act 2004. The UK BA is in the process of revising the guidance on family reunion and the revised version will contain links to the relevant Acts so that caseworkers are able to refer to them easily. The revised guidance will be published on Gov.UK later this month
• The UK BA: the Immigration Rules are very clear that takeaways cannot sponsor SOL chefs
• Nkomo (Deportation: 2014 rights of appeal) [2016] UKUT 00285 (IAC)
1. The No 3 Commencement Order of the 2014 Act, SI 2014/2771, extends the new appeals provisions to identified persons, but the amendment of it in SI 2014/2928 further extends those provisions to identified decisions.
2. In consequence, a person against whom a deportation decision was made in the period 10 November 2014 – 5 April 2015 may have no right of appeal if the decisions actually made carry rights of appeal only under the new appeals provisions. (Note: A further change was made to the commencement provision with effect from 2 March 2015, which did not fall for consideration on the facts of this case.)
UK & EEA Immigration Law Updates from the Legal Centre, www.legalcentre.org, 077 911 45 923
• The UK BA may in some cases accept a visitor visas status in order to “top up” the migrant’s lawful leave so the migrant could apply for Settlement under the 10 year Long Residence route
• According to the UK BA, takeaways cannot sponsor SOL chefs, so no Tier 2 (General) application may succeed
• Average waiting times for an immigration appeal is around 12 to 18 months in the UK now
• An interesting Tier 2 case which was heard before Lord Bannatyne in the Outer House of the Court of Session. You will see that the petitioners were initially refused a sponsor licence on genuineness grounds and in the JR, the Home Office raised a preliminary point in that there was an alternative remedy in a new application. Lord Bannatyne is very critical of the Home Office in the short decision : https://www.scotcourts.gov.uk/search-judgments/judgment?id=0f4916a7-8980-69d2-b500-ff0000d74aa7
• Strategic Legal Research on the Registration of Children as British Citizens and the Good Character Requirement, Project for the Registration of Children as British Citizens: https://prcbc.wordpress.com/research/
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https://www.gov.uk/government/publications/statement-of-changes-to-the-immigration-rules-hc877-11-march-2016
Briefly, it does not implement major changes to Tier 2.
Allows domestic workers to change employer within the currency of six month visa and allows those with a conclusive grounds decision that they are trafficked or enslaved to apply for leave to remain for up to two years.
Tier 4: time spent in the UK with leave under Tier 4 under the age of 18 will henceforth count toward calculation of the maximum period you can spend in the UK under Tier 4.
A new general ground of refusal, that client owes a litigation debt to the Home Office, costs ordered against the client in favour of the Home Office which they have failed to pay.
>EU Referendum: analysis of the UK's new EU Settlement: http://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7524
>Youssef (Refugee Convention – Article 1F(c)) [2016] UKUT 00137 (IAC)
For a person to be excluded from refugee protection under Article 1F(c) of the Refugee Convention on the basis that they knowingly incited and encouraged acts contrary to the purposes and principles of the United Nations it is not necessary to show that such acts have actually been committed or attempted.
> Rajendran (s117B – family life) [2016] UKUT 00138 (IAC)
1. That “precariousness” is a criterion of relevance to family life as well as private life cases is an established part of Article 8 jurisprudence: see e.g. R (Nagre) v SSHD [2013] EWHC 720 (Admin) and Jeunesse v Netherlands, app.no.12738/10 (GC).
2. The “little weight” provisions of s.117B(4)(a) and (5) of the Nationality, Immigration and Asylum Act 2002 are confined to “private life” established by a person at a time when their immigration status is unlawful or precarious. However, this does not mean that when answering the “public interest question” posed by s117A(2)-(3) a court or tribunal should disregard “precarious family life” criteria set out in established Article 8 jurisprudence. Given that ss.117A-D considerations are not exhaustive, in certain cases it may be an error of law for a court or tribunal to disregard relevant public interest considerations.
> R (on the application of Dulagan) v Secretary of State for the Home Department IJR [2016] UKUT 00136 (IAC)
Judgment of McGeachy, J dismissing an application for judicial review of a decision to refuse leave to remain under article 8 of the European Convention on Human Rights.
The applicant had married a British Citizen whilst an overstayer in the UK. Though she had attempted to make an application outside the rules while a Tier 4 student, this was rejected for non-payment of a fee as was a subsequent application.
The Court held that:
1. There was no evidence of insurmountable obstacles to family life continuing in the applicant’s country of origin;
2. Overstaying is a factor that can be taken into account in the assessment of proportionality;
There was no merit in the argument concerning the historic injustice of the earlier applications not succeeded. Following TN (Afghanistan), this does not weigh heavily in the consideration of article 8 ECHR rights and the applicant did not exercise her alternative remedy when the applications were refused;
3. The applicant’s pregnancy was not known to the Secretary of State at the time of the decision and cannot be taken into account, even though the child would be British;
4. There was no merit in arguments based on Chikwamba as it was not the case that the application under paragraph EX.1.(b) of the Immigration Rules could with certainty succeed. The specified documents had not been submitted and there was nothing to indicate that there would be undue hardship for the applicant or her spouse should an application be made from outside the UK.
5. The Court concluded that the Secretary of State had dealt adequately with all relevant matters and that there were no exceptional factors in this case which would mean that it would have been appropriate to grant leave to remain outside the Rules.
Recent case-law:
• PD and Others (Article 8 – conjoined family claims) Sri Lanka [2016] UKUT 00108 (IAC)
In considering the conjoined Article 8 ECHR claims of multiple family members decision-makers should first apply the Immigration Rules to each individual applicant and, if appropriate, then consider Article 8 outside the Rules. This exercise will typically entail the consideration and determination of all claims jointly, so as to ensure that all material facts and considerations are taken into account in each case.
• A new set of Immigration Rules has been laid in Statement of Changes HC877. The changes take effect on 6 April 2016. Explanatory notes and full rules can be found here: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/508759/54729_HC_877_Web_Accessible.pdf
Some important points:
1. Those with a “litigation debt” to the Home Office (i.e. who were ordered to pay costs and who have not, including all those issued with unlawful costs orders by the Upper Tribunal will be refused further UK visas.
2. Decrease in the threshold for NHS debt being a bar to re-entry from £1000 to £500
3. Making it even harder for the self-employed to produce the necessary evidence under Appendix FM-SE
4. Changes to the overseas domestic worker rules in line with recent review and response, which I will cover next week in a full blog post
5. Further tightening of the Tier 4 student rules
6. Tweaks to the Administrative Review process
7. Widening of the circumstances in which Appendix FM applications can be refused due to previous alleged poor conduct
Some highlights on the above:
Changes across Tier 1 changes from April 2016
A minor change is being made regarding UK accounting bodies, whose evidence is accepted in various Tier 1 categories, to require confirmation that they hold the relevant licence to practise or a practising certificate.
Tier 1 Entrepreneur changes from 06 April 2016
The Immigration Rules on indefinite leave to remain (ILR) are being clarified so that applicants applying under the accelerated provision are able to appropriately demonstrate that:
• they have registered their business within six months of their specified date; and
• their business, if it was being taken over, has resulted in a net increase of at least £5 million (should they be applying for accelerated ILR on this basis).
• Changes relation to self-employed sponsor under Appendix FM (Family and Private Life)
• Clarifying that where the applicant or sponsor relies on income from self-employment, or as a director of a specified limited company, all the income relied on by the couple must relate to the same financial year(s).
Tier 4 changes from 06 April 2016
• An amendment is being made to make clear that Tier 4 (General) students may not extend their leave in the UK in order to study a course at a lower level than the previous course for which they were granted Tier 4 leave and the course must be at or above degree level. These students must be progressing academically, unless they are taking a course at the same level as their previous course and their Higher Education Institution sponsor confirms that the course is related to the previous course for which the applicant was granted leave as a Tier 4 (General) Student, or the previous course and the new course in combination support the applicant’s genuine career aspirations. A further change is being made to tighten the circumstances in which a Tier 4 (General) student, who has previously studied in the UK, can switch courses without obtaining a new visa.
• Amendments are being made to the rules relating to the time limits under Tier 4 (General). A clarification has been added to specify that for the purposes of calculating how much time has been spent contributing to the time limits, the period of leave granted, and the level of course for which the leave was granted, will be counted, rather than (if different) periods and courses actually studied. Time spent under the age of eighteen will no longer be excluded. This will mean that all time granted for study in the UK under Tier 4 (General) will be included when calculating the maximum length of time that may be spent under the route.
• A provision is being added to allow third country nationals applying under Tier 4 (General) to study a short-term study abroad programme in the UK as part of their bachelor’s or master’s degree at an overseas higher education institution in the USA to be exempt from the English language requirements in Tier 4. This change allows USA universities to assess the student’s level of English language in the same way that UK higher education institutions are permitted to.
• An amendment is being made to reduce the maintenance requirements for those applying for leave to remain under Tier 4 as a student union sabbatical officer or postgraduate doctor or dentist on a recognised Foundation Programme. These students are applying for a salaried position, which will contribute to their ability to support themselves financially. These students will be required to show funds for their living costs for each month of their course up to a maximum of two months, bringing them in line with Doctorate Extension Scheme students, who can also work full-time.
• Under current Tier 4 rules, students are not permitted to be self employed, which is defined as being registered as self-employed with HM Revenue & Customs, or being employed by a company of which the applicant is a controlling shareholder. This allows students to set up businesses, provided they are not the controlling shareholder. We are tightening the definition of self employment to prevent this, in order to reflect the policy intention that the Tier 4 visa route is for students to come to the UK to study, not to take employment. Work is allowed so that a student can supplement their income whilst studying in the UK, not to set up businesses.
• Tier 4 students are permitted to study at independent schools and sixth form colleges. Where such an institution with a Tier 4 sponsor licence becomes an academy or a school maintained by a local authority, it is not permitted to sponsor any new students under Tier 4. An amendment is being made to the rules to clarify that Tier 4 students who are sponsored by such an institution at the time of the conversion may continue to study there until they complete their current course of study. A definition of ‘school maintained by a local authority’ is also being added.
In considering the conjoined Article 8 ECHR claims of multiple family members decision-makers should first apply the Immigration Rules to each individual applicant and, if appropriate, then consider Article 8 outside the Rules. This exercise will typically entail the consideration and determination of all claims jointly, so as to ensure that all material facts and considerations are taken into account in each case.
• Big increase to fees for immigration judicial review applications from 21 March 2016. See paragraph 4 of the Civil Proceedings, Family Proceedings and Upper Tribunal Fees (Amendment) Order 2016: http://www.legislation.gov.uk/ukdsi/2016/9780111142325/pdfs/ukdsi_9780111142325_en.pdf
• A date stamp in a passport or travel document does not confer ILR in cases of returning residents, the Upper Tribunal has held in an interesting case. The facts make it all the more interesting: it involves a recognised refugee from Libya who had returned to live in that country and obtained a Libyan passport, has been absent for more than two years and on return did not present his passport but instead his refugee travel document: http://www.bailii.org/uk/cases/UKUT/IAC/2016/135.html
Immigration skills charge confirmed at £1,000 per year per migrant worker
The Government has confirmed that the Immigration Skills Charge will be set at £1,000 per year per migrant worker sponsored under Tier 2 of the Points Based System. A lower rate will apply for small businesses and charities. On 21 March 2016 in a House of Lords debate (http://www.publications.parliament.uk/pa/ld201516/ldhansrd/text/160321-0004.htm#16032216000116) on the Immigration Bill Lord Bates said:
«The Government have considered advice from the Migration Advisory Committee and additional views from employers. Following careful consideration, I am able to announce that the immigration skills charge of £1,000 per migrant per year will be paid by employers who sponsor tier 2 migrants. The charge will be collected by the Home Office.
A reduced rate of £364 per annum will apply to small businesses and charities as defined in the Immigration Rules. This is consistent with other lower fees applied to these organisations.».
There are also to be some exemptions for PhD level roles in science and research and for graduates switching from Tier 4 to Tier 2.
The adoption of the Immigration Skills Charge has now been confirmed in a press release (https://www.gov.uk/government/news/governments-new-immigration-skills-charge-to-incentivise-training-of-british-workers) The commencement date has been set as April 2017. There is no information yet on whether the charge will be applied only to new Tier 2 migrant recruits, which seems probable, or will also apply to existing Tier 2 workers.
See https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/509294/3C-3D-leave-v6.pdf
Changes to guidance identified by the Home Office
• the guidance “ clarifies” that EEA applications do not qualify as applications that extend section 3C leave
• the guidance also “clarifies” that section 3C leave does not apply where the Tribunal allows an appeal out of time or the Home Office withdraws a decision where section 3C leave is not in operation at the time the decision is withdrawn
Also be aware that the guidance refers to the decision of the Court of Appeal in Iqbal [2015] EWCA 838 – a person who has made an invalid application does not have 3C leave even though they did not know and could not have known of its invalidity.
The guidance also states that if a person does not already have section 3C leave the fact that they are entitled to an in-country right of appeal against a decision does not give them section 3C leave.
This appears to profit from what was almost certainly a drafting error when the Immigration Act 2014 amended section 3C, but which the Government decided they liked when this issue was raised during the passage of the bill: that if you get your refusal before your original leave expires, and appeal it, you are not protected by 3C leave for the duration of your appeal – protection only kicks in if the refusal comes before your leave has expired.
Guidance on which groups have the requirement to pay the IHS waived
The Secretary of State has discretion to reduce, waive or refund all or part of a charge under article 8 of the Immigration (Health Charge) Order 2015.
The list below is not exhaustive and is subject to change but indicates some categories where the requirement to pay the surcharge will be waived where leave to remain is granted:
- Where the immigration application fee is waived on the grounds of destitution;
- Applications under the Afghanistan Locally Engaged Staff Ex-Gratia scheme;
- Armed Forces: discharged Foreign and Commonwealth personnel;
- Armed Forces: non exempt personnel (though Course F’s will pay if they are granted leave of more than 6 months) and Relevant Civilian Employees.
“We find ourselves in respectful disagreement with not only the Lord Ordinary but also the learned judge in Navarro. On a proper construction of section 4C(3) the petitioner is entitled to be registered as a British citizen if she can prove that she would have become a citizen of the United Kingdom and Colonies by virtue of section 5 of the 1948 Act if the assumption set out in section 4C(3A) had applied at the relevant time. For completeness we record that the appeal hearing did not address the issues potentially arising under ECHR, since they would be relevant only if the court was against the petitioner on the construction issue. The reclaiming motion will be allowed and the petitioner’s application remitted to the respondent for reconsideration. However, in the meantime we shall put the case out by order for discussion as to the appropriate terms of the court’s interlocutor, including any declaratory orders.”.
Tier 2 reviews – government response
In a ministerial statement published on 24 March 2016, the Government has announced how it will reform Tier 2 of the Points Based System for skilled migration in response to the Migration Advisory Committee review of Tier 2 and its review of whether nurses should remain on the Shortage Occupation List. A timetable has also been issued setting out when each of the phased reforms will be introduced.
The Tier 2 salary threshold will increase to £25,000 in autumn 2016 and to the Migration Advisory Committee’s recommended level of £30,000 in April 2017. Nurses, medical radiographers, paramedics and secondary school teachers in mathematics, physics, chemistry, computer science and Mandarin will be exempted from the increased salary thresholds, and given additional weighting in the monthly allocation of the Tier 2 (General) limit where they are not on the Shortage Occupation List, until July 2019.
Nurses will remain on the Shortage Occupation List but employers will be required to conduct a Resident Labour Market Test before recruiting from outside the EEA. This is in line with the recommendations of the Migrant Advisory Committee which accepted that there is an immediate shortage of nurses but largely blamed the health care sector for this and expressed concern that the recruitment of non-EEA nationals masked systemic issues.
Employers will continue to be able to recruit non-EEA graduates of UK universities as currently. From autumn 2016, there will be additional weighting in the Tier 2 (General) limit for businesses sponsoring overseas graduates and graduates will be allowed to switch roles within a company once they have secured a permanent job at the end of their training programme.
From April 2017, extra weight will also be given to the allocation of certificates of sponsorship relating to the relocation of a high-value business to the UK or where these potentially support an inward investment. No resident labour market test will be required for these applications.
There will be a single, streamlined category for all intra-company transfers with a minimum salary threshold of £41,500. The salary threshold for those in the Graduate Trainee category will be reduced to £23,000, however, and employers will be permitted to bring twenty trainees to the UK instead of five. Phased changes set out in the statement will eventually lead to the closures of the Skills Transfer category and the Short Term category. The Government will seek to introduce some flexibility in the route by lowering the minimum salary threshold for intra-company transferees working in the UK for between five and nine years to £120,000 and by removing the requirement that workers paid over £73,000 demonstrate one year’s experience. All intra-company transferees will be required to pay the Immigration Health Surcharge from autumn 2016.
Tier 2 dependants will continue to be able to work without restriction, as the Migration Advisory Committee recommended. The Ministerial statement also provides further information on the Immigration Skills Charge, including a reduced rate and exemptions: https://www.gov.uk/government/news/migration-advisory-committee-reviews-of-tier-2
• ETS cases
The Upper Tribunal has ruled in the appeal heard as a lead case testing the evidence used by the Home Office to assert fraud by students in English language tests administered by Education Testing Services (ETS). Judgment was handed down by McCloskey and Saini, JJ on 23 March 2016 finding strongly in favour of the Appellants
• 3C leave
The Home Office published guidance Leave extended by section 3C (and leave extended by section 3D in transitional cases) on 21 March 2016. The guidance ‘clarifies’ that EEA applications do not qualify as applications that extend section 3C leave and ‘clarifies’ that section 3C leave does not apply where the Tribunal allows an appeal out of time or the Home Office withdraws a decision where section 3C leave is not in operation at the time
the decision is withdrawn.
The guidance refers to the decision of the Court of Appeal in Iqbal [2015] EWCA 838: a person who has made an invalid application does not have 3C leave even though they did not know and could not have known of its invalidity.
The guidance also states: ‘If a person does not already have section 3C leave the fact that they are entitled to an in-country right of appeal against a decision does not give them section 3C leave.’
This appears to profit from what was almost certainly a drafting error when the Immigration Act 2014 amended section 3C, but which the Government decided they liked when we raised it during the passage of the Immigration Bill: that if you get your refusal before your original leave expires, and appeal it, you are not protected by 3C leave for the duration of your appeal protection only kicks in if the refusal comes before your leave has expired.
- Luu (Periods of study: degree level) [2016] UKUT 00181(IAC)
Periods of study for a qualification below degree level, are capable of being counted as time spent studying at degree level for the purpose of paragraph 245ZX(ha), if the period of study is taught at degree level, and when the qualification itself is added to other periods of study, resulting in the award of a degree
- BJ (Singh explained) Sri Lanka [2016] UKUT 00184 (IAC)
Singh (No immigration decision – jurisdiction) [2013] UKUT 00440 (IAC) is authority for proposition that the First-tier Tribunal has jurisdiction to hear an appeal only where there has been an immigration decision. It is not authority for the proposition that where an immigration decision has been made the First-tier Tribunal has no jurisdiction to hear an appeal against such decision unless the SSHD has first complied with her obligations under the Immigration (Notices) Regulations 2003.
- Chau Le (Immigration Rules - de minimis principle) [2016] UKUT 00186 (IAC)
The de minimis principle is not engaged in the construction or application of the Immigration Rules. Properly analysed, it is a mere surrogate for the discredited “near miss” or “sliding scale” principle.
- Tukhas (para 245HD(f): “appropriate salary”) [2016] UKUT 00183 (IAC)
The effect of paragraph 14 of Appendix J to the Immigration Rules is that other than where an applicant has contracted weekly hours or is paid an hourly rate, the appropriate salary for the purposes of paragraph 79 of Appendix A is an applicant’s gross annual salary paid by the sponsor employer, subject to the conditions set out in paragraphs 79(i)-(iii) of Appendix A.
- R (on the application of Onowu) v First-tier Tribunal (Immigration and Asylum Chamber) (extension of time for appealing: principles) IJR [2016] UKUT 00185 (IAC)
In considering whether to exercise discretion to extend time for seeking permission to appeal to the Upper Tribunal, both the First-tier Tribunal and the Upper Tribunal should apply the approach commended by the Court of Appeal in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537; Denton v White [2014] EWCA Civ 906 and R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1663.
- Chege (“is a persistent offender”) [2016] UKUT 00187 (IAC)
1. The question whether the appellant “is a persistent offender” is a question of mixed fact and law and falls to be determined by the Tribunal as at the date of the hearing before it.
2. The phrase “persistent offender” in s.117D(2)(c) of the 2002 Act must mean the same thing as “persistent offender” in paragraph 398(c) of the Immigration Rules.
3. A “persistent offender” is someone who keeps on breaking the law. That does not mean, however, that he has to keep on offending until the date of the relevant decision or that the continuity of the offending cannot be broken. A “persistent offender” is not a permanent status that can never be lost once it is acquired, but an individual can be regarded as a “persistent offender” for the purpose of the Rules and the 2002 Act even though he may not have offended for some time. The question whether he fits that description will depend on the overall picture and pattern of his offending over his entire offending history up to that date. Each case will turn on its own facts.
• Tier 1 Entrepreneur policy guidance where the Pre 6 April 2014 transitional arrangement for job creation does not apply to accelerated settlement applications. The applicants applying under the accelerated route cannot rely on 24 months to equal 2 job roles or 2 part time employees doing different roles to equate to one role, despite applying prior to April 2014
• SM and Ihsan Qadir v Secretary of State for the Home Department, IA/31380/2014 & IA/36319/2014 (ETS/TOEIC cases)
The Tribunal has marked the judgment "unreported" in status, which is disappointing as the unreported judgement cannot be used as a “precedent” in similar cases
• MS v Secretary of State for the Home Department, UTIAC, AA/07855/2013
In a strongly worded judgment, The Hon. Mr Justice McCloskey, President and Upper Tribunal Judge Blum held that tribunals are empowered to make their own decision on whether an appellant is a victim of trafficking and to review a trafficking decision on the ground that it has been reached in breach of the Secretary of State’s policy guidance. It also found that tribunals may be better equipped than a Competent Authority to make pertinent findings related to trafficking. This case lays down important guidance in trafficking cases.
Overturning the decisions of both the First-tier Tribunal and the Competent Authority, the Upper Tribunal held that MS was a victim of trafficking, a status which is current and enduring.
The Tribunal also gave instruction that those engaging expert witnesses should ensure that the expert be provided with a copy of a section appearing at Annex A from the case of MOJ & Others, as a matter of course, at the initial stage of receiving instructions.
The Tribunal however considered the asylum claim to be defeated owing to availability of internal flight alternative.
Both parties have applied for permission to appeal to the Court of Appeal: MS challenging the asylum decision and the Secretary of State challenging the jurisdiction of the Tribunal concerning the Trafficking Convention and the State's non-immigration related duties under Article 4 of the European Convention of Human Rights.
• The Government is proposing a massive FIVE FOLD increase in immigration appeal fees in order to make the immigration tribunal the only part of the court and tribunal service entirely self- funded by fees.
Link: https://www.gov.uk/government/speeches/tribunals
Quote:
“We therefore propose increasing fees in the First-tier Tribunal from £80 to £490 for an application for a decision on the papers and from £140 to £800 for an application for an oral hearing. We also propose introducing a new fee of £455 for an application to the First-tier Tribunal for permission to appeal to the Upper Tribunal.
We also believe that the same principles should apply to appeals to the Upper Tribunal (Immigration and Asylum Chamber) so the consultation also seeks views on introducing fees, set at full cost recovery levels, for these proceedings. The consultation proposes a fee of £350 for an application to the Upper Tribunal for permission to appeal, where permission has been refused by the First-tier Tribunal, and a fee of £510 for an appeal hearing where permission is granted”
Briefly, this guidance tells Interventions and Sanctions Directorate (ISD) case liaison officers about the driving licence revocation process, including how to deal with a request made by a migrant with a UK driving licence, or the migrant’s representative, not to revoke the driving licence.
You will need this if you are a student or someone not working nor seeking work – that is, a self-sufficient person. You will also need it if you are in the UK in your position as a family member (EU or non-EU) of a student or self-sufficient person. It seems to not matter whether it is the EU national or the family member who holds the comprehensive sickness insurance, so long as it covers the family member. More details can be found on https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/431618/comprehensive_sickness_insurance_for_family_members_of_students.pdf
• Cudjoe (Proxy marriages: burden of proof) [2016] UKUT 00180 (IAC)
1. It will be for an appellant to prove that their proxy marriage was in accordance with the laws of the country in which it took place, and that both parties were free to marry. The burden of proof may be discharged by production of a marriage certificate issued by a competent authority of the country in which the marriage took place, and reliance upon the statutory presumption of validity consequent to such production. The reliability of marriage certificates and issuance by a competent authority are matters for an appellant to prove.
2. The means of proving that a proxy marriage was contracted according to the laws of the country in which it took place is not limited to the production of a marriage certificate, as is recognised in Kareem (Proxy marriages – EU law)[2014] UKUT 00024 (IAC).
3. In cases where a divorce has taken place prior to the proxy marriage and there is an issue as to whether the parties were free to marry, it is for an appellant to show that the dissolution of the previous marriage was in accordance with the laws of the country in which it occurred.
• Luu (Periods of study: degree level) [2016] UKUT 00181(IAC)
Periods of study for a qualification below degree level, are capable of being counted as time spent studying at degree level for the purpose of paragraph 245ZX(ha), if the period of study is taught at degree level, and when the qualification itself is added to other periods of study, resulting in the award of a degree.
• Tukhas (para 245HD(f): “appropriate salary”) [2016] UKUT 00183 (IAC)
The effect of paragraph 14 of Appendix J to the Immigration Rules is that other than where an applicant has contracted weekly hours or is paid an hourly rate, the appropriate salary for the purposes of paragraph 79 of Appendix A is an applicant’s gross annual salary paid by the sponsor employer, subject to the conditions set out in paragraphs 79(i)-(iii) of Appendix A.
• BJ (Singh explained) Sri Lanka [2016] UKUT 00184 (IAC)
Singh (No immigration decision – jurisdiction) [2013] UKUT 00440 (IAC) is authority for proposition that the First-tier Tribunal has jurisdiction to hear an appeal only where there has been an immigration decision. It is not authority for the proposition that where an immigration decision has been made the First-tier Tribunal has no jurisdiction to hear an appeal against such decision unless the SSHD has first complied with her obligations under the Immigration (Notices) Regulations 2003.
• Chamber) (extension of time for appealing: principles) IJR [2016] UKUT 00185 (IAC)
In considering whether to exercise discretion to extend time for seeking permission to appeal to the Upper Tribunal, both the First-tier Tribunal and the Upper Tribunal should apply the approach commended by the Court of Appeal in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537; Denton v White [2014] EWCA Civ 906 and R(Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1663.
• Chau Le (Immigration Rules - de minimis principle) [2016] UKUT 00186 (IAC)
The de minimis principle is not engaged in the construction or application of the
Immigration Rules. Properly analysed, it is a mere surrogate for the discredited “near miss” or “sliding scale” principle.
• Chege (“is a persistent offender”) [2016] UKUT 00187 (IAC)
1. The question whether the appellant “is a persistent offender” is a question of mixed fact and law and falls to be determined by the Tribunal as at the date of the hearing before it.
2. The phrase “persistent offender” in s.117D(2)(c) of the 2002 Act must mean the same thing as “persistent offender” in paragraph 398(c) of the Immigration Rules.
3. A “persistent offender” is someone who keeps on breaking the law. That does not mean, however, that he has to keep on offending until the date of the relevant decision or that the continuity of the offending cannot be broken. A “persistent offender” is not a permanent status that can never be lost once it is acquired, but an individual can be regarded as a “persistent offender” for the purpose of the Rules and the 2002 Act even though he may not have offended for some time. The question whether he fits that description will depend on the overall picture and pattern of his offending over his entire offending history up to
that date. Each case will turn on its own facts.
• Significant unreported Tribunal determination
SM and Ihsan Qadir v Secretary of State for the Home Department, Upper Tribunal, IA/31380 & IA/36319/2014
Judges’ headnote
The generic evidence upon which the Secretary of State has relied to date in all ETS cases has been held insufficient to discharge the legal burden of proof on the Secretary of State of proving that the TOEIC certificates were procured by dishonesty in circumstances where this evidence, via expert evidence and otherwise, has been demonstrated as suffering from multiple shortcomings and frailties and, further, the evidence of the two students concerned was found by the Tribunal to be plausible and truthful.
SM and Qadir v Secretary of State for the Home Department (ETS – Evidence – Burden of Proof) [2016] UKUT 00229 (IAC) – Updated on May 13, 2016
Please note that this determination now reported and can potentially be used as a precedent in the court cases. This is rather a good news for those (thousands) of migrant students, whose applications were previously refused and who was even removed from the UK.
Recent case-law:
• R (On the Application Of Ufot) v Secretary of State for the Home Department [2016] EWCA Civ 298.
A remarkable Court of Appeal case, which was heavily criticized by Vos LJ with the arguments like” “Technical”, “deeply unattractive”, “disingenuous”, “singularly lacks merit”, “ridiculous”, “inappropriate”, “extraordinary. One of the major blunders of the UK BA and, surprisingly, IAC, in the last years
• R (on the application of Spahiu and another) v Secretary of State for the Home Department (Judicial review – amendment – principles) IJR [2016] UKUT 00230 (IAC)
(i) The amendment of a judicial review claim form preceding the lodgement of the Acknowledgement of Service does not require the permission of the Tribunal. Such permission is required in all other instances.
(ii) In deciding whether to exercise its discretionary power to permit amendment, the Tribunal will have regard to the overriding objective, fairness, reasonableness and the public law character of the proceedings. The Tribunal will also be alert to any possible subversion or misuse of its processes.
(iii) Every application to amend should be made formally, in writing, on notice to all other parties and paying the appropriate fee which, with effect from 21 March 2016, is £255.
(iv) Where an amendment is permitted in the course of a hearing the Tribunal may, within its discretion, not require compliance with the aforementioned requirements.
(v) There is a sharp distinction between an application to amend grounds and an application to amend the Respondent’s decision under challenge: R (HM) v Secretary of State for the Home Department (JR – Scope – Evidence) IJR [2015] UKUT 437 (IAC) applied.
• MS (Trafficking – Tribunal’s Powers – Art. 4 ECHR) Pakistan [2016] UKUT 00226 (IAC)
The determination in this case has now been reported with the following head note:
(i) Having regard to the decision of the ECtHR in Rantsev v Cyprus and Russia [2010] 51 EHRR 1, Article 4 ECHR, which outlaws slavery, servitude and forced or compulsory labour, encompasses also human trafficking.
(ii) Trafficking decisions are not immigration decisions within the compass of the 2002 Act, with the result that judicial review provides the appropriate mechanism for direct challenge.
(iii) Tribunals must take into account, where relevant, a decision that an appellant has been a victim of trafficking.
(iv) Where satisfied that a negative trafficking decision is perverse, Tribunals are empowered to make their own decision on whether an appellant was a victim of trafficking.
(v) Tribunals are also empowered to review a trafficking decision on the ground that it has been reached in breach of the Secretary of State’s policy guidance.
(vi) While, in principle it seems that other public law misdemeanours can also be considered by Tribunals, this issue does not arise for determination in the present appeal.
(vii) Tribunals may well be better equipped than the Competent Authority to make pertinent findings relating to trafficking.
(viii) The procedural obligations inherent in Article 4 ECHR are linked to those enshrined in the Trafficking Convention, Articles 10(2) and 18 in particular.
(ix) Any attempt to remove a trafficking victim from the United Kingdom in circumstances where the said procedural obligations have not been discharged will normally be unlawful.
• AT and another (Article 8 ECHR – Child Refugee – Family Reunification) Eritrea [2016] UKUT 00227 (IAC)
While the Immigration Rules make no provision for family reunification in the United Kingdom in the case of a child who has been granted asylum, a refusal to permit the family members of such child to enter and remain in the United Kingdom may constitute a disproportionate breach of the right to respect for family life enjoyed by all family members under Article 8 ECHR.
Updated recent UK BA Guidance:
• Certification guidance for non-EEA deportation cases: section 94B: https://www.gov.uk/government/publications/certification-guidance-for-non-eea-deportation-cases-section-94b
• Certification guidance for non-suspensive appeals: EEA deportation: https://www.gov.uk/government/publications/certification-guidance-for-non-suspensive-appeals-eea-deportation
• Register of licensed sponsors: workers: https://www.gov.uk/government/publications/register-of-licensed-sponsors-workers
• Domestic workers in private households: https://www.gov.uk/government/publications/domestic-workers-in-private-households
Katsonga (“Slip Rule”; FtT’s general powers) [2016] UKUT 00228 (IAC)
1. The ‘Slip Rule’, rule 31 of the First-tier Tribunal Procedure Rules, cannot be used to reverse the effect of a decision.
2. Following the repeal by the 2014 Act of subsections (3) to (6) of s 86 of the 2002 Act, the First-tier Tribunal appears to have no duty or power to ‘allow’ or ‘dismiss’ an appeal.
Adult dependent relative rule - BritCits judgment, case note and further steps
Mitting, J has given judgment in the BritCits challenge to the Immigration Rules on Adult Dependant Relatives.
The BritCits challenge was dismissed on all three grounds, but on the issue of whether the rule was compatible with Article 8 ECHR, Mitting, J indicated that he felt constrained to dismiss due to Aiken LJ’s judgment in MM (Lebanon) and if he had not been bound by that authority he would have declared the rule to be unlawful as disproportionate. He granted permission to appeal to BritCits, who have issued the Appellant’s Notice, and the issue is pending before the Court of Appeal.
The judgment of Mitting, J is, however, very significant for practitioners in itself as its approach to Article 8 ECHR opens up the possibility of the success of a significant number of adult dependant relative cases pursuant to Article 8 ECHR notwithstanding refusal under the adult dependant relative rule. We are grateful to Duran Seddon of Garden Court Chambers for his detailed case note which is attached at the above resource.
Instructions for assessing whether to administratively remove a European Economic Area (EEA) national (or a family member of an EEA national): https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/521243/EEA-administrative-removal-v2.pdf
R (Zafar) v SSHD [2016] EWHC 1217 (Admin) - DFT refusal struck down and SSHD required to made de novo decision
In the first judgment of its kind since the suspension of the Detained Fast Track on 2 July 2015, the High Court struck down the Home Secretary’s refusal and certification of an asylum claim which was made in the structurally unfair and unjust Detained Fast Track (DFT) and ordered the Home Secretary to remake the decision afresh without regard to material obtained in the unfair process. The High Court also directed the Home Secretary to pay substantial damages for falsely imprisoning the Claimant, a victim of torture, for 213 days as a result of subjecting him to an unlawful detained fast track asylum process and seeking to return him to Pakistan without giving him the opportunity to have his asylum claim fairly determined.
In a separate case of a female victim of torture, a similar settlement was secured in March 2016 before trial.
Похоже, UK BA октрыли новый вид сервиса:
“You can get your documents back quicker if you ask for a faster decision your application. This costs £400, in addition to the application fee you’ve already paid.”
В деталях:
https://www.gov.uk/faster-reply-visa-application
“Get a faster reply to your visa applicationYou may be able to get a decision within 5 working days if you’ve already sent your visa application by post.
You can use this service if you’ve applied for settlement in the UK using one of the following forms:
• SET (AF)
• SET (F)
• SET (LR)
• SET (M)
• SET (O)
You can also use this service to apply for a biometric residence permit (BRP) if you’re settled in the UK with no time limit.
Fees
You must pay £400 per person, in addition to the application fee you’ve already paid. “ etc
• Successful challenge to domestic violence concession in the successful appeal in the Court of Session in relation to a challenge to the Immigration Rules on the basis that the SSHD’s failure to allow spouses of pre-flight refugees to apply for ILR under the DV concession is discriminatory: http://www.scottishlegal.com/2016/05/31/ugandan-domestic-abuse-victim-wins-appeal-for-indefinite-leave-to-remain
• UK Home Office is creating mega database by stitching together ALL its gov records: http://www.theregister.co.uk/2016/06/03/home_office_mega_database/
https://legalcentre.org//files/ILPA-evidence-to-HASC-Inquiry-into-Home-Office-use-of-English-language-testing-2.pdf
- Domestic workers in private households recent guidance: https://www.gov.uk/government/publications/domestic-workers-in-private-households
• UK BA has started issuing certified refusals in relation to Appendix FM applications (“spouse” etc visas). This is all sounding like a cynical practice-run for the extension of “deport first appeal later”. Therefore a Premium/Same Day application may give a better chance of success, as it is possible to discuss the issues and probably get 14 days to sort the things out v a certified refusal (“deport first, appeal later”) situation
Recent case-law:
• Ruhumuliza (Article 1F and “undesirable”) [2016] UKUT 00284 (IAC)
The fact that a person is excluded from the Refugee Convention does not of itself mean that his presence in the UK is undesirable within the meaning of the Immigration Rules
• R (on the application of Khurram) v Secretary of State for the Home Department (effective service; 2000 Order) IJR [2016] UKUT 00281(IAC)
1. For the purposes of Art 8ZA(2) of the Immigration (Leave to Enter and Remain) Order 2000 (SI 2000/1161)(as inserted by SI 2013/174 with effect from 12 July 2013), a notice is not sent to a postal address “provided for correspondence by the person” if the address is provided to the Secretary of State by a third party such as a sponsor educational institution unless the third party is the authorised agent of the person.
2. However, where no postal address (or e-mail address) for correspondence has been provided, an address provided by a third party may be the “last-known or usual place of abode” of the person within Art 8ZA(3)(a) to which a notice may be sent.
• Johnson (deportation – 4 years imprisonment) [2016] UKUT 00282 (IAC)
When a foreign offender has been convicted of an offence for which he has been sentenced to imprisonment of at least 4 years and has successfully appealed on human rights grounds, this does not prevent the Secretary of State from relying on the conviction for the purposes of paragraph 398(a) of the Immigration Rules and s.117C of the 2002 Act if and when he re-offends even if the later offence results in less than 4 years imprisonment or, indeed, less than 12 months imprisonment
• R (on the application of MG) v First-tier Tribunal (Immigration and Asylum Chamber) (‘fresh claim’; para 353: no appeal) IJR [2016] UKUT 00283 (IAC)
1. A decision that further submissions do not amount to a ‘fresh claim’ under para 353 of the Immigration Rules is not a decision to refuse a protection or human rights claim and so does not give rise to a right of appeal to the First-tier Tribunal under s.82 of the Nationality, Immigration and Asylum Act 2002 (as amended by s.15 of the Immigration Act 2014).
2. Whilst the First-tier Tribunal must determine whether it has jurisdiction to entertain an appeal, it cannot decide whether a decision that further submissions do not amount to a fresh claim under para 353 was lawful or correct. Such a decision can only be challenged on public law principles in judicial review proceedings.
• R (on the application of Shehu) v Secretary of State for the Home Department (Citizens Directive: no suspensive appeals) IJR [2016] UKUT 00287 (IAC)
The redress procedure required by articles 31 and 35 of the Citizens Directive does not make it necessary to treat EEA appeals of any kind as suspensive, since arrangements can be made, on the conditions set out in article 31.4, for allowing the subject to submit his defence in person, which is reason enough for declining to treat the decision of the Court of Appeal in Ahmed as per incuriam for not dealing with article 35.
• Hamat (Article 9 – freedom of religion) [2016] UKUT 00286 (IAC)
(i) Article 9 - the right to freedom of thought, conscience and religion – is a distinctive feature of the Human Rights Act to be considered separately from Article 8 when it applies.
(ii) Article 9 permits the same structured approach to the assessment of an Article 8 human rights claim identified by Lord Bingham in his 5-stage approach set out in paragraph 17 of Razgar[2004] UKHL 27 save for the omission of the ‘economic well-being of the country’ criterion in Article 9(2).
(iii) In an appeal where the violation is alleged to occur by reason of removal from the United Kingdom, the test of proportionality governs the exercise of Article 9 rights and not the more stringent approach involving whether the returnee is at risk of a flagrant denial or gross violation in his home country.
(iv) A further distinctive feature is the creation of a statutory right in s.13 of the Human Rights Act 1998, independent of Article 9, enabling a religious organisation to benefit from the Convention right to freedom of thought, conscience and religion alongside its members collectively and individually.
(v) Matters relied on by way of a positive contribution to the community are capable in principle of affecting the weight to be given to the maintenance of effective immigration control and should not be excluded from consideration altogether but are unlikely in practice to carry much weight.
(vi) The operation of the Immigration Rules will not amount to an unlawful interference in the selection of a religious leader when the personality of the appellant has not influenced the decision and where anybody in the same position as the appellant who fails to meet the requirements of the Rules is likely to be refused.
• The Home Office approach to interpreting ‘consanguineous relationship’ in family reunion applications is the same meaning as in the Marriage Act 1949, the Marriage (Prohibited Degrees of Relationship) Act 1986 and the Civil Partnership Act 2004. The UK BA is in the process of revising the guidance on family reunion and the revised version will contain links to the relevant Acts so that caseworkers are able to refer to them easily. The revised guidance will be published on Gov.UK later this month
• The UK BA: the Immigration Rules are very clear that takeaways cannot sponsor SOL chefs
• Asylum – Deportation figures – UK BA response: http://www.parliament.uk/business/publications/written-questions-answers-statements/written-question/Commons/2016-06-07/39763/
• Nkomo (Deportation: 2014 rights of appeal) [2016] UKUT 00285 (IAC)
1. The No 3 Commencement Order of the 2014 Act, SI 2014/2771, extends the new appeals provisions to identified persons, but the amendment of it in SI 2014/2928 further extends those provisions to identified decisions.
2. In consequence, a person against whom a deportation decision was made in the period 10 November 2014 – 5 April 2015 may have no right of appeal if the decisions actually made carry rights of appeal only under the new appeals provisions. (Note: A further change was made to the commencement provision with effect from 2 March 2015, which did not fall for consideration on the facts of this case.)
• The UK BA may in some cases accept a visitor visas status in order to “top up” the migrant’s lawful leave so the migrant could apply for Settlement under the 10 year Long Residence route
• According to the UK BA, takeaways cannot sponsor SOL chefs, so no Tier 2 (General) application may succeed
• Average waiting times for an immigration appeal is around 12 to 18 months in the UK now
• The UK's family reunion rules: http://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7511
• Migrant Workers: Written question: What plans his Department has to help fill potential skills shortages in junior doctor and teaching positions resulting
from the £35,000 income requirement for settlement of Tier 2 skilled workers over the next five yearshttp://www.parliament.uk/business/publications/written-questions-answers-statements/written-question/Commons/2016-06-15/40839/
• Leaving the EU: How might people currently exercising free movement rights be affected: http://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7525
• Landmark judgment strikes down Home Office policy of assessing age of asylum seekers based on physical appearance: http://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/Admin/2016/1453.html&query=(title:(+AA+))
• Parliamentary Research Briefings on the EU Referendum have been published by the House of Lord and House of Commons: http://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7639
• The Government has launched an interim national Unaccompanied Asylum Seeking Children (UASC) transfer protocol 01 July 2016: https://www.gov.uk/government/news/government-launches-national-transfer-scheme-for-migrant-children
• An interesting Tier 2 case which was heard before Lord Bannatyne in the Outer House of the Court of Session. You will see that the petitioners were initially refused a sponsor licence on genuineness grounds and in the JR, the Home Office raised a preliminary point in that there was an alternative remedy in a new application. Lord Bannatyne is very critical of the Home Office in the short decision : https://www.scotcourts.gov.uk/search-judgments/judgment?id=0f4916a7-8980-69d2-b500-ff0000d74aa7
• Strategic Legal Research on the Registration of Children as British Citizens and the Good Character Requirement, Project for the Registration of Children as British Citizens: https://prcbc.wordpress.com/research/
• James Brokenshire, The Minister for Immigration, response to question on EU nationals living in the UK, House of Commons, Hansard Column 607, 4 July 2016: https://hansard.parliament.uk/commons/2016-07-04/debates/1607046000001/EUNationalsUKResidence
• The labour market for nurses in the UK and its relationship to the demand for, and supply of, international nurses in the NHS, Institute for Employment Studies, report commissioned by Migration Advisory Committee (MAC), 7 July 2016. This report examines the recruitment of non-European Economic Area (EEA) nurses at a trust level in the NHS in England: https://www.gov.uk/government/publications/migration-advisory-committee-mac-report-labour-market-for-nurses-in-the-uk
• EU Nationals in the UK, Opposition Debate in the House of Commons, Hansard 6 July 2016, column 937: https://hansard.parliament.uk/Commons/2016-07-06/debates/16070648000001/EUNationalsInTheUK