• The case is R (on the application of Johnson) v Secretary of State for the Home Department [2016] UKSC 56
The Supreme Court has decided that the historic failure of British nationality law to confer automatic citizenship on a child born out of wedlock was discriminatory, it has continuing consequences which breached a person’s human rights in a discriminatory way and that denying such a person British citizenship now is unlawful should they request it. The fact of the person’s later criminal offending was not relevant because the injustice had occurred at birth.
• Commons Select Scottish Affairs Committee publishes the UK Government’s response to the post-study work schemes report (28 October 2016)
Chair of the Committee, Pete Wishart expressed disappointment that vocal support from representatives of academia, business, industry, trade unions and the Scottish Government had had no noticeable impact on the direction of policy.
The Committee's report highlighted the negative impact of the closure of the Tier 1 (Post-Study Work) visa in 2012, making Scotland less attractive for overseas students and removing employers' easy access to a pool of highly-skilled workers.
• New Home Office guidance published on 'partnership working’ with police or other agencies (27 October 2016)
The new ‘partnership working’ guidance (first published 27th October 2016) instructs Immigration Enforcement in the procedures for working with the police or other agencies.
With regard to working with other agencies, it details procedures for ‘common multi-agency visit types’, namely
· Licensing Act visits
· ‘Beds in sheds’ (this term relates to property owners using the outbuildings of residential properties as dwellings, in contravention of the Town and Country Planning Act 1990 and the Housing Act 2004)
· Trading Standards visits
· HM Revenue and Customs (HMRC)
· Street homelessness operations
It emphasizes
· the need to establish the legal basis for the Immigration Compliance and Enforcement team to enter premises and details the powers of entry available.
· the misconception that Home Office staff can enter premises under section 179 of the Licensing Act 2003 as ’authorised persons’ (page 11).
· In partner work there must be no ambiguity as to who is the lead agency for the operation (page 8).
· any situation likely to attract media attention must be brought to the attention of the deputy director and press office (page 8).
British Future has published its report with its proposals for immigration post Brexit.
British Future proposes a three-tiered system where ‘highly-skilled’ EU migrants retain their rights to free movement. The first tier would comprise a route that would enable the ‘brightest and best’ (as usual, no definition of ‘best’; as usual seems from context to mean richest) from any country to move to the UK. The second tier would consist of a reciprocal free movement route with an income or a skills threshold. The third tier is also a preferential system and would comprise sector-based quotas to fill low-skilled and semi-skilled jobs. Here EU nationals would be offered preferential access to set quotas of jobs.
This appears to be a report that accepts, rather than challenges, post-Brexit discourse on migration. Nor does it challenge the notion that EU migrants should enjoy preferential treatment post-Brexit (as opposed to give primacy to other groups such as Commonwealth citizens or family members of British citizen). The report makes no mention of the evidence submitted to British Future or of the advisory committee for the report. It thus makes no claims to representing consensus but is rather the proposal from British Future.
British Future has the advantage over others of having got its report out first and this may affect the extent to which it influences the debate. It has gone for a ‘whole systems’ approach in the report but this is not necessarily how its proposals will be received: experience suggests governments rarely adopt such reports lock stock and barrel but rather pick and choose from them.
• The Immigration Act 2016 (Commencement No.2 and Transitional Provisions) Regulations 2016
The Secretary of State has made a second commencement order bringing into force further provisions of the Immigration Act 2016:
The appeals provisions under sections 63 to 65 come into force on 01 December 2016. Section 63 is the ‘remove first appeal later’ provision which provides the power to certify human rights claims not involving asylum or protection issues if it would not breach the applicant’s human rights to do so, with the effect that the appeal may only be brought from outside the UK. The power to cancel 3C leave under section 62 also comes into force on 01 December 2016. This applies where an individual has failed to comply with a condition of their leave or used deception in seeking leave to remain.
The new residential tenancy provisions under sections 39-41 come into force in England on 01 December 2016. These include the criminal offence of leasing premises to a person disqualified from renting and the new eviction powers.
Further illegal working provisions come into force on 01 December 2016 also. These are the provisions related to private hire vehicles and to illegal working closure notices and compliance orders. Transitional provision is made in respect of these provisions so that those granted temporary admission or released from detention by an immigration officer do not commit an offence if they have permission to work while the immigration bail provisions are not yet in force.
Section 54 and Schedule 8 come into force on 01 December 2016 date bringing into force provisions that allow for multiple entry search warrants except in Scotland where these are not permitted.
Sections 77 to 84 (language requirements for public sector workers) come into force on 21 November 2016. These are all the provisions relating to the duty on public sector authorities to ensure that public sector workers in customer-facing roles within the UK have a command of spoken English (or in Wales, English or Welsh) to enable the effective performance of their role.
The provisions on labour market enforcement undertakings, orders and supplementary provisions will all come into force on 25 November 2016.
These provisions are aimed at tackling breaches of labour market legislation. The Government considered that the existing system of fines were not sufficient to deal with the kinds of serious or repeated offences seen so it has introduced provisions that work like an Anti-Social Behaviour Order (ASBO) for employers.
Once these provisions are in force, the whole chapter of Part 1 on the labour market will be in force. Section 25 which places a duty on the Secretary of State to issue a code of practice giving guidance to enforcing authorities about the exercise of their functions under sections 14 to 23 was brought into force on 12 July 2016, along with the provisions on the Director of Labour Market Enforcement and the Gangmasters and Labour Abuse Authority, when the first commencement order made.
The judgment in the above country guidance case on Eritrea has now been re-promulgated and published on the Tribunals Service website. The judgment refers to Upper Tribunal Judge HH Storey rather than Deputy Upper Tribunal Judge Storey and the following text has been removed from the head note:
Legal
“Country guidance” is an established term denoting judicial guidance and adoption by the Home Office of terminology apt to confuse this important fact is to be deprecated.
Otherwise, the text of the judgment is the same as that published on 10 October 2016.
New country guidance on Eritrea
MST and Others (national service – risk categories) Eritrea CG [2016] UKUT 00443 (IAC)
1. Although reconfirming parts of the country guidance given in MA (Draft evaders – illegal departures – risk) Eritrea CG [2007] UKAIT 00059 and MO (illegal exit – risk on return) Eritrea CG [2011] UKUT 00190 (IAC), this case replaces that with the following:
2. The Eritrean system of military/national service remains indefinite and since 2012 has expanded to include a people’s militia programme, which although not part of national service, constitutes military service.
3. The age limits for national service are likely to remain the same as stated in MO, namely 54 for men and 47 for women except that for children the limit is now likely to be 5 save for adolescents in the context of family reunification. For peoples’ militia the age limits are likely to be 60 for women and 70 for men.
4. The categories of lawful exit have not significantly changed since MO and are likely to be as follows:
(i) Men aged over 54
(ii) Women aged over 47
(iii) Children aged under five (with some scope for adolescents in family reunification cases
(iv) People exempt from national service on medical grounds
(v) People travelling abroad for medical treatment
(vi) People travelling abroad for studies or for a conference
(vii) Business and sportsmen
(viii) Former freedom fighters (Tegadelti) and their family members
(ix) Authority representatives in leading positions and their family members
5. It continues to be the case (as in MO) that most Eritreans who have left Eritrea since 1991 have done so illegally. However, since there are viable, albeit still limited, categories of lawful exit especially for those of draft age for national service, the position remains as it was in MO, namely that a person whose asylum claim has not been found credible cannot be assumed to have left illegally. The position also remains nonetheless (as in MO) that if such a person is found to have left Eritrea on or after August/September 2008, it may be that inferences can be drawn from their health history or level of education or their skills profile as to whether legal exit on their part was feasible, provided that such inferences can be drawn in the light of adverse credibility findings. For these purposes a lengthy period performing national service is likely to enhance a person’s skill profile.
6. It remains the case (as in MO) that failed asylum seekers as such are not at risk of persecution or serious harm on return.
7. Notwithstanding that the round-ups (giffas) of suspected evaders/deserters, the “shoot to kill” policy and the targeting of relatives of evaders and deserters are now significantly less likely occurrences, it remains the case, subject to three limited exceptions set out in (iii) below, that if a person of or approaching draft age will be perceived on return as a draft evader or deserter, he or she will face a real risk of persecution, serious harm or ill-treatment contrary to Article 3 or 4 of the ECHR.
(i) A person who is likely to be perceived as a deserter/evader will not be able to avoid exposure to such real risk merely by showing they have paid (or are willing to pay) the diaspora tax and/have signed (or are willing to sign) the letter of regret.
(ii) Even if such a person may avoid punishment in the form of detention and ill-treatment it is likely that he or she will be assigned to perform (further) national service, which, is likely to amount to treatment contrary to Articles 3 and 4 of the ECHR unless he or she falls within one or more of the three limited exceptions set out immediately below in (iii).
(iii) It remains the case (as in MO) that there are persons likely not to face a real risk of persecution or serious harm notwithstanding that they will be perceived on return as draft evaders and deserters, namely: (1) persons whom the regime’s military and political leadership perceives as having given them valuable service (either in Eritrea or abroad); (2) persons who are trusted family members of, or are themselves part of, the regime’s military or political leadership. A further possible exception, requiring a more case specific analysis is (3) persons (and their children born afterwards) who fled (what later became the territory of) Eritrea during the War of Independence.
8. Notwithstanding that many Eritreans are effectively reservists having been discharged/released from national service and unlikely to face recall, it remains unlikely that they will have received or be able to receive official confirmation of completion of national service. Thus it remains the case, as in MO that “(iv) The general position adopted in MA, that a person of or approaching draft and not medically unfit who is accepted as having left Eritrea illegally is reasonably likely to be regarded with serious hostility on return, is reconfirmed, subject to limited exceptions…”
9. A person liable to perform service in the people’s militia and who is assessed to have left Eritrea illegally, is not likely on return to face a real risk of persecution or serious harm.
10. Accordingly, a person whose asylum claim has not been found credible, but who is able to satisfy a decision-maker (i) that he or she left illegally, and (ii) that he or she is of or approaching draft age, is likely to be perceived on return as a draft evader or deserter from national service and as a result face a real risk of persecution or serious harm.
11. While likely to be a rare case, it is possible that a person who has exited lawfully may on forcible return face having to resume or commence national service. In such a case there is a real risk of persecution or serious harm by virtue of such service constituting forced labour contrary to Article 4(2) and Article 3 of the ECHR.
12. Where it is specified above that there is a real risk of persecution in the context of performance of military/national service, it is highly likely that it will be persecution for a Convention reason based on imputed political opinion.
• Asylum support rates challenges: R (Ghulam & Ors) v SSHD [2016] EWHC 2639 (Admin) (24 October 2016)
Ghulam & Ors, R (on the application of) v Secretary of State for the Home Department & Anor [2016] EWHC 2639 (Admin) (24 October 2016)
Judgment of Flaux, J in the High Court dismissing three conjoined judicial review challenges to decisions of the Secretary of State setting asylum support rates. These included the reviews of asylum support rates for single adults in August 2014 and April 2015 following the Refugee Action case and the review of asylum support rates for families with children in July 2015 which led to a significant cut in the level of support to families. The applicants were a single adult, a lone mother with three children and a mother with a disabled child, with the Equality and Human Rights Commission intervening.
• According to the UK BA, from next week the UK BA letter accompanying permanent residence documentation will confirm the date on which the applicant is deemed to have acquired permanent residence, based on the information provided with their application. The UK BA is also amending the EEA (PR) guidance notes to make it clear that applicants applying for permanent residence documentation can provide evidence for historical periods of qualifying residence. The new version of the guidance notes will be published shortly
• Settlement visa applications submitted in Russia - change to guidance, UK Visas and Immigration, October 2016 UPDATED 2 November 2016. In brief: supporting documents for applications should now be sent to Sheffield : https://static.tlscontact.com/media/ru/mow/uk/settle_en.pdf
• High Court ruling on Article 50: UK Government cannot withdraw from the EU without the involvement of Parliament (03 November 2016)
R (Miller) -V- Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin)
Case No. CO/3809/2016 and CO/3281/2016
Today the High Court has ruled that the Government cannot withdraw from the EU without the involvement of Parliament. The Government is expected to appeal the decision.
The issue before the court is whether, as a matter of UK constitutional law, the Government is entitled to give notice of a decision to leave the European Union under Article 50 by exercise of the Crown’s prerogative powers and without reference to Parliament. This is a pure question of law. The court is not concerned with and does not express any views about the merits of leaving the European union: this is a political issue.
Conclusion
The Court holds that the Secretary of State does not have power under the Crown’s prerogative to give notice pursuant to Article 50 for the United Kingdom to withdraw from the European Union.
• Written Statement in Parliament: Safeguarding of unaccompanied asylum-seeking and refugee children (01 November 2016), Safeguarding
Written statement - HCWS232, Made by: Edward Timpson (The Minister of State for Vulnerable Children and Families)
• New EEA Regulations published, 3 November 2016
The Immigration (European Economic Area) Regulations 2016, SI 2016/1052
The Home Office has issued a final and updated version of Detention Services Order DSO 05/2016 on the care and management of pregnant women in detention, published 01 November 2016. It replaces DSO 02/2013 on pregnant women and supplements DSO 06/2016 on women in the detention estate.
The Detention Services Order had been issued in draft after the limitation on the detention of pregnant women under section 60 of the Immigration Act 2016 came into force. It was implemented on an interim basis whilst the Home Office consulted on its text ILPA submitted comments on the draft DSO on 11 August 2016.
• New UKVI guidance: arranging removals for officers dealing with immigration enforcement matters within the UK (03 November 2016)
This is guidance for Immigration Enforcement officers on how to prepare and arrange for a single person or a family group to be removed from the UK. It also contains information on decisions to separate family members as a consequence of detention or removal. https://www.gov.uk/government/publications/returns-preparation
• Work and Pensions Committee, House of Commons Select Committee inquiry into Department for Work and Pensions' policies and processes in relation to recognised victims of modern slavery and to assess potential changes in policy after Brexit, 1 November 2016:
• Tiers 2 and 5 of the points-based system: sponsorship – priority service, Home Office, 2 November 2016: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/565038/PBS-Sponsorship-priority-service-v1_0.pdf
Although the priority service was announced a couple of months ago by the Home Office as an alternative to A rated sponsors paying £25,000 for the premium service. The guidance doesn’t say how much the new priority service will be or how sponsors will pay. The priority service will only allow A rated sponsors to request the following on an expedited basis:
• change authorisation officer;
• add a new level 1 user;
• add or renew the allocation of certificates of sponsorship
• Chapter 60 Enforcement Instructions and Guidance: Judicial Reviews and Injunctions updated by Home Office 31 October 2016
Guidance link: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/563939/chapter60_v_13.pdf
The new version of Chapter 60 of the Enforcement Instructions and Guidance was published by the Home Office on Monday, 31 October 2016. Issuing a claim for judicial review will not act as a barrier to removal in certain cases and an injunction will be needed – see section 6. The amended guidance also extends the use of limited notice of removal – see section 2.3.
• (No. 1060) Immigration (Residential Accommodation) (Termination of Residential Tenancy Agreements) (Guidance etc.) Regulations 2016 No. 1060 laid before Parliament (04 November 2016)
This statutory instrument is subject to negative resolution and was
• made on the 2nd November 2016
• laid before Parliament 4th November 2016
• comes into force on 1st December 2016. http://www.legislation.gov.uk/uksi/2016/1060/made/data.pdf
• Notice of Eviction and End of Tenancy wording Right to Rent, The Immigration (Residential Accommodation) (Termination of Residential Tenancy Agreements) (Guidance etc.) Regulations 2016, 2 November 2016: http://www.legislation.gov.uk/uksi/2016/1060/made
This prescribes the form of notice that landlords will need to use to end a tenancy and to pursue eviction without a court order under the new right to rent provisions that will be in force from 1st December.
• According to the UK BA, a long term visitor visa holder would be able to use his/her long term visitor visa for private medical treatment. Following simplification of the visitor routes of entry from the 24th April 2015, a visitor (other than a transit visitor or an Approved Destination Status visitor) may carry out any of the visitor permitted activities set out in Appendix 3 to Appendix V of the UK Immigration Rules without the need to apply for more than one visa
• The UK BA Section 3 Leave Guidance (version April 2016) apparently has an error in it, asserting that section 3C leave is not restored where the certification under the Section 94 or the Section 94B or the Nationality, Immigration and Asylum Act 2002 (the 2002 Act) is withdrawn.
• Draft Immigration Act 2014 (Current Accounts) (Excluded Accounts and Notification Requirements) Regulations 2016 laid before Parliament (7 November 2016)
The Immigration Act 2016 (Commencement No.2 and Transitional Provisions) Regulations 2016 brought into force section 45 and Schedule 7 of the Act on current bank accounts for the purpose of making subordinate legislation only.
The draft Immigration Act 2014 (Current Accounts) (Excluded Accounts and Notification Requirements) Regulations 2016 were laid before parliament on 7 November. They indicate they will come into force on 31 October 2017.
This reflects the indication given by the Home Secretary, Amber Rudd MP, in her speech to the Conservative Party conference that the new Immigration Act 2016 provisions would be applied by banks from autumn 2017 :
The EU Scrutiny Committee considers the European Commission’s third Communication reviewing the implementation of the EU-Turkey agreement and the Home Office memorandum in response. The Committee had recommended following both the first and second Communications that the issues were debated in parliament and restates this with some frustration:
13.4 [...] We consider that as a result of the Government’s delaying tactics the accumulation of relevant documents is such that a debate encompassing all of them would do justice to none of them.
13.5 We note that the Government has committed to make time available for a series of general debates on the UK’s future relationship with the EU. We share the Commission’s view that migration is likely to remain “one of the defining issues for Europe” for decades to come. It is imperative that the debates promised by the Government address the basis for future cooperation between the EU and the UK on migration. As recent events in Calais demonstrate, the asylum policies and systems in place in other Member States will have an important bearing on the flow of asylum seekers and irregular migrants seeking to enter the UK, not only while the UK remains a member of the EU but also once it has left.
13.6 Whilst it is clear that important questions remain about the sustainability of the EU-Turkey Statement and the way in which it is being implemented, as well as the impact of high levels of irregular migration and secondary movements between Member States on the functioning of the Schengen free movement area, we recognise that the Government’s ability to influence developments in an area of policy in which the UK, even while it remains in the EU, does not participate fully is likely to be diminished in light of the UK’s decision to leave the EU.
The Committee also reminds the Minister that he has yet to provide information on the Government’s response to recommendations made by the UK’s Anti-Slavery Commissioner (Kevin Hyland), following his visits to hotspots in Greece and Italy earlier this year, to ensure appropriate protection for the most vulnerable migrants (especially unaccompanied children) and to reduce the risk of further trafficking and disappearances. It asks the Minister as a matter of urgency, to explain which recommendations the Government intends to take forward and which, if any, it intends to reject; and indicate how much resource the UK intends to dedicate to implementing the Commissioner’s recommendations and the timescale envisaged. The Committee has completed its scrutiny on this document but will draw it to the attention of the Home Affairs Committee and the Committee on Exiting the EU.
The Justice Committee criticised the fee increase in the Immigration and Asylum Chambers prior to the government publishing its review of the impact of implementation of employment tribunal fees. The government responded it believes that the proposals for fees in the Immigration and Asylum Chambers are not directly comparable with the position in the Employment Tribunals.
The Committee also recommended the application of the standard courts and tribunals fee remission system to the Immigration and Asylum Chambers should be reviewed. In response the government reiterated its plan to implement the policy, highlighting that it is also extending the fee waiver and remissions policy, so that those who are in receipt of a Home Office fee waiver on the grounds of destitution will also have their tribunal fee waived. The government has decided not to extend HMCTS’s standard fee remission scheme to proceedings in the Immigration and Asylum Chambers in view of the administrative difficulties it raises.
Supreme Court Judgments on Deportation Appeals (16 November 2016
• Makhlouf (Appellant) v Secretary of State for the Home Department Respondent) (Northern Ireland) UKSC 2015/0092
On appeal from the Court of Appeal of Northern Ireland
This is an appeal against an order for the deportation of a foreign criminal who has children who are citizens of and resident in the United Kingdom. The Tunisian Appellant married a UK national in 1996 and had a daughter in 1997. He entered the UK in 1997 and was granted indefinite leave to remain in 1999. He and his wife separated and he remained in the UK. In 2006, his then partner gave birth to their son. In 2005 the Appellant pleaded guilty to offences of assault causing GBH under s.20 of the OAPA 1861 and possession of an offensive weapon, relating to an incident in 2003 for which he received a sentence of 39 months imprisonment. He was not required to go back to prison due to time served on remand. He was subsequently convicted of a number of other less serious offences. He has not seen his daughter since 2003 and an application for contact was dismissed by the court in 2008. He has not seen his son since 2010 and his application for contact was dismissed by the court in 2011. He has been unable to work since 2006/2007 following a serious assault. The Secretary of State made a deportation order against the Appellant in October 2012 on the basis of his conviction in 2005 and rejected his claim that this would infringe his rights under Article 8 ECHR. His children were not consulted before the decision to deport him was taken.
The issue in this case was whether the Respondent failed to properly consider the Article 8 rights and best interests of the Appellant's children, and if so whether that meant the decision to deport the Appellant was not "in accordance with the law" and proportionate. Further, whether the Court of Appeal erred in its interpretation of "public interest" in Section 3(5)(a) and Section 5(1) of the Immigration Act 1971 and Article 8(2) ECHR and of the proportionality of deporting the Appellant under Article 8(2) and failed to conduct a proper assessment of all relevant factors and in particular to give sufficient weight to the remarks of the sentencing judge; the fact that the appellant has not been convicted of a serious offence of violence since April 2003; and the delay of the respondent in deporting the appellant.
The Supreme Court unanimously dismissed Mr Makhlouf’s appeal.
• Hesham Ali (Iraq) (Appellant) v Secretary of State for the Home Department (Respondent) UKSC 2015/0126
On appeal from the Court of Appeal (Civil Division) (England and Wales)
The issue is this appeal was whether immigration rules that are intended to set out the weight to be given to the public interest in the deportation of foreign national offenders are compatible with the balancing exercise required by the art.8 right to family life. The appellant is an Iraqi national who arrived in the UK in 2000 and made an asylum claim in 2002, which was rejected and the appeal was dismissed. He remained in the UK without leave and was fined for possession of Class A and C drugs in 2005. On 4 December 2006, he was convicted on two counts of possessing Class A drugs with intent to supply and sentenced to four years' imprisonment. He has a longstanding relationship with his fiancée, who is a British citizen. The Home Secretary made an automatic deportation order against the appellant on 6 October 2010 under s.32(5) of the UK Borders Act 2007. These proceedings challenge that order.
The Supreme Court dismissed Mr Ali’s appeal by a majority of 6 to 1.
• 28 day grace period for disregarding overstaying when making an application for further leave to remain abolished. See amended provision below.
• Changes to Appendix FM, including new English language requirement at level A2 for further leave as a partner or parent after completing 30 months on a 5-year route to settlement under Appendix FM.
• First phase of changes to Tier 2 (General) and Tier 2 (ICT) following the Migration Advisory Committee Review.
• Further changes to Tier 1, Tier 2, Tier 4, Tier 5 and provisions on overseas domestic workers.
• Anticipated changes to refugee leave and refugee family reunion not included but there are new provisions on inadmissibility of asylum applications including with reference to first country of asylum and safe third country.
• Mandatory refusal of limited or indefinite leave where an applicant is excluded under Article 1F from the Refugee Convention or under para 339D from humanitarian protection or is a danger to the security of the UK or, having been convicted by final judgment of a particularly serious crime, is a danger to the community of the UK.
GENERAL
Changes to periods within which applications for further leave to remain can be made by overstayers
The 28-day grace period for the consideration of applications for further leave to remain where a person has overstayed will be abolished for applications made on or after 24 November 2016. Instead, an out-of-time application will not be refused only where the person applies within 14 days and has a good reason for applying out of time that was beyond their or their representative’s control.
There is a 14-day ‘grace period’ where an application for leave has been refused; 3C leave has expired; a time limit for appeal or administrative review has expired; or an appeal or administrative review has concluded. This is to allow for a new application to be made.
Periods of overstaying prior to 24 November 2016 to be disregarded for the purpose of applications for indefinite leave to remain based on continuous lawful residence will be governed by the old 28-day grace period, but overstaying after that date must not exceed 14 days.
Changes relating to applications and validity
The rules on making valid applications for leave to remain are redrafted. New paragraphs 34 to 34E (see paragraph 1.4 of HC667) set out the mandatory requirements for applications to be valid and some exceptions. There are also changes to the rules on how applications and administrative review applications may be submitted. Applications made before 24 November 2016 will be considered under the rules as at 23 November 2016.
There is a new definition of a valid application at paragraph 34 of the Immigration Rules: one that is made on the specified form, all mandatory parts of which have been duly completed with the fee and health surcharge paid (unless a fee waiver applies). Proof of identity (normally a valid passport) must be submitted with the application, along with two valid passport photographs. Parents or guardians must sign to consent to an application from an under-18. Biometric information must be provided and where attendance in person is required, there must be such attendance. These requirements also apply when a person wishes to vary an application they have already submitted.
The Secretary of State has discretion to treat an application as valid as long as the fee is paid, satisfactory evidence of identity provided and biometrics given (paragraph 34B). An application sent by Royal Mail is made on the date on which it is received by the Home Office (paragraph 34G); otherwise an application is made on the date on which it is received by the Home Office. These new definitions are essentially codifications and simplifications rather than radical changes to existing rules. They come into effect from 24 November 2016 for applications submitted on or after that date.
Changes to general grounds for refusal and suitability requirements
Refusal of limited or indefinite leave to remain where an applicant is excluded under Article 1F from the Refugee Convention; under paragraph 339D from a grant of humanitarian protection; is a danger to the security of the UK; or having been convicted by a final judgment of a particularly serious crime, is a danger to the community of the UK, is made mandatory rather than discretionary. Instead limited leave will be granted outside the Immigration Rules under the restricted leave policy for as long as human rights considerations prevent deportation or removal. Indefinite leave to remain will only be given on a discretionary basis outside the rules and pursuant to the restricted leave policy. Applications made before 24 November 2016 will be considered under the rules as at 23 November 2016.
Changes to administrative review
Paragraph AR2.4 is ‘clarified’ to ensure that reviewers may consider evidence that was not before the original decision maker in either of the two scenarios identified, not both, as drafted, to reflect the intention of this rule and how it is applied. The two scenarios are:
• that the evidence is submitted to demonstrate that a case working error as defined in paragraph AR2.11 (a), (b) or (c) has been made; and (henceforth ‘or’)
• to demonstrate that the refusal of an application under paragraph 322(2) was a case working error and the applicant has not previously been served with a decision to refuse an application for entry clearance, leave to enter or leave to remain; to revoke entry clearance, leave to enter or leave to remain; to cancel leave to enter or leave to remain; to curtail leave to enter or leave to remain; or remove them from the UK, with the effect of invalidating leave to enter or leave to remain, which relied on the same findings of facts.
The rules are also amended to bring provisions on administrative review ,where leave to enter or remain as a visitor is cancelled at the border on the basis of a change in circumstances, in line with other leave to enter or remain applications. Additional evidence to rebut the finding of a change in circumstances may not be considered at administrative review.
Applications made for administrative review before 24 November 2016 will be decided under the rules in force on 23 November 2016.
FAMILY MIGRATION
Changes to Appendix FM / Appendix FM-SE
See above also on changes to 28-day grace period for overstayers submitting an application for leave to enter or remain.
A new English language requirement at level A2 of the Common European Framework of Reference for Languages is introduced for applicants for further leave in the UK as a partner or parent after completing 30 months in the UK on a five-year route to settlement under Appendix FM. The specified evidence requirements for meeting the English language requirements using an academic qualification are clarified also. These changes take effect from 1 May 2017. If, however, the expiry date of the applicant’s leave pre-dates 1 May 2017, the application will be decided in accordance with the Immigration Rules in force on 30 April 2017.
There are changes to the provision on when an application will normally be refused on suitability grounds due to false representations or failure to disclose a material fact so that it applies where: “The applicant has made false representations or failed to disclose any material fact in a previous application for entry clearance, leave to enter or remain or a variation of leave, or in a previous human rights claim; or did so in order to obtain from the Secretary of State or a third party a document required to support such an application or claim (whether or not the application was successful).” This will be applied to applications decided on or after 24 November 2016.
The rules are amended to ensure that a child is only eligible to apply for entry clearance or leave to enter or remain under Appendix FM when their parent is applying for or has leave to under Appendix FM. This applies to applications decided on or after 24 November 2016.
The provisions on minimum income thresholds are amended so that these have to be met in respect of any dependent child of the applicant’s parent’s partner as well as the applicant’s parent. This applies to applications made on or after 24 November 2016.
Changes are made to the specified evidence required to demonstrate meeting the minimum income threshold. The rules provide that changes made to evidential requirements in this and the previous statement of changes (HC877 of March 2016) apply to all applications decided from 24 November 2016, not just those made on or after 6 April 2016.
The level of outstanding debt to the NHS which will found a discretionary refusal of leave on grounds of suitability is reduced from £1000 to £500 for applications decided on or after
24 November 2016.
Changes to Part 8 Family Members
See also above on changes to 28-day grace period for overstayers submitting an application for leave to enter or remain.
Changes are made to the transitional provisions to allow applications that do not meet the rules for leave to enter or remain or indefinite leave to enter or remain under Part 8 also to be considered under the children provisions of Appendix FM. This will be applied to applications decided on or after 24 November 2016. There is also a change in the documentary requirements for entry clearance applications involving an inter-country adoption.
ECONOMIC MIGRATION
The statement of changes implements the first of two phases of changes to Tier 2 of the points-based system that were announced by the Government on 24 March 2016 and makes further changes, both to Tier 2 and generally.
Tier 2
Be aware that the time given to applicants and sponsors to respond to requests for further information in relation to genuineness assessments in both Tier 2 (General) and Tier 2 (Intra-company transfer)is being reduced from 28 calendar days to 10 working days.
Tier 2 (General)
Changes made following the Migration Advisory Committee review include:
• Increased salary threshold for experienced workers of £25,000 (but not new entrants where the threshold is held at £20,800). Exemptions for nurses, medical radiographers, paramedics and secondary school teachers in mathematics, physics, chemistry, computer science, and Mandarin ending in July 2019.
• As a transitional arrangement, the £25,000 threshold will not apply to workers sponsored in Tier 2 (General) before 24 November 2016, if they apply to extend their stay in the category. The Government intends to increase the threshold to £30,000 in April 2017; there will be no such transitional arrangement for workers sponsored in Tier 2 (General) between 24 November 2016 and April 2017 – they will need to satisfy the £30,000 threshold in any future application.
• UK graduates who have returned overseas have been weighted more heavily in the monthly allocation rounds under the Tier 2 limit. Graduates who apply in the UK continue to be exempt from the limit.
• Applicants sponsored in graduate training programmes may change occupation within the programme or at the end of the programme without their sponsor needing to carry out a further Resident Labour Market Test or for them to make a new application.
In other changes to Tier 2 (General), from April 2017 sponsors can rely on a milkround that ended up to four years prior to assigning a certificate of sponsorship but only if the worker was offered the job within 6 months of that milkround taking place.
Nurses are retained on the Shortage Occupation List but the rules are changed to require a Resident Labour Market Test to be carried out before a nurse is assigned a Certificate of
Sponsorship. The rules on pre-registration nurses are also consolidated.
Changes are made to switching from Tier 4 to Tier 2 to permit this only where the applicant studied at a UK recognised body or body in receipt of public funding as a higher education institution and to also prevent an applicant relying on a qualification obtained via supplementary study. The effect of the former change is to remove the route for those sponsored by an overseas higher education institution to undertake a short- term study abroad programme in the United Kingdom. It will also apply to those dependants of Tier 4 students permitted to switch into Tier 2.
Tier 2 (Intra- Company Transfer)
Changes made following the Migration Advisory Committee review include:
• The salary for short term ICT applicants has been increased to £30,000 for new applicants. A transitional arrangement applies for those already in the UK under the short term route.
• The closure of the Skills Transfer sub-category to new applicants.
• Changes to the Graduate Trainee sub-category. The salary threshold has been reduced from £24,800 to £23,000 and the number of places a sponsor can use has been increased from five to 20 per year.
In addition, a redundant paragraph relating to time spent working in the UK for the Sponsor is being removed, and amendments are being made to the evidential requirements to more accurately reflect the criteria relating to previous working for a business linked to the Sponsor.
Other changes
OTHER CHANGES TO THE POINTS-BASED SYSTEM
Evidential flexibility
The period of time within which the caseworker may get in touch with the applicant or representative and request the corrected document within is changed from seven to 10 working days with effect from 24 November 2016 (see new rule 34B). Circumstances in which this will be done are specified, for example where a document is missing it must be at the beginning of the sequence not at the beginning or end.
Evidence relating to English language requirements
Appendix B is amended to provide that an applicant must provide official documentation produced by UK NARIC to confirm any assessment of their degree by UK NARIC.
Tier 1 (entrepreneur)
Changes to evidence requirements, including to provide that an accountant cannot sign off his/her own accounts or funding evidence and around job creation and evidence to demonstrate Pay As You Earn reporting to HM Revenue and Customs.
Tier 1 (exceptional talent)
Providing that applications for endorsements can come from the Isle of Man (which has its own immigration rules). Changes as to evidence.
Tier 4 (students)
Changes to the definition of an approved qualification. Changes as to evidence. A correction to remove the need for academic progression in cases where, for example, the person has taken a year as a student union sabbatical officer. To allow those studying either an integrated Masters course or an integrated Masters and PhD programme, who are progressing from the lower to higher level qualification to move to a higher level course, and extend their leave from within the UK. To require a Doctorate Extension Scheme application to demonstrate two months of maintenance funds to support themselves until their salaried work starts.
Tier 5 (youth mobility scheme and temporary worker categories)
Setting out the quota’s for youth mobility schemes for 2017. To confer deemed sponsorship status upon Taiwan.
In the temporary worker category A-Rated Tier 5 sponsors are given the option of certifying maintenance in respect of a Tier 5 applicants and dependants. Minor, consequential, changes to government-authorized exchange schemes.
See also below re domestic workers.
Family members
Provision is made for family members, including of those in the UK under the Points-based system, who are studying to be required to have Academic Technology Approval Scheme certificates under Part 15 of the Rules.
Overseas domestic workers (Tier 5 and paragraph 159A to 159H)
The Immigration Rules on overseas domestic workers are also amended. In April 2016, the government gave domestic workers in private households and private servants in diplomatic households a right to change employer. They were however only allowed to stay with the new employer for a maximum of six months, or until their leave ends, whichever is the shorter, so for most workers in diplomatic households opting to change employer meant taking a cut in the time for which they could stay in the UK. From 24 November 2016 that is changing and domestic workers in diplomatic households who change employer will be able to work for the rest of their period of leave. The rules do not state whether they have to continue in a diplomatic household to benefit from this (it is understood that while the maximum period of leave has been six months they have not been confined to diplomatic households),
The Immigration Rules are amended with effect from 24 November 2016 to remove the upper age limit (65) currently applied to those applying in the overseas domestic worker in private household category.
From 24 November, when (pre April 2012) domestic workers are applying for more leave, instead of showing that they are required for ‘full-time’ work domestic workers must show that they are required to work a 30 hour week. This is unlikely to b e a problem for most domestic workers.
REFUGEES / ASYLUM
The anticipated changes to periods of refugee leave and refugee family reunion have not been implemented. There appears to be a placeholder at paragraph 11.116 of HC667 which would indicate that those changes were due to be added in and have been removed. A victory, therefore, but one that may be only temporary.
There are significant changes at 11.123 of the statement of changes introducing new paragraphs 345A – 345E. An asylum claim will be declared inadmissible where the following conditions are met:
• another member State has recognized the person as a refugee;
• a country which is not a member State is considered to be a first country of asylum for the applicant, according to the requirements of paragraph 345B;
• a country which is not a member State is considered to be a safe third country for the applicant, according to the requirements of paragraphs 345C and 345D;
• the applicant is allowed to remain in the United Kingdom on other grounds and as a result of this has been granted a status equivalent to the rights and benefits of refugee status;
• the applicant is allowed to remain in the United Kingdom on some other grounds which protect them against refoulement pending the outcome of a procedure for determining their status in accordance with (iii) above.
The content of the rules on first country of asylum and safe third country appear at first glance to reflect articles 26 and 27 of Council Directive 2005/85/EC on minimum standards on procedures in Member States for granting and withdrawing refugee status, with added detail on how the connection to the safe third country will be determined. The rule change signals increased consideration of the safe third country option in asylum applications, beyond the Dublin III regulation. Para 345A (iv) appears aimed at preventing those granted humanitarian protection from having their claims for refugee protection being considered.
Changes are made to where Refugee Status or Humanitarian Protection is revoked or ceases to apply to allow for exclusion where there are ‘serious reasons for considering’ that a person has committed a serious crime in addition to where they have committed a crime prior to their admission to the UK. ‘Serious reasons considering’ reflects language used by UNHCR but we wait to see how the provision is applied.
The changes relating to the first country of asylum / safe third country apply to all asylum claims made on or after 24 November 2016. All the other changes apply to decisions made on or after 24 November 2016.
See also above on general grounds for refusal where Article 1F or Article 33(2) of the Refugee Convention apply.
• El Ghatet v. Switzerland (no. 56971/10) [Article 8], 8 November 2016
This case concerns the refusal of the Swiss authorities to permit the family reunification of an Egyptian son with his father, who has Egyptian and Swiss nationality
• CJEU: Case C-528/15 Al Chodor, Opinion of Advocate-General H. Saugmandsgaard ØE
The case relates to an Iraqi male and his two minor children who were detained by the Czech police in May 2015 pending their transfer to Hungary pursuant to the Dublin Regulation and Article 129(1) of the Czech Aliens Act.
The guidance has been amended to include a list of applications that cannot be made during the currency of leave under section 3C of the Immigration Act 1971 (namely are not human rights claims), and a fuller EEA appeals guidance section has been added which includes reference to the case of Sala.
• UK Visas and Immigration (UKVI) upholds complaint of EEA family permit applicant wrongly told by UKVI to pay for priority visa service, 24 November 2016
UKVI upholds complaint and refunds fee of applicant who was told by Visa Application Centre staff to pay for the priority visa service to have his application processed on a priority basis when this should not have been necessary because EEA family permit applications are required to be issued as soon as possible under Regulation 12(4) of the Immigration (European Economic Area) Regulations 2006.
This version has moved to the new template and reflects the following changes:
- the references to appeals have been replaced by administrative review guidance
- the indefinite leave to remain section has been amended to reflect the correct process for considering ‘intent to work’. It replaces the UK Ancestry modernised guidance version 14.0 which has been withdrawn and archived.
• Long residence: https://www.gov.uk/government/publications/long-residence
Changes from last version of this guidance:
- ‘Requirements for long residence’ – fifth bullet point new
- ‘10 years continuous lawful residence’ – fifth bullet point new
- ‘Events that break continuous residence’ – bullet points have been amended and new second sub-bullet point new
- ‘Time spent in prison’ – third paragraph, last sentence new Page 5 of 43 Published for Home Office staff on 24 November 2016
- ‘Examples of continuous residence’ – Example 1, third bullet point new
- ‘Time awaiting a decision on an application or appeal’ – new section ‘Out of time appeals’
- ‘Time spent in the UK with a right to reside under European Economic Area (EEA) regulations’ – seventh paragraph new
• Guidance: Applications from overstayers (non family routes): https://www.gov.uk/government/publications/applications-from-overstayers-non-family-routes
Changes from last version of this guidance:
- removal of the 28 day grace period for overstayers (which is permitted for applications for renewal of leave from those who have overstayed their leave to be in the UK), replaced with a provision to disregard overstaying in a limited set of circumstances
- minor amendment to update 3C leave. NB: The “minor amendment to update 3C leave” appears to be an addition in the guidance to reflect the decision in R (Iqbal v SSHD) [2015] EWCA 838. In Iqbal, The Court of Appeal held that if a person such as Mr Iqbal makes an in-time application to vary their leave to remain which they genuinely (and even reasonably) think is a valid application, but after their leave expires it turns out that the application was not valid, they have been in the UK without leave and without the protection of 3C leave, even though they did not know this and had no reason to think it, between the expiry of the existing leave and the Secretary of State’s decision that the application was invalid. This means that for that period the person is in the UK unlawfully, their landlord/landlady or employer is committing a criminal offence, they are not entitled to a bank account, or to drive, etc. Whether they are unlawfully present at all, and if so for what period, all depends on whether the Secretary of State decides their application before their existing leave expires (applicants are normally asked not to submit an application until one month before their leave expires).
The UKVI guidance now has the following text as one of the examples explaining 3C leave:
“In-time application, rejected after leave expired. The migrant had leave until 2 March 2015 and submitted an application for further leave on 26 February 2015. The application was rejected on 31 March 2015. In this case the migrant began overstaying on 3 March 2015 as an application that is rejected does not extend 3C leave.”.
• Points Based System: new UKVI guidance following rules changes (25 November 2016)
Guidance: Family members of Points Based System migrants.
The guidance does not include a discussion of continuous residence for family members of Points Based System migrants applying for Indefinite Leave to Remain. It seems that this is a drafting error.
Interesting points:
In paragraph 319E(d)(ii) insert after (c):
“In this sub-paragraph “continuous” means an unbroken period and for this purpose a period shall not be considered to have been broken in any of the circumstances set out in paragraph 245AAA(a)(i) to (iii).”.
This wording appears to introduce a restriction on permitted absences for Points-Based dependants applying for indefinite leave to remain, so that the absences permitted to them are the same as those permitted to main applicants (max absence 180 days in any of the five consecutive 12 month periods preceding the date of application for indefinite leave to remain). Thus clients applying after 24 November suddenly find that their absences over the last five years will tell against them.
Changes from last version of this guidance:
- Previous guidance was set out in direct family members guidance.
- Reformatted in line with new processes.
- Changes to implement Schedule 5 to the Immigration (European Economic Area) Regulations 2016.
- Other minor changes
UKVI updated guidance on detention, removals and offender management (updated 25 November 2016)
• Guidance: Chapters 46 to 62: detention and removals : https://www.gov.uk/government/publications/chapters-46-to-62-detention-and-removals
Chapter 60: Judicial Reviews and Injunctions
Change indicated: Revision to 4.1 to bring in line with previous changes in section 6.
[Section 4.1 refers to deferral of removal; section 6 refers to when judicial review proceedings will suspend removal.]
• Immigration Tribunal fees: Government backs down on fee increase - for now - and will review (25 November 2016)
The Government will review the level of fee increases and in the meantime apply fees at previous levels and make refunds to applicants who have paid under the new scheme.
Ministerial statement from Oliver Heald, Minister of State for Courts and Justice:
http://www.parliament.uk/business/publications/written-questions-answers-statements/written-statement/Commons/2016-11-25/HCWS284
“However, we have listened to the representations that we received on the current fee levels and have decided to take stock and review the immigration and asylum fees, to balance the interests of all tribunal users and the taxpayer and to look at them again alongside other tribunal fees and in the wider context of funding for the system overall.
From today all applicants will be charged fees at previous levels and we will reimburse, in all cases where the new fees have been paid, the difference between that fee and the previous fee.
We will bring forward secondary legislation to formalise the position as soon as possible. That legislation will come into force shortly, but in the meantime the changes will be effected through the use of the Lord Chancellor’s discretionary power to remit or reduce fees.
Alongside the fee changes introduced we extended the fee exemptions offered in the First-tier Tribunal, to include:
• those in receipt of a Home Office destitution waiver in respect of their initial application;
• parents of, and those with parental responsibility for, children receiving support from local authorities;
• children in local authority care; and
• those appealing a decision to revoke their humanitarian protection or refugee status.
The Government believes that these exemptions are proportionate measures that protect some of the most vulnerable users of the Tribunal. For this reason the extended system of fee exemptions will remain in place”.
Tribunal Head Note: Justice must not only be done but must manifestly be seen to be done.
Judgment of McCloskey, J, President and Cheema-Grubb, J sitting as a Judge of the Upper Tribunal in a case arising from a determination of the First-tier Tribunal upholding a Home Office decision to refuse leave to remain on the basis of alleged deception in obtaining a TOEIC certificate.
1. The Tribunal made the following findings and set aside the decision of the First-tier Tribunal: The conduct of the Judge offended against the principle of the appearance of fairness.
In summary, the Judge (a) engaged in a private conversation with the Appellant’s representative (b) in the absence of the other party’s representative (c) in the precincts of the court room (d) partly out of sight and earshot of the Appellant and his spouse (e) in a setting other than that of bench/bar (f) before the Appellant’s hearing began (g) relating to the Appellant’s case and, finally, (h) the contents whereof, other than a question about the Appellant’s religious adherence, itself an improper enquiry made in this fashion, were not divulged to the Appellant.
2. The Judge failed to recognise that the conclusion that the Home Office decision was incorrect when it stated that the application had to be refused for contravening a requirement of candour and honesty as there was a discretion to be exercised.
3. The Judge’s determination on the treatment of ‘generic’ ETS evidence also amounted to an error of law.
[T]he Judge makes a rather bare and sweeping statement: “The Home Office have access to all appropriate data and enquiries which were undertaken internally by ETS”. We all know this to be manifestly unsustainable. This assessment is made irresistibly by virtue of this Tribunal’s decision in the case of SM and Qadir [2016] UKUT 229 (IAC), at [63] especially, when the so-called “generic” evidence was examined in some detail giving rise to the findings rehearsed. It matters not that SM and Qadir post-dated the decision in the present case. The inexorable conclusion is that the Judge erred in law in this rather unparticularised and unreasoned statement in the determination.
• New Guidance on language requirements for public sector workers (29 November 2016)
Part 7 of the Immigration Act 2016 came into force 21 November 2016 and placed a duty on public sector employers to ensure that their employees in public-facing roles in the UK have sufficient spoken English to perform their roles effectively. The Government issued an updated Code of Practice and Impact Assessment on 29 November 2016 having laid these in draft before parliament earlier in July 2016. The Government indicates that the Code will promptly be brought into force by Regulations under the Act.
• Abdullahi Elmi and Aweys Abubakar v. Malta (nos. 25794/13 and 28151/13) [Articles 3 and 5], 22 November 2016
On 22 November 2016, the European Court of Human Rights (ECtHR) delivered its judgment in Abdullahi Elmi and Aweys Abubakar v. Malta (nos. 25794/13 and 28151/13) concerning the eight-month detention of two asylum-seeking children pending the outcome of their asylum procedure and, in particular, the age assessment procedure employed.
Further analysis (most interesting points) of the recent UK and EEA Immigration Rules/Regulations changes at the end of November 2016:
• Changes to periods within which applications for further leave to remain can be made by overstayers
The 28-day grace period for the consideration of applications for further leave to remain where a person has overstayed will be abolished for applications made on or after 24 November 2016. Instead, an out-of-time application will not be refused only where theperson applies within 14 days and has a good reason for applying out of time that was beyond their or their representative’s control.
There is a 14-day ‘grace period’ where an application for leave has been refused; 3C leave has expired; a time limit for appeal or administrative review has expired; or an appeal or administrative review has concluded. This is to allow for a new application to be made. Periods of overstaying prior to 24 November 2016 to be disregarded for the purpose of applications for indefinite leave to remain based on continuous lawful residence will be governed by the old 28-day grace period, but overstaying after that date must not exceed 14 days.
• Changes relating to applications and validity
The rules on making valid applications for leave to remain are redrafted. New paragraphs 34 to 34E (see paragraph 1.4 of HC667) set out the mandatory requirements for applications to be valid and some exceptions. There are also changes to the rules on how applications and administrative review applications may be submitted. Applications made before 24 November 2016 will be considered under the rules as at 23 November 2016.
There is a new definition of a valid application at paragraph 34 of the Immigration Rules: one that is made on the specified form, all mandatory parts of which have been duly completed with the fee and health surcharge paid (unless a fee waiver applies). Proof of identity (normally a valid passport) must be submitted with the application, along with two valid passport photographs. Parents or guardians must sign to consent to an application from an under-18. Biometric information must be provided and where attendance in person is required, there must be such attendance. These requirements also apply when a person wishes to vary an application they have already submitted.
The Secretary of State has discretion to treat an application as valid as long as the fee is paid, satisfactory evidence of identity provided and biometrics given (paragraph 34B). An application sent by Royal Mail is made on the date on which it is received by the Home Office (paragraph 34G); otherwise an application is made on the date on which it is received by the Home Office. These new definitions are essentially codifications and simplifications rather than radical changes to existing rules. They come into effect from 24 November 2016 for applications submitted on or after that date.
• Changes to Appendix FM / Appendix FM-SE
See above also on changes to 28-day grace period for overstayers submitting an application for leave to enter or remain.
A new English language requirement at level A2 of the Common European Framework of Reference for Languages is introduced for applicants for further leave in the UK as a partner or parent after completing 30 months in the UK on a five-year route to settlement under Appendix FM. The specified evidence requirements for meeting the English language requirements using an academic qualification are clarified also. These changes take effect from 1 May 2017. If, however, the expiry date of the applicant’s leave pre-dates 1 May 2017, the application will be decided in accordance with the Immigration Rules in force on 30 April 2017.
• Points Based System (PBS)
Evidence relating to English language requirements Appendix B is amended to provide that an applicant must provide official documentation produced by UK NARIC to confirm any assessment of their degree by UK NARIC.
• Tier 2 (General)
Changes are made to switching from Tier 4 to Tier 2 to permit this only where the applicant studied at a UK recognised body or body in receipt of public funding as a higher education institution and to also prevent an applicant relying on a qualification obtained via supplementary study. The effect of the former change is to remove the route for those sponsored by an overseas higher education institution to undertake a short- term study abroad programme in the United Kingdom. It will also apply to those dependants of Tier 4 students permitted to switch into Tier 2.
• Tier 1 (entrepreneur)
Changes to evidence requirements, including to provide that an accountant cannot sign off his/her own accounts or funding evidence and around job creation and evidence to demonstrate Pay As You Earn reporting to HM Revenue and Customs.
• PBS Family Members
Provision is made for family members, including of those in the UK under the Points-based system, who are studying to be required to have Academic Technology Approval Scheme certificates under Part 15 of the Rules.
• EEA Regulations
The Immigration (European Economic Area) Regulations 2016 (SI 2016/1052)
Into effect 25 November 2016 and 1 February 2017. These regulations replace the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003) achieving a much needed consolidation. But SI 2016/1052 follows the usual Home Office mantra of ‘no consolidation without change’. Changes to the Surinder Singh (Case C-370/90 ) route, inspired by O & B v The Netherlands (Case C-456/12) come into effect on 25 November 2016. The good news is that the new regulations cover not only British citizens who were workers and self-employed in another member State but also British citizens who have studied or been self-sufficient in another member State. The rules require an assessment of whether residence in another member State was ‘genuine’, recalling the genuineness tests of the Points-Based system. But there is a new reason for refusing a Surinder Singh family member: that the purpose of residence was to circumvent immigration laws that would otherwise have applied to them.
Other changes come into effect on 1 February 2017. It appears that the prospect of Brexit has persuaded the Home Office that it can break EU law with impunity. There is a new power to require EEA applications to be made in a prescribed manner. There is a new ‘verification’ process for applications.
The abolition of the right of appeal for extended family members is confirmed. Just as the Immigration Act 2016 extends deport first; appeal later powers to turn them into remove first appeal later powers, so the power to force EEA nationals to leave before their appeal is heard is extended to cases where they have been told that they have no right of residence or that they have ‘misued’ EEA rights.
Guidance added on 'Warrants: procurement and use'.
Guidance and information on administrative and criminal powers for officers dealing with immigration enforcement matters within the UK.
• Form FLR(O) has been abolished. The new FLR(HRO) and FLR(IR) forms are now in use
The controversial form FLR(O) is no more and has been withdrawn with effect from today, 1 December 2016. It has been replaced by two new forms:
FLR(HRO) broadly for applications outside the Immigration Rules based on human rights:
1. discretionary leave (DL) if you have previously been granted DL but have not previously been refused asylum, granted less than 4 years exceptional leave)
2. medical grounds or ill health
3. human rights claims (not to be used for claims on the grounds of family or private life, including on the basis of family dependencies between a parent and a child, or for protection (asylum) claims)
4. leave outside the rules under the policy concessions in the leave outside the rules guidance claims for leave outside the Immigration Rules because of compassionate and compelling circumstances
5. other claims not covered by another form
FLR(IR) broadly for applications made under the Immigration Rules not covered by another form:
1. visitors (except transit, Approved Destination Status and Permitted Paid Engagements visitors)
2. UK ancestry
3. domestic worker in a private household
4. domestic worker who is a victim of slavery or human trafficking
5. parent of a Tier 4 (child) student
6. dependant joiners who are applying separately from the main applicant – dependants of a person who has limited leave to enter or remain in the UK, not including dependants of a person with leave under the points based system or dependants of a person in the UK with leave on the basis of family or private life
7. relevant civilian employee
8. member of an Armed Force who is subject to immigration control (course F)
9. dependant of a member of Armed Forces which are not HM Forces (dependants of a member of HM Forces should complete FLR(AF))
10. locally engaged staff of a diplomatic mission
11. representative of an overseas business
12. retired person of independent means
13. any other application for leave to remain that is within the Immigration Rules but is not covered by another form
This version has moved to the new template and reflects changes in line with the Immigration Rules changes of 24 November 2016. It replaces the Tier 1 (Entrepreneur) modernised guidance version 17.0 which has been withdrawn and archived.
New UKVI Guidance on Bail & Warrants (05 December 2016)
Restructured 57.1.2 to minimise repetition; inserts at 57.3, 57.8 and 57.13; 57.7 restructured to include new subsection 57.7A; added Annex A; replacement or removal of outdated terms.
Further note:
-57.1.2 Bail in potential deportation cases: restructured and wording simplified.
-57.3 Advising persons of their bail rights: reminder added that a person can be considered for release on CIO or Secretary of State bail without first having to make an application; requirement to include in a bail application any recognizance agreed by the applicant amended to include the wording ‘if any’; the same change is made with reference to recognizances by sureties;
-57.8 Immigration Judge’s bail: changes to text on ending of bail and breach of bail;
-57.13 Surrendering to bail: more detail on granting further bail when a person appears before an immigration officer in surrender to bail granted by an immigration judge.
-57.7A and Annex A added on bail conditions, dealing with electronic monitoring and imposing curfews.
-[On curfews, see also Immigration Curfews: note for practitioners by Tom Hickman, Blackstone Chambers, 01 November 2016 at ILPA resource: http://www.ilpa.org.uk/resource/32610/immigration-curfews-note-for-practitioners-by-tom-hickman-of-blackstone-chambers]
Guidance removed: Chapter 34: warrants' guidance: https://www.gov.uk/government/publications/chapters-23-to-45-operational-enforcement-activity
- The Tier 4 summer ‘surge’ peaked in October, with straightforward cases being processed within 6 weeks.
- Postal applications for the summer peak received by mid October and UKVI are on course to clear by the end of November.
- The use of a new delivery partner had caused some very limited delivery issues.
- Tier 2 and 5 applications were averaging 6-7 weeks.
- Nationality applications were closer to 11 weeks processing, settlement routes at 18 weeks.
- Premium Service Centres (PSCs) offered faster processing.
- Tier 2 and 5 PSC appointments could be booked within 1 day at Belfast and Glasgow, with the Cardiff the longest at 8 days. PSC applications including dependents averaged 7 days for appointment. Long residency application appointments were shortest in Belfast at 7 days, longest in Solihull at 21 days.
- Appointments were currently Tier 2 only but the potential for expansion would be explored in 2017
- Sponsorship licence applications were taking 3 weeks on average. For licence changes Tier 4 renewals averaged 4 weeks, postal license changes were taking 4-6 weeks of an 18 week service standard.
• UKVI international operational update
- Just under 3 million applications (year ending June 2016), a 3% increase from the year before.
- Of these around 1.9 million were visitor applications and 204,000 were student applications.
- Significant growth in the key markets of India and China, in contrast to numbers dropping for those nationals travelling to the rest of Europe and the UK was top in Europe for visas issued this year.
- 5 new Premium Visa Application Centres (VACs) launched in the USA and 3 new VACs in China.
- In China, the joint UK and Belgian schengen visa service is expanding to all 15 VACs having now received sign off from the Chinese authorities.
- New meetings, incentives, conferences and events (MICE) service in India.
- Revised preferred partnership scheme in India for improved engagement with tour operators.
- Access UK rollout now complete on visit visas (covered in item 5).
- Priority visas now in place in over 200 locations.
- Electronic Visa Waivers now available for Kuwait, Qatar, Oman and UAE.
• New UKVI services: Access UK, the new online application service
- Access UK key objectives were to provide an online service replacing approximately 300 paper application forms and to replace Visa4UK, the previous online service.
- To provide a platform that is consistent with the Government Digital Service (GDS) and support Home Office transformation and was faster and more intuitive to use than Visa4Uk.
- The rollout was completed for 200 countries within 175 days, completing in August 2016.
- In-country applications were also being placed online, currently including Tiers 2 and 4, family and EEA routes.
- Access UK is streamlined from Visa4UK, with pages containing fewer questions allowing more targeted individual steps in the process.
- Additional language options on the online instructions (although the applications themselves must be in English).
- Mobile device compatible.
- Fortnightly system updates, improving responsiveness to any issues.
- The aim is for all immigration applications to be processed through Access UK by 2017.
• New UKVI services: Sponsorship IT rebuild
- A new sponsorship system was being designed to improve the current Sponsor Management System (SMS) with a strong customer facing focus
- The new system would be consistent with GDS standards and allow greater user feedback.
- The discovery phase had been completed and the product was currently in the alpha stage.
- The new system would have a strong user focus and the goal would be to move away from the need for the current 200 plus pages of guidance.
- Cases where immigration judge bail is granted
- Bail renewal or variation before an immigration judge – variations of bail restrictions
- Cases where CIO or Secretary of State bail is granted
- Renewal or variation of CIO or Secretary of State bail
- Ending bail
• Report recommends cut off date for new arrivals from EU
A hardline report chaired by prominent Leave campaigner Gisela Stewart into the status of EU nationals in the UK has recommended a cut off date for new arrivals from the EU, likely to be April 2017, and a massive registration programme for existing EU residents. EU citizens arriving after the cut off date would be subject to the full force of UK immigration law on Brexit, presumably meaning they would become unlawfully resident on that date.
The report, which has been co-ordinated by organisation British Future, assumes a total end to EU free movement law in the UK, “hard Brexit”, departure from the European Economic Area and Single Market and expulsion on non qualifying EU residents and family members. Essentially, it proposes a UKIP future for the United Kingdom.
The report recommends that the Home Office simplify the application process for permanent residence. Applications would be compulsory and would involve cross checking against multiple government databases rather than reliance on documents propduces by the applicant. The method proposed looks to me fundamentally incompatible with EU law, and involves imposition of a good character test and an application for ILR rather than permanent residence. How this could occur while the UK remains a member of the EU and EU citizens therefore continue to enjoy free movement rights is unclear, but it does not look very well thought through.
The report at least proposes a five year “transition” for EU nationals who were qualified persons or had permanent residence at the cut off date. This would allow those people to bring their family members to the UK under the equivalent of EU rules, which are far more family-friendly than the extremely harsh UK immigration rules. Entry of parents and grandparents is basically banned under UK rules but remains feasible under EU rules, and under EU rules there is no real minimum earnings requirement for sponsoring a foreign spouse, unlike the £18,600 requirement under UK rules.
Those with permanent residence would have their status converted to “bespoke” Indefinte Leave to Remain (ILR) under the UK immigration rules. What “bespoke” means or how it would differ from “normal” ILR and be distinguished from it when it is called the same thing is not explained.
The report is not an official or Government report but was co-ordinated by British Future. How likely the recommendations are to find their way into UK Government policy is questionable. This is particularly so as the report in effect abandons tens or hundreds of thousands of existing residents of the United Kingdom who are currently lawfully present in the UK because of EU free movement laws.
The report focuses on “qualified persons”, meaning those who are working, self employed, self sufficient with comprenehsive health insurance or students with comprehensive health insurance. It does not address long term residents from the EU who are not qualified persons (for example the non-working EU national spouse of a British citizen who does not have comprehensive health insurance) nor does it address third country family members from outside the EU but who have or had a relationship with an EU national in the UK.
The report itself states that only 64% of EU nationals resident for over 5 years have qualified for permanent residence. If it is assumed that there are 2.8 million EU nationals in the UK, that means over 1 million have not qualified. Many therefore probably never will. The report assumes these people will be expelled at the end of a five year transition period, in what would be the biggest mass expulsion of population from this country since 1290, when Edward I infamously ordered the Jews of England into exile.
Given that no-one in their right mind was proposing removing qualified persons, one wonders what the point of the exercise was. The report dodges the very hard questions faced by Ministers and civil servants.
• Thought in the Points Based System (PBS)
The Points Based System is notoriously complex and indecipherable. I have been working with the PBS categories and the pre-PBS categories, such as HSMP, Innovator and the like for a very long time. The first HSMP Rules were easy to understand, than it started to change. I believe this was simply incompetence on the part of Home Office officials unable to communicate in plain English and ill equipped to design to and then adapt to the constantly shifting requirements of Ministers.
Having observed multitude of unnecessary changes, judicial reviews, appeal and the like, my current view is that the complexity of the system is now deliberate; an opportunity has been grasped and the Points Based System is now used as an actual barrier to all immigration rather than as a gateway to the “right” migrants. It was even extended to family migration in the form of Appendix FM with accompanying Appendix FM-SE with accompanying policies and guidance.
There is in effect a financial filter; only those employers or migrants able to afford top quality legal representation can successfully navigate the labyrinth.
Lords Select Committee on the European Union publishes their report on Brexit: acquired rights 10th Report of Session 2016-17 - published 14 December 2016 - HL Paper 82
SUMMARY OF CONCLUSIONS AND RECOMMENDATIONS
The rights of EU citizens and their families
1. The rights of an EU citizen to live and work in any EU Member State, and to gain a permanent right of residence in that State after five years, are some of the most fundamental in EU law. From them have derived all of the additional citizenship rights that are necessary for nationals of EU Member States, and their families, to conduct their lives in an EU Member State of their choosing on equal terms with the nationals of that State. (Paragraph 21)
2. That said, we received evidence suggesting that many EU nationals who have been in the UK for over five years may not be able to prove that they meet the criteria for permanent residence as an EU citizen. For example, those who are not economically active, including students, will have to show that they have had comprehensive sickness insurance cover for five years in the UK, notwithstanding that the National Health Service is freely available. We call on the Government to explain whether this consideration will influence the decision it makes on the cut-off point for deciding which EU nationals in the UK are given a permanent right to reside after Brexit. (Paragraph 22)
3. We also call on the Government to publish statistics on the number of EU nationals in the UK who have obtained proof of a permanent right to residence, and the number of applications that are pending. (Paragraph 23)
The loss of EU citizenship rights
4. In the absence of a negotiated settlement, the consequences of the loss of EU citizenship rights for EU nationals in the UK, and for UK nationals in other EU Member States, will be severe. (Paragraph 31)
5. EU nationals in the UK will be subject to national immigration rules, which restrict the rights of migrants far more than EU citizenship law, and which have been described as Byzantine in their complexity by the Court of Appeal. (Paragraph 32)
6. While UK nationals in EU Member States will also be subject to the national immigration law of their host State, they will enjoy additional protection as ‘third-country nationals’ under EU immigration law (except in Denmark and Ireland). The additional protection is, however, a considerable reduction on the migrant rights afforded to EU citizens. (Paragraph 33)
The concerns of EU nationals in the UK
7. It is clear, and unsurprising, that the uncertainty caused by the referendum has given rise to deep anxiety among EU nationals, including Polish, Romanian and French nationals, in the UK. The Government is under a moral obligation to provide certainty and legal clarity to all EU nationals working, living and studying in the UK, who contribute so significantly to the economic and cultural life of the UK. It should do so urgently. (Paragraph 47)
8. There is also a forceful economic case for the Government to act quickly. EU workers play an important role in filling gaps in the labour market that cannot otherwise be filled by UK workers. This is as true for highly skilled job markets, such as medical or financial services, as it is for lower skilled or seasonal job markets. The longer their future is uncertain, the less attractive a place to live and work the UK will be, and the greater labour market gaps will be. (Paragraph 48)
9. The referendum result has contributed to a rise in xenophobia towards EU nationals. We deplore this. Question marks about the rights of EU nationals to live in the UK may be fuelling xenophobic sentiment, as the Bulgarian Ambassador suggested. We call on the Government to explain what action it is taking to counter xenophobia towards EU nationals. (Paragraph 49)
The concerns of UK nationals living in other Member States
10. The anxiety of EU nationals in the UK is matched by that of UK nationals in other EU States—the evidence we received of their distress is compelling. Many are pessimistic that the life that they had planned in another EU Member State will still be possible. Residence rights, employment rights, access to health care and the capacity to finance retirements feature large among their concerns. Just as the Government is under an obligation to provide certainty to EU nationals resident in the UK, so it is under an equal moral obligation to seek to provide certainty and legal clarity to all UK nationals working, living and studying in other EU States. It should do so urgently. (Paragraph 54)
The protection of EU rights as acquired rights
11. It is evident that the term ‘parties’ in Article 70 (1)(b) of the Vienna Convention on the Law of Treaties refers to States, not to individuals or companies. In no sense, therefore, can this provision be said to safeguard individual rights under EU law that will be lost as a consequence of the UK’s withdrawal, in the absence of a negotiated settlement. (Paragraph 60)
12. The evidence we received makes very clear that the doctrine of acquired rights under public international law will provide little, if any, effective protection for former EU rights once the UK withdraws from the EU. The scope of acquired rights is limited to certain contractual and property rights which, even were they to coincide with EU rights, are highly unlikely to be enforceable. Reliance on the doctrine before the referendum as a means of protecting EU rights was therefore misplaced. (Paragraph 71)
13. Litigation is always possible, however, where valuable rights have been lost. There is, therefore, a strong incentive for the Government to address the underlying causes of such potential litigation in the withdrawal agreement. (Paragraph 72)
The protection of EU rights under alternative sources of law
14. In the absence of a negotiated settlement on which EU rights will be maintained, the ECHR offers a more likely route for successful litigation post-Brexit than the international law doctrine of acquired rights. A greater number of EU rights will overlap with ECHR rights, and the ECHR has an effective national enforcement mechanism in the Human Rights Act 1998. (Paragraph 88)
15. The two most relevant ECHR rights are the right to family and private life under Article 8 and the right of peaceful enjoyment of possessions under Article 1 of the First Protocol. Article 8 is likely to be invoked in cases of deportations of EU nationals post-Brexit (should such a policy ever be implemented), to seek to prevent the deportation taking place. Article 1 of the First Protocol will be invoked to protect EU rights to tangible and intangible property that overlap with the scope of “possessions” under that Article. (Paragraph 89)
16. We are not confident that the right to private and family life under Article 8 of the ECHR would prevent the status of EU citizenship from being removed as a consequence of Brexit. The ECHR case law on the protection of citizenship to which we were referred relates to national citizenship. It is arguable whether EU citizenship can be conflated with national citizenship for this purpose: Article 20 of the Treaty on the Functioning of the EU makes clear that EU citizenship “shall be additional to and not replace national citizenship”. (Paragraph 90)
17. There is a risk that the loss of EU citizenship could lead to unlawful discrimination between UK nationals, EU nationals and third-country nationals in the UK post-Brexit, where an ECHR right is engaged, as it could for other UK nationals in other EU Member States. We expect this risk of unlawful discrimination to lead to a high volume of litigation, unless it is addressed in the withdrawal agreement. (Paragraph 91)
18. The overlap between EU and ECHR rights should, however, be kept in context: the full range of EU rights is not covered by the ECHR. In cases where there is no overlap the ECHR will not provide any protection. This appears to be the case for many of the EU rights about which UK nationals living in other Member States are worried, such as the right to work, to study, to retire, to access affordable healthcare and other public services, and to equal treatment. (Paragraph 92)
19. We question whether the UK’s bilateral investment treaties (BITs) will provide effective alternative protection for many EU rights which have been lost as a consequence of the EU’s withdrawal from the EU. We do so for two reasons. First, the scope of BITs is limited to commercial investor rights, with the consequence that the overlap with individual EU rights is unlikely to be wide. Secondly, where there is an overlap with EU rights, EU law would appear to take precedence over a BIT. (Paragraph 98)
20. Litigation is always possible, however, where valuable rights have been lost. There is, therefore, a strong incentive for the Government to address the underlying causes of such potential litigation in the withdrawal agreement. (Paragraph 99)
Contents of the withdrawal agreement
21. We strongly agree with the unanimous view of our witnesses that the withdrawal agreement concluded under Article 50 should set out the EU rights that are to be maintained post-Brexit. This approach will give rise to the greatest legal certainty for EU nationals in the UK, and UK nationals in other EU States. This should be the most important consideration. (Paragraph 104)
22. In the event that the UK exits the EU without a withdrawal agreement,the most effective safeguard for maintaining the citizenship rights of EU nationals in the UK will be national law. It is, therefore, vital that the Great Repeal Bill that the Government plans to introduce in 2017 ensures that the Immigration (European Economic Area) Regulations 2006, which implement the EU Citizens Directive, will remain in force unchanged on the UK’s withdrawal from the EU, with or without a withdrawal agreement. To do so will provide legal certainty to EU nationals in the UK. As importantly, it would mean that other EU Member States are more likely to ensure similarly full protection for UK nationals in their States, who will have lost their status as EU citizens, in the event that a withdrawal agreement is not agreed. (Paragraph 105)
23. The nature of the forthcoming negotiations is such that absolute reciprocity in all matters cannot be guaranteed. Nevertheless, we believe that absolute reciprocity should apply and be guaranteed in respect of citizenship rights. (Paragraph 108)
24. Ultimately, it will be for the Government and its EU partners to determine which EU rights they wish to safeguard in the withdrawal agreement. (Paragraph 120)
25. In our view EU citizenship rights are indivisible. Taken as a whole they make it possible for an EU citizen to live, work, study and have a family in another EU Member State. Remove one, and the operation of others is affected. It is our strong recommendation, therefore, that the full scope of EU citizenship rights be fully safeguarded in the withdrawal agreement. (Paragraph 121)
26. It is clear to us that, in terms of numbers and of complexity, it would be impractical to require EU nationals resident in the UK to apply for indefinite leave to remain under the UK’s Immigration Rules. We draw the Government’s attention to the recommendation of one of our witnesses that a new status of permanent residence should be given to EU nationals in the UK post-Brexit. It would also be open to the Government to grant them the existing status of indefinite leave to remain, while waiving both the usual charges and the requirement to comply with any eligibility criteria other than that they were EU citizens resident in the UK. This would avoid establishing discriminatory status and categories of rights between EU Citizens and other non-UK nationals permanently resident in in the UK post-Brexit. Whichever approach the Government chooses, we recommend that the criteria it applies for permanent residence for EU nationals post-Brexit should be reasonable, flexible, and cost-effective. (Paragraph 122)
Enforcement of the withdrawal agreement
27. We recommend that the rights which are safeguarded in the withdrawal agreement should be frozen as at the date of Brexit; we cannot see any other approach that would provide for legal certainty. (Paragraph 136)
28. The majority of the safeguarded rights are likely to be reciprocal with EU rights, which means that they will have to be applied so far as possible uniformly. EU law will evolve over time, and national legislation and its interpretation by the courts will have to evolve accordingly. We recommend that a reciprocal mechanism be established to ensure that UK law can take account of relevant developments in EU law, and, importantly, that EU law can take account of relevant developments in UK law. (Paragraph 137)
29. The experience of the EEA States and Switzerland in this regard will be instructive. The 2006 extradition agreement between the EU, Norway and Iceland on extradition procedures, for example, may be a helpful precedent. The fact that the duty to keep under review the case law of the respective parties is reciprocal is particularly important: Norway and Iceland have to take account of developments in the case law of the CJEU, but so too the EU has to take account of developments in the case law of the courts of Iceland and Norway. (Paragraph 138)
The case for a unilateral guarantee or early negotiation
30. We urge the Government to change its stance and to give a unilateral guarantee now that it will safeguard the EU citizenship rights of all EU nationals in the UK when the UK withdraws from the EU. The overwhelming weight of the evidence we received points to this as morally the right thing to do. It would also have the advantage of striking a positive note for the start of the negotiations, which will be much needed. (Paragraph 147)
31. Even if the Government refuses to give a unilateral undertaking ahead of the negotiations, there is a strong case to be made for agreeing EU citizenship rights as a preliminary and separate element of the negotiations as soon as Article 50 is triggered. EU nationals in the UK and UK nationals in other EU Member States should not have to wait until the end of the negotiations to find out whether they have a future in the EU States where they have decided to live.
Lords Debate on Brexit: European Union Citizenship (13 December 2016)
Asked by Lord Roberts of Llandudno: To ask Her Majesty’s
Government whether they are planning to protect the European Union citizenship status of United Kingdom citizens who were born after the United Kingdom joined the European Union on 1 January 1973.
The Independent Chief inspector of Borders and Immigration has published an inspection report on the implementation of the 2014 ‘hostile environment’ provisions for tackling sham marriage.
With effect from 2 March 2015, the Immigration Act 2014 extended the period of notice for couples intending to marry in order to give the Home Office time to investigate the genuineness of the relationship of those it suspected may be sham.
Couples who fail to comply with a Home Office investigation are not permitted to marry. Compliant couples who are assessed as sham may marry, but the Home Office will seek to refuse any future application to remain in the UK based on that marriage.
The inspection found that the initial implementation of the new provisions was problematic, indicating a lack of proper planning:
• the Home Office did not communicate effectively with registrars about its new way of operating, where it no longer attended register offices and prevented ceremonies from proceeding
• new processes were cumbersome and weakened by their reliance on fragmented IT and by the limited operational support received from local enforcement teams, with the result that cases were not being determined within the extended time limit.
From January 2016, the Home Office piloted a revised process aimed at overcoming these problems, which it rolled out nationally from June. This late change meant that the inspection was unable to test fully the efficiency and effectiveness of the new provisions and the ICIBI will re-inspect this area when more evidence of how they are working is available.
This is the third of the Home Office’s ‘hostile environment’ provisions that the ICIBI has inspected in 2016. As with the provisions in relation to UK driving licences and bank and building society current accounts, the ICIBI found that the Home Office was not doing enough to measure either its own performance or the impact of the sham marriage provisions on voluntary returns, enforced removals and on the ‘pull factor’ for individuals considering settling illegally in the UK. Without this, any meaningful evaluation of the ‘hostile environment’ strategy will prove extremely difficult.
Mr Bolt made five recommendations for improvement to the Home Office.
• Supreme Court Cases R (on the application of Mirza) (Appellant) v Secretary of State for the Home Department (Respondent) – UKSC 2015/0209 and R (on the application of Iqbal) (Appellant) v Secretary of State for the Home Department (Respondent) – UKSC 2015/0210 and R (on the application of Ehsan) (Appellant) v Secretary of State for the Home Department (Respondent) – UKSC 2015/0211 (14 December 2016)
Section 3C of the Immigration Act 1971 extends a person’s leave to remain pending Determination of an application to vary the period of leave, so long as the application is made before the original leave has expired. All three appeals before the Court raise the issue of how section 3C applies where an application is made in time, but for some reason is procedurally defective. Sections 50 and 51 of the Immigration, Nationality and Asylum Act 2006 enable the Secretary of State to lay down in immigration rules procedural requirements for applications, including provision for the payment of a fee and the consequences of failure to comply. Similarly, sections 5 and 7 of the UK Borders Act 2007 provide the power to make regulations regarding the provision of biometric information and the effect of failure to comply with these.
Mr Iqbal was granted entry clearance in January 2007 to come to the UK as a student, later extended to 30 April 2011. On 19 April 2011 he applied for further leave to remain as a student, although unaware that the fee had recently increased, he paid the old, lower fee. His application was rejected as invalid for that reason, and his leave expired.
Mr Mirza entered the UK under a student visa which was valid until 31 March 2009. His application to extend leave was rejected for non-payment of the fee when the Secretary of State was unable to take the £295 application fee from his bank.
In Ms Ehsan’s case she had entry clearance until 28 December 2011. She applied for further leave on 23 December 2011 and was contacted by the Secretary of State, requesting that she make an appointment to provide certain biometric information. She was told by letter dated 26 March 2012 that her application was returned as invalid because of her failure to make and attend an appointment for providing biometric information. A new application made on 3 April 2012 subsequently failed.
All three appellants applied for judicial review of the Secretary of State’s decisions, and following refusal of permission to apply for judicial review in the High Court/Upper Tribunal, permission to appeal was granted by the Court of Appeal. The Court of Appeal dismissed their joined appeals on the basis that section 3C did not extend to an application which was not validly made in accordance with the rules.
JUDGMENT
The Supreme Court unanimously dismisses the appeals. . Lord Carnwath gives the judgment, with which the other Justices agree.
• Case law: Special Immigration Appeals Commission and High Court Decisions (14 December 2016)
Case law: England and Wales High Court (Administrative Court) Decision case MS v Secretary of State for the Home Department [2016] EWHC 3162 (Admin) (09 December 2016) http://www.bailii.org/ew/cases/EWHC/Admin/2016/3162.html
First-tier Tribunal (Immigration and Asylum Chamber) Fees (Amendment) (No.2) Order 2016 (SI 2016/1149)
These Regulations annul the approximately six-fold increase in the fees for an application to the Immigration and Asylum Chamber of the First-tier Tribunal, made by SI 2016/928 in September. Our 9th Report drew attention to the original Order because of the timing and the degree of opposition expressed. This Order returns application fees to the previous levels with immediate effect stating “in view of all the representations received on the fee levels the Government has decided to take stock and reconsider these specific increases to make sure that the interests of all tribunal users and the taxpayer are being balanced properly”.
• Code of Practice (English Language Requirements for Public Sector Workers) Regulations 2016 (SI 2016/1157)
Section 77 of the Immigration Act 2016 (“the 2016 Act”) provides that public authorities must ensure that anyone who works for them in a public-facing role speaks sufficiently fluent English (or Welsh where appropriate) to do their job effectively. Section 80 of the 2016 Act provides that in determining how to comply with this duty public authorities must have regard to a Code of Practice which this instrument brings into force. The Code includes provision about:
the standard of spoken English required to be met by a person working for a public authority ( or under contract to them);
- ensuring that the requirements are proportionate to the role performed;
- the action available to such a public authority where such a person does not meet that standard, including remedial action;
- the procedure to be operated by a public authority to enable complaints to be made about breaches of the duty; and
- how the public authority is to comply with its other legal obligations as well as the duty.
Lords Select European Union Committee Report - Brexit: future UK–EU security and police cooperation. 7th Report of Session 2016-17 - published 16 December 2016 - HL Paper 77
• The Home Office on Delay to work start date - Tier 2 ICT Migrants
According to the UK BA, the paragraph 23.9 does not apply to Tier 2
ICT migrants, that is, the “The start date given on the CoS must be the date that the migrant will start working for you. It is possible to put this start date back by a sponsor note via your SMS account, but the start date cannot be put back by more than 4 weeks. If the migrant is unpaid for more than 4 weeks from the original start date you cannot continue to sponsor them.”
• According to the UK BA, an employer who accepts ILR in an expired passport would not have a statutory excuse if an employee is found to be working unlawfully
• Colleagues are reporting reported delays in FLR (FP) applications, including waiting 16 weeks to receive a biometric invitation letter
• In one colleague migrant’s case, the Home Office, which had previously registered the child as British on the basis of the father’s British citizenship, is now asking for a DNA test. The parents never married and the father is now estranged. A colleague noted that the High Court had previously held that where the Home Office had issued a passport, the Home Office cannot go back on its decision on the basis of speculation. There must be cogent reasons
Article 45 TFEU and Article 7(2) of Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union must be interpreted as meaning that a child of a frontier worker, who is able to benefit indirectly from the social advantages referred to in the latter provision, such as study finance granted by a Member State to the children of workers pursuing or who have pursued an activity in that Member State, means not only a child who has a child-parent relationship with that worker, but also a child of the spouse or registered partner of that worker, where that worker supports that child. The latter requirement is the result of a factual situation, which it is for the national authorities and, if appropriate, the national courts, to assess, and it is not necessary for them to determine the reasons for that contribution or make a precise estimation of its amount.
So, the Court of Justice considered whether the step child of a frontier worker could benefit from the social and tax advantages enjoyed by workers under EU law, in this case to access student financial assistance in the same way as family members of an EEA national working in exercise of Treaty rights in Luxembourg.
The Court held that the step children of frontier workers could benefit where the worker supports the child, finding that:
-the child of a migrant worker must be interpreted as including the children of their spouse or their recognised partner;
-there is no distinction between family members recognised for workers and those recognised for frontier workers;
-determining if a worker supports the child involves a factual assessment by the national authorities, it may be evidenced by objective factors such as shared household and it is not necessary to determine to consider whether the child could support themselves, the reasons for providing support to the child, or to make a precise estimation of its amount. The
Court also noted that children are presumed to be dependent until the age of 21 years.
• JA (child – risk of persecution) Nigeria [2016] UKUT 00560 (IAC)
A child can be at risk of persecutory harm contrary to the UN Convention on the Rights of the Child in circumstances where a comparably placed adult would not be at such a risk
• Revised Detention Services Order (DSO) 05/2014: Removal of Electronic Tags
The Home Office has published a revised detention services order on the removal of electronic tags, which includes an update on the internal processes to be followed.
> R (on the application of Said Aitjilal) v Secretary of State for the Home Department ((EEA Regulations – deportation - reassessment -regulation 24(5)) [2016] UKUT 00563 (IAC)
Neither a decision to make a deportation order nor a notice of intention to make a deportation order triggers the two year period specified in regulation 24(5)* of the EEA Regulations. The two year period begins upon the making of the deportation order itself.
* Regulation 24(5): “Where such a deportation order is made against a person but he is not removed under the order during the two year period beginning on the date on which the order is made, the Secretary of State shall only take action to remove the person under the order after the end of that period if, having assessed whether there has been any material change in circumstances since the deportation order was made, he considers that the removal continues to be justified on the grounds of public policy, public security or public health.”.
• R (on the application of ZM and SK) v The London Borough of Croydon (Dental age assessment) [2016] UKUT 00559 (IAC); resource UPDATED
The decision in this case has now been published by the Tribunals Service with the above citation and following head note.
Head note
1. Considerable circumspection must always be deployed in responding to a claim that statistical evidence tends to prove a fact about an individual. Statistics may be more useful to decision-makers at the far ends of the scale (where they may be able to show the plausibility or implausibility of a proposition) than in the middle of the scale where they purport to show the likelihood of the correctness of a plausible proposition.
2. When considering statistical evidence it is always necessary to determine whether the population constituting the database from which the statistics are drawn is sufficiently identical to the population from which the individual is drawn.
3. The fact that all teeth are mature in the sense that all have reached Demirjian stage H is a sign of chronological maturity but is not a reliable indicator of whether an individual is more or less than 18 years old. The use of the Demirjian stages below stage H does appear to be more reliable in the prediction of age, particularly in the lower teens.
4. None of the three mandibular maturity markers so far identified appears yet to have attained such acceptance in the scientific community that it can be accepted as a reliable pointer to chronological age in the late teens in males.
5. Dental wear is not a guide to chronological age in the absence of data for a population with similar diet and masticatory habits to those of the person under examination.
6. The decision of the Court of Appeal in London Borough of Croydon v Y should not be read as prohibiting a person from refusing to undergo a dental examination. However, (i) the risk inherent in the exposure to x-rays during the taking of the dental panoramic tomograph is not likely to be a reasonable ground for refusing to allow the tomograph to be made, given the advantages stemming from ascertainment of an individual’s true age, and (ii) despite the reservations expressed herein, analysis of a person’s dental maturity may well have something to add to the process of assessing chronological age.
7. It therefore follows that generally speaking the taking of a dental tomograph should be ordered if a party seeks it, and (because of the process of dental maturity) the earlier the tomograph is taken, the more likely it is to be of assistance.
• The UK guidance “Entering the UK as the holder of an Article 10 residence card” explicitly acknowledges that a permanent residence card will be valid for entry to the UK without the need for a visa:
“If you are a non-EEA national who holds a valid genuine residence card, issued to you as the family member of an EEA national who is exercising free movement rights in another EEA State (i.e. not your EEA relative’s Member State of nationality) under Article 10 of Directive 2004/38/EC (the ‘Free Movement Directive’), you may use this document for travel to the UK if you are accompanying your EEA national relative here, or joining your EEA national relative in the UK.
Another document, “Permanent Residence Card of a Family Member of a Union Citizen” issued under Article 20 of the Directive is also acceptable.”:
The University of Oxford based Migration Observatory has published a new and quite interesting report on young migrants. The key points are:
• Migrants tend to be young when they arrive, typically as young adults coming for work or study, or as children accompanying their parents.
• Most young people whose first or main language is not English also speak good English. They tend to have lower educational achievement when they start school, but they make faster progress and so the gap is largely eliminated by age 16.
• Young migrants are more likely to have degree-level qualifications than the UK born.
• Employment outcomes for young migrants vary depending on their country of origin, gender, and age at arrival in the UK. EEA migrants have high employment rates but are overrepresented in low-skilled work; non-EEA migrants are overrepresented in high-skilled jobs but have lower employment rates.
• International students who remain in the UK after their studies have more favourable labour market outcomes than the average across the foreign-born population.
• It is too early to predict the impact of Brexit on the numbers and outcomes of young migrants living in the UK, although several future scenarios involve a shift in the balance of future migration towards people from non-EU countries.
Poland, India, Pakistan, Germany and Romania make up 5 of the top 6 countries of origin for both under 30’s and the foreign-born population as a whole. The table on reasons for coming to the UK is divided by EEA/non-EEA and shows that proportionately more EEA migrants come for economic reasons and more non-EEA migrants come for study and as family or dependants.
On Brexit, the report reiterates that if the UK Government requires EEA migrants in the UK to prove they are qualified persons, significant numbers of them will be excluded. The report points out that students (generally young people) are one of the groups in potential danger:
People who are most likely to face difficulties meeting a permanent-residence-style requirement include the self-employed, who may find it difficult to produce the necessary paperwork; very low earners, whose work in the UK may not be deemed sufficient for them to qualify as ‘workers’ under EU rules; and students or ‘self-sufficient’ people, who are expected to have comprehensive sickness insurance in the UK but who may not have been aware of this requirement.
A child can be at risk of persecutory harm contrary to the UN Convention on the Rights of the Child in circumstances where a comparably placed adult would not be at such a risk.
In an interesting development on the validity of proxy marriages, the Home Office has taken the view in a Court of Appeal case that the Upper Tribunal’s approach in Kareem [2014] UKUT 24 is wrong in law. The Court of Appeal has declined to simply overrule Kareem on this basis, though, and is asking the Attorney General to appoint an advocate to the court.
The general rule of private international law is that a marriage which was lawful in the country in which it occurred will be recognised in other countries. Kareem goes behind this rule in holding that a marriage contracted in country A will only be recognised in the UK if it is also recognised in intermediary country B.
If Kareem does prove to be wrong there will be a lot of people denied their free movement rights and put to considerable litigation expense by the approach of the Upper Tribunal.
Interesting letter from the Immigration Minister to the Home Affairs Select Committee setting out the Home Office approach to and strategy on the ETS litigation.
• Calculating the deadline to submit a Judicial Review. The UK BA’s relevant policy suggest that :
“The team handling the JR must calculate the 3 month time limit for applying for JR from the date on which the applicant was served with the administrative review decision, not the date of the original decision on the application. Administrative review decisions are served in accordance with appendix SN of the Immigration Rules”.
Major UK immigration related case-law, summer-autumn-winter 2016
Two new deportation cases from the Supreme Court: best interests plus the Immigration Rules and Article 8
• Makhlouf v Secretary of State for the Home Department (Northern Ireland) [2016] UKSC 59, [2016] All ER (D) 93 (Nov) (16 November 2016)
In this deportation appeal, the Appellant had two British children with whom he had not had direct contact for a significant length of time. The Supreme Court unanimously dismissed his appeal finding that the children had no relationship with the Appellant. At paragraph 40 Lord Kerr said that where a decision is taken about the deportation of a foreign criminal who has children residing in the UK, separate consideration of their best interests is required, especially if they do not converge with those of the parent to be deported and particularly in the case of a child with dual ethnic background. At paragraph 47 Lady Hale added, ‘it is quite correct to say that children must be recognised as rights-holders in their own right and not just as adjuncts to other people’s rights. But that does not mean that their rights are inevitably a passport to another person’s rights.’
• Ali v Secretary of State for the Home Department [2016] UKSC 60, [2016] All ER (D) 90 (Nov) (16 November 2016)
The Appellant was a failed Iraqi asylum seeker with Class A drug convictions. He was in a long-term relationship with his British fiancée and had two children with whom he had no contact. The Supreme Court dismissed the Appellant’s appeal against the Court of Appeal’s decision to remit the appeal to the Upper Tribunal, however Lord Kerr dissented. The judgments analyse the interaction between the deportation rules and the appellate body considering Article 8 of the European Convention on Human Rights. Appellate decision making in Article 8 cases is governed by Huang [2007] UKHL 11, [2007] 4 All ER 15 and the structured approach. The European Court of Human Rights has given guidance on the relevant factors to take into account (Boultif v Switzerland [2001] ECHR 54273/00, Maslov v Austria [2008] ECHR 1638/03, Jeunesse v Netherlands [2014] ECHR 12738/10). he appellate body’s decision making process is not governed by the Immigration Rules, but should nevertheless involve their consideration. The appellate body must make its own assessment of the proportionality of deportation, on the basis of its own consideration of the factors relevant to the particular case, and application of the relevant law. But in doing so, it must not disregard the decision under appeal. Where the Secretary of State for the Home Department (SSHD) has adopted a policy in relation to the assessment of proportionality, set out in the Rules and endorsed by Parliament, the appellate body should give considerable weight to that policy. Lord Wilson endorsed the balance sheet approach to decision making. Dissenting Lord Kerr concluded that the application of the Rules, and their prescription of the weight to be given to the public interest in the deportation of foreign criminals, were not compatible with the balancing exercise that had to be undertaken in considering the relevant factors arising under Article 8 in a particular case
Appeals
A Vice-Presidential panel of the Upper Tribunal (Immigration and Asylum Chamber) (UT) found that if the SSHD makes a decision that is one of those specified in Nationality, Immigration and Asylum Act 2002, s 82(1), it carries a right of appeal even if the intention was not to treat the submissions as a fresh claim. Whilst it is not the job of the First-tier Tribunal (FTT) to determine if further submissions amount to a fresh claim (R (Waqar) v Secretary of State for the Home Department IJR [2015] KUT 169 (IAC), [2015] All ER (D) 78 (Apr) (permission to appeal to Court of Appeal refused by Beatson LJ on 17 November 2015), R (Robinson) v Secretary of State for the Home Department IJR [2016] UKUT 133 (IAC), R (MG) v First-tier Tribunal (Immigration and Asylum Chamber) [2016] IJR UKUT 283 (IAC), [2016] All ER (D) 108 (Jun) and R (Amin Sharif Hussein) v First-tier Tribunal and Secretary of State for the Home Department [2016] UKUT 409 (IAC)) it is the job of the FTT to determine if a decision is one which falls within NIAA 2002, s 82. The UT found that the decision
in the present case was a refusal of a human rights claim and therefore carried a right of appeal.
• Sala (EFMs: Right of Appeal) [2016] UKUT 411 (IAC) (19 August 2016)
Dropping a jurisprudential bomb shell, a Vice-Presidential panel of the UT found that there is no statutory right of appeal against the decision of the SSHD not to grant a Residence Card to a person claiming to be an Extended Family Member as it did not concern a person’s entitlement to be issued with a Residence Card. The SSHD argued in this appeal that there was a right of appeal, however, following the appeal she has incorporated the decision in Sala in the new Immigration (European Economic Area) Regulations 2016 SI 2016/1052.
ETS: the latest developments
The SSHD is now relying on more evidence, both general and specific in ETS/TOEIC cases. This was demonstrated in the latest reported ETS decision
• MA (ETS – TOEIC testing) [2016] UKUT 450 (IAC) (16 September 2016) in which the President allowed the SSHD’s appeal finding that the Appellant’s claims were
demonstrably false. The question of whether a person engaged in fraud in procuring a TOEIC English language proficiency qualification will invariably be intrinsically fact sensitive. The SSHD then decided to withdraw her appeal before the Court of Appeal in Qadir v Secretary of State for the Home Department [2016] EWCA Civ 1167, [2016] All ER (D) 147 (Nov) (25 October 2016) . Beatson LJ gave a judgment which sets out at paragraphs 29-35 how the different categories of cases in the appeal system will be dealt with.
• Immigration, Asylum and Nationality Act 2002, s 117B(6) & reasonableness R (on the application of MA (Pakistan)) and others v Upper Tribunal (Immigration and Asylum Chamber) and others [2016] EWCA Civ 705, [2016] All ER (D) 52 (Jul) (07 July 2016)
Elias LJ confirms that section 117B(6) is a self-contained provision which, if satisfied, would result in Article 8 being infringed. In the assessment of reasonableness, Elias LJ favoured the argument of the appellants—that the focus was solely upon the child. However following MM (Uganda) v Secretary of State for the Home Department [2016] EWCA Civ 450, Elias LJ held that reasonableness included a consideration of the parents and their immigration history. This case concerned ‘7-year’ children and not British children. The SSHD still accepts (in extant policy documents) that it would be unreasonable for British children to leave the EU.
Sponsor licence cases
• R (on the application of Raj and Knoll Ltd) v Secretary of State for the Home Department [2016] EWCA Civ 770, [2016] All ER (D) 90 (Jul), (19 July 2016)
The Court of Appeal comprehensively rejects this appeal in a judicial review hallenge to the revocation of a Tier 2 sponsor licence concerning nursing homes. The Court finds that it is not necessary to decide if the SSHD can operate a ‘light trigger’ approach to revocation and whether the Court should adopt a heightened standard of review as the SSHD did not act on suspicion alone and the Appellant was clearly in breach. The Court however do sound two notes of caution at paragraph 31, with reference to R (Westech College) v Secretary of State for the Home Department [2011] EWHC 1484 (Admin), [2011] All ER (D) 69 (Jun), stressing that the SSHD must comply with her public law duties and that Tier 2 is not identical with Tier 4. Counsel for the SSHD submitted that there may be reasons in a Tier 4 case why the SSHD can act on suspicion alone
Steps to avoid persecution
• Secretary of State for the Home Department v MSM (Somalia) [2016] EWCA Civ 715, [2016] All ER (D) 74 (Jul) (12 July 2016)
The Court of Appeal dismisses the SSHD’s appeal and makes obiter comments rejecting the SSHD’s argument that in imputed political opinion cases the court should consider the reasonableness of taking steps to avoid persecution. See paragraph 37 for a useful summary. This case hopefully sounds the death knell for discretion arguments in protection claims. Dublin III
• Secretary of State for the Home Department v ZAT and others (United National High Commissioner for Refugees and AIRE Centre, intervening) [2016] EWCA Civ 810, [2016] All ER (D) 22 (Aug) (02 August 2016)
The Court of Appeal allowed the SSHD’s appeal against the decision of the UT President in the Calais children case, finding that the UT applied the wrong test in setting too low a hurdle for permitting the Dublin III process to be displaced by Article 8 considerations. However by the time of the appeal two of the four children had been granted refugee status and the SSHD accepted that the UK is the correct place for the asylum claims to be determined.
Clearly unfounded certificates
• R (on the application of FR (Albania) and another) v Secretary of State for the Home Department [2016] EWCA Civ 605, [2016] All ER (D) 101 (Jul) (23 June 2016)
In this Albanian blood feud case the Court of Appeal gave comprehensive guidance on the correct approach to certification of claims as ‘clearly unfounded’ under NIAA 2002, s 94. Beatson LJ states at paragraph 62, ‘the intensity of review in a certification case is at the more and possibly most intensive end of the spectrum to which I have referred at [48] above, but the jurisdiction remains a supervisory and reviewing one’. Davis LJ emphasised at paragraph 126 the importance of the two- stage reasoning process in play and avoiding the impermissible approach of, ‘because I have rejected the asylum claim therefore I certify as clearly unfounded’.
• The President of the Immigration and Asylum Chamber of the Upper Tribunal has found that the Home Office abused its power in forcing a college to expel a student and deliberately depriving him of a statutory right of appeal: https://www.channel4.com/news/home-office-abuse-of-power-over-visa
Recent case-law:
• R (on the application of Mohibullah) v Secretary of State for the Home Department (TOEIC – ETS – judicial review principles) [2016] UKUT 00561 (IAC)
(i) Where there is a multiplicity of decision making mechanisms, some generating a right of appeal and others not, there is a public law duty on the decision maker to be aware of the options and to take same into account when opting for a particular mechanism.
(ii) Where a Tier 4 Student is considered to have made false representations, thereby being liable to discretionary curtailment of leave and has been withdrawn from a course, thereby being liable to mandatory curtailment action there is a duty on the Secretary of State to consider both of the corresponding sections in the “Curtailment of Leave” policy guidance.
(iii) A failure to give effect to policy guidance without justification is in breach of the Lumba principle and renders the ensuing decision vulnerable to being quashed.
(iv) Where a curtailment of leave decision is underpinned by the Secretary of State’s decision that leave to remain had been procured by deception, the appropriate standard of review is the Wednesbury principle rather than proof of the precedent fact of deception.
(v) A decision which has a conspicuously unfair impact on the subject may qualify for condemnation as unreasonable, or irrational, in contravention of the Wednesbury principle.
(vi) The student’s knowledge of an allegation by ETS that he has procured his TOEIC certificate by deception will normally suffice to convey the gist of the case against him, thereby rendering the Secretary of State’s decision making process (in this respect) procedurally fair.
Persistent and egregious non-compliance with Upper Tribunal orders, directions and rules will attract appropriate sanctions.
Case note
In a strongly worded judgment by McCloskey, J (President) and Holmes, J (Deputy Upper Tribunal Judge), the Upper Tribunal criticises the conduct of the parties in the four cases before it and in other recent cases, including the three recent ‘ETS’ cases.
Conduct criticised in the present cases included failure to comply with directions or seek clarification of these, failure to seek a case management review hearing if appropriate, repeated unmeritorious requests to adjourn the hearing, failure to provide a hearing bundle or skeleton argument. The Tribunal held:
To describe this state of affairs as grossly unsatisfactory is an acute understatement. The Upper Tribunal has been treated with sustained and marked disrespect. The conduct of these appeals has been cavalier and unprofessional. The rule of law has been weakened in consequence. (§7)
The Upper Tribunal gave a warning of how it would treat misconduct in the future:
“The Upper Tribunal will, henceforth, have recourse to the full panoply of sanctions at its disposal. These include in particular wasted costs orders. There will also be reporting of rulings of this kind. Furthermore, consideration will be given to the invocation of the Upper Tribunal’s contempt powers, together with referrals to professional bodies. (§10)”.
• Naturalization applications, the point on the hospital orders. It is worth noting that the hospital orders will remain on the applicant’s criminal record. The applicant’s GP should know whether and when the patient was ‘conditionally’ or ‘absolutely’ discharged. See paragraph 3.7 of the Good Character requirement as to the impact of hospital orders.
• PBS Maintenance. Para 1A(h) of Appendix C explains that:
“(h) the end date of the 90-day and 28-day periods referred to in (b) and (c) above will be taken as the date of the closing balance on the most recent of the specified documents (where specified documents from two or more accounts are submitted, this will be the end date for the account that most favours the applicant), and must be no earlier than 31 days before the date of application”.
That means that the so-called “90 day period” is counted backwards from the date of the closing balance, not forward from the applicant’s date of choice. That should be taking into consideration when submitting the bank statements with the PBS applications.
- updated to include reference to criminality and delay when considering permission to work applications
- improved guidance on applying for permission to work to provide clarity for claimants on what is expected
- updated information about the difference between working for a voluntary organisation and volunteering to make clearer that asylum seekers are able to volunteer
- new guidance template applied, and section and paragraph numbering removed in line with guidance requirements
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“We can help you”
• Inquiry into the implications of Brexit for the Crown Dependencies, Justice Committee, House of Commons Select Committee, 21 October 2016:
http://www.parliament.uk/business/committees/committees-a-z/commons-select/justice-committee/news-parliament-20151/implications-of-brexit-for-the-crown-dependencies-launch-16-17/
The Justice Committee launches an inquiry into the implications of Brexit for the Crown Dependencies (the Channel Islands and the Isle of Man).
• Updated Home Office policy on reviewing cases when appeals are lodged.
The current UK Visas and Immigration guidance for how it considers the grounds for appeal and supporting documents of an application: https://www.gov.uk/government/publications/ecm-appeal-review-apl07/ecm-appeal-review-apl07
• The case is R (on the application of Johnson) v Secretary of State for the Home Department [2016] UKSC 56
The Supreme Court has decided that the historic failure of British nationality law to confer automatic citizenship on a child born out of wedlock was discriminatory, it has continuing consequences which breached a person’s human rights in a discriminatory way and that denying such a person British citizenship now is unlawful should they request it. The fact of the person’s later criminal offending was not relevant because the injustice had occurred at birth.
• Brexit: EU Citizens
House of Lords Question asked by Lord Dubs:
"To ask Her Majesty’s Government what assurances they can give to European Union citizens living in the United Kingdom, and British citizens living in other European Union countries, regarding their position following the negotiations for the United Kingdom’s withdrawal from the European Union."
https://hansard.parliament.uk/lords/2016-10-24/debates/514482EC-17DA-4524-9C9C-A9B8173764E3/BrexitEUCitizens
• Migration Advisory Committee: annual report, 2015 to 2016, 25 October 2016:
https://www.gov.uk/government/publications/migration-advisory-committee-annual-report-2015-to-2016
“We can help you”
• Commons Select Scottish Affairs Committee publishes the UK Government’s response to the post-study work schemes report (28 October 2016)
Chair of the Committee, Pete Wishart expressed disappointment that vocal support from representatives of academia, business, industry, trade unions and the Scottish Government had had no noticeable impact on the direction of policy.
The Committee's report highlighted the negative impact of the closure of the Tier 1 (Post-Study Work) visa in 2012, making Scotland less attractive for overseas students and removing employers' easy access to a pool of highly-skilled workers.
The Committee set out a number of ways in which the UK Government could improve post-study work options for international students attending Scottish universities, and recommended that the Migration Advisory Commission review the current route for skilled non-EU students to stay in the UK to work for a set period of time.
http://www.parliament.uk/business/committees/committees-a-z/commons-select/scottish-affairs-committee/news-parliament-2015/post-study-work-schemes-government-response-16-17/
• New Home Office guidance published on 'partnership working’ with police or other agencies (27 October 2016)
The new ‘partnership working’ guidance (first published 27th October 2016) instructs Immigration Enforcement in the procedures for working with the police or other agencies.
With regard to working with other agencies, it details procedures for ‘common multi-agency visit types’, namely
· Licensing Act visits
· ‘Beds in sheds’ (this term relates to property owners using the outbuildings of residential properties as dwellings, in contravention of the Town and Country Planning Act 1990 and the Housing Act 2004)
· Trading Standards visits
· HM Revenue and Customs (HMRC)
· Street homelessness operations
It emphasizes
· the need to establish the legal basis for the Immigration Compliance and Enforcement team to enter premises and details the powers of entry available.
· the misconception that Home Office staff can enter premises under section 179 of the Licensing Act 2003 as ’authorised persons’ (page 11).
· In partner work there must be no ambiguity as to who is the lead agency for the operation (page 8).
· any situation likely to attract media attention must be brought to the attention of the deputy director and press office (page 8).
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/563574/partnership_workingv1.0.pdf
• Britain's Immigration Offer to Europe: How could a preferential system work?, British Future, 31 October 2016:
http://www.britishfuture.org/publication/britains-immigration-offer-to-europe/
British Future has published its report with its proposals for immigration post Brexit.
British Future proposes a three-tiered system where ‘highly-skilled’ EU migrants retain their rights to free movement. The first tier would comprise a route that would enable the ‘brightest and best’ (as usual, no definition of ‘best’; as usual seems from context to mean richest) from any country to move to the UK. The second tier would consist of a reciprocal free movement route with an income or a skills threshold. The third tier is also a preferential system and would comprise sector-based quotas to fill low-skilled and semi-skilled jobs. Here EU nationals would be offered preferential access to set quotas of jobs.
This appears to be a report that accepts, rather than challenges, post-Brexit discourse on migration. Nor does it challenge the notion that EU migrants should enjoy preferential treatment post-Brexit (as opposed to give primacy to other groups such as Commonwealth citizens or family members of British citizen). The report makes no mention of the evidence submitted to British Future or of the advisory committee for the report. It thus makes no claims to representing consensus but is rather the proposal from British Future.
British Future has the advantage over others of having got its report out first and this may affect the extent to which it influences the debate. It has gone for a ‘whole systems’ approach in the report but this is not necessarily how its proposals will be received: experience suggests governments rarely adopt such reports lock stock and barrel but rather pick and choose from them.
• The Immigration Act 2016 (Commencement No.2 and Transitional Provisions) Regulations 2016
The Secretary of State has made a second commencement order bringing into force further provisions of the Immigration Act 2016:
Gov.uk link: http://www.legislation.gov.uk/uksi/2016/1037/pdfs/uksi_20161037_en.pdf
HEADLINES:
The appeals provisions under sections 63 to 65 come into force on 01 December 2016. Section 63 is the ‘remove first appeal later’ provision which provides the power to certify human rights claims not involving asylum or protection issues if it would not breach the applicant’s human rights to do so, with the effect that the appeal may only be brought from outside the UK. The power to cancel 3C leave under section 62 also comes into force on 01 December 2016. This applies where an individual has failed to comply with a condition of their leave or used deception in seeking leave to remain.
The new residential tenancy provisions under sections 39-41 come into force in England on 01 December 2016. These include the criminal offence of leasing premises to a person disqualified from renting and the new eviction powers.
Further illegal working provisions come into force on 01 December 2016 also. These are the provisions related to private hire vehicles and to illegal working closure notices and compliance orders. Transitional provision is made in respect of these provisions so that those granted temporary admission or released from detention by an immigration officer do not commit an offence if they have permission to work while the immigration bail provisions are not yet in force.
Section 54 and Schedule 8 come into force on 01 December 2016 date bringing into force provisions that allow for multiple entry search warrants except in Scotland where these are not permitted.
Sections 77 to 84 (language requirements for public sector workers) come into force on 21 November 2016. These are all the provisions relating to the duty on public sector authorities to ensure that public sector workers in customer-facing roles within the UK have a command of spoken English (or in Wales, English or Welsh) to enable the effective performance of their role.
The provisions on labour market enforcement undertakings, orders and supplementary provisions will all come into force on 25 November 2016.
These provisions are aimed at tackling breaches of labour market legislation. The Government considered that the existing system of fines were not sufficient to deal with the kinds of serious or repeated offences seen so it has introduced provisions that work like an Anti-Social Behaviour Order (ASBO) for employers.
Once these provisions are in force, the whole chapter of Part 1 on the labour market will be in force. Section 25 which places a duty on the Secretary of State to issue a code of practice giving guidance to enforcing authorities about the exercise of their functions under sections 14 to 23 was brought into force on 12 July 2016, along with the provisions on the Director of Labour Market Enforcement and the Gangmasters and Labour Abuse Authority, when the first commencement order made.
• Transparency data: Country returns guide, UK Visas and Immigration, 31 October 2016:
https://www.gov.uk/government/publications/country-returns-guide - Guidance on returning immigration offenders to their country of origin.
Recent case-law
• MST and Others (national service – risk categories) Eritrea CG [2016] UKUT 00443 (IAC)
Tribunals Service link: https://tribunalsdecisions.service.gov.uk/utiac/2016-ukut-443
The judgment in the above country guidance case on Eritrea has now been re-promulgated and published on the Tribunals Service website. The judgment refers to Upper Tribunal Judge HH Storey rather than Deputy Upper Tribunal Judge Storey and the following text has been removed from the head note:
Legal
“Country guidance” is an established term denoting judicial guidance and adoption by the Home Office of terminology apt to confuse this important fact is to be deprecated.
Otherwise, the text of the judgment is the same as that published on 10 October 2016.
New country guidance on Eritrea
MST and Others (national service – risk categories) Eritrea CG [2016] UKUT 00443 (IAC)
1. Although reconfirming parts of the country guidance given in MA (Draft evaders – illegal departures – risk) Eritrea CG [2007] UKAIT 00059 and MO (illegal exit – risk on return) Eritrea CG [2011] UKUT 00190 (IAC), this case replaces that with the following:
2. The Eritrean system of military/national service remains indefinite and since 2012 has expanded to include a people’s militia programme, which although not part of national service, constitutes military service.
3. The age limits for national service are likely to remain the same as stated in MO, namely 54 for men and 47 for women except that for children the limit is now likely to be 5 save for adolescents in the context of family reunification. For peoples’ militia the age limits are likely to be 60 for women and 70 for men.
4. The categories of lawful exit have not significantly changed since MO and are likely to be as follows:
(i) Men aged over 54
(ii) Women aged over 47
(iii) Children aged under five (with some scope for adolescents in family reunification cases
(iv) People exempt from national service on medical grounds
(v) People travelling abroad for medical treatment
(vi) People travelling abroad for studies or for a conference
(vii) Business and sportsmen
(viii) Former freedom fighters (Tegadelti) and their family members
(ix) Authority representatives in leading positions and their family members
5. It continues to be the case (as in MO) that most Eritreans who have left Eritrea since 1991 have done so illegally. However, since there are viable, albeit still limited, categories of lawful exit especially for those of draft age for national service, the position remains as it was in MO, namely that a person whose asylum claim has not been found credible cannot be assumed to have left illegally. The position also remains nonetheless (as in MO) that if such a person is found to have left Eritrea on or after August/September 2008, it may be that inferences can be drawn from their health history or level of education or their skills profile as to whether legal exit on their part was feasible, provided that such inferences can be drawn in the light of adverse credibility findings. For these purposes a lengthy period performing national service is likely to enhance a person’s skill profile.
6. It remains the case (as in MO) that failed asylum seekers as such are not at risk of persecution or serious harm on return.
7. Notwithstanding that the round-ups (giffas) of suspected evaders/deserters, the “shoot to kill” policy and the targeting of relatives of evaders and deserters are now significantly less likely occurrences, it remains the case, subject to three limited exceptions set out in (iii) below, that if a person of or approaching draft age will be perceived on return as a draft evader or deserter, he or she will face a real risk of persecution, serious harm or ill-treatment contrary to Article 3 or 4 of the ECHR.
(i) A person who is likely to be perceived as a deserter/evader will not be able to avoid exposure to such real risk merely by showing they have paid (or are willing to pay) the diaspora tax and/have signed (or are willing to sign) the letter of regret.
(ii) Even if such a person may avoid punishment in the form of detention and ill-treatment it is likely that he or she will be assigned to perform (further) national service, which, is likely to amount to treatment contrary to Articles 3 and 4 of the ECHR unless he or she falls within one or more of the three limited exceptions set out immediately below in (iii).
(iii) It remains the case (as in MO) that there are persons likely not to face a real risk of persecution or serious harm notwithstanding that they will be perceived on return as draft evaders and deserters, namely: (1) persons whom the regime’s military and political leadership perceives as having given them valuable service (either in Eritrea or abroad); (2) persons who are trusted family members of, or are themselves part of, the regime’s military or political leadership. A further possible exception, requiring a more case specific analysis is (3) persons (and their children born afterwards) who fled (what later became the territory of) Eritrea during the War of Independence.
8. Notwithstanding that many Eritreans are effectively reservists having been discharged/released from national service and unlikely to face recall, it remains unlikely that they will have received or be able to receive official confirmation of completion of national service. Thus it remains the case, as in MO that “(iv) The general position adopted in MA, that a person of or approaching draft and not medically unfit who is accepted as having left Eritrea illegally is reasonably likely to be regarded with serious hostility on return, is reconfirmed, subject to limited exceptions…”
9. A person liable to perform service in the people’s militia and who is assessed to have left Eritrea illegally, is not likely on return to face a real risk of persecution or serious harm.
10. Accordingly, a person whose asylum claim has not been found credible, but who is able to satisfy a decision-maker (i) that he or she left illegally, and (ii) that he or she is of or approaching draft age, is likely to be perceived on return as a draft evader or deserter from national service and as a result face a real risk of persecution or serious harm.
11. While likely to be a rare case, it is possible that a person who has exited lawfully may on forcible return face having to resume or commence national service. In such a case there is a real risk of persecution or serious harm by virtue of such service constituting forced labour contrary to Article 4(2) and Article 3 of the ECHR.
12. Where it is specified above that there is a real risk of persecution in the context of performance of military/national service, it is highly likely that it will be persecution for a Convention reason based on imputed political opinion.
• Asylum support rates challenges: R (Ghulam & Ors) v SSHD [2016] EWHC 2639 (Admin) (24 October 2016)
Ghulam & Ors, R (on the application of) v Secretary of State for the Home Department & Anor [2016] EWHC 2639 (Admin) (24 October 2016)
http://www.bailii.org/ew/cases/EWHC/Admin/2016/2639.html
Judgment of Flaux, J in the High Court dismissing three conjoined judicial review challenges to decisions of the Secretary of State setting asylum support rates. These included the reviews of asylum support rates for single adults in August 2014 and April 2015 following the Refugee Action case and the review of asylum support rates for families with children in July 2015 which led to a significant cut in the level of support to families. The applicants were a single adult, a lone mother with three children and a mother with a disabled child, with the Equality and Human Rights Commission intervening.
“We can help you”
• According to the UK BA, from next week the UK BA letter accompanying permanent residence documentation will confirm the date on which the applicant is deemed to have acquired permanent residence, based on the information provided with their application. The UK BA is also amending the EEA (PR) guidance notes to make it clear that applicants applying for permanent residence documentation can provide evidence for historical periods of qualifying residence. The new version of the guidance notes will be published shortly
• Settlement visa applications submitted in Russia - change to guidance, UK Visas and Immigration, October 2016 UPDATED 2 November 2016. In brief: supporting documents for applications should now be sent to Sheffield : https://static.tlscontact.com/media/ru/mow/uk/settle_en.pdf
• High Court ruling on Article 50: UK Government cannot withdraw from the EU without the involvement of Parliament (03 November 2016)
R (Miller) -V- Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin)
Case No. CO/3809/2016 and CO/3281/2016
Today the High Court has ruled that the Government cannot withdraw from the EU without the involvement of Parliament. The Government is expected to appeal the decision.
Summary: https://www.judiciary.gov.uk/wp-content/uploads/2016/11/summary-r-miller-v-secretary-of-state-for-exiting-the-eu-20161103.pdf
Judgment: https://www.judiciary.gov.uk/wp-content/uploads/2016/11/judgment-r-miller-v-secretary-of-state-for-exiting-the-eu-20161103.pdf
The Question
The issue before the court is whether, as a matter of UK constitutional law, the Government is entitled to give notice of a decision to leave the European Union under Article 50 by exercise of the Crown’s prerogative powers and without reference to Parliament. This is a pure question of law. The court is not concerned with and does not express any views about the merits of leaving the European union: this is a political issue.
Conclusion
The Court holds that the Secretary of State does not have power under the Crown’s prerogative to give notice pursuant to Article 50 for the United Kingdom to withdraw from the European Union.
• Written Statement in Parliament: Safeguarding of unaccompanied asylum-seeking and refugee children (01 November 2016), Safeguarding
Written statement - HCWS232, Made by: Edward Timpson (The Minister of State for Vulnerable Children and Families)
• New EEA Regulations published, 3 November 2016
The Immigration (European Economic Area) Regulations 2016, SI 2016/1052
Link: http://www.legislation.gov.uk/uksi/2016/1052/contents/made
The Government has today published new EEA regulations. Regulation 1(2) states when these will come into force:
1(2) These Regulations come into force—
(a) for the purposes of this regulation, regulation 44 and Schedule 5 (transitory provisions), on 25th November 2016;
(b) for all other purposes, on 1st February 2017.
http://www.parliament.uk/business/publications/written-questions-answers-statements/written-statement/Commons/2016-11-01/HCWS232
• Updated Detention Services Order: Care and management of pregnant women in detention
https://www.gov.uk/government/publications/pregnant-women-in-detention
The Home Office has issued a final and updated version of Detention Services Order DSO 05/2016 on the care and management of pregnant women in detention, published 01 November 2016. It replaces DSO 02/2013 on pregnant women and supplements DSO 06/2016 on women in the detention estate.
The Detention Services Order had been issued in draft after the limitation on the detention of pregnant women under section 60 of the Immigration Act 2016 came into force. It was implemented on an interim basis whilst the Home Office consulted on its text ILPA submitted comments on the draft DSO on 11 August 2016.
• New UKVI guidance: arranging removals for officers dealing with immigration enforcement matters within the UK (03 November 2016)
This is guidance for Immigration Enforcement officers on how to prepare and arrange for a single person or a family group to be removed from the UK. It also contains information on decisions to separate family members as a consequence of detention or removal.
https://www.gov.uk/government/publications/returns-preparation
• Work and Pensions Committee, House of Commons Select Committee inquiry into Department for Work and Pensions' policies and processes in relation to recognised victims of modern slavery and to assess potential changes in policy after Brexit, 1 November 2016:
https://www.parliament.uk/business/committees/committees-a-z/commons-select/work-and-pensions-committee/inquiries/parliament-2015/victims-of-modern-slavery-16-17/
“We can help you”
• Tiers 2 and 5 of the points-based system: sponsorship – priority service, Home Office, 2 November 2016:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/565038/PBS-Sponsorship-priority-service-v1_0.pdf
Although the priority service was announced a couple of months ago by the Home Office as an alternative to A rated sponsors paying £25,000 for the premium service. The guidance doesn’t say how much the new priority service will be or how sponsors will pay. The priority service will only allow A rated sponsors to request the following on an expedited basis:
• change authorisation officer;
• add a new level 1 user;
• add or renew the allocation of certificates of sponsorship
• Chapter 60 Enforcement Instructions and Guidance: Judicial Reviews and Injunctions updated by Home Office 31 October 2016
Guidance link: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/563939/chapter60_v_13.pdf
The new version of Chapter 60 of the Enforcement Instructions and Guidance was published by the Home Office on Monday, 31 October 2016. Issuing a claim for judicial review will not act as a barrier to removal in certain cases and an injunction will be needed – see section 6. The amended guidance also extends the use of limited notice of removal – see section 2.3.
• Home Office response to Committee's query on ‘Immigration and Nationality (Fees) (Amendment) Regulations 2016’ (04 November 2016)
The Joint Select Committee on Statutory Instruments' twelfth report contains the following memorandum from the Home Office:
http://www.publications.parliament.uk/pa/jt201617/jtselect/jtstatin/63/6313.htm#_idTextAnchor047
• Lords Parliamentary Debate on Brexit: Impact on Universities and Scientific Research (03 November 2016)
Moved by Lord Soley: That this House takes note of the potential impact of the United Kingdom’s withdrawal from the European Union on funding for universities and scientific research.
https://hansard.parliament.uk/lords/2016-11-03/debates/92A8358C-3790-4F39-B33F-650A977CF7CB/BrexitImpactOnUniversitiesAndScientificResearch
• (No. 1060) Immigration (Residential Accommodation) (Termination of Residential Tenancy Agreements) (Guidance etc.) Regulations 2016 No. 1060 laid before Parliament (04 November 2016)
This statutory instrument is subject to negative resolution and was
• made on the 2nd November 2016
• laid before Parliament 4th November 2016
• comes into force on 1st December 2016.
http://www.legislation.gov.uk/uksi/2016/1060/made/data.pdf
• Notice of Eviction and End of Tenancy wording Right to Rent, The Immigration (Residential Accommodation) (Termination of Residential Tenancy Agreements) (Guidance etc.) Regulations 2016, 2 November 2016:
http://www.legislation.gov.uk/uksi/2016/1060/made
This prescribes the form of notice that landlords will need to use to end a tenancy and to pursue eviction without a court order under the new right to rent provisions that will be in force from 1st December.
UK & EEA Immigration Law Updates from the Legal Centre
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• According to the UK BA, a long term visitor visa holder would be able to use his/her long term visitor visa for private medical treatment. Following simplification of the visitor routes of entry from the 24th April 2015, a visitor (other than a transit visitor or an Approved Destination Status visitor) may carry out any of the visitor permitted activities set out in Appendix 3 to Appendix V of the UK Immigration Rules without the need to apply for more than one visa
• The UK BA Section 3 Leave Guidance (version April 2016) apparently has an error in it, asserting that section 3C leave is not restored where the certification under the Section 94 or the Section 94B or the Nationality, Immigration and Asylum Act 2002 (the 2002 Act) is withdrawn.
• Draft Immigration Act 2014 (Current Accounts) (Excluded Accounts and Notification Requirements) Regulations 2016 laid before Parliament (7 November 2016)
The Immigration Act 2016 (Commencement No.2 and Transitional Provisions) Regulations 2016 brought into force section 45 and Schedule 7 of the Act on current bank accounts for the purpose of making subordinate legislation only.
The draft Immigration Act 2014 (Current Accounts) (Excluded Accounts and Notification Requirements) Regulations 2016 were laid before parliament on 7 November. They indicate they will come into force on 31 October 2017.
This reflects the indication given by the Home Secretary, Amber Rudd MP, in her speech to the Conservative Party conference that the new Immigration Act 2016 provisions would be applied by banks from autumn 2017 :
http://www.legislation.gov.uk/ukdsi/2016/9780111151150/pdfs/ukdsi_9780111151150_en.pdf
• EU scrutiny Committee: 17th Report - Documents considered by the Committee on 2 November 2016
From the Home Office: Implementing the EU-Turkey agreement on migration
http://www.publications.parliament.uk/pa/cm201617/cmselect/cmeuleg/71-xv/7102.htm
The EU Scrutiny Committee considers the European Commission’s third Communication reviewing the implementation of the EU-Turkey agreement and the Home Office memorandum in response. The Committee had recommended following both the first and second Communications that the issues were debated in parliament and restates this with some frustration:
13.4 [...] We consider that as a result of the Government’s delaying tactics the accumulation of relevant documents is such that a debate encompassing all of them would do justice to none of them.
13.5 We note that the Government has committed to make time available for a series of general debates on the UK’s future relationship with the EU. We share the Commission’s view that migration is likely to remain “one of the defining issues for Europe” for decades to come. It is imperative that the debates promised by the Government address the basis for future cooperation between the EU and the UK on migration. As recent events in Calais demonstrate, the asylum policies and systems in place in other Member States will have an important bearing on the flow of asylum seekers and irregular migrants seeking to enter the UK, not only while the UK remains a member of the EU but also once it has left.
13.6 Whilst it is clear that important questions remain about the sustainability of the EU-Turkey Statement and the way in which it is being implemented, as well as the impact of high levels of irregular migration and secondary movements between Member States on the functioning of the Schengen free movement area, we recognise that the Government’s ability to influence developments in an area of policy in which the UK, even while it remains in the EU, does not participate fully is likely to be diminished in light of the UK’s decision to leave the EU.
The Committee also reminds the Minister that he has yet to provide information on the Government’s response to recommendations made by the UK’s Anti-Slavery Commissioner (Kevin Hyland), following his visits to hotspots in Greece and Italy earlier this year, to ensure appropriate protection for the most vulnerable migrants (especially unaccompanied children) and to reduce the risk of further trafficking and disappearances. It asks the Minister as a matter of urgency, to explain which recommendations the Government intends to take forward and which, if any, it intends to reject; and indicate how much resource the UK intends to dedicate to implementing the Commissioner’s recommendations and the timescale envisaged. The Committee has completed its scrutiny on this document but will draw it to the attention of the Home Affairs Committee and the Committee on Exiting the EU.
UK & EEA Immigration Law Updates from the Legal Centre
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• According to the UK BA, the current success rate with the EEA appeal is around 44%
• Government Response to the Justice Committee’s Second Report of session 2016/17 on Courts and Tribunals Fees (10th November 2016)
http://www.parliament.uk/documents/commons-committees/Justice/governments-response-to-the-justice-committees-second-report-of-session-2016-17-web.pdf
The Justice Committee criticised the fee increase in the Immigration and Asylum Chambers prior to the government publishing its review of the impact of implementation of employment tribunal fees. The government responded it believes that the proposals for fees in the Immigration and Asylum Chambers are not directly comparable with the position in the Employment Tribunals.
The Committee also recommended the application of the standard courts and tribunals fee remission system to the Immigration and Asylum Chambers should be reviewed. In response the government reiterated its plan to implement the policy, highlighting that it is also extending the fee waiver and remissions policy, so that those who are in receipt of a Home Office fee waiver on the grounds of destitution will also have their tribunal fee waived. The government has decided not to extend HMCTS’s standard fee remission scheme to proceedings in the Immigration and Asylum Chambers in view of the administrative difficulties it raises.
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• Guidance: Apply to become a permit-free art or music festival, UK Visas and Immigration, 15 November 2016:
https://www.gov.uk/government/publications/apply-to-be-on-the-list-of-permit-free-festivals
This guidance provides details on how individuals who are hosting festivals can apply to get on the list of permit-free festivals.
• Guidance: Detention Rule 35 process, UK Visas and Immigration, 15 November 2016:
https://www.gov.uk/government/publications/detention-rule-35-process
Detention services order 09/2016 on reports submitted under Rule 35 of the Detention Centre Rules 2001.
• House of Commons Library Briefing: Brexit: Article 50 TEU and the EU Court (14 November 2016)
http://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7763
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Recent case-law
Supreme Court Judgments on Deportation Appeals (16 November 2016
• Makhlouf (Appellant) v Secretary of State for the Home Department Respondent) (Northern Ireland) UKSC 2015/0092
On appeal from the Court of Appeal of Northern Ireland
This is an appeal against an order for the deportation of a foreign criminal who has children who are citizens of and resident in the United Kingdom. The Tunisian Appellant married a UK national in 1996 and had a daughter in 1997. He entered the UK in 1997 and was granted indefinite leave to remain in 1999. He and his wife separated and he remained in the UK. In 2006, his then partner gave birth to their son. In 2005 the Appellant pleaded guilty to offences of assault causing GBH under s.20 of the OAPA 1861 and possession of an offensive weapon, relating to an incident in 2003 for which he received a sentence of 39 months imprisonment. He was not required to go back to prison due to time served on remand. He was subsequently convicted of a number of other less serious offences. He has not seen his daughter since 2003 and an application for contact was dismissed by the court in 2008. He has not seen his son since 2010 and his application for contact was dismissed by the court in 2011. He has been unable to work since 2006/2007 following a serious assault. The Secretary of State made a deportation order against the Appellant in October 2012 on the basis of his conviction in 2005 and rejected his claim that this would infringe his rights under Article 8 ECHR. His children were not consulted before the decision to deport him was taken.
The issue in this case was whether the Respondent failed to properly consider the Article 8 rights and best interests of the Appellant's children, and if so whether that meant the decision to deport the Appellant was not "in accordance with the law" and proportionate. Further, whether the Court of Appeal erred in its interpretation of "public interest" in Section 3(5)(a) and Section 5(1) of the Immigration Act 1971 and Article 8(2) ECHR and of the proportionality of deporting the Appellant under Article 8(2) and failed to conduct a proper assessment of all relevant factors and in particular to give sufficient weight to the remarks of the sentencing judge; the fact that the appellant has not been convicted of a serious offence of violence since April 2003; and the delay of the respondent in deporting the appellant.
The Supreme Court unanimously dismissed Mr Makhlouf’s appeal.
Press summary: https://www.supremecourt.uk/cases/docs/uksc-2015-0092-press-summary.pdf
Judgment: https://www.supremecourt.uk/cases/docs/uksc-2015-0092-judgment.pdf
• Hesham Ali (Iraq) (Appellant) v Secretary of State for the Home Department (Respondent) UKSC 2015/0126
On appeal from the Court of Appeal (Civil Division) (England and Wales)
The issue is this appeal was whether immigration rules that are intended to set out the weight to be given to the public interest in the deportation of foreign national offenders are compatible with the balancing exercise required by the art.8 right to family life. The appellant is an Iraqi national who arrived in the UK in 2000 and made an asylum claim in 2002, which was rejected and the appeal was dismissed. He remained in the UK without leave and was fined for possession of Class A and C drugs in 2005. On 4 December 2006, he was convicted on two counts of possessing Class A drugs with intent to supply and sentenced to four years' imprisonment. He has a longstanding relationship with his fiancée, who is a British citizen. The Home Secretary made an automatic deportation order against the appellant on 6 October 2010 under s.32(5) of the UK Borders Act 2007. These proceedings challenge that order.
The Supreme Court dismissed Mr Ali’s appeal by a majority of 6 to 1.
Press summary: https://www.supremecourt.uk/cases/docs/uksc-2015-0126-press-summary.pdf
Judgment: https://www.supremecourt.uk/cases/docs/uksc-2015-0126-judgment.pdf
• Lords Select Secondary Legislation Scrutiny Committee 14th report HL Paper 67: European Economic Area) Regulations 2016 (SI 2016/1052), Immigration Rules changes & residential tenancies (17 November 2016)
Today the Lords Select Secondary Legislation Scrutiny Committee published its 14th Report of Session 2016-17, HL Paper 67- Immigration (European Economic Area) Regulations 2016.
http://www.publications.parliament.uk/pa/ld201617/ldselect/ldsecleg/67/6702.htm
Noteworthy topics covered are:
• Immigration (European Economic Area) Regulations 2016 (SI 2016/1052)
• Statement of Changes in Immigration Rules (HC667)
• Immigration (Residential Accommodation) (Termination of Residential Tenancy Agreements) (Guidance etc.) Regulations 2016 (SI 2016/1060)
19 November 2016 - UK & EEA Immigration Law Updates from the Legal Centre
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Immigration Rules change
Statement of Changes in Immigration Rules: HC677
HEADLINES
• 28 day grace period for disregarding overstaying when making an application for further leave to remain abolished. See amended provision below.
• Changes to Appendix FM, including new English language requirement at level A2 for further leave as a partner or parent after completing 30 months on a 5-year route to settlement under Appendix FM.
• First phase of changes to Tier 2 (General) and Tier 2 (ICT) following the Migration Advisory Committee Review.
• Further changes to Tier 1, Tier 2, Tier 4, Tier 5 and provisions on overseas domestic workers.
• Anticipated changes to refugee leave and refugee family reunion not included but there are new provisions on inadmissibility of asylum applications including with reference to first country of asylum and safe third country.
• Mandatory refusal of limited or indefinite leave where an applicant is excluded under Article 1F from the Refugee Convention or under para 339D from humanitarian protection or is a danger to the security of the UK or, having been convicted by final judgment of a particularly serious crime, is a danger to the community of the UK.
GENERAL
Changes to periods within which applications for further leave to remain can be made by overstayers
The 28-day grace period for the consideration of applications for further leave to remain where a person has overstayed will be abolished for applications made on or after 24 November 2016. Instead, an out-of-time application will not be refused only where the person applies within 14 days and has a good reason for applying out of time that was beyond their or their representative’s control.
There is a 14-day ‘grace period’ where an application for leave has been refused; 3C leave has expired; a time limit for appeal or administrative review has expired; or an appeal or administrative review has concluded. This is to allow for a new application to be made.
Periods of overstaying prior to 24 November 2016 to be disregarded for the purpose of applications for indefinite leave to remain based on continuous lawful residence will be governed by the old 28-day grace period, but overstaying after that date must not exceed 14 days.
Changes relating to applications and validity
The rules on making valid applications for leave to remain are redrafted. New paragraphs 34 to 34E (see paragraph 1.4 of HC667) set out the mandatory requirements for applications to be valid and some exceptions. There are also changes to the rules on how applications and administrative review applications may be submitted. Applications made before 24 November 2016 will be considered under the rules as at 23 November 2016.
There is a new definition of a valid application at paragraph 34 of the Immigration Rules: one that is made on the specified form, all mandatory parts of which have been duly completed with the fee and health surcharge paid (unless a fee waiver applies). Proof of identity (normally a valid passport) must be submitted with the application, along with two valid passport photographs. Parents or guardians must sign to consent to an application from an under-18. Biometric information must be provided and where attendance in person is required, there must be such attendance. These requirements also apply when a person wishes to vary an application they have already submitted.
The Secretary of State has discretion to treat an application as valid as long as the fee is paid, satisfactory evidence of identity provided and biometrics given (paragraph 34B). An application sent by Royal Mail is made on the date on which it is received by the Home Office (paragraph 34G); otherwise an application is made on the date on which it is received by the Home Office. These new definitions are essentially codifications and simplifications rather than radical changes to existing rules. They come into effect from 24 November 2016 for applications submitted on or after that date.
Changes to general grounds for refusal and suitability requirements
Refusal of limited or indefinite leave to remain where an applicant is excluded under Article 1F from the Refugee Convention; under paragraph 339D from a grant of humanitarian protection; is a danger to the security of the UK; or having been convicted by a final judgment of a particularly serious crime, is a danger to the community of the UK, is made mandatory rather than discretionary. Instead limited leave will be granted outside the Immigration Rules under the restricted leave policy for as long as human rights considerations prevent deportation or removal. Indefinite leave to remain will only be given on a discretionary basis outside the rules and pursuant to the restricted leave policy. Applications made before 24 November 2016 will be considered under the rules as at 23 November 2016.
Changes to administrative review
Paragraph AR2.4 is ‘clarified’ to ensure that reviewers may consider evidence that was not before the original decision maker in either of the two scenarios identified, not both, as drafted, to reflect the intention of this rule and how it is applied. The two scenarios are:
• that the evidence is submitted to demonstrate that a case working error as defined in paragraph AR2.11 (a), (b) or (c) has been made; and (henceforth ‘or’)
• to demonstrate that the refusal of an application under paragraph 322(2) was a case working error and the applicant has not previously been served with a decision to refuse an application for entry clearance, leave to enter or leave to remain; to revoke entry clearance, leave to enter or leave to remain; to cancel leave to enter or leave to remain; to curtail leave to enter or leave to remain; or remove them from the UK, with the effect of invalidating leave to enter or leave to remain, which relied on the same findings of facts.
The rules are also amended to bring provisions on administrative review ,where leave to enter or remain as a visitor is cancelled at the border on the basis of a change in circumstances, in line with other leave to enter or remain applications. Additional evidence to rebut the finding of a change in circumstances may not be considered at administrative review.
Applications made for administrative review before 24 November 2016 will be decided under the rules in force on 23 November 2016.
FAMILY MIGRATION
Changes to Appendix FM / Appendix FM-SE
See above also on changes to 28-day grace period for overstayers submitting an application for leave to enter or remain.
A new English language requirement at level A2 of the Common European Framework of Reference for Languages is introduced for applicants for further leave in the UK as a partner or parent after completing 30 months in the UK on a five-year route to settlement under Appendix FM. The specified evidence requirements for meeting the English language requirements using an academic qualification are clarified also. These changes take effect from 1 May 2017. If, however, the expiry date of the applicant’s leave pre-dates 1 May 2017, the application will be decided in accordance with the Immigration Rules in force on 30 April 2017.
There are changes to the provision on when an application will normally be refused on suitability grounds due to false representations or failure to disclose a material fact so that it applies where: “The applicant has made false representations or failed to disclose any material fact in a previous application for entry clearance, leave to enter or remain or a variation of leave, or in a previous human rights claim; or did so in order to obtain from the Secretary of State or a third party a document required to support such an application or claim (whether or not the application was successful).” This will be applied to applications decided on or after 24 November 2016.
The rules are amended to ensure that a child is only eligible to apply for entry clearance or leave to enter or remain under Appendix FM when their parent is applying for or has leave to under Appendix FM. This applies to applications decided on or after 24 November 2016.
The provisions on minimum income thresholds are amended so that these have to be met in respect of any dependent child of the applicant’s parent’s partner as well as the applicant’s parent. This applies to applications made on or after 24 November 2016.
Changes are made to the specified evidence required to demonstrate meeting the minimum income threshold. The rules provide that changes made to evidential requirements in this and the previous statement of changes (HC877 of March 2016) apply to all applications decided from 24 November 2016, not just those made on or after 6 April 2016.
The level of outstanding debt to the NHS which will found a discretionary refusal of leave on grounds of suitability is reduced from £1000 to £500 for applications decided on or after
24 November 2016.
Changes to Part 8 Family Members
See also above on changes to 28-day grace period for overstayers submitting an application for leave to enter or remain.
Changes are made to the transitional provisions to allow applications that do not meet the rules for leave to enter or remain or indefinite leave to enter or remain under Part 8 also to be considered under the children provisions of Appendix FM. This will be applied to applications decided on or after 24 November 2016. There is also a change in the documentary requirements for entry clearance applications involving an inter-country adoption.
ECONOMIC MIGRATION
The statement of changes implements the first of two phases of changes to Tier 2 of the points-based system that were announced by the Government on 24 March 2016 and makes further changes, both to Tier 2 and generally.
Tier 2
Be aware that the time given to applicants and sponsors to respond to requests for further information in relation to genuineness assessments in both Tier 2 (General) and Tier 2 (Intra-company transfer)is being reduced from 28 calendar days to 10 working days.
Tier 2 (General)
Changes made following the Migration Advisory Committee review include:
• Increased salary threshold for experienced workers of £25,000 (but not new entrants where the threshold is held at £20,800). Exemptions for nurses, medical radiographers, paramedics and secondary school teachers in mathematics, physics, chemistry, computer science, and Mandarin ending in July 2019.
• As a transitional arrangement, the £25,000 threshold will not apply to workers sponsored in Tier 2 (General) before 24 November 2016, if they apply to extend their stay in the category. The Government intends to increase the threshold to £30,000 in April 2017; there will be no such transitional arrangement for workers sponsored in Tier 2 (General) between 24 November 2016 and April 2017 – they will need to satisfy the £30,000 threshold in any future application.
• UK graduates who have returned overseas have been weighted more heavily in the monthly allocation rounds under the Tier 2 limit. Graduates who apply in the UK continue to be exempt from the limit.
• Applicants sponsored in graduate training programmes may change occupation within the programme or at the end of the programme without their sponsor needing to carry out a further Resident Labour Market Test or for them to make a new application.
In other changes to Tier 2 (General), from April 2017 sponsors can rely on a milkround that ended up to four years prior to assigning a certificate of sponsorship but only if the worker was offered the job within 6 months of that milkround taking place.
Nurses are retained on the Shortage Occupation List but the rules are changed to require a Resident Labour Market Test to be carried out before a nurse is assigned a Certificate of
Sponsorship. The rules on pre-registration nurses are also consolidated.
Changes are made to switching from Tier 4 to Tier 2 to permit this only where the applicant studied at a UK recognised body or body in receipt of public funding as a higher education institution and to also prevent an applicant relying on a qualification obtained via supplementary study. The effect of the former change is to remove the route for those sponsored by an overseas higher education institution to undertake a short- term study abroad programme in the United Kingdom. It will also apply to those dependants of Tier 4 students permitted to switch into Tier 2.
Tier 2 (Intra- Company Transfer)
Changes made following the Migration Advisory Committee review include:
• The salary for short term ICT applicants has been increased to £30,000 for new applicants. A transitional arrangement applies for those already in the UK under the short term route.
• The closure of the Skills Transfer sub-category to new applicants.
• Changes to the Graduate Trainee sub-category. The salary threshold has been reduced from £24,800 to £23,000 and the number of places a sponsor can use has been increased from five to 20 per year.
In addition, a redundant paragraph relating to time spent working in the UK for the Sponsor is being removed, and amendments are being made to the evidential requirements to more accurately reflect the criteria relating to previous working for a business linked to the Sponsor.
Other changes
OTHER CHANGES TO THE POINTS-BASED SYSTEM
Evidential flexibility
The period of time within which the caseworker may get in touch with the applicant or representative and request the corrected document within is changed from seven to 10 working days with effect from 24 November 2016 (see new rule 34B). Circumstances in which this will be done are specified, for example where a document is missing it must be at the beginning of the sequence not at the beginning or end.
Evidence relating to English language requirements
Appendix B is amended to provide that an applicant must provide official documentation produced by UK NARIC to confirm any assessment of their degree by UK NARIC.
Tier 1 (entrepreneur)
Changes to evidence requirements, including to provide that an accountant cannot sign off his/her own accounts or funding evidence and around job creation and evidence to demonstrate Pay As You Earn reporting to HM Revenue and Customs.
Tier 1 (exceptional talent)
Providing that applications for endorsements can come from the Isle of Man (which has its own immigration rules). Changes as to evidence.
Tier 4 (students)
Changes to the definition of an approved qualification. Changes as to evidence. A correction to remove the need for academic progression in cases where, for example, the person has taken a year as a student union sabbatical officer. To allow those studying either an integrated Masters course or an integrated Masters and PhD programme, who are progressing from the lower to higher level qualification to move to a higher level course, and extend their leave from within the UK. To require a Doctorate Extension Scheme application to demonstrate two months of maintenance funds to support themselves until their salaried work starts.
Tier 5 (youth mobility scheme and temporary worker categories)
Setting out the quota’s for youth mobility schemes for 2017. To confer deemed sponsorship status upon Taiwan.
In the temporary worker category A-Rated Tier 5 sponsors are given the option of certifying maintenance in respect of a Tier 5 applicants and dependants. Minor, consequential, changes to government-authorized exchange schemes.
See also below re domestic workers.
Family members
Provision is made for family members, including of those in the UK under the Points-based system, who are studying to be required to have Academic Technology Approval Scheme certificates under Part 15 of the Rules.
Overseas domestic workers (Tier 5 and paragraph 159A to 159H)
The Immigration Rules on overseas domestic workers are also amended. In April 2016, the government gave domestic workers in private households and private servants in diplomatic households a right to change employer. They were however only allowed to stay with the new employer for a maximum of six months, or until their leave ends, whichever is the shorter, so for most workers in diplomatic households opting to change employer meant taking a cut in the time for which they could stay in the UK. From 24 November 2016 that is changing and domestic workers in diplomatic households who change employer will be able to work for the rest of their period of leave. The rules do not state whether they have to continue in a diplomatic household to benefit from this (it is understood that while the maximum period of leave has been six months they have not been confined to diplomatic households),
The Immigration Rules are amended with effect from 24 November 2016 to remove the upper age limit (65) currently applied to those applying in the overseas domestic worker in private household category.
From 24 November, when (pre April 2012) domestic workers are applying for more leave, instead of showing that they are required for ‘full-time’ work domestic workers must show that they are required to work a 30 hour week. This is unlikely to b e a problem for most domestic workers.
REFUGEES / ASYLUM
The anticipated changes to periods of refugee leave and refugee family reunion have not been implemented. There appears to be a placeholder at paragraph 11.116 of HC667 which would indicate that those changes were due to be added in and have been removed. A victory, therefore, but one that may be only temporary.
There are significant changes at 11.123 of the statement of changes introducing new paragraphs 345A – 345E. An asylum claim will be declared inadmissible where the following conditions are met:
• another member State has recognized the person as a refugee;
• a country which is not a member State is considered to be a first country of asylum for the applicant, according to the requirements of paragraph 345B;
• a country which is not a member State is considered to be a safe third country for the applicant, according to the requirements of paragraphs 345C and 345D;
• the applicant is allowed to remain in the United Kingdom on other grounds and as a result of this has been granted a status equivalent to the rights and benefits of refugee status;
• the applicant is allowed to remain in the United Kingdom on some other grounds which protect them against refoulement pending the outcome of a procedure for determining their status in accordance with (iii) above.
The content of the rules on first country of asylum and safe third country appear at first glance to reflect articles 26 and 27 of Council Directive 2005/85/EC on minimum standards on procedures in Member States for granting and withdrawing refugee status, with added detail on how the connection to the safe third country will be determined. The rule change signals increased consideration of the safe third country option in asylum applications, beyond the Dublin III regulation. Para 345A (iv) appears aimed at preventing those granted humanitarian protection from having their claims for refugee protection being considered.
Changes are made to where Refugee Status or Humanitarian Protection is revoked or ceases to apply to allow for exclusion where there are ‘serious reasons for considering’ that a person has committed a serious crime in addition to where they have committed a crime prior to their admission to the UK. ‘Serious reasons considering’ reflects language used by UNHCR but we wait to see how the provision is applied.
The changes relating to the first country of asylum / safe third country apply to all asylum claims made on or after 24 November 2016. All the other changes apply to decisions made on or after 24 November 2016.
See also above on general grounds for refusal where Article 1F or Article 33(2) of the Refugee Convention apply.
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Recent EU related case-law
• El Ghatet v. Switzerland (no. 56971/10) [Article 8], 8 November 2016
This case concerns the refusal of the Swiss authorities to permit the family reunification of an Egyptian son with his father, who has Egyptian and Swiss nationality
• CJEU: Case C-528/15 Al Chodor, Opinion of Advocate-General H. Saugmandsgaard ØE
The case relates to an Iraqi male and his two minor children who were detained by the Czech police in May 2015 pending their transfer to Hungary pursuant to the Dublin Regulation and Article 129(1) of the Czech Aliens Act.
Legal Centre’s Services at a glance - Вкраце об услугах Legal Centre:
- Consultation with the top category Immigration Advocate: https://legalcentre.org/Initial-Consultation.html - Консультация с иммиграционным адвокатом всшей категории: https://legalcentre.org/Konsultacija-s-Advokatom.html
- Application verification service by the top category Immigration Advocate: https://legalcentre.org/Immigration-Application-Verification-Service.html - Услуга проверки заявлений иммиграционным адвокатом высшей категории : https://legalcentre.org/proverka-zayavleniy.html
- General supervision (de-facto representation) by the top category Immigration Advocate : https://legalcentre.org/Genera-supervision.html Общее сопровождение дела адовкатом высшей категории : https://legalcentre.org/Obshee-soprovozdenie.html
- Full representation : https://legalcentre.org/ – Полное сопровождение: https://legalcentre.org/language.php?lang=ru
THE NEWS
• Updated Guidance on Right of Appeals under Immigration Act 2014 (21 November 2016)
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/571082/Right-ofAppeal-v4_0.pdf
Guidance on when there is a right of appeal against decisions in immigration cases, including mechanisms to prevent repeat rights of appeal and prevent delay from appeals against unfounded claims.
The guidance has been amended to include a list of applications that cannot be made during the currency of leave under section 3C of the Immigration Act 1971 (namely are not human rights claims), and a fuller EEA appeals guidance section has been added which includes reference to the case of Sala.
• Internal guidance for Tribunal caseworkers considering remission applications. Unpublished. 21 November 2016:
http://www.ilpa.org.uk/resources.php/32705/internal-guidance-for-tribunal-caseworkers-considering-remission-applications.-unpublished.-21-novem
• UK Visas and Immigration (UKVI) upholds complaint of EEA family permit applicant wrongly told by UKVI to pay for priority visa service, 24 November 2016
UKVI upholds complaint and refunds fee of applicant who was told by Visa Application Centre staff to pay for the priority visa service to have his application processed on a priority basis when this should not have been necessary because EEA family permit applications are required to be issued as soon as possible under Regulation 12(4) of the Immigration (European Economic Area) Regulations 2006.
Legal Centre’s Services at a glance - Вкраце об услугах Legal Centre:
- Consultation with the top category Immigration Advocate: https://legalcentre.org/Initial-Consultation.html - Консультация с иммиграционным адвокатом всшей категории: https://legalcentre.org/Konsultacija-s-Advokatom.html
- Application verification service by the top category Immigration Advocate: https://legalcentre.org/Immigration-Application-Verification-Service.html - Услуга проверки заявлений иммиграционным адвокатом высшей категории : https://legalcentre.org/proverka-zayavleniy.html
- General supervision (de-facto representation) by the top category Immigration Advocate : https://legalcentre.org/Genera-supervision.html - Общее сопровождение дела адовкатом высшей категории : https://legalcentre.org/Obshee-soprovozdenie.html
- Full representation : https://legalcentre.org/ – Полное сопровождение: https://legalcentre.org/language.php?lang=ru
AND NOW… MASSIVE ACROSS THE RANGE GUIDANCE CHANGE
• New UKVI guidance documents on UK ancestry, long residence and overstayers (25 November 2016): https://www.gov.uk/government/publications/uk-ancestry
This version has moved to the new template and reflects the following changes:
- the references to appeals have been replaced by administrative review guidance
- the indefinite leave to remain section has been amended to reflect the correct process for considering ‘intent to work’. It replaces the UK Ancestry modernised guidance version 14.0 which has been withdrawn and archived.
• Long residence: https://www.gov.uk/government/publications/long-residence
Changes from last version of this guidance:
- ‘Requirements for long residence’ – fifth bullet point new
- ‘10 years continuous lawful residence’ – fifth bullet point new
- ‘Events that break continuous residence’ – bullet points have been amended and new second sub-bullet point new
- ‘Time spent in prison’ – third paragraph, last sentence new Page 5 of 43 Published for Home Office staff on 24 November 2016
- ‘Examples of continuous residence’ – Example 1, third bullet point new
- ‘Time awaiting a decision on an application or appeal’ – new section ‘Out of time appeals’
- ‘Time spent in the UK with a right to reside under European Economic Area (EEA) regulations’ – seventh paragraph new
• Guidance: Applications from overstayers (non family routes): https://www.gov.uk/government/publications/applications-from-overstayers-non-family-routes
Changes from last version of this guidance:
- removal of the 28 day grace period for overstayers (which is permitted for applications for renewal of leave from those who have overstayed their leave to be in the UK), replaced with a provision to disregard overstaying in a limited set of circumstances
- minor amendment to update 3C leave. NB: The “minor amendment to update 3C leave” appears to be an addition in the guidance to reflect the decision in R (Iqbal v SSHD) [2015] EWCA 838. In Iqbal, The Court of Appeal held that if a person such as Mr Iqbal makes an in-time application to vary their leave to remain which they genuinely (and even reasonably) think is a valid application, but after their leave expires it turns out that the application was not valid, they have been in the UK without leave and without the protection of 3C leave, even though they did not know this and had no reason to think it, between the expiry of the existing leave and the Secretary of State’s decision that the application was invalid. This means that for that period the person is in the UK unlawfully, their landlord/landlady or employer is committing a criminal offence, they are not entitled to a bank account, or to drive, etc. Whether they are unlawfully present at all, and if so for what period, all depends on whether the Secretary of State decides their application before their existing leave expires (applicants are normally asked not to submit an application until one month before their leave expires).
The UKVI guidance now has the following text as one of the examples explaining 3C leave:
“In-time application, rejected after leave expired. The migrant had leave until 2 March 2015 and submitted an application for further leave on 26 February 2015. The application was rejected on 31 March 2015. In this case the migrant began overstaying on 3 March 2015 as an application that is rejected does not extend 3C leave.”.
• Points Based System: new UKVI guidance following rules changes (25 November 2016)
- Guidance: Family members of Points Based System migrants: https://www.gov.uk/government/publications/family-members-of-points-based-system-migrants
- Guidance: Guidance for dependants of UK visa applicants (Tiers 1, 2, 4, 5) (25 November 2016): https://www.gov.uk/government/publications/guidance-for-dependants-of-uk-visa-applicants-tiers-1-2-4-5
- Guidance: Applications from overstayers (non family routes): https://www.gov.uk/government/publications/applications-from-overstayers-non-family-routes
Guidance: Family members of Points Based System migrants.
The guidance does not include a discussion of continuous residence for family members of Points Based System migrants applying for Indefinite Leave to Remain. It seems that this is a drafting error.
Interesting points:
In paragraph 319E(d)(ii) insert after (c):
“In this sub-paragraph “continuous” means an unbroken period and for this purpose a period shall not be considered to have been broken in any of the circumstances set out in paragraph 245AAA(a)(i) to (iii).”.
This wording appears to introduce a restriction on permitted absences for Points-Based dependants applying for indefinite leave to remain, so that the absences permitted to them are the same as those permitted to main applicants (max absence 180 days in any of the five consecutive 12 month periods preceding the date of application for indefinite leave to remain). Thus clients applying after 24 November suddenly find that their absences over the last five years will tell against them.
• New UKVI Tier 4 Student Points Based Guidance (24 November 2016)
The Home Office has issued new guidance on the Points Based System today as changes to the immigration rules take effect:
- Guidance on application for UK visa as Tier 4 student: https://www.gov.uk/government/publications/guidance-on-application-for-uk-visa-as-tier-4-student
- Sponsor a Tier 4 student: guidance for educator: https://www.gov.uk/government/publications/sponsor-a-tier-4-student-guidance-for-educators
Points Based System: new UKVI guidance following rules changes
- Guidance: Guidance on application for UK visa as Tier 1 Investor: https://www.gov.uk/government/publications/guidance-on-application-for-uk-visa-as-tier-1-investor
- Guidance: Guidance on application for UK visa as Tier 1 (Entrepreneur): https://www.gov.uk/government/publications/guidance-on-application-for-uk-visa-as-tier-1-entrepreneur
- Guidance: Guidance on applications under Tier 1 (Graduate Entrepreneur): https://www.gov.uk/government/publications/guidance-on-applications-under-tier-1-graduate-entrepreneur
- Guidance: Guidance on policy for UK visas under Tier 1 (Exceptional Talent): https://www.gov.uk/government/publications/guidance-on-policy-for-uk-visas-under-tier-1-exceptional-talent
- Guidance: Guidance on application for UK visa as Tier 2 worker: https://www.gov.uk/government/publications/guidance-on-application-for-uk-visa-as-tier-2-worker
- Guidance: Sponsor a Tier 2 or 5 worker: guidance for employers: https://www.gov.uk/government/publications/sponsor-a-tier-2-or-5-worker-guidance-for-employers
- Guidance: Sponsor guidance appendix A: supporting documents for sponsor applications: https://www.gov.uk/government/publications/supporting-documents-for-sponsor-applications-appendix-a
- Guidance: Sponsor guidance appendix
- Guidance: Sponsor guidance appendix E: example DIT letter for sponsor applications: https://www.gov.uk/government/publications/example-ukti-letter-for-sponsor-applications-sponsor-guidance-appendix-e
- Guidance: Sponsor guidance appendix G: Croatian workers and students: https://www.gov.uk/government/publications/sponsor-croatian-workers-and-students-appendix-g
- Guidance: Sponsor a Tier 2 or 5 worker: guidance for employers: https://www.gov.uk/government/publications/sponsor-a-tier-2-or-5-worker-guidance-for-employers
- Guidance: Guidance on application for UK visa as Tier 4 student: https://www.gov.uk/government/publications/guidance-on-application-for-uk-visa-as-tier-4-student
- Guidance: Sponsor a Tier 4 student: guidance for educators: https://www.gov.uk/government/publications/sponsor-a-tier-4-student-guidance-for-educators
- Guidance: Points-based system: evidential flexibility: https://www.gov.uk/government/publications/points-based-system-evidential-flexibility
EEA LAW Guidance changes
• Guidance: Free movement rights: family members of British citizens: https://www.gov.uk/government/publications/free-movement-rights-family-members-of-british-citizens
Changes from last version of this guidance:
- Previous guidance was set out in direct family members guidance.
- Reformatted in line with new processes.
- Changes to implement Schedule 5 to the Immigration (European Economic Area) Regulations 2016.
- Other minor changes
• Guidance: EEA family permits: guidance for entry clearance officers: https://www.gov.uk/government/publications/eea-family-permits-guidance-for-entry-clearance-officers
• Guidance: Free movement rights: direct family members of EEA nationals: https://www.gov.uk/government/publications/direct-family-members-of-european-economic-area-eea-nationals
• Guidance: EEA case law and appeals: https://www.gov.uk/government/publications/european-economic-area-eea-case-law-and-appeals
UKVI has updated a range of its guidance today as changes to the immigration rules take effect.
- Chapter 50 Liability to administrative removal under section 10 (non EEA):https://www.gov.uk/government/publications/chapters-46-to-62-detention-and-removals
Amended following Rules changes to abolish the 28 day grace period for overstayers which is permitted for applications for renewal of leave.
- Chapter 62 Re-entry bans: https://www.gov.uk/government/publications/chapters-46-to-62-detention-and-removals
Amended following Rules changes to abolish the 28 day grace period for overstayers which is permitted for applications for renewal of leave.
- Non-compliance and absconder process guidance: https://www.gov.uk/government/publications/offender-management
Updated by removing references to compliance visits.
UKVI updated guidance on detention, removals and offender management (updated 25 November 2016)
• Guidance: Chapters 46 to 62: detention and removals : https://www.gov.uk/government/publications/chapters-46-to-62-detention-and-removals
Chapter 60: Judicial Reviews and Injunctions
Change indicated: Revision to 4.1 to bring in line with previous changes in section 6.
[Section 4.1 refers to deferral of removal; section 6 refers to when judicial review proceedings will suspend removal.]
• Immigration Tribunal fees: Government backs down on fee increase - for now - and will review (25 November 2016)
The Government will review the level of fee increases and in the meantime apply fees at previous levels and make refunds to applicants who have paid under the new scheme.
Ministerial statement from Oliver Heald, Minister of State for Courts and Justice:
http://www.parliament.uk/business/publications/written-questions-answers-statements/written-statement/Commons/2016-11-25/HCWS284
“However, we have listened to the representations that we received on the current fee levels and have decided to take stock and review the immigration and asylum fees, to balance the interests of all tribunal users and the taxpayer and to look at them again alongside other tribunal fees and in the wider context of funding for the system overall.
From today all applicants will be charged fees at previous levels and we will reimburse, in all cases where the new fees have been paid, the difference between that fee and the previous fee.
We will bring forward secondary legislation to formalise the position as soon as possible. That legislation will come into force shortly, but in the meantime the changes will be effected through the use of the Lord Chancellor’s discretionary power to remit or reduce fees.
Alongside the fee changes introduced we extended the fee exemptions offered in the First-tier Tribunal, to include:
• those in receipt of a Home Office destitution waiver in respect of their initial application;
• parents of, and those with parental responsibility for, children receiving support from local authorities;
• children in local authority care; and
• those appealing a decision to revoke their humanitarian protection or refugee status.
The Government believes that these exemptions are proportionate measures that protect some of the most vulnerable users of the Tribunal. For this reason the extended system of fee exemptions will remain in place”.
Recent case-law:
• Elayi (fair hearing - appearance: India) [2016] UKUT 508 (IAC) (15 November 2016)
Tribunals Service link: https://tribunalsdecisions.service.gov.uk/utiac/2016-ukut-508
Tribunal Head Note: Justice must not only be done but must manifestly be seen to be done.
Judgment of McCloskey, J, President and Cheema-Grubb, J sitting as a Judge of the Upper Tribunal in a case arising from a determination of the First-tier Tribunal upholding a Home Office decision to refuse leave to remain on the basis of alleged deception in obtaining a TOEIC certificate.
1. The Tribunal made the following findings and set aside the decision of the First-tier Tribunal: The conduct of the Judge offended against the principle of the appearance of fairness.
In summary, the Judge (a) engaged in a private conversation with the Appellant’s representative (b) in the absence of the other party’s representative (c) in the precincts of the court room (d) partly out of sight and earshot of the Appellant and his spouse (e) in a setting other than that of bench/bar (f) before the Appellant’s hearing began (g) relating to the Appellant’s case and, finally, (h) the contents whereof, other than a question about the Appellant’s religious adherence, itself an improper enquiry made in this fashion, were not divulged to the Appellant.
2. The Judge failed to recognise that the conclusion that the Home Office decision was incorrect when it stated that the application had to be refused for contravening a requirement of candour and honesty as there was a discretion to be exercised.
3. The Judge’s determination on the treatment of ‘generic’ ETS evidence also amounted to an error of law.
[T]he Judge makes a rather bare and sweeping statement: “The Home Office have access to all appropriate data and enquiries which were undertaken internally by ETS”. We all know this to be manifestly unsustainable. This assessment is made irresistibly by virtue of this Tribunal’s decision in the case of SM and Qadir [2016] UKUT 229 (IAC), at [63] especially, when the so-called “generic” evidence was examined in some detail giving rise to the findings rehearsed. It matters not that SM and Qadir post-dated the decision in the present case. The inexorable conclusion is that the Judge erred in law in this rather unparticularised and unreasoned statement in the determination.
Legal Centre’s Services at a glance - Вкраце об услугах Legal Centre:
- Consultation with the top category Immigration Advocate: https://legalcentre.org/Initial-Consultation.html - Консультация с иммиграционным адвокатом всшей категории: https://legalcentre.org/Konsultacija-s-Advokatom.html
- Application verification service by the top category Immigration Advocate: https://legalcentre.org/Immigration-Application-Verification-Service.html - Услуга проверки заявлений иммиграционным адвокатом высшей категории : https://legalcentre.org/proverka-zayavleniy.html
- General supervision (de-facto representation) by the top category Immigration Advocate : https://legalcentre.org/Genera-supervision.html - Общее сопровождение дела адовкатом высшей категории : https://legalcentre.org/Obshee-soprovozdenie.html
- Full representation : https://legalcentre.org/ – Полное сопровождение: https://legalcentre.org/language.php?lang=ru
AND NOW… THE NEWS:
• New Guidance on language requirements for public sector workers (29 November 2016)
Part 7 of the Immigration Act 2016 came into force 21 November 2016 and placed a duty on public sector employers to ensure that their employees in public-facing roles in the UK have sufficient spoken English to perform their roles effectively. The Government issued an updated Code of Practice and Impact Assessment on 29 November 2016 having laid these in draft before parliament earlier in July 2016. The Government indicates that the Code will promptly be brought into force by Regulations under the Act.
- Guidance: English language requirement for public sector workers: code of practice: https://www.gov.uk/government/publications/english-language-requirement-for-public-sector-workers-code-of-practice
- Guidance: Immigration Act: part 7 - language requirements for public sector workers: https://www.gov.uk/government/publications/immigration-bill-part-7-language-requirements-for-public-sector-workers
- Impact assessment: English language requirement for public sector workers: impact assessment: https://www.gov.uk/government/publications/english-language-requirement-for-public-sector-workers-impact-assessment
• The First-tier Tribunal (Immigration and Asylum Chamber) Fees (Amendment) (No. 2) Order 2016: http://www.legislation.gov.uk/uksi/2016/1149/article/2/made
RECENT CASE-LAW (EEA):
• Abdullahi Elmi and Aweys Abubakar v. Malta (nos. 25794/13 and 28151/13) [Articles 3 and 5], 22 November 2016
On 22 November 2016, the European Court of Human Rights (ECtHR) delivered its judgment in Abdullahi Elmi and Aweys Abubakar v. Malta (nos. 25794/13 and 28151/13) concerning the eight-month detention of two asylum-seeking children pending the outcome of their asylum procedure and, in particular, the age assessment procedure employed.
ENG: Legal Centre’s Services at a glance: https://legalcentre.org/
RUS: Вкраце об услугах Legal Centre: https://legalcentre.org/language.php?lang=ru
Further analysis (most interesting points) of the recent UK and EEA Immigration Rules/Regulations changes at the end of November 2016:
• Changes to periods within which applications for further leave to remain can be made by overstayers
The 28-day grace period for the consideration of applications for further leave to remain where a person has overstayed will be abolished for applications made on or after 24 November 2016. Instead, an out-of-time application will not be refused only where theperson applies within 14 days and has a good reason for applying out of time that was beyond their or their representative’s control.
There is a 14-day ‘grace period’ where an application for leave has been refused; 3C leave has expired; a time limit for appeal or administrative review has expired; or an appeal or administrative review has concluded. This is to allow for a new application to be made. Periods of overstaying prior to 24 November 2016 to be disregarded for the purpose of applications for indefinite leave to remain based on continuous lawful residence will be governed by the old 28-day grace period, but overstaying after that date must not exceed 14 days.
• Changes relating to applications and validity
The rules on making valid applications for leave to remain are redrafted. New paragraphs 34 to 34E (see paragraph 1.4 of HC667) set out the mandatory requirements for applications to be valid and some exceptions. There are also changes to the rules on how applications and administrative review applications may be submitted. Applications made before 24 November 2016 will be considered under the rules as at 23 November 2016.
There is a new definition of a valid application at paragraph 34 of the Immigration Rules: one that is made on the specified form, all mandatory parts of which have been duly completed with the fee and health surcharge paid (unless a fee waiver applies). Proof of identity (normally a valid passport) must be submitted with the application, along with two valid passport photographs. Parents or guardians must sign to consent to an application from an under-18. Biometric information must be provided and where attendance in person is required, there must be such attendance. These requirements also apply when a person wishes to vary an application they have already submitted.
The Secretary of State has discretion to treat an application as valid as long as the fee is paid, satisfactory evidence of identity provided and biometrics given (paragraph 34B). An application sent by Royal Mail is made on the date on which it is received by the Home Office (paragraph 34G); otherwise an application is made on the date on which it is received by the Home Office. These new definitions are essentially codifications and simplifications rather than radical changes to existing rules. They come into effect from 24 November 2016 for applications submitted on or after that date.
• Changes to Appendix FM / Appendix FM-SE
See above also on changes to 28-day grace period for overstayers submitting an application for leave to enter or remain.
A new English language requirement at level A2 of the Common European Framework of Reference for Languages is introduced for applicants for further leave in the UK as a partner or parent after completing 30 months in the UK on a five-year route to settlement under Appendix FM. The specified evidence requirements for meeting the English language requirements using an academic qualification are clarified also. These changes take effect from 1 May 2017. If, however, the expiry date of the applicant’s leave pre-dates 1 May 2017, the application will be decided in accordance with the Immigration Rules in force on 30 April 2017.
• Points Based System (PBS)
Evidence relating to English language requirements Appendix B is amended to provide that an applicant must provide official documentation produced by UK NARIC to confirm any assessment of their degree by UK NARIC.
• Tier 2 (General)
Changes are made to switching from Tier 4 to Tier 2 to permit this only where the applicant studied at a UK recognised body or body in receipt of public funding as a higher education institution and to also prevent an applicant relying on a qualification obtained via supplementary study. The effect of the former change is to remove the route for those sponsored by an overseas higher education institution to undertake a short- term study abroad programme in the United Kingdom. It will also apply to those dependants of Tier 4 students permitted to switch into Tier 2.
• Tier 1 (entrepreneur)
Changes to evidence requirements, including to provide that an accountant cannot sign off his/her own accounts or funding evidence and around job creation and evidence to demonstrate Pay As You Earn reporting to HM Revenue and Customs.
• PBS Family Members
Provision is made for family members, including of those in the UK under the Points-based system, who are studying to be required to have Academic Technology Approval Scheme certificates under Part 15 of the Rules.
• EEA Regulations
The Immigration (European Economic Area) Regulations 2016 (SI 2016/1052)
Into effect 25 November 2016 and 1 February 2017. These regulations replace the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003) achieving a much needed consolidation. But SI 2016/1052 follows the usual Home Office mantra of ‘no consolidation without change’. Changes to the Surinder Singh (Case C-370/90 ) route, inspired by O & B v The Netherlands (Case C-456/12) come into effect on 25 November 2016. The good news is that the new regulations cover not only British citizens who were workers and self-employed in another member State but also British citizens who have studied or been self-sufficient in another member State. The rules require an assessment of whether residence in another member State was ‘genuine’, recalling the genuineness tests of the Points-Based system. But there is a new reason for refusing a Surinder Singh family member: that the purpose of residence was to circumvent immigration laws that would otherwise have applied to them.
Other changes come into effect on 1 February 2017. It appears that the prospect of Brexit has persuaded the Home Office that it can break EU law with impunity. There is a new power to require EEA applications to be made in a prescribed manner. There is a new ‘verification’ process for applications.
The abolition of the right of appeal for extended family members is confirmed. Just as the Immigration Act 2016 extends deport first; appeal later powers to turn them into remove first appeal later powers, so the power to force EEA nationals to leave before their appeal is heard is extended to cases where they have been told that they have no right of residence or that they have ‘misued’ EEA rights.
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New immigration statistics
New UKVI guidance on 3C and 3D leave and Section 94B of the Nationality, Immigration and Asylum Act 2002 on deportation cases (01 December 2016)
The following is guidance following commencement of relevant provisions of IA 2016:
• Guidance: 3C and 3D leave
Guidance for how UK Visas and Immigration prevents an individual from becoming an overstayer while they are awaiting or appealing a decision: https://www.gov.uk/government/publications/3c-and-3d-leave
• Guidance: Section 94B of the Nationality, Immigration and Asylum Act 2002:
This guidance gives information on deportation cases considered for certification under Section 94B: https://www.gov.uk/government/publications/section-94b-of-the-nationality-immigration-and-asylum-act-2002
• UKVI Statutory guidance: Ending a residential tenancy agreement:
Guidance for the courts in England in considering the defence of taking steps to end a residential tenancy agreement: https://www.gov.uk/government/publications/ending-a-residential-tenancy-agreement
• UKVI Guidance: Studying under Tier 4 of the points-based system
Guidance for how UK Visas and Immigration considers applications from people to enter or remain in the UK under Tier 4: https://www.gov.uk/government/publications/studying-under-tier-4-of-the-points-based-system
• New immigration statistics
Home Office Guidance: Policy and legislative changes affecting migration to the UK: timeline. Contains details of policy changes, together with information on changes to immigration legislation that affect immigration statistics: https://www.gov.uk/government/publications/policy-and-legislative-changes-affecting-migration-to-the-uk-timeline
• Guidance: Home Office immigration statistics: user guide
This user guide to Home Office immigration statistics is designed to be a useful reference guide with explanatory notes on the Home Office’s quarterly immigration statistics releases: https://www.gov.uk/government/publications/user-guide-to-home-office-immigration-statistics--9
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New UKVI guidance on illegal working (02 December 2016)
• Guidance: Illegal working closure notice and compliance orders: https://www.gov.uk/government/publications/illegal-working-closure-notice-and-compliance-orders
Guidance for frontline staff on illegal working closure notices and compliance orders
• Guidance: Licensing authority guide to right to work checks: https://www.gov.uk/government/publications/illegal-working-closure-notice-and-compliance-orders
• New UKVI guidance on immigration enforcement powers and operational procedure (01 December 2016): https://www.gov.uk/government/publications/powers-and-operational-procedure
Guidance added on 'Warrants: procurement and use'.
Guidance and information on administrative and criminal powers for officers dealing with immigration enforcement matters within the UK.
Part 2 Update
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• An employment tribunal held that an employee was fairly dismissed after failing to produce evidence of his right to work in the UK: http://www.personneltoday.com/hr/fair-dismissal-failure-produce-evidence-right-work-uk/
• Remove first, appeal later” provisions in force from today: new guidance published. The power under the Immigration Act 2016 to certify any human rights appeal, not just deportation appeals, for “remove first, appeal later” treatment is now in force: https://www.gov.uk/government/publications/section-94b-of-the-nationality-immigration-and-asylum-act-2002
• Form FLR(O) has been abolished. The new FLR(HRO) and FLR(IR) forms are now in use
The controversial form FLR(O) is no more and has been withdrawn with effect from today, 1 December 2016. It has been replaced by two new forms:
FLR(HRO) broadly for applications outside the Immigration Rules based on human rights:
1. discretionary leave (DL) if you have previously been granted DL but have not previously been refused asylum, granted less than 4 years exceptional leave)
2. medical grounds or ill health
3. human rights claims (not to be used for claims on the grounds of family or private life, including on the basis of family dependencies between a parent and a child, or for protection (asylum) claims)
4. leave outside the rules under the policy concessions in the leave outside the rules guidance claims for leave outside the Immigration Rules because of compassionate and compelling circumstances
5. other claims not covered by another form
FLR(IR) broadly for applications made under the Immigration Rules not covered by another form:
1. visitors (except transit, Approved Destination Status and Permitted Paid Engagements visitors)
2. UK ancestry
3. domestic worker in a private household
4. domestic worker who is a victim of slavery or human trafficking
5. parent of a Tier 4 (child) student
6. dependant joiners who are applying separately from the main applicant – dependants of a person who has limited leave to enter or remain in the UK, not including dependants of a person with leave under the points based system or dependants of a person in the UK with leave on the basis of family or private life
7. relevant civilian employee
8. member of an Armed Force who is subject to immigration control (course F)
9. dependant of a member of Armed Forces which are not HM Forces (dependants of a member of HM Forces should complete FLR(AF))
10. locally engaged staff of a diplomatic mission
11. representative of an overseas business
12. retired person of independent means
13. any other application for leave to remain that is within the Immigration Rules but is not covered by another form
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• According to the UK BA, the (employer’s sponsorship implied) Level 1 user must be located in the UK only
New guidance for taking the Life in the UK test (05 December 2016)
• Guidance: Terms and conditions for booking and taking the Life in the UK test
Changes to both terms and conditions and identity requirements: https://www.gov.uk/government/publications/terms-and-conditions-for-booking-and-taking-the-life-in-the-uk-test
New UKVI guidance on the Life in the UK test & Points-Based System: Tier 1 (05 December 2016)
• Guidance: Terms and conditions for booking and taking the Life in the UK test
Changes to both terms and conditions and identity requirements: https://www.gov.uk/government/publications/terms-and-conditions-for-booking-and-taking-the-life-in-the-uk-test
• Changes to Guidance: Points-based system: Tier 1 (Entrepreneur): https://www.gov.uk/government/publications/points-based-system-tier-1-entrepreneur
This version has moved to the new template and reflects changes in line with the Immigration Rules changes of 24 November 2016. It replaces the Tier 1 (Entrepreneur) modernised guidance version 17.0 which has been withdrawn and archived.
New UKVI Guidance on Bail & Warrants (05 December 2016)
• Updated Guidance: https://www.gov.uk/government/publications/chapters-46-to-62-detention-and-removals
Changes indicated by UKVI:
Restructured 57.1.2 to minimise repetition; inserts at 57.3, 57.8 and 57.13; 57.7 restructured to include new subsection 57.7A; added Annex A; replacement or removal of outdated terms.
Further note:
-57.1.2 Bail in potential deportation cases: restructured and wording simplified.
-57.3 Advising persons of their bail rights: reminder added that a person can be considered for release on CIO or Secretary of State bail without first having to make an application; requirement to include in a bail application any recognizance agreed by the applicant amended to include the wording ‘if any’; the same change is made with reference to recognizances by sureties;
-57.8 Immigration Judge’s bail: changes to text on ending of bail and breach of bail;
-57.13 Surrendering to bail: more detail on granting further bail when a person appears before an immigration officer in surrender to bail granted by an immigration judge.
-57.7A and Annex A added on bail conditions, dealing with electronic monitoring and imposing curfews.
-[On curfews, see also Immigration Curfews: note for practitioners by Tom Hickman, Blackstone Chambers, 01 November 2016 at ILPA resource: http://www.ilpa.org.uk/resource/32610/immigration-curfews-note-for-practitioners-by-tom-hickman-of-blackstone-chambers]
Guidance removed: Chapter 34: warrants' guidance: https://www.gov.uk/government/publications/chapters-23-to-45-operational-enforcement-activity
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Interesting UK VI statistics and current and upcoming innovations
• UKVI in-country operations update
- The Tier 4 summer ‘surge’ peaked in October, with straightforward cases being processed within 6 weeks.
- Postal applications for the summer peak received by mid October and UKVI are on course to clear by the end of November.
- The use of a new delivery partner had caused some very limited delivery issues.
- Tier 2 and 5 applications were averaging 6-7 weeks.
- Nationality applications were closer to 11 weeks processing, settlement routes at 18 weeks.
- Premium Service Centres (PSCs) offered faster processing.
- Tier 2 and 5 PSC appointments could be booked within 1 day at Belfast and Glasgow, with the Cardiff the longest at 8 days. PSC applications including dependents averaged 7 days for appointment. Long residency application appointments were shortest in Belfast at 7 days, longest in Solihull at 21 days.
- Appointments were currently Tier 2 only but the potential for expansion would be explored in 2017
- Sponsorship licence applications were taking 3 weeks on average. For licence changes Tier 4 renewals averaged 4 weeks, postal license changes were taking 4-6 weeks of an 18 week service standard.
• UKVI international operational update
- Just under 3 million applications (year ending June 2016), a 3% increase from the year before.
- Of these around 1.9 million were visitor applications and 204,000 were student applications.
- Significant growth in the key markets of India and China, in contrast to numbers dropping for those nationals travelling to the rest of Europe and the UK was top in Europe for visas issued this year.
- 5 new Premium Visa Application Centres (VACs) launched in the USA and 3 new VACs in China.
- In China, the joint UK and Belgian schengen visa service is expanding to all 15 VACs having now received sign off from the Chinese authorities.
- New meetings, incentives, conferences and events (MICE) service in India.
- Revised preferred partnership scheme in India for improved engagement with tour operators.
- Access UK rollout now complete on visit visas (covered in item 5).
- Priority visas now in place in over 200 locations.
- Electronic Visa Waivers now available for Kuwait, Qatar, Oman and UAE.
• New UKVI services: Access UK, the new online application service
- Access UK key objectives were to provide an online service replacing approximately 300 paper application forms and to replace Visa4UK, the previous online service.
- To provide a platform that is consistent with the Government Digital Service (GDS) and support Home Office transformation and was faster and more intuitive to use than Visa4Uk.
- The rollout was completed for 200 countries within 175 days, completing in August 2016.
- In-country applications were also being placed online, currently including Tiers 2 and 4, family and EEA routes.
- Access UK is streamlined from Visa4UK, with pages containing fewer questions allowing more targeted individual steps in the process.
- Additional language options on the online instructions (although the applications themselves must be in English).
- Mobile device compatible.
- Fortnightly system updates, improving responsiveness to any issues.
- The aim is for all immigration applications to be processed through Access UK by 2017.
• New UKVI services: Sponsorship IT rebuild
- A new sponsorship system was being designed to improve the current Sponsor Management System (SMS) with a strong customer facing focus
- The new system would be consistent with GDS standards and allow greater user feedback.
- The discovery phase had been completed and the product was currently in the alpha stage.
- The new system would have a strong user focus and the goal would be to move away from the need for the current 200 plus pages of guidance.
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• Adult Dependent Relatives under the Appendix FM - full report about the current state of affairs from the UK BA: https://www.legalcentre.org//files/Appendix-FM-to-the-Immigration-Rules-Adult-Dependent-Relatives.pdf
• Updated UKVI guidance on Tier 1 type Settlement applications: https://www.gov.uk/government/publications/chapter-6a-section-1-points-based-system-tier-1
• Updated UKVI guidance on Short-term students: https://www.gov.uk/government/publications/short-term-students
• New UKVI guidance on restricted leave (07 December 2016): https://www.gov.uk/government/publications/restricted-leave-asylum-casework-instruction
• Commons Home Affairs Committee publishes correspondence with the Home Office regarding English-language testing (09 December 2016)
http://www.parliament.uk/business/committees/committees-a-z/commons-select/home-affairs-committee/news-parliament-2015/161209-elt-correspondence/
• Updated UKVI Guidance: Criminal casework: bail applications: action after a bail hearing or decision (09 December 2016): https://www.gov.uk/government/publications/action-after-a-bail-hearing-or-decision
The following sections have been amended:
- Cases where immigration judge bail is granted
- Bail renewal or variation before an immigration judge – variations of bail restrictions
- Cases where CIO or Secretary of State bail is granted
- Renewal or variation of CIO or Secretary of State bail
- Ending bail
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• Report recommends cut off date for new arrivals from EU
A hardline report chaired by prominent Leave campaigner Gisela Stewart into the status of EU nationals in the UK has recommended a cut off date for new arrivals from the EU, likely to be April 2017, and a massive registration programme for existing EU residents. EU citizens arriving after the cut off date would be subject to the full force of UK immigration law on Brexit, presumably meaning they would become unlawfully resident on that date.
The report, which has been co-ordinated by organisation British Future, assumes a total end to EU free movement law in the UK, “hard Brexit”, departure from the European Economic Area and Single Market and expulsion on non qualifying EU residents and family members. Essentially, it proposes a UKIP future for the United Kingdom.
The report recommends that the Home Office simplify the application process for permanent residence. Applications would be compulsory and would involve cross checking against multiple government databases rather than reliance on documents propduces by the applicant. The method proposed looks to me fundamentally incompatible with EU law, and involves imposition of a good character test and an application for ILR rather than permanent residence. How this could occur while the UK remains a member of the EU and EU citizens therefore continue to enjoy free movement rights is unclear, but it does not look very well thought through.
The report at least proposes a five year “transition” for EU nationals who were qualified persons or had permanent residence at the cut off date. This would allow those people to bring their family members to the UK under the equivalent of EU rules, which are far more family-friendly than the extremely harsh UK immigration rules. Entry of parents and grandparents is basically banned under UK rules but remains feasible under EU rules, and under EU rules there is no real minimum earnings requirement for sponsoring a foreign spouse, unlike the £18,600 requirement under UK rules.
Those with permanent residence would have their status converted to “bespoke” Indefinte Leave to Remain (ILR) under the UK immigration rules. What “bespoke” means or how it would differ from “normal” ILR and be distinguished from it when it is called the same thing is not explained.
The report is not an official or Government report but was co-ordinated by British Future. How likely the recommendations are to find their way into UK Government policy is questionable. This is particularly so as the report in effect abandons tens or hundreds of thousands of existing residents of the United Kingdom who are currently lawfully present in the UK because of EU free movement laws.
The report focuses on “qualified persons”, meaning those who are working, self employed, self sufficient with comprenehsive health insurance or students with comprehensive health insurance. It does not address long term residents from the EU who are not qualified persons (for example the non-working EU national spouse of a British citizen who does not have comprehensive health insurance) nor does it address third country family members from outside the EU but who have or had a relationship with an EU national in the UK.
The report itself states that only 64% of EU nationals resident for over 5 years have qualified for permanent residence. If it is assumed that there are 2.8 million EU nationals in the UK, that means over 1 million have not qualified. Many therefore probably never will. The report assumes these people will be expelled at the end of a five year transition period, in what would be the biggest mass expulsion of population from this country since 1290, when Edward I infamously ordered the Jews of England into exile.
Given that no-one in their right mind was proposing removing qualified persons, one wonders what the point of the exercise was. The report dodges the very hard questions faced by Ministers and civil servants.
• Thought in the Points Based System (PBS)
The Points Based System is notoriously complex and indecipherable. I have been working with the PBS categories and the pre-PBS categories, such as HSMP, Innovator and the like for a very long time. The first HSMP Rules were easy to understand, than it started to change. I believe this was simply incompetence on the part of Home Office officials unable to communicate in plain English and ill equipped to design to and then adapt to the constantly shifting requirements of Ministers.
Having observed multitude of unnecessary changes, judicial reviews, appeal and the like, my current view is that the complexity of the system is now deliberate; an opportunity has been grasped and the Points Based System is now used as an actual barrier to all immigration rather than as a gateway to the “right” migrants. It was even extended to family migration in the form of Appendix FM with accompanying Appendix FM-SE with accompanying policies and guidance.
There is in effect a financial filter; only those employers or migrants able to afford top quality legal representation can successfully navigate the labyrinth.
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Lords Select Committee on the European Union publishes their report on Brexit: acquired rights 10th Report of Session 2016-17 - published 14 December 2016 - HL Paper 82
SUMMARY OF CONCLUSIONS AND RECOMMENDATIONS
The rights of EU citizens and their families
1. The rights of an EU citizen to live and work in any EU Member State, and to gain a permanent right of residence in that State after five years, are some of the most fundamental in EU law. From them have derived all of the additional citizenship rights that are necessary for nationals of EU Member States, and their families, to conduct their lives in an EU Member State of their choosing on equal terms with the nationals of that State. (Paragraph 21)
2. That said, we received evidence suggesting that many EU nationals who have been in the UK for over five years may not be able to prove that they meet the criteria for permanent residence as an EU citizen. For example, those who are not economically active, including students, will have to show that they have had comprehensive sickness insurance cover for five years in the UK, notwithstanding that the National Health Service is freely available. We call on the Government to explain whether this consideration will influence the decision it makes on the cut-off point for deciding which EU nationals in the UK are given a permanent right to reside after Brexit. (Paragraph 22)
3. We also call on the Government to publish statistics on the number of EU nationals in the UK who have obtained proof of a permanent right to residence, and the number of applications that are pending. (Paragraph 23)
The loss of EU citizenship rights
4. In the absence of a negotiated settlement, the consequences of the loss of EU citizenship rights for EU nationals in the UK, and for UK nationals in other EU Member States, will be severe. (Paragraph 31)
5. EU nationals in the UK will be subject to national immigration rules, which restrict the rights of migrants far more than EU citizenship law, and which have been described as Byzantine in their complexity by the Court of Appeal. (Paragraph 32)
6. While UK nationals in EU Member States will also be subject to the national immigration law of their host State, they will enjoy additional protection as ‘third-country nationals’ under EU immigration law (except in Denmark and Ireland). The additional protection is, however, a considerable reduction on the migrant rights afforded to EU citizens. (Paragraph 33)
The concerns of EU nationals in the UK
7. It is clear, and unsurprising, that the uncertainty caused by the referendum has given rise to deep anxiety among EU nationals, including Polish, Romanian and French nationals, in the UK. The Government is under a moral obligation to provide certainty and legal clarity to all EU nationals working, living and studying in the UK, who contribute so significantly to the economic and cultural life of the UK. It should do so urgently. (Paragraph 47)
8. There is also a forceful economic case for the Government to act quickly. EU workers play an important role in filling gaps in the labour market that cannot otherwise be filled by UK workers. This is as true for highly skilled job markets, such as medical or financial services, as it is for lower skilled or seasonal job markets. The longer their future is uncertain, the less attractive a place to live and work the UK will be, and the greater labour market gaps will be. (Paragraph 48)
9. The referendum result has contributed to a rise in xenophobia towards EU nationals. We deplore this. Question marks about the rights of EU nationals to live in the UK may be fuelling xenophobic sentiment, as the Bulgarian Ambassador suggested. We call on the Government to explain what action it is taking to counter xenophobia towards EU nationals. (Paragraph 49)
The concerns of UK nationals living in other Member States
10. The anxiety of EU nationals in the UK is matched by that of UK nationals in other EU States—the evidence we received of their distress is compelling. Many are pessimistic that the life that they had planned in another EU Member State will still be possible. Residence rights, employment rights, access to health care and the capacity to finance retirements feature large among their concerns. Just as the Government is under an obligation to provide certainty to EU nationals resident in the UK, so it is under an equal moral obligation to seek to provide certainty and legal clarity to all UK nationals working, living and studying in other EU States. It should do so urgently. (Paragraph 54)
The protection of EU rights as acquired rights
11. It is evident that the term ‘parties’ in Article 70 (1)(b) of the Vienna Convention on the Law of Treaties refers to States, not to individuals or companies. In no sense, therefore, can this provision be said to safeguard individual rights under EU law that will be lost as a consequence of the UK’s withdrawal, in the absence of a negotiated settlement. (Paragraph 60)
12. The evidence we received makes very clear that the doctrine of acquired rights under public international law will provide little, if any, effective protection for former EU rights once the UK withdraws from the EU. The scope of acquired rights is limited to certain contractual and property rights which, even were they to coincide with EU rights, are highly unlikely to be enforceable. Reliance on the doctrine before the referendum as a means of protecting EU rights was therefore misplaced. (Paragraph 71)
13. Litigation is always possible, however, where valuable rights have been lost. There is, therefore, a strong incentive for the Government to address the underlying causes of such potential litigation in the withdrawal agreement. (Paragraph 72)
The protection of EU rights under alternative sources of law
14. In the absence of a negotiated settlement on which EU rights will be maintained, the ECHR offers a more likely route for successful litigation post-Brexit than the international law doctrine of acquired rights. A greater number of EU rights will overlap with ECHR rights, and the ECHR has an effective national enforcement mechanism in the Human Rights Act 1998. (Paragraph 88)
15. The two most relevant ECHR rights are the right to family and private life under Article 8 and the right of peaceful enjoyment of possessions under Article 1 of the First Protocol. Article 8 is likely to be invoked in cases of deportations of EU nationals post-Brexit (should such a policy ever be implemented), to seek to prevent the deportation taking place. Article 1 of the First Protocol will be invoked to protect EU rights to tangible and intangible property that overlap with the scope of “possessions” under that Article. (Paragraph 89)
16. We are not confident that the right to private and family life under Article 8 of the ECHR would prevent the status of EU citizenship from being removed as a consequence of Brexit. The ECHR case law on the protection of citizenship to which we were referred relates to national citizenship. It is arguable whether EU citizenship can be conflated with national citizenship for this purpose: Article 20 of the Treaty on the Functioning of the EU makes clear that EU citizenship “shall be additional to and not replace national citizenship”. (Paragraph 90)
17. There is a risk that the loss of EU citizenship could lead to unlawful discrimination between UK nationals, EU nationals and third-country nationals in the UK post-Brexit, where an ECHR right is engaged, as it could for other UK nationals in other EU Member States. We expect this risk of unlawful discrimination to lead to a high volume of litigation, unless it is addressed in the withdrawal agreement. (Paragraph 91)
18. The overlap between EU and ECHR rights should, however, be kept in context: the full range of EU rights is not covered by the ECHR. In cases where there is no overlap the ECHR will not provide any protection. This appears to be the case for many of the EU rights about which UK nationals living in other Member States are worried, such as the right to work, to study, to retire, to access affordable healthcare and other public services, and to equal treatment. (Paragraph 92)
19. We question whether the UK’s bilateral investment treaties (BITs) will provide effective alternative protection for many EU rights which have been lost as a consequence of the EU’s withdrawal from the EU. We do so for two reasons. First, the scope of BITs is limited to commercial investor rights, with the consequence that the overlap with individual EU rights is unlikely to be wide. Secondly, where there is an overlap with EU rights, EU law would appear to take precedence over a BIT. (Paragraph 98)
20. Litigation is always possible, however, where valuable rights have been lost. There is, therefore, a strong incentive for the Government to address the underlying causes of such potential litigation in the withdrawal agreement. (Paragraph 99)
Contents of the withdrawal agreement
21. We strongly agree with the unanimous view of our witnesses that the withdrawal agreement concluded under Article 50 should set out the EU rights that are to be maintained post-Brexit. This approach will give rise to the greatest legal certainty for EU nationals in the UK, and UK nationals in other EU States. This should be the most important consideration. (Paragraph 104)
22. In the event that the UK exits the EU without a withdrawal agreement,the most effective safeguard for maintaining the citizenship rights of EU nationals in the UK will be national law. It is, therefore, vital that the Great Repeal Bill that the Government plans to introduce in 2017 ensures that the Immigration (European Economic Area) Regulations 2006, which implement the EU Citizens Directive, will remain in force unchanged on the UK’s withdrawal from the EU, with or without a withdrawal agreement. To do so will provide legal certainty to EU nationals in the UK. As importantly, it would mean that other EU Member States are more likely to ensure similarly full protection for UK nationals in their States, who will have lost their status as EU citizens, in the event that a withdrawal agreement is not agreed. (Paragraph 105)
23. The nature of the forthcoming negotiations is such that absolute reciprocity in all matters cannot be guaranteed. Nevertheless, we believe that absolute reciprocity should apply and be guaranteed in respect of citizenship rights. (Paragraph 108)
24. Ultimately, it will be for the Government and its EU partners to determine which EU rights they wish to safeguard in the withdrawal agreement. (Paragraph 120)
25. In our view EU citizenship rights are indivisible. Taken as a whole they make it possible for an EU citizen to live, work, study and have a family in another EU Member State. Remove one, and the operation of others is affected. It is our strong recommendation, therefore, that the full scope of EU citizenship rights be fully safeguarded in the withdrawal agreement. (Paragraph 121)
26. It is clear to us that, in terms of numbers and of complexity, it would be impractical to require EU nationals resident in the UK to apply for indefinite leave to remain under the UK’s Immigration Rules. We draw the Government’s attention to the recommendation of one of our witnesses that a new status of permanent residence should be given to EU nationals in the UK post-Brexit. It would also be open to the Government to grant them the existing status of indefinite leave to remain, while waiving both the usual charges and the requirement to comply with any eligibility criteria other than that they were EU citizens resident in the UK. This would avoid establishing discriminatory status and categories of rights between EU Citizens and other non-UK nationals permanently resident in in the UK post-Brexit. Whichever approach the Government chooses, we recommend that the criteria it applies for permanent residence for EU nationals post-Brexit should be reasonable, flexible, and cost-effective. (Paragraph 122)
Enforcement of the withdrawal agreement
27. We recommend that the rights which are safeguarded in the withdrawal agreement should be frozen as at the date of Brexit; we cannot see any other approach that would provide for legal certainty. (Paragraph 136)
28. The majority of the safeguarded rights are likely to be reciprocal with EU rights, which means that they will have to be applied so far as possible uniformly. EU law will evolve over time, and national legislation and its interpretation by the courts will have to evolve accordingly. We recommend that a reciprocal mechanism be established to ensure that UK law can take account of relevant developments in EU law, and, importantly, that EU law can take account of relevant developments in UK law. (Paragraph 137)
29. The experience of the EEA States and Switzerland in this regard will be instructive. The 2006 extradition agreement between the EU, Norway and Iceland on extradition procedures, for example, may be a helpful precedent. The fact that the duty to keep under review the case law of the respective parties is reciprocal is particularly important: Norway and Iceland have to take account of developments in the case law of the CJEU, but so too the EU has to take account of developments in the case law of the courts of Iceland and Norway. (Paragraph 138)
The case for a unilateral guarantee or early negotiation
30. We urge the Government to change its stance and to give a unilateral guarantee now that it will safeguard the EU citizenship rights of all EU nationals in the UK when the UK withdraws from the EU. The overwhelming weight of the evidence we received points to this as morally the right thing to do. It would also have the advantage of striking a positive note for the start of the negotiations, which will be much needed. (Paragraph 147)
31. Even if the Government refuses to give a unilateral undertaking ahead of the negotiations, there is a strong case to be made for agreeing EU citizenship rights as a preliminary and separate element of the negotiations as soon as Article 50 is triggered. EU nationals in the UK and UK nationals in other EU Member States should not have to wait until the end of the negotiations to find out whether they have a future in the EU States where they have decided to live.
http://www.publications.parliament.uk/pa/ld201617/ldselect/ldeucom/82/8202.htm
Lords Debate on Brexit: European Union Citizenship (13 December 2016)
Asked by Lord Roberts of Llandudno: To ask Her Majesty’s
Government whether they are planning to protect the European Union citizenship status of United Kingdom citizens who were born after the United Kingdom joined the European Union on 1 January 1973.
https://hansard.parliament.uk/lords/2016-12-13/debates/7DF9AD0E-12FA-458F-8D2C-0ECB77F75804/BrexitEuropeanUnionCitizenship
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• New UKVI Guidance on application for UK visa as Tier 1 Investor (15 December 2016): https://www.gov.uk/government/publications/guidance-on-application-for-uk-visa-as-tier-1-investor
• UKVI Policy paper on Home Office response to the Independent Chief Inspector's report 'An inspection of the implementation of the Immigration Act 2014 provisions for tackling sham marriage August to September 2016' (15 December 2016): https://www.gov.uk/government/publications/home-office-response-to-the-report-an-inspection-of-the-implementation-of-the-immigration-act-2014-provisions-for-tackling-sham-marriage-august-to-s
The Independent Chief inspector of Borders and Immigration has published an inspection report on the implementation of the 2014 ‘hostile environment’ provisions for tackling sham marriage.
With effect from 2 March 2015, the Immigration Act 2014 extended the period of notice for couples intending to marry in order to give the Home Office time to investigate the genuineness of the relationship of those it suspected may be sham.
Couples who fail to comply with a Home Office investigation are not permitted to marry. Compliant couples who are assessed as sham may marry, but the Home Office will seek to refuse any future application to remain in the UK based on that marriage.
The inspection found that the initial implementation of the new provisions was problematic, indicating a lack of proper planning:
• the Home Office did not communicate effectively with registrars about its new way of operating, where it no longer attended register offices and prevented ceremonies from proceeding
• new processes were cumbersome and weakened by their reliance on fragmented IT and by the limited operational support received from local enforcement teams, with the result that cases were not being determined within the extended time limit.
From January 2016, the Home Office piloted a revised process aimed at overcoming these problems, which it rolled out nationally from June. This late change meant that the inspection was unable to test fully the efficiency and effectiveness of the new provisions and the ICIBI will re-inspect this area when more evidence of how they are working is available.
This is the third of the Home Office’s ‘hostile environment’ provisions that the ICIBI has inspected in 2016. As with the provisions in relation to UK driving licences and bank and building society current accounts, the ICIBI found that the Home Office was not doing enough to measure either its own performance or the impact of the sham marriage provisions on voluntary returns, enforced removals and on the ‘pull factor’ for individuals considering settling illegally in the UK. Without this, any meaningful evaluation of the ‘hostile environment’ strategy will prove extremely difficult.
Mr Bolt made five recommendations for improvement to the Home Office.
• Commons Library Research Briefing: Brexit and data protection (15 December 2016): http://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7838
• Updated Guidance from UKVI: Immigration Act: part 1 - labour market and illegal working (13 December 2016): https://www.gov.uk/government/publications/immigration-bill-part-1-labour-market-and-illegal-working
Updated: New impact assessment on tackling exploitation in the labour market.
• Updated UKVI guidance on 'Non-compliance and absconder process' (15 December 2016): https://www.gov.uk/government/publications/offender-management
• Supreme Court Cases R (on the application of Mirza) (Appellant) v Secretary of State for the Home Department (Respondent) – UKSC 2015/0209 and R (on the application of Iqbal) (Appellant) v Secretary of State for the Home Department (Respondent) – UKSC 2015/0210 and R (on the application of Ehsan) (Appellant) v Secretary of State for the Home Department (Respondent) – UKSC 2015/0211 (14 December 2016)
Section 3C of the Immigration Act 1971 extends a person’s leave to remain pending Determination of an application to vary the period of leave, so long as the application is made before the original leave has expired. All three appeals before the Court raise the issue of how section 3C applies where an application is made in time, but for some reason is procedurally defective. Sections 50 and 51 of the Immigration, Nationality and Asylum Act 2006 enable the Secretary of State to lay down in immigration rules procedural requirements for applications, including provision for the payment of a fee and the consequences of failure to comply. Similarly, sections 5 and 7 of the UK Borders Act 2007 provide the power to make regulations regarding the provision of biometric information and the effect of failure to comply with these.
Mr Iqbal was granted entry clearance in January 2007 to come to the UK as a student, later extended to 30 April 2011. On 19 April 2011 he applied for further leave to remain as a student, although unaware that the fee had recently increased, he paid the old, lower fee. His application was rejected as invalid for that reason, and his leave expired.
Mr Mirza entered the UK under a student visa which was valid until 31 March 2009. His application to extend leave was rejected for non-payment of the fee when the Secretary of State was unable to take the £295 application fee from his bank.
In Ms Ehsan’s case she had entry clearance until 28 December 2011. She applied for further leave on 23 December 2011 and was contacted by the Secretary of State, requesting that she make an appointment to provide certain biometric information. She was told by letter dated 26 March 2012 that her application was returned as invalid because of her failure to make and attend an appointment for providing biometric information. A new application made on 3 April 2012 subsequently failed.
All three appellants applied for judicial review of the Secretary of State’s decisions, and following refusal of permission to apply for judicial review in the High Court/Upper Tribunal, permission to appeal was granted by the Court of Appeal. The Court of Appeal dismissed their joined appeals on the basis that section 3C did not extend to an application which was not validly made in accordance with the rules.
JUDGMENT
The Supreme Court unanimously dismisses the appeals. . Lord Carnwath gives the judgment, with which the other Justices agree.
Judgment: https://www.supremecourt.uk/cases/docs/uksc-2015-0209-judgment.pdf
Press summary: https://www.supremecourt.uk/cases/docs/uksc-2015-0209-press-summary.pdf
• Case law: Special Immigration Appeals Commission and High Court Decisions (14 December 2016)
Case law: England and Wales High Court (Administrative Court) Decision case MS v Secretary of State for the Home Department [2016] EWHC 3162 (Admin) (09 December 2016)
http://www.bailii.org/ew/cases/EWHC/Admin/2016/3162.html
Case law: Special Immigration Appeals Commission case: B v Secretary Of State For The Home Department [2016] UKSIAC SC_09_2005_2 (12 December 2016)
http://www.bailii.org/uk/cases/SIAC/2016/SC_09_2005_2.html
• Lords Select Secondary Legislation Scrutiny Committee 18th Report published on First-tier Tribunal (Immigration and Asylum Chamber) Fees (Amendment) (No.2) Order 2016 (SI 2016/1149) (15 December 2016)
http://www.publications.parliament.uk/pa/ld201617/ldselect/ldsecleg/84/8402.htm
First-tier Tribunal (Immigration and Asylum Chamber) Fees (Amendment) (No.2) Order 2016 (SI 2016/1149)
These Regulations annul the approximately six-fold increase in the fees for an application to the Immigration and Asylum Chamber of the First-tier Tribunal, made by SI 2016/928 in September. Our 9th Report drew attention to the original Order because of the timing and the degree of opposition expressed. This Order returns application fees to the previous levels with immediate effect stating “in view of all the representations received on the fee levels the Government has decided to take stock and reconsider these specific increases to make sure that the interests of all tribunal users and the taxpayer are being balanced properly”.
• Code of Practice (English Language Requirements for Public Sector Workers) Regulations 2016 (SI 2016/1157)
Section 77 of the Immigration Act 2016 (“the 2016 Act”) provides that public authorities must ensure that anyone who works for them in a public-facing role speaks sufficiently fluent English (or Welsh where appropriate) to do their job effectively. Section 80 of the 2016 Act provides that in determining how to comply with this duty public authorities must have regard to a Code of Practice which this instrument brings into force. The Code includes provision about:
the standard of spoken English required to be met by a person working for a public authority ( or under contract to them);
- ensuring that the requirements are proportionate to the role performed;
- the action available to such a public authority where such a person does not meet that standard, including remedial action;
- the procedure to be operated by a public authority to enable complaints to be made about breaches of the duty; and
- how the public authority is to comply with its other legal obligations as well as the duty.
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• Nine people have been convicted of running an immigration fraud linked to English tests for foreign students: http://www.bbc.co.uk/news/uk-38225712
2 Lords European Union Committee Reports: Brexit & financial services AND future UK–EU security & police cooperation (16 December 2016)
Lords Select European Union Committee Report - Brexit: financial services - 9th Report of Session 2016-17 - published 15 December 2016 - HL Paper 81
http://www.publications.parliament.uk/pa/l...com/81/8102.htm
Lords Select European Union Committee Report - Brexit: future UK–EU security and police cooperation. 7th Report of Session 2016-17 - published 16 December 2016 - HL Paper 77
http://www.publications.parliament.uk/pa/l...com/77/7702.htm
• Lords European Union Committee Report: Brexit & financial services (16 December 2016)
Lords Select European Union Committee Report - Brexit: financial services - 9th Report of Session 2016-17 - published 15 December 2016 - HL Paper 81
http://www.publications.parliament.uk/pa/l...com/81/8102.htm
• Joint Committee on Human Rights 5th report on the human rights implications of Brexit (19 December 2016)
http://www.parliament.uk/business/committe...ublished-16-17/
• The Home Office on Delay to work start date - Tier 2 ICT Migrants
According to the UK BA, the paragraph 23.9 does not apply to Tier 2
ICT migrants, that is, the “The start date given on the CoS must be the date that the migrant will start working for you. It is possible to put this start date back by a sponsor note via your SMS account, but the start date cannot be put back by more than 4 weeks. If the migrant is unpaid for more than 4 weeks from the original start date you cannot continue to sponsor them.”
• According to the UK BA, an employer who accepts ILR in an expired passport would not have a statutory excuse if an employee is found to be working unlawfully
• Colleagues are reporting reported delays in FLR (FP) applications, including waiting 16 weeks to receive a biometric invitation letter
• In one colleague migrant’s case, the Home Office, which had previously registered the child as British on the basis of the father’s British citizenship, is now asking for a DNA test. The parents never married and the father is now estranged. A colleague noted that the High Court had previously held that where the Home Office had issued a passport, the Home Office cannot go back on its decision on the basis of speculation. There must be cogent reasons
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• UK VA Visa and Operation Guidance – all in one place: https://www.gov.uk/topic/immigration-operational-guidance/modernised-guidance
• Updated UKVI Guidance on 'Search and seizure' (19 December 2016): https://www.gov.uk/government/publications/powers-and-operational-procedure
New guidance sections concerning:
• preserving crime scene
• recording and referring evidence
• non-statutory handling of property and baggage
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Recent case-law
• Depesme and Kerrou (Judgment) [2016] EUECJ C-401/15 (15 December 2016)
BAILII link: http://www.bailii.org/eu/cases/EUECJ/2016/C40115.html
Ruling (para 65):
Article 45 TFEU and Article 7(2) of Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union must be interpreted as meaning that a child of a frontier worker, who is able to benefit indirectly from the social advantages referred to in the latter provision, such as study finance granted by a Member State to the children of workers pursuing or who have pursued an activity in that Member State, means not only a child who has a child-parent relationship with that worker, but also a child of the spouse or registered partner of that worker, where that worker supports that child. The latter requirement is the result of a factual situation, which it is for the national authorities and, if appropriate, the national courts, to assess, and it is not necessary for them to determine the reasons for that contribution or make a precise estimation of its amount.
So, the Court of Justice considered whether the step child of a frontier worker could benefit from the social and tax advantages enjoyed by workers under EU law, in this case to access student financial assistance in the same way as family members of an EEA national working in exercise of Treaty rights in Luxembourg.
The Court held that the step children of frontier workers could benefit where the worker supports the child, finding that:
-the child of a migrant worker must be interpreted as including the children of their spouse or their recognised partner;
-there is no distinction between family members recognised for workers and those recognised for frontier workers;
-determining if a worker supports the child involves a factual assessment by the national authorities, it may be evidenced by objective factors such as shared household and it is not necessary to determine to consider whether the child could support themselves, the reasons for providing support to the child, or to make a precise estimation of its amount. The
Court also noted that children are presumed to be dependent until the age of 21 years.
• JA (child – risk of persecution) Nigeria [2016] UKUT 00560 (IAC)
Tribunals Service link: https://tribunalsdecisions.service.gov.uk/utiac/2016-ukut-560
A child can be at risk of persecutory harm contrary to the UN Convention on the Rights of the Child in circumstances where a comparably placed adult would not be at such a risk
• Revised Detention Services Order (DSO) 05/2014: Removal of Electronic Tags
Home Office link: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/578788/DSO_05_2014__Removal_of_Electronic_Tags_.pdf
The Home Office has published a revised detention services order on the removal of electronic tags, which includes an update on the internal processes to be followed.
> R (on the application of Said Aitjilal) v Secretary of State for the Home Department ((EEA Regulations – deportation - reassessment -regulation 24(5)) [2016] UKUT 00563 (IAC)
Tribunals Service link: https://tribunalsdecisions.service.gov.uk/utiac/2016-ukut-563
Neither a decision to make a deportation order nor a notice of intention to make a deportation order triggers the two year period specified in regulation 24(5)* of the EEA Regulations. The two year period begins upon the making of the deportation order itself.
* Regulation 24(5): “Where such a deportation order is made against a person but he is not removed under the order during the two year period beginning on the date on which the order is made, the Secretary of State shall only take action to remove the person under the order after the end of that period if, having assessed whether there has been any material change in circumstances since the deportation order was made, he considers that the removal continues to be justified on the grounds of public policy, public security or public health.”.
• R (on the application of ZM and SK) v The London Borough of Croydon (Dental age assessment) [2016] UKUT 00559 (IAC); resource UPDATED
Tribunals Service link: https://tribunalsdecisions.service.gov.uk/utiac/2016-ukut-559
The decision in this case has now been published by the Tribunals Service with the above citation and following head note.
Head note
1. Considerable circumspection must always be deployed in responding to a claim that statistical evidence tends to prove a fact about an individual. Statistics may be more useful to decision-makers at the far ends of the scale (where they may be able to show the plausibility or implausibility of a proposition) than in the middle of the scale where they purport to show the likelihood of the correctness of a plausible proposition.
2. When considering statistical evidence it is always necessary to determine whether the population constituting the database from which the statistics are drawn is sufficiently identical to the population from which the individual is drawn.
3. The fact that all teeth are mature in the sense that all have reached Demirjian stage H is a sign of chronological maturity but is not a reliable indicator of whether an individual is more or less than 18 years old. The use of the Demirjian stages below stage H does appear to be more reliable in the prediction of age, particularly in the lower teens.
4. None of the three mandibular maturity markers so far identified appears yet to have attained such acceptance in the scientific community that it can be accepted as a reliable pointer to chronological age in the late teens in males.
5. Dental wear is not a guide to chronological age in the absence of data for a population with similar diet and masticatory habits to those of the person under examination.
6. The decision of the Court of Appeal in London Borough of Croydon v Y should not be read as prohibiting a person from refusing to undergo a dental examination. However, (i) the risk inherent in the exposure to x-rays during the taking of the dental panoramic tomograph is not likely to be a reasonable ground for refusing to allow the tomograph to be made, given the advantages stemming from ascertainment of an individual’s true age, and (ii) despite the reservations expressed herein, analysis of a person’s dental maturity may well have something to add to the process of assessing chronological age.
7. It therefore follows that generally speaking the taking of a dental tomograph should be ordered if a party seeks it, and (because of the process of dental maturity) the earlier the tomograph is taken, the more likely it is to be of assistance.
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• The UK guidance “Entering the UK as the holder of an Article 10 residence card” explicitly acknowledges that a permanent residence card will be valid for entry to the UK without the need for a visa:
“If you are a non-EEA national who holds a valid genuine residence card, issued to you as the family member of an EEA national who is exercising free movement rights in another EEA State (i.e. not your EEA relative’s Member State of nationality) under Article 10 of Directive 2004/38/EC (the ‘Free Movement Directive’), you may use this document for travel to the UK if you are accompanying your EEA national relative here, or joining your EEA national relative in the UK.
Another document, “Permanent Residence Card of a Family Member of a Union Citizen” issued under Article 20 of the Directive is also acceptable.”:
https://www.gov.uk/government/publications/entering-the-uk-as-the-holder-of-an-article-10-residence-card/entering-the-uk-as-the-holder-of-an-article-10-residence-card
• UK: An Overview – Migration Observatory Review Key Points: http://www.migrationobservatory.ox.ac.uk/resources/reports/young-people-migration-uk-overview/
The University of Oxford based Migration Observatory has published a new and quite interesting report on young migrants. The key points are:
• Migrants tend to be young when they arrive, typically as young adults coming for work or study, or as children accompanying their parents.
• Most young people whose first or main language is not English also speak good English. They tend to have lower educational achievement when they start school, but they make faster progress and so the gap is largely eliminated by age 16.
• Young migrants are more likely to have degree-level qualifications than the UK born.
• Employment outcomes for young migrants vary depending on their country of origin, gender, and age at arrival in the UK. EEA migrants have high employment rates but are overrepresented in low-skilled work; non-EEA migrants are overrepresented in high-skilled jobs but have lower employment rates.
• International students who remain in the UK after their studies have more favourable labour market outcomes than the average across the foreign-born population.
• It is too early to predict the impact of Brexit on the numbers and outcomes of young migrants living in the UK, although several future scenarios involve a shift in the balance of future migration towards people from non-EU countries.
Poland, India, Pakistan, Germany and Romania make up 5 of the top 6 countries of origin for both under 30’s and the foreign-born population as a whole. The table on reasons for coming to the UK is divided by EEA/non-EEA and shows that proportionately more EEA migrants come for economic reasons and more non-EEA migrants come for study and as family or dependants.
On Brexit, the report reiterates that if the UK Government requires EEA migrants in the UK to prove they are qualified persons, significant numbers of them will be excluded. The report points out that students (generally young people) are one of the groups in potential danger:
People who are most likely to face difficulties meeting a permanent-residence-style requirement include the self-employed, who may find it difficult to produce the necessary paperwork; very low earners, whose work in the UK may not be deemed sufficient for them to qualify as ‘workers’ under EU rules; and students or ‘self-sufficient’ people, who are expected to have comprehensive sickness insurance in the UK but who may not have been aware of this requirement.
• Albino child from Nigeria wins asylum claim: http://www.bailii.org/uk/cases/UKUT/IAC/2016/560.html
A child can be at risk of persecutory harm contrary to the UN Convention on the Rights of the Child in circumstances where a comparably placed adult would not be at such a risk.
• Upper Tribunal approach to proxy marriages conceded to be wrong by Home Office: http://www.bailii.org/ew/cases/EWCA/Civ/2016/1303.html
In an interesting development on the validity of proxy marriages, the Home Office has taken the view in a Court of Appeal case that the Upper Tribunal’s approach in Kareem [2014] UKUT 24 is wrong in law. The Court of Appeal has declined to simply overrule Kareem on this basis, though, and is asking the Attorney General to appoint an advocate to the court.
The general rule of private international law is that a marriage which was lawful in the country in which it occurred will be recognised in other countries. Kareem goes behind this rule in holding that a marriage contracted in country A will only be recognised in the UK if it is also recognised in intermediary country B.
If Kareem does prove to be wrong there will be a lot of people denied their free movement rights and put to considerable litigation expense by the approach of the Upper Tribunal.
• Immigration Minister sets out Home Office approach to ETS language testing cases: http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/home-affairs-committee/english-language-testing/written/44492.html
Interesting letter from the Immigration Minister to the Home Affairs Select Committee setting out the Home Office approach to and strategy on the ETS litigation.
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• Calculating the deadline to submit a Judicial Review. The UK BA’s relevant policy suggest that :
“The team handling the JR must calculate the 3 month time limit for applying for JR from the date on which the applicant was served with the administrative review decision, not the date of the original decision on the application. Administrative review decisions are served in accordance with appendix SN of the Immigration Rules”.
Major UK immigration related case-law, summer-autumn-winter 2016
Two new deportation cases from the Supreme Court: best interests plus the Immigration Rules and Article 8
• Makhlouf v Secretary of State for the Home Department (Northern Ireland) [2016] UKSC 59, [2016] All ER (D) 93 (Nov) (16 November 2016)
In this deportation appeal, the Appellant had two British children with whom he had not had direct contact for a significant length of time. The Supreme Court unanimously dismissed his appeal finding that the children had no relationship with the Appellant. At paragraph 40 Lord Kerr said that where a decision is taken about the deportation of a foreign criminal who has children residing in the UK, separate consideration of their best interests is required, especially if they do not converge with those of the parent to be deported and particularly in the case of a child with dual ethnic background. At paragraph 47 Lady Hale added, ‘it is quite correct to say that children must be recognised as rights-holders in their own right and not just as adjuncts to other people’s rights. But that does not mean that their rights are inevitably a passport to another person’s rights.’
• Ali v Secretary of State for the Home Department [2016] UKSC 60, [2016] All ER (D) 90 (Nov) (16 November 2016)
The Appellant was a failed Iraqi asylum seeker with Class A drug convictions. He was in a long-term relationship with his British fiancée and had two children with whom he had no contact. The Supreme Court dismissed the Appellant’s appeal against the Court of Appeal’s decision to remit the appeal to the Upper Tribunal, however Lord Kerr dissented. The judgments analyse the interaction between the deportation rules and the appellate body considering Article 8 of the European Convention on Human Rights. Appellate decision making in Article 8 cases is governed by Huang [2007] UKHL 11, [2007] 4 All ER 15 and the structured approach. The European Court of Human Rights has given guidance on the relevant factors to take into account (Boultif v Switzerland [2001] ECHR 54273/00, Maslov v Austria [2008] ECHR 1638/03, Jeunesse v Netherlands [2014] ECHR 12738/10). he appellate body’s decision making process is not governed by the Immigration Rules, but should nevertheless involve their consideration. The appellate body must make its own assessment of the proportionality of deportation, on the basis of its own consideration of the factors relevant to the particular case, and application of the relevant law. But in doing so, it must not disregard the decision under appeal. Where the Secretary of State for the Home Department (SSHD) has adopted a policy in relation to the assessment of proportionality, set out in the Rules and endorsed by Parliament, the appellate body should give considerable weight to that policy. Lord Wilson endorsed the balance sheet approach to decision making. Dissenting Lord Kerr concluded that the application of the Rules, and their prescription of the weight to be given to the public interest in the deportation of foreign criminals, were not compatible with the balancing exercise that had to be undertaken in considering the relevant factors arising under Article 8 in a particular case
Appeals
• Sheidu (Further submissions; appealable decision) [2016] UKUT 412 (IAC) (7 September 2016)
A Vice-Presidential panel of the Upper Tribunal (Immigration and Asylum Chamber) (UT) found that if the SSHD makes a decision that is one of those specified in Nationality, Immigration and Asylum Act 2002, s 82(1), it carries a right of appeal even if the intention was not to treat the submissions as a fresh claim. Whilst it is not the job of the First-tier Tribunal (FTT) to determine if further submissions amount to a fresh claim (R (Waqar) v Secretary of State for the Home Department IJR [2015] KUT 169 (IAC), [2015] All ER (D) 78 (Apr) (permission to appeal to Court of Appeal refused by Beatson LJ on 17 November 2015), R (Robinson) v Secretary of State for the Home Department IJR [2016] UKUT 133 (IAC), R (MG) v First-tier Tribunal (Immigration and Asylum Chamber) [2016] IJR UKUT 283 (IAC), [2016] All ER (D) 108 (Jun) and R (Amin Sharif Hussein) v First-tier Tribunal and Secretary of State for the Home Department [2016] UKUT 409 (IAC)) it is the job of the FTT to determine if a decision is one which falls within NIAA 2002, s 82. The UT found that the decision
in the present case was a refusal of a human rights claim and therefore carried a right of appeal.
• Sala (EFMs: Right of Appeal) [2016] UKUT 411 (IAC) (19 August 2016)
Dropping a jurisprudential bomb shell, a Vice-Presidential panel of the UT found that there is no statutory right of appeal against the decision of the SSHD not to grant a Residence Card to a person claiming to be an Extended Family Member as it did not concern a person’s entitlement to be issued with a Residence Card. The SSHD argued in this appeal that there was a right of appeal, however, following the appeal she has incorporated the decision in Sala in the new Immigration (European Economic Area) Regulations 2016 SI 2016/1052.
ETS: the latest developments
The SSHD is now relying on more evidence, both general and specific in ETS/TOEIC cases. This was demonstrated in the latest reported ETS decision
• MA (ETS – TOEIC testing) [2016] UKUT 450 (IAC) (16 September 2016) in which the President allowed the SSHD’s appeal finding that the Appellant’s claims were
demonstrably false. The question of whether a person engaged in fraud in procuring a TOEIC English language proficiency qualification will invariably be intrinsically fact sensitive. The SSHD then decided to withdraw her appeal before the Court of Appeal in Qadir v Secretary of State for the Home Department [2016] EWCA Civ 1167, [2016] All ER (D) 147 (Nov) (25 October 2016) . Beatson LJ gave a judgment which sets out at paragraphs 29-35 how the different categories of cases in the appeal system will be dealt with.
• Immigration, Asylum and Nationality Act 2002, s 117B(6) & reasonableness R (on the application of MA (Pakistan)) and others v Upper Tribunal (Immigration and Asylum Chamber) and others [2016] EWCA Civ 705, [2016] All ER (D) 52 (Jul) (07 July 2016)
Elias LJ confirms that section 117B(6) is a self-contained provision which, if satisfied, would result in Article 8 being infringed. In the assessment of reasonableness, Elias LJ favoured the argument of the appellants—that the focus was solely upon the child. However following MM (Uganda) v Secretary of State for the Home Department [2016] EWCA Civ 450, Elias LJ held that reasonableness included a consideration of the parents and their immigration history. This case concerned ‘7-year’ children and not British children. The SSHD still accepts (in extant policy documents) that it would be unreasonable for British children to leave the EU.
Sponsor licence cases
• R (on the application of Raj and Knoll Ltd) v Secretary of State for the Home Department [2016] EWCA Civ 770, [2016] All ER (D) 90 (Jul), (19 July 2016)
The Court of Appeal comprehensively rejects this appeal in a judicial review hallenge to the revocation of a Tier 2 sponsor licence concerning nursing homes. The Court finds that it is not necessary to decide if the SSHD can operate a ‘light trigger’ approach to revocation and whether the Court should adopt a heightened standard of review as the SSHD did not act on suspicion alone and the Appellant was clearly in breach. The Court however do sound two notes of caution at paragraph 31, with reference to R (Westech College) v Secretary of State for the Home Department [2011] EWHC 1484 (Admin), [2011] All ER (D) 69 (Jun), stressing that the SSHD must comply with her public law duties and that Tier 2 is not identical with Tier 4. Counsel for the SSHD submitted that there may be reasons in a Tier 4 case why the SSHD can act on suspicion alone
Steps to avoid persecution
• Secretary of State for the Home Department v MSM (Somalia) [2016] EWCA Civ 715, [2016] All ER (D) 74 (Jul) (12 July 2016)
The Court of Appeal dismisses the SSHD’s appeal and makes obiter comments rejecting the SSHD’s argument that in imputed political opinion cases the court should consider the reasonableness of taking steps to avoid persecution. See paragraph 37 for a useful summary. This case hopefully sounds the death knell for discretion arguments in protection claims. Dublin III
• Secretary of State for the Home Department v ZAT and others (United National High Commissioner for Refugees and AIRE Centre, intervening) [2016] EWCA Civ 810, [2016] All ER (D) 22 (Aug) (02 August 2016)
The Court of Appeal allowed the SSHD’s appeal against the decision of the UT President in the Calais children case, finding that the UT applied the wrong test in setting too low a hurdle for permitting the Dublin III process to be displaced by Article 8 considerations. However by the time of the appeal two of the four children had been granted refugee status and the SSHD accepted that the UK is the correct place for the asylum claims to be determined.
Clearly unfounded certificates
• R (on the application of FR (Albania) and another) v Secretary of State for the Home Department [2016] EWCA Civ 605, [2016] All ER (D) 101 (Jul) (23 June 2016)
In this Albanian blood feud case the Court of Appeal gave comprehensive guidance on the correct approach to certification of claims as ‘clearly unfounded’ under NIAA 2002, s 94. Beatson LJ states at paragraph 62, ‘the intensity of review in a certification case is at the more and possibly most intensive end of the spectrum to which I have referred at [48] above, but the jurisdiction remains a supervisory and reviewing one’. Davis LJ emphasised at paragraph 126 the importance of the two- stage reasoning process in play and avoiding the impermissible approach of, ‘because I have rejected the asylum claim therefore I certify as clearly unfounded’.
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Updated UK BA Guidance
• Points-based system: Tier 1 (Exceptional Talent): https://www.gov.uk/government/publications/points-based-system-tier-1-exceptional-talent - This version explains the new online application process introduced on 19 December 2016
• Guidance on application for UK visa under Tier 5 (Temporary Worker): https://www.gov.uk/government/publications/guidance-on-application-for-uk-visa-under-tier-5-temporary-worker
• Guidance for dependants of UK visa applicants (Tiers 1, 2, 4, 5): https://www.gov.uk/government/publications/guidance-for-dependants-of-uk-visa-applicants-tiers-1-2-4-5Family members of points-based system migrants: https://www.gov.uk/government/publications/family-members-of-points-based-system-migrants - Updated to allow sponsors to underwrite maintenance for Dependants of Tier 5 migrantsPoints-based system: Tier 5 (Temporary Worker): https://www.gov.uk/government/publications/points-based-system-tier-5-temporary-worker - This guidance has been changed to reflect Immigration Rules changes made in November 2016
• Points-based system: Tier 2: https://www.gov.uk/government/publications/points-based-system-tier-2
• Visitor guidance update: https://www.gov.uk/government/publications/visit-guidance
• Criminal records checks for overseas applicants (20th December 2016): Criminal records checks for overseas applicants (20th December 2016) - Who can apply, how to apply and contact details for criminal record checks overseas
• Returns preparation: https://www.gov.uk/government/publications/returns-preparation
• PBS Dependents’ certain absences from the UK may lead to the PBS dependents’ losing the right to apply for Settlement in line with the recent Statement of changes: https://www.gov.uk/government/publications/statement-of-changes-to-the-immigration-rules-hc667-3-november-2016 : “In paragraph 319E(d)(ii) insert after (c):
“In this sub-paragraph “continuous” means an unbroken period and for this purpose a period shall not be considered to have been broken in any of the circumstances set out in paragraph 245AAA(a)(i) to (iii).”.”
• Entry clearance applications as a partner under Appendix FM – acceptable English language tests. See: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/573290/Approved_Secure_English_Language_Tests_and_Test_Centres.pdf clarified that the applicant needs a test from the list in Table 1, and it only mentions IELTS Life Skills and IELTS for UKVI
General
• Parliamentary and Health Service Ombudsman upholds three in four complaints about the Home Office: http://www.ombudsman.org.uk/about-us/news-centre/press-releases/2016/ombudsman-upholds-three-in-four-complaints-about-the-home-office,-report-reveals
• The President of the Immigration and Asylum Chamber of the Upper Tribunal has found that the Home Office abused its power in forcing a college to expel a student and deliberately depriving him of a statutory right of appeal: https://www.channel4.com/news/home-office-abuse-of-power-over-visa
Recent case-law:
• R (on the application of Mohibullah) v Secretary of State for the Home Department (TOEIC – ETS – judicial review principles) [2016] UKUT 00561 (IAC)
Tribunals Service link: https://tribunalsdecisions.service.gov.uk/utiac/2016-ukut-261
(i) Where there is a multiplicity of decision making mechanisms, some generating a right of appeal and others not, there is a public law duty on the decision maker to be aware of the options and to take same into account when opting for a particular mechanism.
(ii) Where a Tier 4 Student is considered to have made false representations, thereby being liable to discretionary curtailment of leave and has been withdrawn from a course, thereby being liable to mandatory curtailment action there is a duty on the Secretary of State to consider both of the corresponding sections in the “Curtailment of Leave” policy guidance.
(iii) A failure to give effect to policy guidance without justification is in breach of the Lumba principle and renders the ensuing decision vulnerable to being quashed.
(iv) Where a curtailment of leave decision is underpinned by the Secretary of State’s decision that leave to remain had been procured by deception, the appropriate standard of review is the Wednesbury principle rather than proof of the precedent fact of deception.
(v) A decision which has a conspicuously unfair impact on the subject may qualify for condemnation as unreasonable, or irrational, in contravention of the Wednesbury principle.
(vi) The student’s knowledge of an allegation by ETS that he has procured his TOEIC certificate by deception will normally suffice to convey the gist of the case against him, thereby rendering the Secretary of State’s decision making process (in this respect) procedurally fair.
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Recent case-law
• Shabir Ahmed and others (sanctions for non–compliance) [2016] UKUT 00562 (IAC): https://tribunalsdecisions.service.gov.uk/utiac/2016-ukut-562
Head note
Persistent and egregious non-compliance with Upper Tribunal orders, directions and rules will attract appropriate sanctions.
Case note
In a strongly worded judgment by McCloskey, J (President) and Holmes, J (Deputy Upper Tribunal Judge), the Upper Tribunal criticises the conduct of the parties in the four cases before it and in other recent cases, including the three recent ‘ETS’ cases.
Conduct criticised in the present cases included failure to comply with directions or seek clarification of these, failure to seek a case management review hearing if appropriate, repeated unmeritorious requests to adjourn the hearing, failure to provide a hearing bundle or skeleton argument. The Tribunal held:
To describe this state of affairs as grossly unsatisfactory is an acute understatement. The Upper Tribunal has been treated with sustained and marked disrespect. The conduct of these appeals has been cavalier and unprofessional. The rule of law has been weakened in consequence. (§7)
The Upper Tribunal gave a warning of how it would treat misconduct in the future:
“The Upper Tribunal will, henceforth, have recourse to the full panoply of sanctions at its disposal. These include in particular wasted costs orders. There will also be reporting of rulings of this kind. Furthermore, consideration will be given to the invocation of the Upper Tribunal’s contempt powers, together with referrals to professional bodies. (§10)”.
• Naturalization applications, the point on the hospital orders. It is worth noting that the hospital orders will remain on the applicant’s criminal record. The applicant’s GP should know whether and when the patient was ‘conditionally’ or ‘absolutely’ discharged. See paragraph 3.7 of the Good Character requirement as to the impact of hospital orders.
• PBS Maintenance. Para 1A(h) of Appendix C explains that:
“(h) the end date of the 90-day and 28-day periods referred to in (b) and (c) above will be taken as the date of the closing balance on the most recent of the specified documents (where specified documents from two or more accounts are submitted, this will be the end date for the account that most favours the applicant), and must be no earlier than 31 days before the date of application”.
That means that the so-called “90 day period” is counted backwards from the date of the closing balance, not forward from the applicant’s date of choice. That should be taking into consideration when submitting the bank statements with the PBS applications.
• Updated Home Office guidance on permission to work and volunteer for asylum seekers: https://www.gov.uk/government/publications/handling-applications-for-permission-to-take-employment-instruction
Changes since the last version of the guidance:
- updated to include reference to criminality and delay when considering permission to work applications
- improved guidance on applying for permission to work to provide clarity for claimants on what is expected
- updated information about the difference between working for a voluntary organisation and volunteering to make clearer that asylum seekers are able to volunteer
- new guidance template applied, and section and paragraph numbering removed in line with guidance requirements
• Total of 31 illegal immigrants removed from UK as a result of Right to Rent: http://www.propertyindustryeye.com/total-of-31-illegal-immigrants-removed-from-uk-as-a-result-of-right-to-rent/