And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
The case of AB, R (On the Application Of) v The Secretary of State for the Home Department [2018] EWCA Civ 383 has unusual facts, but an unsurprising conclusion: the Home Office cannot grant asylum to someone who is not in the UK
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
On 1 March the Court of Appeal looked at Article 8 of the European Convention on Human Rights in the context of a Tier 1 (Entrepreneur) appeal. Although the appeal was dismissed, the court confirmed that running a business may amount to private life for the purposes of Article 8. The case is Onwuje v Secretary of State for the Home Department [2018] EWCA Civ 331.
The percentage of immigration decisions being reversed by judges is at its highest on record, new statistics show. Exactly 50% of appeals to the immigration tribunal — mostly challenges to Home Office refusals to allow people to stay in the UK — now succeed.
While the proportion of appeals succeeding at the First-tier Tribunal had hovered just below this mark for some time, the third quarter of 2017/18 was the first time that the rate hit 50%. The official data goes back a decade, to 2007/08.
The human rights appeals were the most likely to be allowed, with a 57% success rate. The jump to 50% appears to have been driven by a spike in successful appeals in the “EEA Free Movement” category. Half were allowed in the relevant quarter, compared to 40% earlier in the year.
>>> Inbuilt obstacles and mechanisms that the Home Office use to defeat, deny and deter immigration claims
Some persons may make late human rights or protection claims that could have been made earlier. A person resisting removal may try and make a late claim because if they exercise their right of appeal it could delay removal. To make this behaviour ineffective in preventing or delaying removal, the new process under the Immigration Act 2014 requires that a Section 120 notice is served in every case. This notice requires the person to make any further claim now or as soon as reasonably practicable after it arises
The consequence of not complying with the notice and making a late claim could be that the claim is certified under section 96 Nationality, Immigration and Asylum Act 2002 which removes any consequential right of appeal where the claim is refused.
The Court of Appeal in Tanvir Babar v Secretary of State for the Home Department [2018] EWCA Civ 329 dealt with the application of Immigration Rule 276B. The court highlighted the tensions between the Home Office policy, the application of the Immigration Rule and the weight that needs to be awarded to the public interest in such cases.
Ultimately the judgment reiterates that “compelling circumstances” are necessary to justify a departure from the general rule that people who are excluded from the protection of the Refugee Convention because of crimes against humanity should not be granted indefinite leave to remain.
UK Visas and Immigration guidance about how it decides applications for RCoS under the PBS.
It contains details on:
· how the sponsor applies for RCoS
· the mandatory and optional checks you need to make
· when it is appropriate to consider applying for urgent treatment
· how to grant RCoS
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> Relying on the 3rd party support in the Appendix FM application ?
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
You must check the available evidence to see whether an applicant meets the residence requirements.
The following can be used as evidence of residence:
• original passports or travel documents which have been stamped to show arrival in the UK and entry and departure from other countries:
> these should be checked against the list of absences provided on the application form
-Home Office records
- if the applicant does not have passports to cover the qualifying period, other evidence such as employers’ letters or tax and National Insurance letters:
> in such cases you should assess whether there is sufficient evidence to show that that applicant has been resident in the UK during the qualifying period, giving them the benefit of any doubt where claimed absences are within the limits we would normally allow and there are no grounds to doubt the accuracy of the claim
You must not normally accept doctors’ letters on their own as proof of residence.
However, if nothing else is available and the doctors can confirm that they have seen the applicant on a regular basis during the period concerned these may be accepted.
If there are gaps in a person’s evidence of residence and it is clear from the information available that they could not have travelled, you must accept this. Examples of this might include a refugee who has no means of travel or where immigration records confirm continuous residence. “
A draft Remedial Order to amend the good character requirement for certain applications for British citizenship and address the incompatibility with the Human Rights Act 1998.
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
[size=medium]Повышение цен на визовые сборы UK BA с апреля 2018 + новые формы для граждан EU и членов их мемей, кто хочет получить Permanent Residence в Великобритании[/size]
Form for an EEA or Swiss national, a non-EEA or non-Swiss family member of an EEA or Swiss national, to apply for a document certifying permanent residence or permanent residence card in UK.
>>> Unable to pass the English language test to come to the UK as a spouse ?
See the English language requirement : https://www.gov.uk/guidance/immigration-rules/immigration-rules-appendix-fm-family-members#family-life-with-a-partner
“E-ECP.4.1. The applicant must provide specified evidence that they
….
(d) are exempt from the English language requirement under paragraph E-ECP.4.2.
E-ECP.4.2. The applicant is exempt from the English language requirement if at the date of application-
(a) the applicant is aged 65 or over;
(b) the applicant has a disability (physical or mental condition) which prevents the applicant from meeting the requirement; or
(c) there are exceptional circumstances which prevent the applicant from being able to meet the requirement prior to entry to the UK.”
and also the Appendix FM section 1.21: English language requirement > 6. Disability exemption, etc. : https://www.gov.uk/government/publications/chapter-8-appendix-fm-family-members
“6.2. Definition of disability
This exemption will apply only where the applicant has a physical or mental condition which prevents them from learning English or taking an approved English language test at the required CEFR level. This is not a blanket exemption. Some disabled people will be capable of learning English and taking an approved test at the required level and some will not.
6.3. Evidence required to demonstrate disability
To qualify for this exemption, the applicant must apply for it in their application and submit satisfactory medical evidence from a medical practitioner who is qualified in the appropriate field which sets out the relevant physical or mental condition and from which it may be concluded that exemption on those grounds is justified. Each application for an exemption on this basis will be considered on its merits on a case-by-case basis.
6.4. Authorisation of exemption
Authorisation of this exemption should be agreed by a senior caseworker or equivalent or an entry clearance manager. ”
“You must pay a fee to order a replacement registration or naturalisation certificate, or to correct mistakes on a certificate.
You can’t get a replacement certificate if you became a British citizen before October 1986 – contact UK Visas and Immigration for help.
You may be able to get a certified copy of registration or naturalisation certificates from the National Archives if:
- the registration certificate was issued between 1 January 1949 and 30 September 1986
- the naturalisation certificate was issued between 1 January 1844 and 30 September 1986
it is needed for legal reasons”
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
Short and sweet is the best way to describe the High Court’s decision in BS v Secretary of State for the Home Department [2018] EWHC 454 (Admin). It comes as a useful reminder that whether detention is “reasonable” depends on all the circumstances of the case. In particular, the risk of a detainee absconding is by no means a determinative factor. The case is also useful for its discussion of the second and third Hardial Singh principles when considering vulnerable adults.
The way to go may be a Judicial Review. Whilst it can be hard (and costly) to challenge good character refusals in the higher courts, a challenge is certainly worth pursuing in some cases where the Home Office has ignored substantial mitigating evidence of good character tendered by an applicant, to such an extent as to amount to an “over-rigid reading of the policy”.
>>> Home Office helpline for querying bank account closures finally up and running
The advertised Home Office phone number for challenging an account closure is 0300 123 4979
A short Statement of Changes in Immigration Rules HC895 was laid yesterday, 15 March 2018. It makes minor changes to the Rules to take effect on 6 April. The explanatory memorandum summarises the tweaks as being to:
- Ensure that an asylum claim can be deemed inadmissible, and not be substantively considered by the UK, if another EU Member State has already granted the claimant international protection.
- Make changes and clarifications to the Immigration Rules relating to family life.
- Make the annual update to the list of Permit Free Festivals.
Asylum
Paragraph 345A(i) is changed from:
An asylum claim will be declared inadmissible and will not be substantively considered if the Secretary of State determines that one of the following conditions are met:
(i) another Member State has granted refugee status…
to:
An asylum claim will be declared inadmissible and will not be substantively considered if the Secretary of State determines that one of the following conditions are met:
(i) another Member State has granted refugee status or subsidiary protection…
This change is said to be “in line with both the UK’s established policy on safe third countries, and the EU’s objective in reducing the secondary movements of those granted international protection”.
Family life
In the section on requirements for indefinite leave to remain as a partner, R-ILRP.1.1.(d) currently reads:
the applicant:
(i) must meet all of the requirements of Section E-LTRP: Eligibility for leave to remain as a partner (except that paragraph E-LTRP.1.2. cannot be met on the basis set out in sub-paragraph (c) of that paragraph, and in applying paragraph E-LTRP.3.1.(b)(ii) delete the words “2.5 times”); or
(ii) must meet the requirements of paragraphs E-LTRP.1.2.-1.12. (except that paragraph E-LTRP.1.2. cannot be met on the basis set out in sub-paragraph (c) of that paragraph) and E-LTRP.2.1 – 2.2. and paragraph EX.1. applies; and
This has been deleted and moved, with a slight rewording, to the section on eligibility for indefinite leave to remain as a partner (E-ILRP). The same goes for the requirements for indefinite leave to remain as a parent. The net effect is, again quoting the explanatory memorandum,
to clarify… that those on a 5-year route to settlement must meet all eligibility requirements, including the immigration status, financial and English language requirements, at every application stage including where indefinite leave to remain is sought after five years, in order to be granted leave under these Rules.
Festivals
The list of permit free festivals in Appendix 5 to Appendix V has been updated. The new list is as follows:
(a) Aberdeen International Youth Festival
(b) Africa Utopia (Southbank Centre)
(c) Alchemy (Southbank Centre)
(d) Aldeburgh Festival
(e) Barbican Festivals (Only Connect, Summer Festival, Autumn 1, Autumn 2)
(f) Barclaycard presents British Summer Time Hyde Park
(g) Belfast International Arts Festival
(h) Bestival
(i) Billingham International Folklore Festival of World Dance
(j) BoomTown Fair
(k) Breakin’ Convention
(l) Brighton Festival
(m) Brighton Fringe
(n) Brouhaha International Street Festival
(o) Cambridge Folk Festival
(p) Camp Bestival
(q) Celtic Connections
(r) Cheltenham Festivals (Jazz/Science/Music/Literature)
(s) Common People
(t) DaDaFest International
(u) Dance Umbrella
(v) Download
(w) Edinburgh Festival Fringe
(x) Edinburgh International Festival
(y) Edinburgh Jazz and Blues Festival
(z) Glasgow International Jazz Festival
(aa) Glyndebourne
(bb) Greenbelt
(cc) Harrogate International Festivals
(dd) Hay Festival
(ee) Huddersfield Contemporary Music Festival
(ff) Latitude
(gg) Leeds Festival
(hh) LIFT (London International Festival of Theatre)
(ii) Llangollen International Musical Eisteddfod
(jj) London Jazz Festival (EFG)
(kk) Meltdown (Southbank Centre)
(ll) Norfolk and Norwich Festival
(mm) Reading Festival
(nn) RiZE
(oo) Snape Proms
(pp) The Royal Edinburgh Military Tattoo
(qq) Wireless
(rr) WOMAD
(ss) WWE Live
There are a few additions and omissions compared to last year. Of the big names, Glastonbury has been removed, as there is no Glastonbury this year. V Festival is no longer on the list either, but only because it has been rebranded as RiZE, which is listed. Room is made for the British Summer Time festival in Hyde Park.
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> Home Office News Story: Restrictions on Croatian workers to expire in June
The current registration requirements for Croatian workers will expire on 30 June bringing their rights to work in Britain in line with other EU citizens.
Immigration Minister Caroline Nokes made the announcement in a Written Ministerial Statement to Parliament.
Legally, the UK could only extend the controls for a final 2 years if there was clear evidence that removing the controls would lead to a serious labour market disturbance. The Government has considered the evidence and with unemployment at near record lows, employment of UK nationals at near record highs and the Eurozone and Croatia forecast to grow strongly over the next 2 years, concluded the economic case for an extension could not be made.
When Croatia joined the EU in 2013, the UK and other member states were able to restrict the access that Croatian citizens had to their labour markets for a maximum of 7 years. The UK is one of a few EU countries (Austria, Slovenia and the Netherlands) which applies such measures. The restrictions have meant that, unless an exemption applied, Croatians needed permission from the Home Office to work in the UK.
Immigration Minister Caroline Nokes said:
“This decision has not been taken lightly, but after careful consideration, we have concluded that there is not enough evidence to satisfy the legal requirements to extend the controls for the final 2 year period.
Net migration of EU citizens has fallen in the last year by 75,000 and since joining the EU in 2013 only around a few thousand Croatians have moved to the UK. Estimates suggest there are below 10,000 Croatian in the UK and by comparison, in 2009 at the same point of transitional controls for Romanian and Bulgarian workers there were around 57,000 Romanians and 35,000 Bulgarians living in the UK, according to the Office for National Statistics.
The time-limited restrictions to member states’ labour markets were provided for under the Treaty of Accession 2011 between Croatia and the EU and can be applied for five years, plus an additional two years if required to protect the member state’s labour market from serious disturbance.
Under the UK’s application of the restrictions, Croatian partners and spouses of British nationals or other nationals settled in the UK are exempt, as are Croatian citizens who have worked in the UK for 12 months with the appropriate authorisation.
This guidance gives information on deciding applications from self-employed Turkish businesspersons who wish to apply for an extension of stay in the UK to self-establish in business or continue operating their business under the Turkish EC Association Agreement.
The Home Office will no longer accept applications for Indefinite Leave to Remain (ILR) under the Turkish European Communities Association Agreement (ECAA) Business Persons category.
This is in light of the Upper Tribunal’s reported judgment in Aydogdu v SSHD [JR/15737/2015]. The Upper Tribunal found that the settlement of Turkish nationals and their dependants did not fall within the scope of a provision of the European Community Association Agreement with Turkey, called the ‘standstill clause’. While the Home Office examined the implications of the decision, ECAA ILR applications continued to be processed until 16 March 2018.
No new ECAA ILR applications will be accepted on or after 16 March 2018. Any ECAA settlement applications postmarked prior to 16 March will be processed under the same terms as before. Updated guidance is available on this page.
Turkish business persons and their dependants can continue to apply for further leave to remain under the ECAA if they wish, for up to 3 years at a time, provided they continue to meet the relevant requirements. Applications for limited leave to remain under the ECAA provisions are unaffected by the Aydogdu judgment and will continue to be processed free of charge as normal.
The UK BA intends to introduce a new ILR category for current Turkish ECAA business persons into the Immigration Rules. While the requirements of such a category are to be determined, this will be a charged route in line with others who are seeking to settle in the UK.
Family members of a Turkish national in the UK under the European Community Association Agreement can use this form to apply to extend their stay in the UK.
If you are a Turkish national running a business in the UK under the European Community Association Agreement, use this form to extend your stay in the UK.
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> How much are the UK BA fees are changing from the 6th April 2018 ?
The UK BA fees will be increased on 6 April 2018.
The key changes are outlined below.
· Increased fees on growth routes (work, study and visit) by 4%.
· Increased fees on most non-growth routes (nationality, settlement, family) and most associated premium services by 4%.
· The fee for the overseas optional ‘Priority Visa’ service for entry clearance will increase by 15%.
· For the fourth year running, we are not making any changes to fees under the sponsorship system.
· Fees for entry clearance to enter the Channel Islands and Isle of Man will rise in line with fee changes seen in the rest of the UK.
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
Датальная расшифровка последней (21 Март 2018) версии намерений британского правительства в отношении граждан EU и членов их сейчас сейчас и после Brexit. Особо важная ифнформация выделена красным цветом
>>> Brexit: settled status and citizens’ rights – what has been agreed – detailed analysis – most recent UK Government's draft (21 March 2018)
On 21 March the European Union and the UK published the impressively named Draft Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community. In other words, a draft Brexit divorce agreement.
NB This is a DRAFT, not a law, so in line with the UK Government's mantra, be aware that “nothing is agreed until everything is agreed”.
The Draft Agreement ensures that EU citizens and their family members, who are legally residing in the UK in accordance with Union law, can continue to do so. This means that those EU citizens who are working, self-employed, who have sufficient resources for themselves and their families, who are studying, or have retained these rights, will be protected under the Draft Agreement.
The UK may, should it choose to do so, require EU citizens and their family members living in the UK to apply for a new residence status and in doing so set requirements which can be less but not more stringent than those contained in the Draft Agreement. The purpose of any such application is to verify the EU citizen’s pre-existing right, and their family’s pre-existing right, to reside in the UK. The resulting residence status is being called “settled status” by the Home Office.
The Draft Agreement also protects certain family members who are not living in the UK at the end of the transition period, allowing this select group to join their EU citizen relative later. Those family members not included in this select group will need to apply under stringent UK immigration rules if they wish to live in the UK.
Certain other rights currently enshrined in EU law would be preserved, including benefits and healthcare entitlements. EU citizens who have made contributions into the UK benefits and pension system will continue to benefit from those contributions during their time in the UK and will continue to do so if they subsequently relocate to the EU.
EU citizens will be allowed to be outside the UK for five consecutive years without losing these rights, which is longer than the two year period currently allowed.
Changes from the EU’s Draft Agreement published in February
The UK has accepted that the Court of Justice of the European Union will remain the final arbiter of the interpretation of EU law for the rights of EU citizens. Also, and amazingly, the Home Office’s preference to give lesser rights to EU citizens arriving during the transition period — that is, between 29 March 2019 and 31 December 2020 — has been defeated. This policy didn’t last very long and is a major victory for the EU. Free movement is locked in until the end of 2020.
Both are substantial concessions by UK government and it will be interesting to see how this plays out within the Conservative party.
Evolutionary changes are not always for the better. The Commission draft contained protections for EU citizens who marry or enter into civil partnerships after 31 December 2020, enabling these partners to come to live in the UK at a later date. This has been removed. Only those who are so related before 31 December 2020 are protected.
If the UK chooses to implement an application process, the deadline for those who have resided in the UK before the end of the transition period to make an application has been reduced from two years to a maximum of six months from 31 December 2020.
What are the protected rights and who can acquire them?
The Draft Agreement, and the UK government’s proposed implementation of it, establishes:
EU citizens who have resided in the UK lawfully for five years before 31 December 2020 will be entitled to “settled status” to protect their continued right to reside in the UK.
This settled status will not be automatically conferred; all EU citizens, including those with permanent residence documents, will have to make an application to acquire it.
Those who arrived in the EU before 31 December 2020 but who have not lived in the UK for five years will be allowed to apply for temporary status (also being referred to as “pre-settled status” by the Home Office to enable them to acquire five years of residence. At that point, they can apply for settled status.
EU citizens who lived in the UK as self-sufficient persons or students will not need to show that they had comprehensive health insurance in order to qualify for the new settled status.
Those that do not apply before the application deadline will, without serious and good reasons for not doing so, be residing without permission and will be subject to removal.
EU citizens and family members who acquire new criminal convictions or issues affecting their character from 31 December 2020 will be subject to assessments under UK immigration rules and could see their documents revoked and, if not removed from the UK be banned for a period from applying for British citizenship.
Family members will be allowed to reside in the UK under these proposals so long as they were already residing in the UK before 31 December 2020. Specific family members may be allowed to join EU citizens after 31 December 2020. All other family members will be excluded from protection under the Draft Withdrawal Agreement.
The agreement does not cover Norway, Iceland, Lichtenstein and Switzerland, but it is expected to extend to those countries in the future. Irish citizens, it is said by the Home Office, are not affected and will not need to apply for settled status.
Are all EU citizens safe?
Only EU citizens who fall under Article 6 and Article 7 of Directive 2004/38/EC, and who are legally resident in the UK, will be protected by the Draft Agreement. This means the EU citizen must be and continue to be a worker, self-employed person, student, or self-sufficient person, or have lawfully retained those rights. The agreement is silent on what happens to EU citizens who cannot meet these requirements after 31 December 2020.
The UK government’s proposes to implement the Draft Agreement by introducing the “settled status” scheme. So far, it appears to be more relaxed, as it will not actually require EU citizens to demonstrate how they meet Article 6 and Article 7. The UK government has said that EU nationals will only need to evidence that they have been and are living in the UK, and undergo criminality checks, in order to qualify under their proposed application process.
The Draft Agreement confirms that deadline for submitting the application for temporary and settled status shall not be more than six months from 31 December 2020. For family members who join EU citizens in the UK the deadline to submit their applications shall be three months after their arrival or not more than six months after 31 December 2020, whichever is later.
If the Home Office system collapses under the burden of the workload, the deadline to submit applications can be extended by an additional year. The Home Office will need to notify the EU and EU citizens where technical difficulties in the application process occur.
One problem arises for EU citizens who are not resident in the UK on 31 December 2020 but have the right of permanent residence here. The Draft Agreement, on first glance, suggests that those EU citizens who already hold a permanent residence document for the UK but who are not living in the UK as at 31 December 2020 may not be included in the new application process.
What about family members?
The family members of those who arrived before 31 December 2020 are covered by the Draft Agreement. In general, only family members who are legally resident in the UK by this date will be able to apply for the new status. But family members as defined under Directive 2004/38/EC will be able to arrive after that date so long as the relationship existed before that date and there is evidence of this. In this group are:
- pre-existing spouse
- civil partner
- durable partners
- children or grandchild under 21
- dependent children or grandchildren older than 21
- dependent direct relatives in the ascending line
The same applies for children born or adopted after 31 December 2020.
Other dependent relatives (for example, aunts, uncles, brothers, sisters, cousins, nieces, nephews) will be protected by the Draft Agreement so long as they were already residing in the UK prior to 31 December 2020.
Also, included in the Draft Agreement are other persons whose presence is required in the UK by EU citizens in order not to deprive that EU citizen of their rights. For example, a non-EU citizen carer of an EU citizen child will be included in the protection of the Draft Agreement so long as they were residing in the UK prior to 31 December 2020.
Children of those applying for settled status can apply for settled status at the same time as their parents. Those born in the UK by parents with settled status will be born British.
What rights of exit and entry will EU citizens and their family members have between now and 31 December 2020?
All EU citizens, and their family members, will be able to move freely into and out of the UK. An EU citizen can continue to use a valid passport or national identity card for travel. Non-EU family members cannot use their national identity card, and must rely on their passport for travel. After five years following 31 December 2020, the UK may decide not to accept national identity cards as a travel document for EU citizens if the national identity card does not include a biometric chip.
Those who possess temporary and settled status will not be required to apply for exit or entry visas. For those that do not possess the new documentation, the UK has the option to implement exit or entry visas.
For family members who reside outside the UK on 31 December 2020 and are able to join their EU citizen family members, they will be required to have an entry visa. The UK should assist that person in doing so and any such visa should be free of charge.
What if an EU citizen already possesses a permanent residence document?
Those who already hold a permanent residence document can have that document converted into the new settled status document free of charge subject to verifying their identity, a criminality and security check and by providing confirmation of continued residence.
This means that those who have already paid once will not be required to do so again. Therefore, there remains a benefit to obtaining a permanent residence document under EU law now. Being in possession of a document will avoid having to undergo a full assessment later, simultaneously with three million other EU citizens plus their family members.
[size=medium]Also, no matter how simple the new process is or how well publicised, there remains ongoing confusion as to the status of EU citizens or family members now when managing their day-to-day lives, and this may increase as we move beyond 29 March 2019 and into the transition period. Holding a document will prevent confusion when individuals attempt to rent a property, move between jobs or open a bank account. That is not forgetting the scenario, however small, that Brexit does not occur and the UK remains part of the European project. [/size]
How will the future status be protected and enforced?
If the new application under the UK government’s proposed scheme is refused before 31 December 2020, the application can be remade. After 31 December 2020 the applicant will have to appeal the decision to the UK First-tier Tribunal (Immigration and Asylum Chamber).
While the tribunal will decide the appeal, the Court of Justice will continue to be the ultimate arbiter of the interpretation of EU law for the rights of citizens. This means the UK courts can continue to refer to its judgements. It also means that UK courts can continue to seek further interpretation and clarifications from the Court of Justice in areas of uncertainty for eight years after 31 December 2020.
While the Court of Justice will continue to have the final say for an eight year period, it falls short of the promise of full protection for the citizen’s lifetime. But with the adjudication and enforcement mechanism remaining in place for the short term, the rights of EU and UK nationals living abroad will be secure for sufficiently long enough a period to acquire citizenship from their host state. It does mean that acquiring citizenship of a host country may no longer be a choice but a necessity for some.
What about EU citizens who are outside the UK on 31 December 2020?
EU citizens and their family members, who will be living outside the UK at 31 December 2020, should be considered as having a right of residence if they have acquired, and not subsequently lost, permanent residence. There is no rule on in-country or out-of-country applications in the Draft Agreement, which supports the view that permanent residence is evidence of residence, and an application for settled status can be made from outside the UK so long as they have not lost the right of permanent residence through an absence of a consecutive five year period.
Any EU citizen currently residing outside of the UK who sees the UK their long-term home should consider applying for the document confirming their right of permanent residence in the UK.
What about EU citizens with criminal records?
It will be easier to refuse settled status on grounds of criminality than it is now for EU citizens, or their family members, who acquire new criminal records or new issues of conduct after 31 December 2020.
Currently, there is a very high test under EU law requiring EU citizens to pose a genuine present and sufficiently serious threat to justify removal from the UK. This stringent test will continue to apply for all EU citizens and their family members for criminal records or issues of conduct acquired before 31 December 2020. People who acquire convictions or conduct issues after 31 December 2020 will no longer be protected by this EU law test. Instead, their applications will be subject to the UK’s assessment of criminality, which has a lower threshold to justify removal, leaving this group of EU citizens and family members at a greater risk of removal.
While it is easy to tell individuals not to get into trouble, sometimes it is not always within their control. The vulnerable will be at a greater risk of falling under the UK assessment of criminality in the future.
Remaining legal questions...
It is quite a travesty that it has taken this long for the UK government to make firm commitments for the protection of EU citizens in the UK. Much of what has been agreed is uncontentious and unsurprising, and could have provided much needed reassurances earlier in this process. Also many questions remain, including amongst others:
- What will happen to EU citizens resident in the UK but not legally because they were not, for example, working?
- What about homeless EU citizens, who cannot be considered lawfully resident in the UK?
- Will an EU citizen with a permanent residence document but outside the UK on 31 December 2020 be excluded from applying for settled status?
- Will an EU citizen without a permanent residence document but who has automatically acquired permanent residence and living outside of the UK on 31 December 2020 be excluded from applying for settled status?
- Why should EU citizens who start relationships or get married after 31 December 2020 be prevented from bringing their partners to the UK under the new application process?
While some questions remain unanswered we should not lose sight of the fact that we do have clarity for the majority of EU citizens currently in the UK.
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
Guidance for how UK Visas and Immigration considers applications to enter or remain in the UK as a dependant of a PBS migrant.
Version 13.0 of the guidance was published for Home Office staff on 15 January 2018.
Changes from last version of this guidance:
• Format changes
• Change to maintenance rules
• Changes to settlement rules
• Genuine requirement added to LTR partner requirement
• Changes to the work rights for dependents of Tier 4 migrants
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> Can an Entry Clearance application be made for a non-EEA family member child at the port of entry provided the child had been born in the UK yet was taken outside of the UK, say, on emergency family matters ?
Apparently, it may be possible. Usually, no forms are needed. The responsible adulyi needs to prepare documents similar to those requested by an EEA family permit application. Of course, the Admission is subject to the Regulation 11(4)
>>> Switching from a 10 Year parent route to Settlement to a 5 year parent route to Settlement
Such a switching may be possible, usually via the FLR(FP) application form. The applicant usually needs to pass the relevant English Test and show the income to the relevant level. The current UK immigration rules suggest that, even if the 5 Year route to Settlement leave is not granted, the applicant may still be entitled for further leave under the same 10 Year route to Settlement
>>> No more settlement for Turkish business people under the Ankara Agreement
The guidance contains a number of changes but the most important one is the change to eligibility for indefinite leave to remain (also known as settlement). It reflects the Upper Tribunal case of R (Aydogdu) v Secretary of State for the Home Department (Ankara Agreement – family members – settlement) [2017] UKUT 167 (IAC) and the Scottish case Bektas Alagoz [2017] CSOH 27.
Up until 16 March, Turkish businesspersons who were in the UK under the Ankara Agreement could get indefinite leave to remain after four years. In the May 2017 case of Aydogdu, the Upper Tribunal found that the Ankara Agreement’s “stand-still clause”, which prevents the imposition of additional immigration rules over and above those in place when the UK signed up the Ankara Agreement in 1973, does not apply to settlement applications.
This is because:
“The grant of limited leave to enter and remain to the family members of a Turkish national exercising rights will, in all cases bar the most exceptional, suffice to ensure the efficacious exercise and enjoyment of the economic right in play [paragraph 34]”
The Secretary of State was therefore entitled to change the rules for eligibility for indefinite leave to remain for Turkish businesspersons and their family members, and so she has.
The new guidance now says that settlement applications submitted before 16 March 2018 will be granted to those who have spent:
“a continuous period of four years in the UK, of which the most recent period of leave must be as a Turkish ECAA businessperson and the rest made up of leave as:
a Turkish ECAA businessperson
-a Tier 1 (Entrepreneur) migrant
-a businessperson
- an innovator”
This is provided they do not fall for refusal because of suitability or good character problems.
But for applications for settlement made on or after 16 March 2018:
“there is no provision for the granting of ILR under the provisions of the Turkish ECAA.”
Those applicants will instead be granted a further period of three years’ leave, provided they meet the requirements for further leave.
The guidance contains no transitional agreement. This may lead to litigation on the basis that Turkish business persons who came to the UK under the old rules had a legitimate expectation of eventually settling in the UK, similar to the HSMP litigation.
Presumably, even if that fails, Turkish businesspersons who can extend their leave until they have reached ten years’ continuous lawful residence in the UK will be able to apply for settlement at that point, under paragraph 276B of the Immigration Rules.
Turkish businesspersons who have not yet entered the UK and who could meet stringent rules for Tier 1 Entrepreneur visas may chose that route instead. It still leads to settlement after five years, or three years for entrepreneurs who create ten or more full-time jobs or a business income of £5 million or more.
That said, the route requires that applicants have access to not less than £50,000 or £200,000, depending on the source of the funding. That is a sum that many applicants are unlikely to have access to.
The Court of Appeal in Secretary of State for the Home Department v (OP) Jamaica [2018] EWCA Civ 316 dealt with a deportation appeal in context of assessing the weight to be given to Article 8 and the best interests of children. The judgment echoes previous decisions, in that these factors alone will not be sufficiently strong and compelling to override the public interest in deportation.
Immigrants from other EU countries do not reduce average wages for UK-born workers. So said the Migration Advisory Committee (MAC), a crack team of independent economists that advises the government on immigration policy, in an interim report published today.
[font=Arial, sans-serif][size=small]04 April [/size][/font][font=Arial, sans-serif][size=small]2018 – Read the reviews about our assistance to immigrants and their families like yours here: https://legalcentre.org/reviews.php[/size][/font]
[align=justify][font=Arial, sans-serif][size=small]And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - [/size][/font][font=Arial, sans-serif][size=small]www.legalcentre.org[/size][/font][font=Arial, sans-serif][size=small] – Mob : +44(0)7791145923[/size][/font][/align]
[align=justify][font=Arial, sans-serif][size=small]>>>[/size][/font][font=Tahoma, sans-serif][size=small] Can one apply for Naturalization without first obtaining ILR (Settlement) ?[/size][/font][/align]
[align=justify][font=Tahoma, sans-serif][size=small]Apparently, the answer may be “yes” for those, who are classified as the employees of certain International Organizations, who are exempts from the immigration control.[/size][/font][/align]
[align=justify][font=Tahoma, sans-serif][size=small]If there employees are still exempt at the 5-year residence point, they meet the requirements for Naturalisation under the Para 1 Schedule 1 of the BNA 81. Those requirements do not include having ILR, though that is the route most must take to be free of immigration restrictions: [/size][/font]https://www.legislation.gov.uk/ukpga/1981/61/schedule/1[/align]
Очень важно — заявления по EEA Law, включая Retained Right of Residence/обновление PR карточек
Я столкнулся со следующей ситуаций. Я так же вижу, что на закрытом юридическом форуме для адвокатов мои коллеги так же столкнулись с подобной ситуацией.
На основании EEA Regulations, о «обычных» заявлениях на получение 5-и летней BRP на основании брака с гражданином/гражданкой EU, или на получение PermanenT Residence после 5-и лет брака с гражданином/гражданкой EU, всегда нужно посылать оригинальный паспорт/ID карту европейского супруга.
По заявлениям же на основании развода с бывших европейским супругом или даже для обновления “закончившейся»/потерянной PR визы/BRP карточки можно было просто послать копию ID/паспорта бывшего супруга/и (для многих пар получить оригинал ID бывшего супруга не предоставляется возможным — плохое отношения, бывший EU спонсор живет за рубежем и т. п.).
Теперь UK BA, ссылается на Regulation 21(5) и в ультимативном порядке требует (формально - задним числом, т. е. уже после отказа в большинстве случаев) предоставление оригинального EU ID или EU паспорта даже у тех заявителей, кто уже не в браке c EU супругами и кто подает на первое заявление на Retained Right of Residence, тех, кто уже получил Retained Right of Residence и уже самостоятельно (т. е. без EU спонсора подает на PR) или даже у тех, что уже получил PR и кому нужно обновить PR.
В вышеперечисленных сценариях UK BA ожидает только предоставление оригинального документа – EU ID card/Passport (бывшего) супруга(и) из EU.
Если предоставить оригинальный EU ID card/Passport (бывшего) супруга(и) из EU не возможно, потенциально можно попробовать доказать то, что были сделаны все попытки (E-mail, заказная почта, частный детектив).
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> New application forms and guidances from 06 April 2018
Form to apply for an extension of stay or indefinite leave to remain in the UK if you were refused asylum but given another type of permission to stay in the UK.
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> Can a fresh out of country application be lodged while an out of country appeal is pending ?
Apparently, yes, in line with the Section 20 APL1.20
Applicant makes fresh application while an appeal is outstanding
A person who has an appeal pending can make a fresh application for entry clearance in the same or any other category. There is no requirement for a person to withdraw an appeal. If an appellant is subsequently issued an entry clearance, post must inform the tribunals service at: mailto:eco.contact@hmcts.gsi.gov.uk. The ECO must ensure that a proforma of withdrawal of decision is also sent to the Tribunals Service and this appeal will stop.
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
Secretary of State for the Home Department v Said [2018] EWCA Civ 627 is about how long the Home Office can delay making an immigration decision before the applicants can successfully claim for damages under the Human Rights Act 1998. The Home Office was appealing a decision from the High Court, where HHJ Thornton had delivered a fierce rebuke to the department for administrative incompetence. The Court of Appeal dismissed the appeal and provided guidance on how to tackle extreme delays in reaching immigration decisions.
The appeal itself is a tragic illustration of the consequences of bad administration. The first respondent died just months after being granted indefinite leave to remain, having waited ten years for his entitlement to be recognised.
The Court of Appeal ruled that such delays can go beyond maladministration and amount to a breach of human rights, specifically Article 8 of the European Convention on Human Rights, and just satisfaction for the breach may lead to substantial damages. Additionally, the court held that the Home Office’s internal complaints procedure did not amount to an alternative remedy to be pursued before legal proceedings are brought.
The Home Office’s defeat in this appeal is a step towards greater judicial control over slow decision-making. Although the delay in this case was long, the family were not vulnerable asylum-seekers and did not experience severe detriment, such as becoming street homeless or otherwise destitute. Instead, the breach of human rights was based on the typical difficulties suffered by those waiting for the Home Office to grant them leave they are entitled to. By taking a firm line against the Home Office for their behaviour towards this family, the courts have indicated that their deference to public authorities has its limits. The decision will put pressure on the Home Office to deal with applications efficiently in order to avoid interference with human rights.
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
List of organisations licensed to sponsor workers under Tiers 2 and 5.
This document lists Tier 2 and 5 sponsors. It includes information about the category of workers they’re licensed to sponsor and their sponsorship rating.
List of institutions licensed to sponsor migrant students under Tier 4.
This document lists institutions licensed to sponsor migrant students under Tier 4. It includes information about the category of students they’re licensed to sponsor and their sponsorship rating.
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
Form for a family member of an EEA or Swiss national in the UK to apply for a registration certificate or residence card.
11 April 2018: Form has been revised to remove duplicate question. NB The form is 100 (!) pages long
1. Where a claimant appeals against a decision to deport or remove and there are outstanding family proceedings relating to a child of the claimant, the judge of the Immigration and Asylum Chamber should first consider:
i) Is the outcome of the contemplated family proceedings likely to be material to the immigration decision?
ii) Are there compelling public interest reasons to exclude the claimant from the United Kingdom irrespective of the outcome of the family proceedings or the best interest of the child?
iii) In the case of contact proceedings initiated by an appellant in an immigration appeal, is there any reason to believe that the family proceedings have been instituted to delay or frustrate removal and not to promote the child’s welfare?
2. In assessing the above questions, the judge will normally want to consider: the degree of the claimant’s previous interest in and contact with the child, the timing of contact proceedings and the commitment with which they have been progressed, when a decision is likely to be reached, what materials (if any) are already available or can be made available to identify pointers to where the child’s welfare lies?
3. Having considered these matters the judge will then have to decide:
i) Does the claimant have at least an Article 8 right to remain until the conclusion of the family proceedings?
ii) If so, should the appeal be allowed to a limited extent and a discretionary leave be directed as per the decision on MS (Ivory Coast) [2007] EWCA Civ 133?
iii) Alternatively, is it more appropriate for a short period of an adjournment to be granted to enable the core decision to be made in the family proceedings?
iv) Is it likely that the family court would be assisted by a view on the present state of knowledge of whether the appellant would be allowed to remain in the event that the outcome of the family proceedings is the maintenance of family contact between him or her and a child resident here?
List of organisations licensed to sponsor workers under Tiers 2 and 5.
This document lists Tier 2 and 5 sponsors. It includes information about the category of workers they’re licensed to sponsor and their sponsorship rating.
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> Appendix FM spouse visas – how long can a migrant be absent from the UK ?
The following is a quote from the Appendix FM 1.0a: Family Life (as a Partner or Parent): 5-Year Routes > 8.1.10. Intention to live together permanently in the UK:
"In applications for further limited leave to remain or for indefinite leave to remain in the UK as a partner, where there have been limited periods of time spent outside the UK, this must be for good reasons and the reasons must be consistent with the intention to live together permanently in the UK. Good reasons could include time spent overseas in connection with the applicant’s or their partner’s employment, holidays, training or study.
If the applicant, their partner or both have spent the majority of the period overseas, there may be reason to doubt that the couple intend to live together permanently in the UK. Each case must be judged on its merits, taking into account reasons for travel, length of absence and whether the applicant and partner travelled and lived together during the time spent outside the UK. These factors will need to be considered against the requirements of the Rules.
>>> Can a PBS migrant’s child with an expired leave be registered as a British citizen ?
Apparently, the answer is “yes”, as under the Registration by entitlement under the Section 1(3) after a parent has ILR is not a problem for a UK born baby with expired leave because the Good character requirements does not apply until the applicant is aged 10 or over.
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> Exemption from deportation for the long term resident Commonwealth citizens
The exemption from deportation for long-term resident Commonwealth citizens at can be found at the Section 7 of the Immigration Act 1971. If the appellant could prove he had entered the UK before 1 January 1973, he was exempt from deportation and the appeal would be allowed.
The Immigration Act 1971 introduced an exemption from deportation for Commonwealth and Irish citizens who were ordinarily resident at the time of commencement
Nearly three years after the main appeal provisions of the Immigration Act 2014 commenced, the Upper Tribunal has turned its attention to the question lying at the heart of almost all appeals lodged since then: what is a human rights appeal anyway?
As the court established, a human rights claim is made where the facts of the case disclose a human rights claim, whether or not the words “human rights claim” are used and whether or not the application is made under the “human rights claim” paragraphs of the Immigration Rules.
This may be tolerably clear to informed lawyers. It will be as clear as muck to litigants in person, who will depend on the Home Office to tell them in the notice of refusal whether there is a right of appeal or not. And the Home Office cannot be trusted to get that right, as this case shows.
Rights of appeal in immigration cases are a shambles.
This may be tolerably clear to informed lawyers. It will be as clear as muck to litigants in person, who will depend on the Home Office to tell them in the notice of refusal whether there is a right of appeal or not. And the Home Office cannot be trusted to get that right, as this case shows.
Rights of appeal in immigration cases are a shambles.
It would be far simpler just to accept that if a human rights claim is made in an application, implicitly or explicitly, and the application is refused, then this is a refusal of a human rights claim.
The official headnotes :
Baihinga (r. 22; human rights appeal: requirements) [2018] UKUT 90 (IAC)
1. The scope for issuing a notice under rule 22 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (circumstances in which the Tribunal may not accept a notice of appeal) is limited. A rule 22 notice may be issued at the stage where the First-tier Tribunal scrutinises a notice of appeal as soon as practicable after it has been given. Where no rule 22 notice is issued at that stage and the matter proceeds to a hearing, the resulting decision of the First-tier Tribunal may be challenged on appeal to the Upper Tribunal, rather than by judicial review (JH (Zimbabwe) v Secretary of State for the Home Department [2009] EWCA Civ 78; Practice Statement 3).
2. An application for leave or entry clearance may constitute a human rights claim, even if the applicant does not, in terms, raise human rights. In cases not covered by the respondent’s guidance (whereby certain applications under the immigration rules will be treated as human rights claims), the application will constitute a human rights claim if, on the totality of the information supplied, the applicant is advancing a case which requires the caseworker to consider whether a discretionary decision under the rules needs to be taken by reference to ECHR issues (eg Article 8) or requires the caseworker to look beyond the rules and decide, if they are not satisfied, whether an Article 8 case is nevertheless being advanced.
3. The issue of whether a human rights claim has been refused must be judged by reference to the decision said to constitute the refusal. An entry clearance manager’s decision, in response to a notice of appeal, cannot, for this purpose, be part of the decision of the entry clearance officer.
4. A person who has not made an application which constitutes a human rights claim cannot re-characterise that application by raising human rights issues in her grounds of appeal to the First-tier Tribunal.
Charles (human rights appeal: scope) [2018] UKUT 89 (IAC)
(i) A human rights appeal under section 82(1)(b) of the Nationality, Immigration and Asylum Act 2002 (“NIAA 2002”) can be determined only through the provisions of the ECHR; usually Article 8.
(ii) A person whose human rights claim turns on Article 8 will not be able to advance any criticism of the Secretary of State’s decision making under the Immigration Acts, including the immigration rules, unless the circumstances engage Article 8(2).
(iii) Following the amendments to ss.82, 85 and 86 of NIAA 2002 by the Immigration Act 2014, it is no longer possible for the Tribunal to allow an appeal on the ground that a decision is not in accordance with the law. To this extent, Greenwood No. 2 (para 398 considered) [2015] UKUT 629 (IAC) should no longer be followed.
>>> Experts highlight flaws in settled status scheme for vulnerable EU citizens:
Migration policy experts have warned that the system of registering EU citizens to stay in the UK after Brexit risks excluding the most vulnerable, who will end up as unlawfully resident if they fail to register or are turned down.
A briefing from the influential Migration Observatory at the University of Oxford, published today, says that the question of what happens if significant numbers of people fail to apply for “settled status” is still unresolved.
While there is no exact precedent for registering some 3.6 million people, other government schemes involving mandatory applications in order to secure a benefit show that getting everyone eligible signed up in time is unlikely. Research into the take-up of benefits and paying taxes “makes it clear that 100% coverage of the eligible EU citizen population within a period of a couple of years is not likely”. Similarly, “in the United States, an estimated 34% of unauthorised migrants eligible for the Deferred Action for Childhood Arrivals regularisation programme had not applied 3.5 years after the programme began”.
In the wide-ranging and somewhat sorry case of El Gazzaz v Secretary of State for the Home Department [2018] EWCA Civ 532 the Court of Appeal has confirmed the strength of the presumption in favour of deporting foreign criminals.
Official headnote to Yussuf (meaning of “liable to deportation”) [2018] UKUT 117 (IAC):
“Section 32 of the UK Borders Act 2007 impliedly amends section 3(5)(a) of the Immigration Act 1971 by (a) removing the function of the Secretary of State of deeming a person’s deportation to be conducive to the public good, in the case of a foreign criminal within the meaning of the 2007 Act; and (b) substituting an automatic “deeming” provision in such a case. The judgments of the Supreme Court in Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60 make this plain. To that extent Ali (section 6 – liable to deportation) Pakistan [2011] UKUT 250 (IAC) is wrongly decided.”.
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
A new team to help Commonwealth citizens confirm their status in the UK has been announced by the Home Secretary today.
"The new dedicated team will work across government to help individuals identify and gather evidence to confirm their existing right to be in the UK. The team will include a dedicated contact point and aim to resolve cases within 2 weeks once the evidence has been put together. In addition, no one affected will be charged for the documentation which proves their right to be here.
The package of measures is being introduced to support individuals, who have resided in the UK for an extended period of time, and encourage them to come forward and regularise their stay. It will help guide individuals through the process and use data from across government to help build a picture that will evidence a person’s right to be here.
Home Secretary Amber Rudd said:
This is about individuals, people who have built their lives here in the UK and contributed so much to our society. I don’t want them to feel unwelcome or to be in any doubt about their right to remain here. There is absolutely no question about their right to remain and I am very sorry for any confusion or anxiety felt.
The vast majority will already have documentation that proves their right to be here. For those that don’t I am announcing a new dedicated team that will be set up to help these people with getting the documentation they need and do it quickly.
We’ve also set up a webpage and have been speaking to charities, community groups and High Commissioners about providing advice and reassurance to those affected and we will set up a dedicated contact point to ensure this is resolved as soon as possible.
The new team will work with HM Revenue and Customs, the Department for Work and Pensions, the Department of Health and Social Care, the Department for Education and other relevant bodies to help people evidence their right to be here.
The Home Office has also published a new web page which provides information and guidance for former Commonwealth citizens.
It gives examples of the type of evidence that can be provided to support applications including exam certificates, employment records, your National Insurance number, birth and marriage certificates or bills and letters."
Information about what undocumented long-term residents of the UK need to do to obtain documents showing their status here.
This page provides more information for Commonwealth citizens in the UK who may not have documents demonstrating their right to be here (known as ‘Windrush’ cases). It sets out a series of scenarios which may be relevant to you, provides links to forms and guidance as well as information about what evidence can be provided as part of your application and contact information.
In the case of Quaidoo (new matter: procedure/process) [2018] UKUT 87 (IAC), the tribunal tells appellants that if they do not like a decision on what is or is not a “new matter” they will have to judicially review the tribunal’s decision.
The official headnote:
1. If, at a hearing, the Tribunal is satisfied that a matter which an appellant wishes to raise is a new matter, which by reason of section 85(5) of the Nationality, Immigration and Asylum Act 2002, the Tribunal may not consider unless the Secretary of State has given consent, and, in pursuance of the Secretary of State’s Guidance, her representative applies for an adjourn-ment for further time to consider whether to give such consent, then it will generally be ap-propriate to grant such an adjournment, rather than proceed without consideration of the new matter.
2. If an appellant considers that the decision of the respondent not to consent to the considera-tion of a new matter is unlawful, either by reference to the respondent’s guidance or other-wise, the appropriate remedy is a challenge by way of judicial review.
Lord Justices Hickinbottom, Kitchin and Coulson have delivered an interesting judgment concerning the free-standing balancing exercise of Article 8 ECHR in the context of a leave curtailment. The case is Tikka v Secretary of State for the Home Department [2018] EWCA Civ 632.
The Court of Appeal found that the suitability test applicable in entry clearance and leave to remain cases when the applicant has “caused serious harm” is the same. It went on to state that there is no point in requiring an appellant who has always legally resided in the UK to leave the country and apply for entry clearance if his leave is curtailed in order to assess his Article 8 rights.
The case may be of use to the appellants for its analysis of the (lack of) public interest in requiring applicants who have legally resided in the UK to leave the country if their leave is curtailed, in order to have their Article 8 claim assessed.
The court was clear in stating that even a temporary separation pending an application to re-enter would not be proportionate where the applicant is not unlawfully present in the UK. This conclusion sits well with authorities such as Chikwamba, MA (Pakistan) and Hayat. If there is no issue of “queue-jumping” the Home Office has no reason to require that an application be made from abroad.
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> If you are a British citizen by descent and have children born abroad and you are a single mother - what visa do you apply for the children to come to the UK on then ?
Also, if the child’s mother has previously lived in the UK for at least three continuous years prior to child’s birth, then the child may be entitled to register as a British citizen by descent under Section 3(2).
It is worth remembering, however, that the registration under the Section 3(5), after three years’ residence in the UK, may be preferable, as the child would then be British otherwise than by descent.
This page provides more information for Commonwealth citizens in the UK who may not have documents demonstrating their right to be here (known as ‘Windrush’ cases). It sets out a series of scenarios which may be relevant to you, provides links to forms and guidance as well as information about what evidence can be provided as part of your application and contact information.
>>> It has been brought to our attention that many EEA nationals are being asked to resubmit all the evidence that they submitted for their Permanent Residence documents when seeking to naturalise as British Citizens. Further, we have been informed of cases where naturalised EEA nationals are being asked to resubmit evidence when they renew their passports to check that original caseworkers did not make any errors in the initial naturalisation process. This is the warring trend indeed…
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
On 10 April 2018, Advocate General Bobek delivered his Opinion in C-89/17 Secretary of State for the Home Department v Banger, following a reference made to the Court of Justice of the European Union, by the former President of the Upper Tribunal, McCloskey J.
There were four questions referred to the CJEU. Essentially, the issue is whether Surinder Singh free movement rights apply to unmarried couples as well as spouses. The President also asked whether the lack of a right of appeal against the refusal of a residence card to an extended family member was compatible with EU law.
The Advocate General concluded that the principles derived from case law such as Singh and O and B were not limited to family members. They could be applied by analogy to extended family members too; in this case, an unmarried partner.
Therefore, the Advocate General considered:
“Article 21(1) and Article 45 TFEU must be interpreted as meaning that, where a Union citizen has created or strengthened his family life during the exercise of residence rights in another Member State, the facilitation regime provided for in Article 3(2) of Directive 2004/38 is applicable by analogy to the partner with whom the Union citizen has a durable relationship upon the return of the Union citizen to his Member State of origin. As a result, that Member State must facilitate, within the meaning of Article 3(2) of the directive, in accordance with its national legislation, the entry and residence of the partner with whom the Union citizen has a duly attested durable relationship.
When a Union citizen returns to his Member State of origin after having exercised his residence rights in another Member State where he has created or strengthened his family life with a partner with whom he has a duly attested durable relationship, Article 21(1) and Article 45 TFEU require that, when deciding on the entry and residence of that partner, the Member State of origin of the Union citizen undertakes an extensive examination of their personal circumstances and justify any refusal of entry or residence, pursuant to Article 3(2) of Directive 2004/38.”
The judgment is anticipated in approximately three to six months.
The judgment is noteworthy for what it says about the Home Office approach to litigation, and for demonstrating how hard it is to win a deportation appeal.
“There was no issue of general importance other than the suggestion that there was a “systemic” problem in the UT. That was an unusual allegation and a serious one… Having obtained permission on that basis, the Appellant failed either to make the submission good with evidence or to pursue the argument. She abandoned it without even explaining why. In my view, in all the circumstances of this case, the Appellant’s conduct was indeed unreasonable to a high degree.”
It is ironic that the Secretary of State complained of a “systemic” issue with the Upper Tribunal’s treatment of deportation cases.
It has long been the Secretary of State’s approach to challenge every allowed deportation appeal, notwithstanding the merits of the case, arguing at almost every turn that determinations of the immigration tribunals refuse to exhibit sufficient cap-doffing to the “public interest” in booting out foreign criminals.
As ever in this area, decisions are driven as much by politics as they are the law, with no apparent concern for the consequences. The Court of Appeal’s punitive costs order is the least it could have done.
Lord Justice Irwin has labelled the Immigration Rules a “disgrace” in the latest example of judicial disquiet over the complexity and poor drafting of the bedrock immigration regulations.
Speaking earlier this week, the Court of Appeal judge hit out at “obscurity” and “cannibalistic drafting” in legislation, of which he said the Rules “provide many classic examples”. The end result is a product that lay people find “completely impenetrable”. Irwin concluded that:
"The Immigration Rules are, in truth, something of a disgrace."
Irwin, who was first appointed to the judiciary in 2006, noted that the work of the parliamentary and government lawyers who draft laws “can be rendered more difficult where political objectives, perhaps particularly populist political objectives, come into play”.
In a speech entitled “Complexity and obscurity in the law”, Irwin also used the EEA Regulations as an example of bad practice. They contain “at least three different bases on which the Secretary of State could refuse an application” from an extended family member, the judge pointed out, “though it was often unclear how these interrelated”. Irwin was part of the Court of Appeal bench that decided Khan v Secretary of State for the Home Department [2017] EWCA Civ 1755 (reported on Free Movement in this post), from which that example comes.
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> Can the missing part of the lawful residence under the 10 Year Long Residence Rule (para 276) be accumulated while awaiting an appeal hearing ?
The answer is “it may”. That means that if the appeal has not yet been heard by the judge, then the appellant may apply to vary the grounds, relying on the case of the MU (‘statement of additional grounds’ – long residence – discretion) Bangaldesh [2010] UKUT 442 (IAC) where the Tribunal agreed that a person could accumulate ten years (for the Long Residence application for ILR) while waiting for an appeal hearing and that it would then be up to the Tribunal to rule on whether the Appellants met the criteria. If the only missing part were the English language / KOL requirement then the Respondent would grant a shorter period of leave.
The headnote of that case reads as follows:
“As held in AS (Afghanistan) and NV (Sri Lanka) [2010] EWCA Civ 1076, there is no time limit on serving a Statement of Additional Grounds in response to a ‘section 120 notice’. Thus, an appellant may accrue ten years’ lawful leave (including leave extended by section 3C of the 1971 Act) while his appeal is pending. The Tribunal may then be asked to decide whether the appellant qualifies for indefinite leave under the Long Residence Rule.”
If the appellant has already had the hearing and is just waiting for the decision, there is no benefit to the appellant in waiting until the appeal rights are exhausted unless the appellant needs a positive finding on an ancillary matter in order to succeed under 276B – for example, if the appellant needs a finding that the appellant has not used ETS deception, for example.
>>> There is no residence requirement for registration in case the child is born in the UK but is then taken overseas for a number of years, and the parents are divorced. If, say the father is granted ILR and is naturalized as a British citizen, the child can then generally be registered as a minor British citizen at any time.
>>> Submitting the missing documents after the application was lodged is not a good idea
The reason is described in the para 34 of the Rules. Also, as an example, the para D of the Appendix FMSE states that:
“D. (a) In deciding an application in relation to which this Appendix states that specified documents must be provided, the Entry Clearance Officer or Secretary of State (“the decision-maker”) will consider documents that have been submitted with the application, and will only consider documents submitted after the application where sub-paragraph (b), (e) or (f) applies.”
The difficulty is that the date of submission is usually the date of posting under para 34 of the Rules. Therefore, if an applicant deliberately does not provide any documents at the time of the application, not reassurance can be assumed that the application can then unilaterally submit additional
documentation unless requested by the caseworker.
Members of the Windrush generation who arrived in the UK before 1973 will be eligible for free citizenship, the Home Secretary Amber Rudd announced today.
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
“21. EUN2.21 Applications from direct descendants under 18
In order to protect the interests of minors, ECOs should ensure that they have established parental responsibility for children applying for EEA family permits as direct descendants of EEA nationals, particularly where one or both parents will not be accompanying the child to the UK. In these cases it is reasonable to ask for the written consent of the child’s parent(s) or legal guardian(s) for the child to travel before issuing the EEA family permit.”
>>> The Premium Settlement Service Package is the USA (and only) allows the applicant applying for Settlement to keep both the passport and the Priority Service together
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> Tier 2 applicants and the drop of salary due to the foreign currency fluctuations
According to the UK BA, a salary may at no point drop below a minimum threshold due to exchange rate fluctuations.
Information about obtaining evidence for undocumented long-term residents of the UK to prove their status here.
25 April 2018: We have added information for landlords and employers conducting checks on undocumented Commonwealth citizens.
A series of publications that explore migrants' journeys through the UK's immigration system.
The publications provide evidence on the behaviour of migrants entering the UK immigration system for the main routes of entry to the UK and the common pathways through the immigration system that result in settlement.
From the seventh report a more descriptive title has been adopted to indicate that this analysis provides information on changes over time in migrants’ visa and leave status.
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
Guidance on arranging removals for officers dealing with immigration enforcement matters within the UK.
2 May 2018: Replaced the returns preparation with a new version.
MEPs sent a letter to UK Secretary of State raising concerns about the online application system to register the 3.5 million EU citizens living in the UK after Brexit.
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> ILR BRP card only “valid” until 31 December 2024 – less than 10 years - why ?
The reason is the 2024 expiry date is due to an encryption requirement by the EU.
From the UK BA:
“The 31 December 2024 validity date is due to a requirement by the EU to restrict BRPs which do not incorporate the next generation of encryption technology.
As the UK intends to introduce the new technology during 2016 the date restriction affects only BRPs issued to adults with settled status (ILR/NTL).
Any BRP rightfully held on 01 July 2024 that is restricted will be replaced free of charge, with the balance of the 10 year period initially expected being issued on a new BRP.
This means that anyone who has paid a fee in expectation of receiving ten year evidence of settled status will still do so, but it will be spread over two BRPs.
The date restriction does not change the entitlements of the rightful holder to work, access services/benefits or travel. The rightful holder still has settled status.”
>>> Tier 1 Entrepreneur – legal representative’s confirmation in relation to para 41(a)(vii) of the Appendix A
The relevant financial institution’s in-house lawyers may be be able to provide the letter in paragraph 41(a)(vii), namely
“an original letter (or letters) from one or more legal representatives (who are not the applicant or the third party) confirming that the third party’s declaration and the letter from the financial institution contain the genuine signatures of the required signatories - paragraph 41(a)(vii) of Appendix A”
>> Tier 2 License sponsorship and the Resident Labour Market Test – the abolition of the Universal Jobmatch web site
The Universal Jobmatch will be replaced by 'Find a Job' on 14 May 2018. The UK BA has not yet updated their Guidance. At the same time the UK BA is aware of this the UK BA intends to shortly update their rules and guidance to reflect the change. The job adverts posted on either Universal Jobmatch (before it closed and which are still within the normal timescales) or the new Find a Job service can be used for the purpose of satisfying the Resident Labour Market Test.
From the UK BA:
“Transitional arrangement won’t be needed. We plan to update the Rules and guidance in the next scheduled update abut in the meantime, references to Universal Jobmatch should be interpreted as including its successor ‘Find a job’.
We’ve been advised that ‘Find a job’ will be available to employers from 14 May. No new jobs can be posted on Universal Jobmatch after 17 May, however as Universal Jobmatch won’t close until 18 June, the resident workforce will still be able to view advertisements placed on it for 28 days. After 18 June the adverts will disappear as they aren’t being migrated to the new platform.
As always, sponsors will be required to retain evidence:
Where the vacancy has been advertised online through Jobcentre Plus or Jobcentre Online, you must keep a screen shot from the relevant government website on the day the vacancy is first advertised which clearly shows all of the following:
• logo of the relevant government website hosting the job advertisement
• contents of the advert
• vacancy reference number for Universal Jobmatch vacancies this is the ‘Job ID number’ and for Jobcentre Online this is the Job Reference number
• date
• URLfor Universal Jobmatch vacancies this also contains the Job ID number
• closing date for applications
Note: the GOV.UK website will, over time become the main portal for government services and information in the UK. The following are accepted as relevant government websites for jobs advertised using Universal Jobmatch or, Jobcentre Plus for jobs advertised before 19 November 2012:
• JobCentre Online
• GOV.UK
• Direct Gov
Note: if the website clearly shows the date the vacancy was first advertised, the screen shot can be taken at any point during the period the vacancy is advertised.
Appendix D of the Sponsor guidance (from where the above information was taken) will be updated in due course to include references to ‘Find a job’.
Комментарии
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> Home Office can only grant asylum to claimants in the UK, says Court of Appeal: http://www.bailii.org/ew/cases/EWCA/Civ/2018/383.html
The case of AB, R (On the Application Of) v The Secretary of State for the Home Department [2018] EWCA Civ 383 has unusual facts, but an unsurprising conclusion: the Home Office cannot grant asylum to someone who is not in the UK
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> Running a business may amount to private life for the purposes of Article 8 : http://www.bailii.org/ew/cases/EWCA/Civ/2018/331.html
On 1 March the Court of Appeal looked at Article 8 of the European Convention on Human Rights in the context of a Tier 1 (Entrepreneur) appeal. Although the appeal was dismissed, the court confirmed that running a business may amount to private life for the purposes of Article 8. The case is Onwuje v Secretary of State for the Home Department [2018] EWCA Civ 331.
>>> Half of all immigration appeals now succeed : https://www.gov.uk/government/statistics/tribunals-and-gender-recognition-certificate-statistics-quarterly-october-to-december-2017
The percentage of immigration decisions being reversed by judges is at its highest on record, new statistics show. Exactly 50% of appeals to the immigration tribunal — mostly challenges to Home Office refusals to allow people to stay in the UK — now succeed.
While the proportion of appeals succeeding at the First-tier Tribunal had hovered just below this mark for some time, the third quarter of 2017/18 was the first time that the rate hit 50%. The official data goes back a decade, to 2007/08.
The human rights appeals were the most likely to be allowed, with a 57% success rate. The jump to 50% appears to have been driven by a spike in successful appeals in the “EEA Free Movement” category. Half were allowed in the relevant quarter, compared to 40% earlier in the year.
>>> Inbuilt obstacles and mechanisms that the Home Office use to defeat, deny and deter immigration claims
Some persons may make late human rights or protection claims that could have been made earlier. A person resisting removal may try and make a late claim because if they exercise their right of appeal it could delay removal. To make this behaviour ineffective in preventing or delaying removal, the new process under the Immigration Act 2014 requires that a Section 120 notice is served in every case. This notice requires the person to make any further claim now or as soon as reasonably practicable after it arises
The consequence of not complying with the notice and making a late claim could be that the claim is certified under section 96 Nationality, Immigration and Asylum Act 2002 which removes any consequential right of appeal where the claim is refused.
>>> Appeal judges take firm line on settlement for people committing crimes against humanity : http://www.bailii.org/ew/cases/EWCA/Civ/2018/329.html
The Court of Appeal in Tanvir Babar v Secretary of State for the Home Department [2018] EWCA Civ 329 dealt with the application of Immigration Rule 276B. The court highlighted the tensions between the Home Office policy, the application of the Immigration Rule and the weight that needs to be awarded to the public interest in such cases.
Ultimately the judgment reiterates that “compelling circumstances” are necessary to justify a departure from the general rule that people who are excluded from the protection of the Refugee Convention because of crimes against humanity should not be granted indefinite leave to remain.
>>> Home Office Guidance re. Points Based System Sponsor Licensing: restricted certificates of sponsorship (9 March 2018) : https://www.gov.uk/government/publications/pbs-sponsor-licensing-restricted-certificates-of-sponsorship
UK Visas and Immigration guidance about how it decides applications for RCoS under the PBS.
It contains details on:
· how the sponsor applies for RCoS
· the mandatory and optional checks you need to make
· when it is appropriate to consider applying for urgent treatment
· how to grant RCoS
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> Relying on the 3rd party support in the Appendix FM application ?
Find the relevant Rules here: https://www.gov.uk/guidance/immigration-rules/immigration-rules-appendix-fm-se-family-members-specified-evidence
>>> Home Office Guidance: Guidance on application for UK visa as Tier 4 student (13 March 2018) : https://www.gov.uk/government/publications/guidance-on-application-for-uk-visa-as-tier-4-student
Guidance on UK Visas and Immigration's policy for applications to stay or come to the UK under Tier 4 (General) and Tier 4 (Child).
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> Statement of changes to the Immigration Rules: HC895 (15 March 2018) : https://www.gov.uk/government/publications/statement-of-changes-to-the-immigration-rules-hc895-15-march-2018
>>> Naturalisation as a British citizen by discretion: nationality policy guidance on proving the residence (if no ID is available to cover the relevant period) : https://www.gov.uk/government/publications/naturalisation-as-a-british-citizen-by-discretion-nationality-policy-guidance
“Absences
You must check the available evidence to see whether an applicant meets the residence requirements.
The following can be used as evidence of residence:
• original passports or travel documents which have been stamped to show arrival in the UK and entry and departure from other countries:
> these should be checked against the list of absences provided on the application form
-Home Office records
- if the applicant does not have passports to cover the qualifying period, other evidence such as employers’ letters or tax and National Insurance letters:
> in such cases you should assess whether there is sufficient evidence to show that that applicant has been resident in the UK during the qualifying period, giving them the benefit of any doubt where claimed absences are within the limits we would normally allow and there are no grounds to doubt the accuracy of the claim
You must not normally accept doctors’ letters on their own as proof of residence.
However, if nothing else is available and the doctors can confirm that they have seen the applicant on a regular basis during the period concerned these may be accepted.
If there are gaps in a person’s evidence of residence and it is clear from the information available that they could not have travelled, you must accept this. Examples of this might include a refugee who has no means of travel or where immigration records confirm continuous residence. “
>>> Home Office Guidance: Good character requirement: a Remedial Order (15 March 2018) : https://www.gov.uk/government/publications/good-character-requirement-a-remedial-order
A draft Remedial Order to amend the good character requirement for certain applications for British citizenship and address the incompatibility with the Human Rights Act 1998.
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
[size=medium]Повышение цен на визовые сборы UK BA с апреля 2018 + новые формы для граждан EU и членов их мемей, кто хочет получить Permanent Residence в Великобритании[/size]
>>> The New UK BA fees from April 2018 (increased, as expected, though not massively): https://www.gov.uk/government/publications/visa-regulations-revised-table
Immigration and nationality fees for all applications made from outside and within the UK.
>>> The new Home Office Form - EEA(PR): Apply for a permanent residence document or permanent residence card: form EEA (PR) : https://www.gov.uk/government/publications/apply-for-a-permanent-residence-document-or-permanent-residence-card-form-eea-pr
Form for an EEA or Swiss national, a non-EEA or non-Swiss family member of an EEA or Swiss national, to apply for a document certifying permanent residence or permanent residence card in UK.
>>> Unable to pass the English language test to come to the UK as a spouse ?
See the English language requirement : https://www.gov.uk/guidance/immigration-rules/immigration-rules-appendix-fm-family-members#family-life-with-a-partner
“E-ECP.4.1. The applicant must provide specified evidence that they
….
(d) are exempt from the English language requirement under paragraph E-ECP.4.2.
E-ECP.4.2. The applicant is exempt from the English language requirement if at the date of application-
(a) the applicant is aged 65 or over;
(b) the applicant has a disability (physical or mental condition) which prevents the applicant from meeting the requirement; or
(c) there are exceptional circumstances which prevent the applicant from being able to meet the requirement prior to entry to the UK.”
and also the Appendix FM section 1.21: English language requirement > 6. Disability exemption, etc. : https://www.gov.uk/government/publications/chapter-8-appendix-fm-family-members
“6.2. Definition of disability
This exemption will apply only where the applicant has a physical or mental condition which prevents them from learning English or taking an approved English language test at the required CEFR level. This is not a blanket exemption. Some disabled people will be capable of learning English and taking an approved test at the required level and some will not.
6.3. Evidence required to demonstrate disability
To qualify for this exemption, the applicant must apply for it in their application and submit satisfactory medical evidence from a medical practitioner who is qualified in the appropriate field which sets out the relevant physical or mental condition and from which it may be concluded that exemption on those grounds is justified. Each application for an exemption on this basis will be considered on its merits on a case-by-case basis.
6.4. Authorisation of exemption
Authorisation of this exemption should be agreed by a senior caseworker or equivalent or an entry clearance manager. ”
>>> How to get a replacement UK citizenship certificate: https://www.gov.uk/get-replacement-citizenship-certificate
“You must pay a fee to order a replacement registration or naturalisation certificate, or to correct mistakes on a certificate.
You can’t get a replacement certificate if you became a British citizen before October 1986 – contact UK Visas and Immigration for help.
You may be able to get a certified copy of registration or naturalisation certificates from the National Archives if:
- the registration certificate was issued between 1 January 1949 and 30 September 1986
- the naturalisation certificate was issued between 1 January 1844 and 30 September 1986
it is needed for legal reasons”
>>> Home Office Guidance: Status of EU citizens in the UK: what you need to know (16 March 2018): https://www.gov.uk/guidance/status-of-eu-nationals-in-the-uk-what-you-need-to-know
Information for European Union citizens living in the UK.
>>> Home Office Guidance: Preventing illegal working (16 March 2018): https://www.gov.uk/government/publications/preventing-illegal-working
Modernised guidance for how UK Visas and Immigration detects illegal workers.
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> Risk of absconding is not a trump card in unlawful detention cases : http://www.bailii.org/ew/cases/EWHC/Admin/2018/454.html
Short and sweet is the best way to describe the High Court’s decision in BS v Secretary of State for the Home Department [2018] EWHC 454 (Admin). It comes as a useful reminder that whether detention is “reasonable” depends on all the circumstances of the case. In particular, the risk of a detainee absconding is by no means a determinative factor. The case is also useful for its discussion of the second and third Hardial Singh principles when considering vulnerable adults.
>>> >>> Challenging good character refusals in British citizenship applications ? http://www.bailii.org/ew/cases/EWHC/Admin/2018/399.html
The way to go may be a Judicial Review. Whilst it can be hard (and costly) to challenge good character refusals in the higher courts, a challenge is certainly worth pursuing in some cases where the Home Office has ignored substantial mitigating evidence of good character tendered by an applicant, to such an extent as to amount to an “over-rigid reading of the policy”.
>>> Home Office helpline for querying bank account closures finally up and running
The advertised Home Office phone number for challenging an account closure is 0300 123 4979
>>> New statement of changes to the Immigration Rules: HC895 - https://www.gov.uk/government/publications/statement-of-changes-to-the-immigration-rules-hc895-15-march-2018
In-depth report :
A short Statement of Changes in Immigration Rules HC895 was laid yesterday, 15 March 2018. It makes minor changes to the Rules to take effect on 6 April. The explanatory memorandum summarises the tweaks as being to:
- Ensure that an asylum claim can be deemed inadmissible, and not be substantively considered by the UK, if another EU Member State has already granted the claimant international protection.
- Make changes and clarifications to the Immigration Rules relating to family life.
- Make the annual update to the list of Permit Free Festivals.
Asylum
Paragraph 345A(i) is changed from:
An asylum claim will be declared inadmissible and will not be substantively considered if the Secretary of State determines that one of the following conditions are met:
(i) another Member State has granted refugee status…
to:
An asylum claim will be declared inadmissible and will not be substantively considered if the Secretary of State determines that one of the following conditions are met:
(i) another Member State has granted refugee status or subsidiary protection…
This change is said to be “in line with both the UK’s established policy on safe third countries, and the EU’s objective in reducing the secondary movements of those granted international protection”.
Family life
In the section on requirements for indefinite leave to remain as a partner, R-ILRP.1.1.(d) currently reads:
the applicant:
(i) must meet all of the requirements of Section E-LTRP: Eligibility for leave to remain as a partner (except that paragraph E-LTRP.1.2. cannot be met on the basis set out in sub-paragraph (c) of that paragraph, and in applying paragraph E-LTRP.3.1.(b)(ii) delete the words “2.5 times”); or
(ii) must meet the requirements of paragraphs E-LTRP.1.2.-1.12. (except that paragraph E-LTRP.1.2. cannot be met on the basis set out in sub-paragraph (c) of that paragraph) and E-LTRP.2.1 – 2.2. and paragraph EX.1. applies; and
This has been deleted and moved, with a slight rewording, to the section on eligibility for indefinite leave to remain as a partner (E-ILRP). The same goes for the requirements for indefinite leave to remain as a parent. The net effect is, again quoting the explanatory memorandum,
to clarify… that those on a 5-year route to settlement must meet all eligibility requirements, including the immigration status, financial and English language requirements, at every application stage including where indefinite leave to remain is sought after five years, in order to be granted leave under these Rules.
Festivals
The list of permit free festivals in Appendix 5 to Appendix V has been updated. The new list is as follows:
(a) Aberdeen International Youth Festival
(b) Africa Utopia (Southbank Centre)
(c) Alchemy (Southbank Centre)
(d) Aldeburgh Festival
(e) Barbican Festivals (Only Connect, Summer Festival, Autumn 1, Autumn 2)
(f) Barclaycard presents British Summer Time Hyde Park
(g) Belfast International Arts Festival
(h) Bestival
(i) Billingham International Folklore Festival of World Dance
(j) BoomTown Fair
(k) Breakin’ Convention
(l) Brighton Festival
(m) Brighton Fringe
(n) Brouhaha International Street Festival
(o) Cambridge Folk Festival
(p) Camp Bestival
(q) Celtic Connections
(r) Cheltenham Festivals (Jazz/Science/Music/Literature)
(s) Common People
(t) DaDaFest International
(u) Dance Umbrella
(v) Download
(w) Edinburgh Festival Fringe
(x) Edinburgh International Festival
(y) Edinburgh Jazz and Blues Festival
(z) Glasgow International Jazz Festival
(aa) Glyndebourne
(bb) Greenbelt
(cc) Harrogate International Festivals
(dd) Hay Festival
(ee) Huddersfield Contemporary Music Festival
(ff) Latitude
(gg) Leeds Festival
(hh) LIFT (London International Festival of Theatre)
(ii) Llangollen International Musical Eisteddfod
(jj) London Jazz Festival (EFG)
(kk) Meltdown (Southbank Centre)
(ll) Norfolk and Norwich Festival
(mm) Reading Festival
(nn) RiZE
(oo) Snape Proms
(pp) The Royal Edinburgh Military Tattoo
(qq) Wireless
(rr) WOMAD
(ss) WWE Live
There are a few additions and omissions compared to last year. Of the big names, Glastonbury has been removed, as there is no Glastonbury this year. V Festival is no longer on the list either, but only because it has been rebranded as RiZE, which is listed. Room is made for the British Summer Time festival in Hyde Park.
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> Home Office News Story: Restrictions on Croatian workers to expire in June
The current registration requirements for Croatian workers will expire on 30 June bringing their rights to work in Britain in line with other EU citizens.
Immigration Minister Caroline Nokes made the announcement in a Written Ministerial Statement to Parliament.
Legally, the UK could only extend the controls for a final 2 years if there was clear evidence that removing the controls would lead to a serious labour market disturbance. The Government has considered the evidence and with unemployment at near record lows, employment of UK nationals at near record highs and the Eurozone and Croatia forecast to grow strongly over the next 2 years, concluded the economic case for an extension could not be made.
When Croatia joined the EU in 2013, the UK and other member states were able to restrict the access that Croatian citizens had to their labour markets for a maximum of 7 years. The UK is one of a few EU countries (Austria, Slovenia and the Netherlands) which applies such measures. The restrictions have meant that, unless an exemption applied, Croatians needed permission from the Home Office to work in the UK.
Immigration Minister Caroline Nokes said:
“This decision has not been taken lightly, but after careful consideration, we have concluded that there is not enough evidence to satisfy the legal requirements to extend the controls for the final 2 year period.
Net migration of EU citizens has fallen in the last year by 75,000 and since joining the EU in 2013 only around a few thousand Croatians have moved to the UK. Estimates suggest there are below 10,000 Croatian in the UK and by comparison, in 2009 at the same point of transitional controls for Romanian and Bulgarian workers there were around 57,000 Romanians and 35,000 Bulgarians living in the UK, according to the Office for National Statistics.
The time-limited restrictions to member states’ labour markets were provided for under the Treaty of Accession 2011 between Croatia and the EU and can be applied for five years, plus an additional two years if required to protect the member state’s labour market from serious disturbance.
Under the UK’s application of the restrictions, Croatian partners and spouses of British nationals or other nationals settled in the UK are exempt, as are Croatian citizens who have worked in the UK for 12 months with the appropriate authorisation.
Further information can be found in the guidance for Croatian nationals on working in the UK : https://www.gov.uk/government/publications/guidance-for-croatian-nationals-on-getting-permission-to-work-in-the-uk
>>> Updated UK Visas and Immigration Guidance re Turkish nationals (19 March 2018) : https://www.gov.uk/government/publications/turkish-ecaa-business-guidance
This guidance gives information on deciding applications from self-employed Turkish businesspersons who wish to apply for an extension of stay in the UK to self-establish in business or continue operating their business under the Turkish EC Association Agreement.
The Home Office will no longer accept applications for Indefinite Leave to Remain (ILR) under the Turkish European Communities Association Agreement (ECAA) Business Persons category.
This is in light of the Upper Tribunal’s reported judgment in Aydogdu v SSHD [JR/15737/2015]. The Upper Tribunal found that the settlement of Turkish nationals and their dependants did not fall within the scope of a provision of the European Community Association Agreement with Turkey, called the ‘standstill clause’. While the Home Office examined the implications of the decision, ECAA ILR applications continued to be processed until 16 March 2018.
No new ECAA ILR applications will be accepted on or after 16 March 2018. Any ECAA settlement applications postmarked prior to 16 March will be processed under the same terms as before. Updated guidance is available on this page.
Turkish business persons and their dependants can continue to apply for further leave to remain under the ECAA if they wish, for up to 3 years at a time, provided they continue to meet the relevant requirements. Applications for limited leave to remain under the ECAA provisions are unaffected by the Aydogdu judgment and will continue to be processed free of charge as normal.
The UK BA intends to introduce a new ILR category for current Turkish ECAA business persons into the Immigration Rules. While the requirements of such a category are to be determined, this will be a charged route in line with others who are seeking to settle in the UK.
>>> UK Visas and Immigration form - Apply to extend your stay in the UK: family of Turkish national (ECAA3) (16 March 2018) : https://www.gov.uk/government/publications/application-to-extend-uk-visa-as-family-of-turkish-person-form-ecaa3
Family members of a Turkish national in the UK under the European Community Association Agreement can use this form to apply to extend their stay in the UK.
>>> UK Visas and Immigration form - Apply to extend your stay in the UK: Turkish Businessperson (ECAA2) (16 March 2018) : https://www.gov.uk/government/publications/application-to-extend-stay-in-uk-form-ecaa2-turkish-businessperson
If you are a Turkish national running a business in the UK under the European Community Association Agreement, use this form to extend your stay in the UK.
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> How much are the UK BA fees are changing from the 6th April 2018 ?
The UK BA fees will be increased on 6 April 2018.
The key changes are outlined below.
· Increased fees on growth routes (work, study and visit) by 4%.
· Increased fees on most non-growth routes (nationality, settlement, family) and most associated premium services by 4%.
· The fee for the overseas optional ‘Priority Visa’ service for entry clearance will increase by 15%.
· For the fourth year running, we are not making any changes to fees under the sponsorship system.
· Fees for entry clearance to enter the Channel Islands and Isle of Man will rise in line with fee changes seen in the rest of the UK.
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
Датальная расшифровка последней (21 Март 2018) версии намерений британского правительства в отношении граждан EU и членов их сейчас сейчас и после Brexit. Особо важная ифнформация выделена красным цветом
>>> Brexit: settled status and citizens’ rights – what has been agreed – detailed analysis – most recent UK Government's draft (21 March 2018)
On 21 March the European Union and the UK published the impressively named Draft Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community. In other words, a draft Brexit divorce agreement.
NB This is a DRAFT, not a law, so in line with the UK Government's mantra, be aware that “nothing is agreed until everything is agreed”.
The Draft Agreement ensures that EU citizens and their family members, who are legally residing in the UK in accordance with Union law, can continue to do so. This means that those EU citizens who are working, self-employed, who have sufficient resources for themselves and their families, who are studying, or have retained these rights, will be protected under the Draft Agreement.
The UK may, should it choose to do so, require EU citizens and their family members living in the UK to apply for a new residence status and in doing so set requirements which can be less but not more stringent than those contained in the Draft Agreement. The purpose of any such application is to verify the EU citizen’s pre-existing right, and their family’s pre-existing right, to reside in the UK. The resulting residence status is being called “settled status” by the Home Office.
The Draft Agreement also protects certain family members who are not living in the UK at the end of the transition period, allowing this select group to join their EU citizen relative later. Those family members not included in this select group will need to apply under stringent UK immigration rules if they wish to live in the UK.
Certain other rights currently enshrined in EU law would be preserved, including benefits and healthcare entitlements. EU citizens who have made contributions into the UK benefits and pension system will continue to benefit from those contributions during their time in the UK and will continue to do so if they subsequently relocate to the EU.
EU citizens will be allowed to be outside the UK for five consecutive years without losing these rights, which is longer than the two year period currently allowed.
Changes from the EU’s Draft Agreement published in February
The UK has accepted that the Court of Justice of the European Union will remain the final arbiter of the interpretation of EU law for the rights of EU citizens. Also, and amazingly, the Home Office’s preference to give lesser rights to EU citizens arriving during the transition period — that is, between 29 March 2019 and 31 December 2020 — has been defeated. This policy didn’t last very long and is a major victory for the EU. Free movement is locked in until the end of 2020.
Both are substantial concessions by UK government and it will be interesting to see how this plays out within the Conservative party.
Evolutionary changes are not always for the better. The Commission draft contained protections for EU citizens who marry or enter into civil partnerships after 31 December 2020, enabling these partners to come to live in the UK at a later date. This has been removed. Only those who are so related before 31 December 2020 are protected.
If the UK chooses to implement an application process, the deadline for those who have resided in the UK before the end of the transition period to make an application has been reduced from two years to a maximum of six months from 31 December 2020.
What are the protected rights and who can acquire them?
The Draft Agreement, and the UK government’s proposed implementation of it, establishes:
EU citizens who have resided in the UK lawfully for five years before 31 December 2020 will be entitled to “settled status” to protect their continued right to reside in the UK.
This settled status will not be automatically conferred; all EU citizens, including those with permanent residence documents, will have to make an application to acquire it.
Those who arrived in the EU before 31 December 2020 but who have not lived in the UK for five years will be allowed to apply for temporary status (also being referred to as “pre-settled status” by the Home Office to enable them to acquire five years of residence. At that point, they can apply for settled status.
EU citizens who lived in the UK as self-sufficient persons or students will not need to show that they had comprehensive health insurance in order to qualify for the new settled status.
Those that do not apply before the application deadline will, without serious and good reasons for not doing so, be residing without permission and will be subject to removal.
EU citizens and family members who acquire new criminal convictions or issues affecting their character from 31 December 2020 will be subject to assessments under UK immigration rules and could see their documents revoked and, if not removed from the UK be banned for a period from applying for British citizenship.
Family members will be allowed to reside in the UK under these proposals so long as they were already residing in the UK before 31 December 2020. Specific family members may be allowed to join EU citizens after 31 December 2020. All other family members will be excluded from protection under the Draft Withdrawal Agreement.
The agreement does not cover Norway, Iceland, Lichtenstein and Switzerland, but it is expected to extend to those countries in the future. Irish citizens, it is said by the Home Office, are not affected and will not need to apply for settled status.
Are all EU citizens safe?
Only EU citizens who fall under Article 6 and Article 7 of Directive 2004/38/EC, and who are legally resident in the UK, will be protected by the Draft Agreement. This means the EU citizen must be and continue to be a worker, self-employed person, student, or self-sufficient person, or have lawfully retained those rights. The agreement is silent on what happens to EU citizens who cannot meet these requirements after 31 December 2020.
The UK government’s proposes to implement the Draft Agreement by introducing the “settled status” scheme. So far, it appears to be more relaxed, as it will not actually require EU citizens to demonstrate how they meet Article 6 and Article 7. The UK government has said that EU nationals will only need to evidence that they have been and are living in the UK, and undergo criminality checks, in order to qualify under their proposed application process.
The Draft Agreement confirms that deadline for submitting the application for temporary and settled status shall not be more than six months from 31 December 2020. For family members who join EU citizens in the UK the deadline to submit their applications shall be three months after their arrival or not more than six months after 31 December 2020, whichever is later.
If the Home Office system collapses under the burden of the workload, the deadline to submit applications can be extended by an additional year. The Home Office will need to notify the EU and EU citizens where technical difficulties in the application process occur.
One problem arises for EU citizens who are not resident in the UK on 31 December 2020 but have the right of permanent residence here. The Draft Agreement, on first glance, suggests that those EU citizens who already hold a permanent residence document for the UK but who are not living in the UK as at 31 December 2020 may not be included in the new application process.
What about family members?
The family members of those who arrived before 31 December 2020 are covered by the Draft Agreement. In general, only family members who are legally resident in the UK by this date will be able to apply for the new status. But family members as defined under Directive 2004/38/EC will be able to arrive after that date so long as the relationship existed before that date and there is evidence of this. In this group are:
- pre-existing spouse
- civil partner
- durable partners
- children or grandchild under 21
- dependent children or grandchildren older than 21
- dependent direct relatives in the ascending line
The same applies for children born or adopted after 31 December 2020.
Other dependent relatives (for example, aunts, uncles, brothers, sisters, cousins, nieces, nephews) will be protected by the Draft Agreement so long as they were already residing in the UK prior to 31 December 2020.
Also, included in the Draft Agreement are other persons whose presence is required in the UK by EU citizens in order not to deprive that EU citizen of their rights. For example, a non-EU citizen carer of an EU citizen child will be included in the protection of the Draft Agreement so long as they were residing in the UK prior to 31 December 2020.
Children of those applying for settled status can apply for settled status at the same time as their parents. Those born in the UK by parents with settled status will be born British.
What rights of exit and entry will EU citizens and their family members have between now and 31 December 2020?
All EU citizens, and their family members, will be able to move freely into and out of the UK. An EU citizen can continue to use a valid passport or national identity card for travel. Non-EU family members cannot use their national identity card, and must rely on their passport for travel. After five years following 31 December 2020, the UK may decide not to accept national identity cards as a travel document for EU citizens if the national identity card does not include a biometric chip.
Those who possess temporary and settled status will not be required to apply for exit or entry visas. For those that do not possess the new documentation, the UK has the option to implement exit or entry visas.
For family members who reside outside the UK on 31 December 2020 and are able to join their EU citizen family members, they will be required to have an entry visa. The UK should assist that person in doing so and any such visa should be free of charge.
What if an EU citizen already possesses a permanent residence document?
Those who already hold a permanent residence document can have that document converted into the new settled status document free of charge subject to verifying their identity, a criminality and security check and by providing confirmation of continued residence.
This means that those who have already paid once will not be required to do so again. Therefore, there remains a benefit to obtaining a permanent residence document under EU law now. Being in possession of a document will avoid having to undergo a full assessment later, simultaneously with three million other EU citizens plus their family members.
[size=medium]Also, no matter how simple the new process is or how well publicised, there remains ongoing confusion as to the status of EU citizens or family members now when managing their day-to-day lives, and this may increase as we move beyond 29 March 2019 and into the transition period. Holding a document will prevent confusion when individuals attempt to rent a property, move between jobs or open a bank account. That is not forgetting the scenario, however small, that Brexit does not occur and the UK remains part of the European project. [/size]
How will the future status be protected and enforced?
If the new application under the UK government’s proposed scheme is refused before 31 December 2020, the application can be remade. After 31 December 2020 the applicant will have to appeal the decision to the UK First-tier Tribunal (Immigration and Asylum Chamber).
While the tribunal will decide the appeal, the Court of Justice will continue to be the ultimate arbiter of the interpretation of EU law for the rights of citizens. This means the UK courts can continue to refer to its judgements. It also means that UK courts can continue to seek further interpretation and clarifications from the Court of Justice in areas of uncertainty for eight years after 31 December 2020.
While the Court of Justice will continue to have the final say for an eight year period, it falls short of the promise of full protection for the citizen’s lifetime. But with the adjudication and enforcement mechanism remaining in place for the short term, the rights of EU and UK nationals living abroad will be secure for sufficiently long enough a period to acquire citizenship from their host state. It does mean that acquiring citizenship of a host country may no longer be a choice but a necessity for some.
What about EU citizens who are outside the UK on 31 December 2020?
EU citizens and their family members, who will be living outside the UK at 31 December 2020, should be considered as having a right of residence if they have acquired, and not subsequently lost, permanent residence. There is no rule on in-country or out-of-country applications in the Draft Agreement, which supports the view that permanent residence is evidence of residence, and an application for settled status can be made from outside the UK so long as they have not lost the right of permanent residence through an absence of a consecutive five year period.
Any EU citizen currently residing outside of the UK who sees the UK their long-term home should consider applying for the document confirming their right of permanent residence in the UK.
What about EU citizens with criminal records?
It will be easier to refuse settled status on grounds of criminality than it is now for EU citizens, or their family members, who acquire new criminal records or new issues of conduct after 31 December 2020.
Currently, there is a very high test under EU law requiring EU citizens to pose a genuine present and sufficiently serious threat to justify removal from the UK. This stringent test will continue to apply for all EU citizens and their family members for criminal records or issues of conduct acquired before 31 December 2020. People who acquire convictions or conduct issues after 31 December 2020 will no longer be protected by this EU law test. Instead, their applications will be subject to the UK’s assessment of criminality, which has a lower threshold to justify removal, leaving this group of EU citizens and family members at a greater risk of removal.
While it is easy to tell individuals not to get into trouble, sometimes it is not always within their control. The vulnerable will be at a greater risk of falling under the UK assessment of criminality in the future.
Remaining legal questions...
It is quite a travesty that it has taken this long for the UK government to make firm commitments for the protection of EU citizens in the UK. Much of what has been agreed is uncontentious and unsurprising, and could have provided much needed reassurances earlier in this process. Also many questions remain, including amongst others:
- What will happen to EU citizens resident in the UK but not legally because they were not, for example, working?
- What about homeless EU citizens, who cannot be considered lawfully resident in the UK?
- Will an EU citizen with a permanent residence document but outside the UK on 31 December 2020 be excluded from applying for settled status?
- Will an EU citizen without a permanent residence document but who has automatically acquired permanent residence and living outside of the UK on 31 December 2020 be excluded from applying for settled status?
- Why should EU citizens who start relationships or get married after 31 December 2020 be prevented from bringing their partners to the UK under the new application process?
While some questions remain unanswered we should not lose sight of the fact that we do have clarity for the majority of EU citizens currently in the UK.
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> Migration Advisory Committee (MAC) - EEA workers in the UK labour market: interim update (27 March 2017) : https://www.gov.uk/government/publications/eea-workers-in-the-uk-labour-market-interim-update
Migration Advisory Committee interim update on EEA workers in the UK labour market summarising the responses from employers to a call for evidence
>>> Home Office Guidance: Turkish ECAA business guidance (16 March 2018) : https://www.gov.uk/government/publications/turkish-ecaa-business-guidance
Business applications under the Turkish EC Association Agreement
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> UK Visas and Immigration Guidance: Family members of points-based system migrants (27 March 2018) : https://www.gov.uk/government/publications/family-members-of-points-based-system-migrants?utm_source=0ae16abc-da10-4967-97b3-b77a5681db9d&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
Guidance for how UK Visas and Immigration considers applications to enter or remain in the UK as a dependant of a PBS migrant.
Version 13.0 of the guidance was published for Home Office staff on 15 January 2018.
Changes from last version of this guidance:
• Format changes
• Change to maintenance rules
• Changes to settlement rules
• Genuine requirement added to LTR partner requirement
• Changes to the work rights for dependents of Tier 4 migrants
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> Can an Entry Clearance application be made for a non-EEA family member child at the port of entry provided the child had been born in the UK yet was taken outside of the UK, say, on emergency family matters ?
Apparently, it may be possible. Usually, no forms are needed. The responsible adulyi needs to prepare documents similar to those requested by an EEA family permit application. Of course, the Admission is subject to the Regulation 11(4)
>>> Switching from a 10 Year parent route to Settlement to a 5 year parent route to Settlement
Such a switching may be possible, usually via the FLR(FP) application form. The applicant usually needs to pass the relevant English Test and show the income to the relevant level. The current UK immigration rules suggest that, even if the 5 Year route to Settlement leave is not granted, the applicant may still be entitled for further leave under the same 10 Year route to Settlement
>>> No more settlement for Turkish business people under the Ankara Agreement
A new version of the Home Office guidance ( https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/691087/Turkish-ECAA-business-guidance-v7.0EXT.PDF ) on applications from self-employed Turkish businesspersons for leave under the Turkish European Communities Association Agreement (ECAA), commonly known as the “Ankara Agreement”, was published on 16 March 2018.
The guidance contains a number of changes but the most important one is the change to eligibility for indefinite leave to remain (also known as settlement). It reflects the Upper Tribunal case of R (Aydogdu) v Secretary of State for the Home Department (Ankara Agreement – family members – settlement) [2017] UKUT 167 (IAC) and the Scottish case Bektas Alagoz [2017] CSOH 27.
Up until 16 March, Turkish businesspersons who were in the UK under the Ankara Agreement could get indefinite leave to remain after four years. In the May 2017 case of Aydogdu, the Upper Tribunal found that the Ankara Agreement’s “stand-still clause”, which prevents the imposition of additional immigration rules over and above those in place when the UK signed up the Ankara Agreement in 1973, does not apply to settlement applications.
This is because:
“The grant of limited leave to enter and remain to the family members of a Turkish national exercising rights will, in all cases bar the most exceptional, suffice to ensure the efficacious exercise and enjoyment of the economic right in play [paragraph 34]”
The Secretary of State was therefore entitled to change the rules for eligibility for indefinite leave to remain for Turkish businesspersons and their family members, and so she has.
The new guidance now says that settlement applications submitted before 16 March 2018 will be granted to those who have spent:
“a continuous period of four years in the UK, of which the most recent period of leave must be as a Turkish ECAA businessperson and the rest made up of leave as:
a Turkish ECAA businessperson
-a Tier 1 (Entrepreneur) migrant
-a businessperson
- an innovator”
This is provided they do not fall for refusal because of suitability or good character problems.
But for applications for settlement made on or after 16 March 2018:
“there is no provision for the granting of ILR under the provisions of the Turkish ECAA.”
Those applicants will instead be granted a further period of three years’ leave, provided they meet the requirements for further leave.
The guidance contains no transitional agreement. This may lead to litigation on the basis that Turkish business persons who came to the UK under the old rules had a legitimate expectation of eventually settling in the UK, similar to the HSMP litigation.
Presumably, even if that fails, Turkish businesspersons who can extend their leave until they have reached ten years’ continuous lawful residence in the UK will be able to apply for settlement at that point, under paragraph 276B of the Immigration Rules.
Turkish businesspersons who have not yet entered the UK and who could meet stringent rules for Tier 1 Entrepreneur visas may chose that route instead. It still leads to settlement after five years, or three years for entrepreneurs who create ten or more full-time jobs or a business income of £5 million or more.
That said, the route requires that applicants have access to not less than £50,000 or £200,000, depending on the source of the funding. That is a sum that many applicants are unlikely to have access to.
>>> More of the same from Court of Appeal on deportations and Article 8 : http://www.bailii.org/ew/cases/EWCA/Civ/2018/316.html
The Court of Appeal in Secretary of State for the Home Department v (OP) Jamaica [2018] EWCA Civ 316 dealt with a deportation appeal in context of assessing the weight to be given to Article 8 and the best interests of children. The judgment echoes previous decisions, in that these factors alone will not be sufficiently strong and compelling to override the public interest in deportation.
>>> There is no evidence that EU migrants reduce wages for British workers : https://www.gov.uk/government/publications/eea-workers-in-the-uk-labour-market-interim-update
Immigrants from other EU countries do not reduce average wages for UK-born workers. So said the Migration Advisory Committee (MAC), a crack team of independent economists that advises the government on immigration policy, in an interim report published today.
>>> Status of EU citizens in the UK: what you need to know : https://www.gov.uk/guidance/status-of-eu-nationals-in-the-uk-what-you-need-to-know?utm_source=de0187cc-c387-4c0c-8abc-3107bb1afa51&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
Information for European Union citizens living in the UK.
[align=justify][font=Arial, sans-serif][size=small]And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - [/size][/font][font=Arial, sans-serif][size=small]www.legalcentre.org[/size][/font][font=Arial, sans-serif][size=small] – Mob : +44(0)7791145923[/size][/font][/align]
[align=justify][font=Arial, sans-serif][size=small]>>>[/size][/font][font=Tahoma, sans-serif][size=small] Can one apply for Naturalization without first obtaining ILR (Settlement) ?[/size][/font][/align]
[align=justify][font=Tahoma, sans-serif][size=small]Apparently, the answer may be “yes” for those, who are classified as the employees of certain International Organizations, who are exempts from the immigration control.[/size][/font][/align]
[align=justify][font=Tahoma, sans-serif][size=small]If there employees are still exempt at the 5-year residence point, they meet the requirements for Naturalisation under the Para 1 Schedule 1 of the BNA 81. Those requirements do not include having ILR, though that is the route most must take to be free of immigration restrictions: [/size][/font]https://www.legislation.gov.uk/ukpga/1981/61/schedule/1[/align]
Я столкнулся со следующей ситуаций. Я так же вижу, что на закрытом юридическом форуме для адвокатов мои коллеги так же столкнулись с подобной ситуацией.
На основании EEA Regulations, о «обычных» заявлениях на получение 5-и летней BRP на основании брака с гражданином/гражданкой EU, или на получение PermanenT Residence после 5-и лет брака с гражданином/гражданкой EU, всегда нужно посылать оригинальный паспорт/ID карту европейского супруга.
По заявлениям же на основании развода с бывших европейским супругом или даже для обновления “закончившейся»/потерянной PR визы/BRP карточки можно было просто послать копию ID/паспорта бывшего супруга/и (для многих пар получить оригинал ID бывшего супруга не предоставляется возможным — плохое отношения, бывший EU спонсор живет за рубежем и т. п.).
Теперь UK BA, ссылается на Regulation 21(5) и в ультимативном порядке требует (формально - задним числом, т. е. уже после отказа в большинстве случаев) предоставление оригинального EU ID или EU паспорта даже у тех заявителей, кто уже не в браке c EU супругами и кто подает на первое заявление на Retained Right of Residence, тех, кто уже получил Retained Right of Residence и уже самостоятельно (т. е. без EU спонсора подает на PR) или даже у тех, что уже получил PR и кому нужно обновить PR.
В вышеперечисленных сценариях UK BA ожидает только предоставление оригинального документа – EU ID card/Passport (бывшего) супруга(и) из EU.
Если предоставить оригинальный EU ID card/Passport (бывшего) супруга(и) из EU не возможно, потенциально можно попробовать доказать то, что были сделаны все попытки (E-mail, заказная почта, частный детектив).
Я на связи, если есть вопросы : https://legalcentre.org/Konsultacija-s-Advokatom.html
Mob/Viber/WhatsApp: 07791145923
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> New application forms and guidances from 06 April 2018
- UK Visas and Immigration Guidance - Register of licensed sponsors: students (6 April 2018): https://www.gov.uk/government/publications/register-of-licensed-sponsors-students
List of institutions licensed to sponsor migrant students under Tier 4
- UK Visas and Immigration Guidance - Register of Licensed Sponsors: workers (5 April 2018) : https://www.gov.uk/government/publications/register-of-licensed-sponsors-workers
List of organisations licensed to sponsor workers under Tiers 2 and 5.
- UK Visas and Immigration Guidance - Sponsor a Tier 2 or 5 worker: guidance for employers (6 April 2018) : https://www.gov.uk/government/publications/sponsor-a-tier-2-or-5-worker-guidance-for-employers
Guide on how to apply for a Tier 2 or 5 sponsor licence and how to sponsor a migrant worker.
- UK Visas and Immigration Form: Apply for the UK super premium service (6 April 2018) : https://www.gov.uk/government/publications/application-for-super-premium-service-extend-visa-or-settle-in-uk
Form to apply to use the super premium service with an application to extend a visa, transfer a visa or settle in the UK.
- UK Visas and Immigration Form - Settle in the UK on the basis of long residence: form SET(LR) (6 April 2018) : https://www.gov.uk/government/publications/application-to-settle-in-uk-form-setlr
Form to apply for indefinite leave to remain in the UK on the basis of long residence.
- UK Visas and Immigration Form - Application to extend stay in UK: Tier 1 (Graduate Entrepreneur) (6 April 2018) : https://www.gov.uk/government/publications/application-to-extend-stay-in-uk-tier-1-graduate-entrepreneur
Form to apply to extend stay in UK under Tier 1 (Graduate Entrepreneur) and to get a biometric residence permit.
- UK Visas and Immigration Form: Application to extend your stay in the UK as a Tier 1 Entrepreneur (6 April 2018) : https://www.gov.uk/government/publications/application-extend-your-stay-in-the-uk-as-a-tier-1-entrepreneur
Form to extend your existing visa under Tier 1 (Entrepreneur) or to switch into it from another immigration category.
- UK Visas and Immigration Form: Application to extend stay in the UK as Tier 1 or Tier 5 dependant (6 April 2018) : https://www.gov.uk/government/publications/application-to-extend-stay-in-the-uk-as-tier-1-or-5-dependant
Form to apply to extend stay in the UK and get a biometric immigration document as a Tier 1 or 5 dependant.
- Home Office, UK Visas and Immigration, and Department for Exiting the European Union case study - Example case studies: EU citizens' rights in the UK (4 April 2018) : https://www.gov.uk/government/case-studies/example-case-studies-eu-citizens-rights-in-the-uk
Examples of how EU citizens’ residence status in the UK will be affected after the UK’s exit from the EU.
- UK Visas and Immigration Guidance: Fees for citizenship applications (6 April 2018) : https://www.gov.uk/government/publications/fees-for-citizenship-applications
Information about fees for citizenship and right of abode applications.
- UK Visas and Immigration Form - Application to extend stay in UK (HM Forces): form FLR(AF) (6 April 2018) : https://www.gov.uk/government/publications/application-to-extend-stay-in-uk-hm-forces-form-flraf
Form to apply for further leave to remain in the UK as a member of HM Forces or their dependant.
- UK Visas and Immigration Form - Application to extend stay in the UK: FLR(HRO) (6 April 2018) : https://www.gov.uk/government/publications/application-to-extend-stay-in-the-uk-flrhro
Form to extend your stay in the UK for human rights claims, leave outside the rules and other routes not covered by other forms.
- UK Visas and Immigration Guidance - Application to extend stay in the UK: FLR(IR) (6 April 2018) : https://www.gov.uk/government/publications/application-to-extend-stay-in-the-uk-flrir
Form to extend your stay in the UK for other routes under the Immigration Rules.
- UK Visas and Immigration Form - Apply for a Home Office travel document: form TD112 BRP (6 April 2018) : https://www.gov.uk/government/publications/apply-for-a-home-office-travel-document-form-td112-brp
Form to apply for a Home Office travel document and biometric residence permit to travel outside the UK.
- UK Visas and Immigration Form - Application to transfer indefinite leave to remain in UK: form NTL ( 6 April 2018) : https://www.gov.uk/government/publications/application-to-transfer-indefinite-leave-to-remain-in-uk-form-ntl
Form to apply to transfer an existing settlement visa from an old passport to a biometric residence permit.
- UK Visas and Immigration Form - Extend stay or settle in the UK as a person who was refused asylum: form FLR(DL) (6 April 2018) : https://www.gov.uk/government/publications/application-to-extend-stay-or-settle-in-the-uk-form-dl
Form to apply for an extension of stay or indefinite leave to remain in the UK if you were refused asylum but given another type of permission to stay in the UK.
- UK Visas and Immigration Guidance - Settle in the UK as a victim of domestic violence: form SET(DV) (6 April 2018) : https://www.gov.uk/government/publications/application-to-settle-in-uk-form-setdv
Form to apply for indefinite leave to remain in the UK if you are a victim of domestic violence.
- UK Visas and Immigration Form: Application to extend stay in UK (long residence): form FLR(LR) (6 April 2018) : https://www.gov.uk/government/publications/application-to-extend-stay-in-uk-long-residence-form-flrlr
- UK Visas and Immigration Form - Settle in the UK as a former member of HM Forces: form SET(AF) (6 April 2018) : https://www.gov.uk/government/publications/application-to-settle-in-uk-as-former-member-of-hm-forces-setaf
Form to apply for indefinite leave to remain in the UK as a former member of HM Forces (or their dependant) and for a biometric residence permit.
- UK Visas and Immigration Form - Settle in the UK as a child under 18: form SET(F) (6 April 2018) : https://www.gov.uk/government/publications/application-to-settle-in-the-uk-as-a-child-under-18-form-setf
Form to apply for indefinite leave to remain in the UK if you are a child under the age of 18.
- UK Visas an Immigration Form - Settle in the UK in various immigration categories: form SET(O) (6 April 2018) :
Form to apply for indefinite leave to remain in the UK in various immigration categories and for a biometric residence permit.
https://www.gov.uk/government/publications/application-to-settle-in-the-uk-form-seto
- UK Visas and Immigration Form - Settle in the UK as the partner of a person who is in the UK and settled here: form SET(M) (6 April 2018) : https://www.gov.uk/government/publications/application-to-settle-in-the-uk-form-setm
Form to apply for indefinite leave to remain in the UK if you are the partner of a person who is present and settled in the UK.
- UK Visas and Immigration Form - Application to extend stay in UK as child of a refugee: FLR (P) : https://www.google.co.uk/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0ahUKEwjg1uWFjqbaAhXrB8AKHXkIB0IQFggpMAA&url=https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/606323/FLR_P_-Form-04-17.pdf&usg=AOvVaw1r34Ee2_7iaXaOqiTPHdwc
Form to apply to stay as child under 18 of relative with temporary permission to stay as refugee or with humanitarian protection.
- UK Visas and Immigration Form - Apply to extend stay in the UK as a partner or dependent child: form FLR(M) (6 April 2018) : https://www.gov.uk/government/publications/apply-to-extend-stay-in-the-uk-as-a-partner-or-dependent-child-form-flrm
Form to extend stay in the UK as the partner or dependent child of someone who is settled here or who is a refugee or under humanitarian protection.
- UK Visas and Immigration Form - Application to transfer visa to biometric residence permit: form TOC (6 April 2018) : https://www.gov.uk/government/publications/application-to-transfer-visa-to-biometric-residence-permit-form-toc
Form to transfer an existing visa to a biometric residence permit if you are already in the UK.
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> Can a fresh out of country application be lodged while an out of country appeal is pending ?
Apparently, yes, in line with the Section 20 APL1.20
Applicant makes fresh application while an appeal is outstanding
A person who has an appeal pending can make a fresh application for entry clearance in the same or any other category. There is no requirement for a person to withdraw an appeal. If an appellant is subsequently issued an entry clearance, post must inform the tribunals service at: mailto:eco.contact@hmcts.gsi.gov.uk. The ECO must ensure that a proforma of withdrawal of decision is also sent to the Tribunals Service and this appeal will stop.
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> Unlawful delays by the Home Office - major successful claim for damages decision: http://www.bailii.org/ew/cases/EWCA/Civ/2018/627.html
Secretary of State for the Home Department v Said [2018] EWCA Civ 627 is about how long the Home Office can delay making an immigration decision before the applicants can successfully claim for damages under the Human Rights Act 1998. The Home Office was appealing a decision from the High Court, where HHJ Thornton had delivered a fierce rebuke to the department for administrative incompetence. The Court of Appeal dismissed the appeal and provided guidance on how to tackle extreme delays in reaching immigration decisions.
The appeal itself is a tragic illustration of the consequences of bad administration. The first respondent died just months after being granted indefinite leave to remain, having waited ten years for his entitlement to be recognised.
The Court of Appeal ruled that such delays can go beyond maladministration and amount to a breach of human rights, specifically Article 8 of the European Convention on Human Rights, and just satisfaction for the breach may lead to substantial damages. Additionally, the court held that the Home Office’s internal complaints procedure did not amount to an alternative remedy to be pursued before legal proceedings are brought.
The Home Office’s defeat in this appeal is a step towards greater judicial control over slow decision-making. Although the delay in this case was long, the family were not vulnerable asylum-seekers and did not experience severe detriment, such as becoming street homeless or otherwise destitute. Instead, the breach of human rights was based on the typical difficulties suffered by those waiting for the Home Office to grant them leave they are entitled to. By taking a firm line against the Home Office for their behaviour towards this family, the courts have indicated that their deference to public authorities has its limits. The decision will put pressure on the Home Office to deal with applications efficiently in order to avoid interference with human rights.
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>> Home Office Guidance: Where to apply: ECB05 (10 April 2018) : https://www.gov.uk/government/publications/where-to-apply-ecb05/ecb5-where-to-apply-the-policy
Information and guidance to support visa applications made outside the UK.
>>> Home Office Guidance: Register of licensed sponsors: students (9 April 2018): https://www.gov.uk/government/publications/register-of-licensed-sponsors-students?utm_source=763b5322-5025-4fbd-a592-c63af9430a89&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
List of institutions licensed to sponsor migrant students under Tier 4.
>>> Home Office Form: Application to extend stay in the UK: FLR(GT) (6 April 2018) : https://www.gov.uk/government/publications/application-to-extend-stay-in-the-uk-flrgt?utm_source=faedaabd-59dd-4c0e-9dea-39cac9c7b8db&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
Form to apply for further leave to remain in the UK if you are a Grenfell Tower survivor and were granted limited leave outside the Immigration Rules.
>>> UK Visas and Immigration Guidance: Register of licensed sponsors: workers (10 April 2018) : https://www.gov.uk/government/publications/register-of-licensed-sponsors-workers?utm_source=9ee1f7d2-f600-42ed-8260-eb3c39f9058e&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
List of organisations licensed to sponsor workers under Tiers 2 and 5.
This document lists Tier 2 and 5 sponsors. It includes information about the category of workers they’re licensed to sponsor and their sponsorship rating.
>>> UK Visas and Immigration Guidance: Register of licensed sponsors: students (10 April 2018) : https://www.gov.uk/government/publications/register-of-licensed-sponsors-students?utm_source=06261d3f-ccc8-42a3-86e5-dad2e5557d49&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
List of institutions licensed to sponsor migrant students under Tier 4.
This document lists institutions licensed to sponsor migrant students under Tier 4. It includes information about the category of students they’re licensed to sponsor and their sponsorship rating.
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> New EEA(FM) form :https://www.gov.uk/government/publications/apply-for-a-registration-certificate-or-residence-card-for-a-family-member-form-eea-fm?utm_source=37db06e1-91e0-4cd4-ab1f-46a2a941c21c&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
Form for a family member of an EEA or Swiss national in the UK to apply for a registration certificate or residence card.
11 April 2018: Form has been revised to remove duplicate question. NB The form is 100 (!) pages long
>> UK Visas and Immigration Guidance: Applying for a UK visa: approved English language tests (9 April 2018): https://www.gov.uk/government/publications/guidance-on-applying-for-uk-visa-approved-english-language-tests?utm_source=40cbbd53-08c8-4535-9ada-c360e7fba9b4&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
List of tests and test centres approved by UK Visas and Immigration to show that applicants have the required level of English for their visa.
>> Can one remain in the UK, awaiting the family court's outcome ?
The answer is “may be” : http://www.bailii.org/uk/cases/UKUT/IAC/2012/00218_ukut_iac_2012_rs_india.html
The headnote states:
1. Where a claimant appeals against a decision to deport or remove and there are outstanding family proceedings relating to a child of the claimant, the judge of the Immigration and Asylum Chamber should first consider:
i) Is the outcome of the contemplated family proceedings likely to be material to the immigration decision?
ii) Are there compelling public interest reasons to exclude the claimant from the United Kingdom irrespective of the outcome of the family proceedings or the best interest of the child?
iii) In the case of contact proceedings initiated by an appellant in an immigration appeal, is there any reason to believe that the family proceedings have been instituted to delay or frustrate removal and not to promote the child’s welfare?
2. In assessing the above questions, the judge will normally want to consider: the degree of the claimant’s previous interest in and contact with the child, the timing of contact proceedings and the commitment with which they have been progressed, when a decision is likely to be reached, what materials (if any) are already available or can be made available to identify pointers to where the child’s welfare lies?
3. Having considered these matters the judge will then have to decide:
i) Does the claimant have at least an Article 8 right to remain until the conclusion of the family proceedings?
ii) If so, should the appeal be allowed to a limited extent and a discretionary leave be directed as per the decision on MS (Ivory Coast) [2007] EWCA Civ 133?
iii) Alternatively, is it more appropriate for a short period of an adjournment to be granted to enable the core decision to be made in the family proceedings?
iv) Is it likely that the family court would be assisted by a view on the present state of knowledge of whether the appellant would be allowed to remain in the event that the outcome of the family proceedings is the maintenance of family contact between him or her and a child resident here?
>>> UK Visas and Immigration Guidance: Register of licensed sponsors: workers (11 April 2018): https://www.gov.uk/government/publications/register-of-licensed-sponsors-workers?utm_source=d64e4ea9-a709-40e0-bbd6-750f404bdf01&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
List of organisations licensed to sponsor workers under Tiers 2 and 5.
This document lists Tier 2 and 5 sponsors. It includes information about the category of workers they’re licensed to sponsor and their sponsorship rating.
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> UK Visas and Immigration Form: Application to extend stay in UK: form Tier 5 (Temporary Worker) (12 April 2018) : https://www.gov.uk/government/publications/application-to-extend-stay-in-uk-form-tier-5-temporary-worker?utm_source=fd949f47-a6aa-476b-b2e8-44508c675624&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
Form to apply to extend stay in the UK under Tier 5 (Temporary Worker) and get a biometric residence permit.
12 April 2018: New application form for use on or after 6 April 2018.
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> Appendix FM spouse visas – how long can a migrant be absent from the UK ?
The following is a quote from the Appendix FM 1.0a: Family Life (as a Partner or Parent): 5-Year Routes > 8.1.10. Intention to live together permanently in the UK:
"In applications for further limited leave to remain or for indefinite leave to remain in the UK as a partner, where there have been limited periods of time spent outside the UK, this must be for good reasons and the reasons must be consistent with the intention to live together permanently in the UK. Good reasons could include time spent overseas in connection with the applicant’s or their partner’s employment, holidays, training or study.
If the applicant, their partner or both have spent the majority of the period overseas, there may be reason to doubt that the couple intend to live together permanently in the UK. Each case must be judged on its merits, taking into account reasons for travel, length of absence and whether the applicant and partner travelled and lived together during the time spent outside the UK. These factors will need to be considered against the requirements of the Rules.
>>> Can a PBS migrant’s child with an expired leave be registered as a British citizen ?
Apparently, the answer is “yes”, as under the Registration by entitlement under the Section 1(3) after a parent has ILR is not a problem for a UK born baby with expired leave because the Good character requirements does not apply until the applicant is aged 10 or over.
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> Exemption from deportation for the long term resident Commonwealth citizens
The exemption from deportation for long-term resident Commonwealth citizens at can be found at the Section 7 of the Immigration Act 1971. If the appellant could prove he had entered the UK before 1 January 1973, he was exempt from deportation and the appeal would be allowed.
The Immigration Act 1971 introduced an exemption from deportation for Commonwealth and Irish citizens who were ordinarily resident at the time of commencement
>>> Tribunal finally asks: what is a human rights appeal anyway? See http://www.bailii.org/uk/cases/UKUT/IAC/2018/90.html and http://www.bailii.org/uk/cases/UKUT/IAC/2018/89.html
Nearly three years after the main appeal provisions of the Immigration Act 2014 commenced, the Upper Tribunal has turned its attention to the question lying at the heart of almost all appeals lodged since then: what is a human rights appeal anyway?
As the court established, a human rights claim is made where the facts of the case disclose a human rights claim, whether or not the words “human rights claim” are used and whether or not the application is made under the “human rights claim” paragraphs of the Immigration Rules.
This may be tolerably clear to informed lawyers. It will be as clear as muck to litigants in person, who will depend on the Home Office to tell them in the notice of refusal whether there is a right of appeal or not. And the Home Office cannot be trusted to get that right, as this case shows.
Rights of appeal in immigration cases are a shambles.
This may be tolerably clear to informed lawyers. It will be as clear as muck to litigants in person, who will depend on the Home Office to tell them in the notice of refusal whether there is a right of appeal or not. And the Home Office cannot be trusted to get that right, as this case shows.
Rights of appeal in immigration cases are a shambles.
It would be far simpler just to accept that if a human rights claim is made in an application, implicitly or explicitly, and the application is refused, then this is a refusal of a human rights claim.
The official headnotes :
Baihinga (r. 22; human rights appeal: requirements) [2018] UKUT 90 (IAC)
1. The scope for issuing a notice under rule 22 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (circumstances in which the Tribunal may not accept a notice of appeal) is limited. A rule 22 notice may be issued at the stage where the First-tier Tribunal scrutinises a notice of appeal as soon as practicable after it has been given. Where no rule 22 notice is issued at that stage and the matter proceeds to a hearing, the resulting decision of the First-tier Tribunal may be challenged on appeal to the Upper Tribunal, rather than by judicial review (JH (Zimbabwe) v Secretary of State for the Home Department [2009] EWCA Civ 78; Practice Statement 3).
2. An application for leave or entry clearance may constitute a human rights claim, even if the applicant does not, in terms, raise human rights. In cases not covered by the respondent’s guidance (whereby certain applications under the immigration rules will be treated as human rights claims), the application will constitute a human rights claim if, on the totality of the information supplied, the applicant is advancing a case which requires the caseworker to consider whether a discretionary decision under the rules needs to be taken by reference to ECHR issues (eg Article 8) or requires the caseworker to look beyond the rules and decide, if they are not satisfied, whether an Article 8 case is nevertheless being advanced.
3. The issue of whether a human rights claim has been refused must be judged by reference to the decision said to constitute the refusal. An entry clearance manager’s decision, in response to a notice of appeal, cannot, for this purpose, be part of the decision of the entry clearance officer.
4. A person who has not made an application which constitutes a human rights claim cannot re-characterise that application by raising human rights issues in her grounds of appeal to the First-tier Tribunal.
Charles (human rights appeal: scope) [2018] UKUT 89 (IAC)
(i) A human rights appeal under section 82(1)(b) of the Nationality, Immigration and Asylum Act 2002 (“NIAA 2002”) can be determined only through the provisions of the ECHR; usually Article 8.
(ii) A person whose human rights claim turns on Article 8 will not be able to advance any criticism of the Secretary of State’s decision making under the Immigration Acts, including the immigration rules, unless the circumstances engage Article 8(2).
(iii) Following the amendments to ss.82, 85 and 86 of NIAA 2002 by the Immigration Act 2014, it is no longer possible for the Tribunal to allow an appeal on the ground that a decision is not in accordance with the law. To this extent, Greenwood No. 2 (para 398 considered) [2015] UKUT 629 (IAC) should no longer be followed.
>>> Experts highlight flaws in settled status scheme for vulnerable EU citizens:
http://www.migrationobservatory.ox.ac.uk/resources/reports/unsettled-status-which-eu-citizens-are-at-risk-of-failing-to-secure-their-rights-after-brexit/
Migration policy experts have warned that the system of registering EU citizens to stay in the UK after Brexit risks excluding the most vulnerable, who will end up as unlawfully resident if they fail to register or are turned down.
A briefing from the influential Migration Observatory at the University of Oxford, published today, says that the question of what happens if significant numbers of people fail to apply for “settled status” is still unresolved.
While there is no exact precedent for registering some 3.6 million people, other government schemes involving mandatory applications in order to secure a benefit show that getting everyone eligible signed up in time is unlikely. Research into the take-up of benefits and paying taxes “makes it clear that 100% coverage of the eligible EU citizen population within a period of a couple of years is not likely”. Similarly, “in the United States, an estimated 34% of unauthorised migrants eligible for the Deferred Action for Childhood Arrivals regularisation programme had not applied 3.5 years after the programme began”.
>>> Court of Appeal upholds deportation of foreign criminal (again): http://www.bailii.org/ew/cases/EWCA/Crim/2018/532.html
In the wide-ranging and somewhat sorry case of El Gazzaz v Secretary of State for the Home Department [2018] EWCA Civ 532 the Court of Appeal has confirmed the strength of the presumption in favour of deporting foreign criminals.
>>> Upper Tribunal: automatic deportation regime relieves Secretary of State of decision-making function: http://www.bailii.org/uk/cases/UKUT/IAC/2011/00250_ukut_iac_2011_aa_pakistan.html
Official headnote to Yussuf (meaning of “liable to deportation”) [2018] UKUT 117 (IAC):
“Section 32 of the UK Borders Act 2007 impliedly amends section 3(5)(a) of the Immigration Act 1971 by (a) removing the function of the Secretary of State of deeming a person’s deportation to be conducive to the public good, in the case of a foreign criminal within the meaning of the 2007 Act; and (b) substituting an automatic “deeming” provision in such a case. The judgments of the Supreme Court in Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60 make this plain. To that extent Ali (section 6 – liable to deportation) Pakistan [2011] UKUT 250 (IAC) is wrongly decided.”.
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> Home Office amnesty for the long-time resident Commonwealth Citizens announced: https://www.gov.uk/government/news/new-team-to-help-commonwealth-citizens-confirm-their-status-in-the-uk?utm_source=40380928-2908-4a24-92bd-b5cf77516c20&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
A new team to help Commonwealth citizens confirm their status in the UK has been announced by the Home Secretary today.
"The new dedicated team will work across government to help individuals identify and gather evidence to confirm their existing right to be in the UK. The team will include a dedicated contact point and aim to resolve cases within 2 weeks once the evidence has been put together. In addition, no one affected will be charged for the documentation which proves their right to be here.
The package of measures is being introduced to support individuals, who have resided in the UK for an extended period of time, and encourage them to come forward and regularise their stay. It will help guide individuals through the process and use data from across government to help build a picture that will evidence a person’s right to be here.
Home Secretary Amber Rudd said:
This is about individuals, people who have built their lives here in the UK and contributed so much to our society. I don’t want them to feel unwelcome or to be in any doubt about their right to remain here. There is absolutely no question about their right to remain and I am very sorry for any confusion or anxiety felt.
The vast majority will already have documentation that proves their right to be here. For those that don’t I am announcing a new dedicated team that will be set up to help these people with getting the documentation they need and do it quickly.
We’ve also set up a webpage and have been speaking to charities, community groups and High Commissioners about providing advice and reassurance to those affected and we will set up a dedicated contact point to ensure this is resolved as soon as possible.
The new team will work with HM Revenue and Customs, the Department for Work and Pensions, the Department of Health and Social Care, the Department for Education and other relevant bodies to help people evidence their right to be here.
The Home Office has also published a new web page which provides information and guidance for former Commonwealth citizens.
It gives examples of the type of evidence that can be provided to support applications including exam certificates, employment records, your National Insurance number, birth and marriage certificates or bills and letters."
>>> UK Visas and Immigration Guidance: Undocumented Commonwealth citizens resident in the UK (17 April 2018): https://www.gov.uk/government/publications/undocumented-commonwealth-citizens-resident-in-the-uk?utm_source=c8300bcf-b7a7-47df-80fb-1f6ec8e20cd8&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
Information about what undocumented long-term residents of the UK need to do to obtain documents showing their status here.
This page provides more information for Commonwealth citizens in the UK who may not have documents demonstrating their right to be here (known as ‘Windrush’ cases). It sets out a series of scenarios which may be relevant to you, provides links to forms and guidance as well as information about what evidence can be provided as part of your application and contact information.
17 April 2018: Contact telephone number added.
>>> Tribunal confirms Home Office decides what tribunal can consider: http://www.bailii.org/uk/cases/UKUT/IAC/2018/87.html
In the case of Quaidoo (new matter: procedure/process) [2018] UKUT 87 (IAC), the tribunal tells appellants that if they do not like a decision on what is or is not a “new matter” they will have to judicially review the tribunal’s decision.
The official headnote:
1. If, at a hearing, the Tribunal is satisfied that a matter which an appellant wishes to raise is a new matter, which by reason of section 85(5) of the Nationality, Immigration and Asylum Act 2002, the Tribunal may not consider unless the Secretary of State has given consent, and, in pursuance of the Secretary of State’s Guidance, her representative applies for an adjourn-ment for further time to consider whether to give such consent, then it will generally be ap-propriate to grant such an adjournment, rather than proceed without consideration of the new matter.
2. If an appellant considers that the decision of the respondent not to consent to the considera-tion of a new matter is unlawful, either by reference to the respondent’s guidance or other-wise, the appropriate remedy is a challenge by way of judicial review.
>>> Good news for people appealing curtailment of leave on human rights grounds: http://www.bailii.org/ew/cases/EWCA/Civ/2018/642.html
Lord Justices Hickinbottom, Kitchin and Coulson have delivered an interesting judgment concerning the free-standing balancing exercise of Article 8 ECHR in the context of a leave curtailment. The case is Tikka v Secretary of State for the Home Department [2018] EWCA Civ 632.
The Court of Appeal found that the suitability test applicable in entry clearance and leave to remain cases when the applicant has “caused serious harm” is the same. It went on to state that there is no point in requiring an appellant who has always legally resided in the UK to leave the country and apply for entry clearance if his leave is curtailed in order to assess his Article 8 rights.
The case may be of use to the appellants for its analysis of the (lack of) public interest in requiring applicants who have legally resided in the UK to leave the country if their leave is curtailed, in order to have their Article 8 claim assessed.
The court was clear in stating that even a temporary separation pending an application to re-enter would not be proportionate where the applicant is not unlawfully present in the UK. This conclusion sits well with authorities such as Chikwamba, MA (Pakistan) and Hayat. If there is no issue of “queue-jumping” the Home Office has no reason to require that an application be made from abroad.
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> Home Office Guidance: Guidance on application for UK visa as Tier 1 (Entrepreneur) (19 April 2018): https://www.gov.uk/government/publications/guidance-on-application-for-uk-visa-as-tier-1-entrepreneur?utm_source=09b893bb-2529-46db-9b68-b4151175ced7&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
This guidance will help you apply for a Tier 1 (Entrepreneur) visa or extend your stay in the UK.
NB: This is the 2nd (!) change to the T1E Guidance in 2018 !
>>> Home Office Guidance: Good character: nationality policy guidance (20 April 2018): https://www.gov.uk/government/publications/good-character-nationality-policy-guidance?utm_source=0ee532f5-4f97-4ab3-8b39-32678cf4ddcc&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
This guidance tells Home Office staff how to assess the good character requirement in relevant nationality applications.
It applies to all decisions taken on or after 11 December 2014.
>>> Children born abroad to those with ILR are not born British – see the Section 2, British Nationality Act 1981.
>>> If you are a British citizen by descent and have children born abroad and you are a single mother - what visa do you apply for the children to come to the UK on then ?
The child may apply for a child settlement visa: https://www.gov.uk/government/publications/chapter-8-appendix-fm-family-members
Also, if the child satisfies paras A277, A280(b), 297, (perhaps also due to satisfying 297(e) or 297(f)), then the UK BA may grant that child ILE: https://www.gov.uk/government/publications/entry-clearance-vignettes-ecb09/ecb09-entry-clearance-vignettes-types-safeguarding-and-validity#ecb96-indefinite-leave-to-enter-ile-and-indefinite-leave-to-remain-ilr
Also, if the child’s mother has previously lived in the UK for at least three continuous years prior to child’s birth, then the child may be entitled to register as a British citizen by descent under Section 3(2).
It is worth remembering, however, that the registration under the Section 3(5), after three years’ residence in the UK, may be preferable, as the child would then be British otherwise than by descent.
>>> Home Office Guidance: Undocumented Commonwealth citizens resident in the UK (19 April 2018): https://www.gov.uk/government/publications/undocumented-commonwealth-citizens-resident-in-the-uk?utm_source=d1477e4e-a423-47e7-8a8b-592fe76532a1&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
This page provides more information for Commonwealth citizens in the UK who may not have documents demonstrating their right to be here (known as ‘Windrush’ cases). It sets out a series of scenarios which may be relevant to you, provides links to forms and guidance as well as information about what evidence can be provided as part of your application and contact information.
>>> It has been brought to our attention that many EEA nationals are being asked to resubmit all the evidence that they submitted for their Permanent Residence documents when seeking to naturalise as British Citizens. Further, we have been informed of cases where naturalised EEA nationals are being asked to resubmit evidence when they renew their passports to check that original caseworkers did not make any errors in the initial naturalisation process. This is the warring trend indeed…
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> The European Court of Justice could extend Surinder Singh rights to unmarried partners: http://curia.europa.eu/juris/document/document.jsf?text=&docid=200885&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=503334
On 10 April 2018, Advocate General Bobek delivered his Opinion in C-89/17 Secretary of State for the Home Department v Banger, following a reference made to the Court of Justice of the European Union, by the former President of the Upper Tribunal, McCloskey J.
There were four questions referred to the CJEU. Essentially, the issue is whether Surinder Singh free movement rights apply to unmarried couples as well as spouses. The President also asked whether the lack of a right of appeal against the refusal of a residence card to an extended family member was compatible with EU law.
The Advocate General concluded that the principles derived from case law such as Singh and O and B were not limited to family members. They could be applied by analogy to extended family members too; in this case, an unmarried partner.
Therefore, the Advocate General considered:
“Article 21(1) and Article 45 TFEU must be interpreted as meaning that, where a Union citizen has created or strengthened his family life during the exercise of residence rights in another Member State, the facilitation regime provided for in Article 3(2) of Directive 2004/38 is applicable by analogy to the partner with whom the Union citizen has a durable relationship upon the return of the Union citizen to his Member State of origin. As a result, that Member State must facilitate, within the meaning of Article 3(2) of the directive, in accordance with its national legislation, the entry and residence of the partner with whom the Union citizen has a duly attested durable relationship.
When a Union citizen returns to his Member State of origin after having exercised his residence rights in another Member State where he has created or strengthened his family life with a partner with whom he has a duly attested durable relationship, Article 21(1) and Article 45 TFEU require that, when deciding on the entry and residence of that partner, the Member State of origin of the Union citizen undertakes an extensive examination of their personal circumstances and justify any refusal of entry or residence, pursuant to Article 3(2) of Directive 2004/38.”
The judgment is anticipated in approximately three to six months.
>>> Court of Appeal to Home Office: Go Away: http://www.bailii.org/ew/cases/EWCA/Civ/2018/790.html
The judgment is noteworthy for what it says about the Home Office approach to litigation, and for demonstrating how hard it is to win a deportation appeal.
“There was no issue of general importance other than the suggestion that there was a “systemic” problem in the UT. That was an unusual allegation and a serious one… Having obtained permission on that basis, the Appellant failed either to make the submission good with evidence or to pursue the argument. She abandoned it without even explaining why. In my view, in all the circumstances of this case, the Appellant’s conduct was indeed unreasonable to a high degree.”
It is ironic that the Secretary of State complained of a “systemic” issue with the Upper Tribunal’s treatment of deportation cases.
It has long been the Secretary of State’s approach to challenge every allowed deportation appeal, notwithstanding the merits of the case, arguing at almost every turn that determinations of the immigration tribunals refuse to exhibit sufficient cap-doffing to the “public interest” in booting out foreign criminals.
As ever in this area, decisions are driven as much by politics as they are the law, with no apparent concern for the consequences. The Court of Appeal’s punitive costs order is the least it could have done.
>>> Immigration Rules are a disgrace, senior judge complains: https://www.judiciary.gov.uk/wp-content/uploads/2018/04/speech-lj-irwin-pnba-complexity-and-obscurity-16042018.pdf
Lord Justice Irwin has labelled the Immigration Rules a “disgrace” in the latest example of judicial disquiet over the complexity and poor drafting of the bedrock immigration regulations.
Speaking earlier this week, the Court of Appeal judge hit out at “obscurity” and “cannibalistic drafting” in legislation, of which he said the Rules “provide many classic examples”. The end result is a product that lay people find “completely impenetrable”. Irwin concluded that:
"The Immigration Rules are, in truth, something of a disgrace."
Irwin, who was first appointed to the judiciary in 2006, noted that the work of the parliamentary and government lawyers who draft laws “can be rendered more difficult where political objectives, perhaps particularly populist political objectives, come into play”.
In a speech entitled “Complexity and obscurity in the law”, Irwin also used the EEA Regulations as an example of bad practice. They contain “at least three different bases on which the Secretary of State could refuse an application” from an extended family member, the judge pointed out, “though it was often unclear how these interrelated”. Irwin was part of the Court of Appeal bench that decided Khan v Secretary of State for the Home Department [2017] EWCA Civ 1755 (reported on Free Movement in this post), from which that example comes.
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> Can the missing part of the lawful residence under the 10 Year Long Residence Rule (para 276) be accumulated while awaiting an appeal hearing ?
The answer is “it may”. That means that if the appeal has not yet been heard by the judge, then the appellant may apply to vary the grounds, relying on the case of the MU (‘statement of additional grounds’ – long residence – discretion) Bangaldesh [2010] UKUT 442 (IAC) where the Tribunal agreed that a person could accumulate ten years (for the Long Residence application for ILR) while waiting for an appeal hearing and that it would then be up to the Tribunal to rule on whether the Appellants met the criteria. If the only missing part were the English language / KOL requirement then the Respondent would grant a shorter period of leave.
The headnote of that case reads as follows:
“As held in AS (Afghanistan) and NV (Sri Lanka) [2010] EWCA Civ 1076, there is no time limit on serving a Statement of Additional Grounds in response to a ‘section 120 notice’. Thus, an appellant may accrue ten years’ lawful leave (including leave extended by section 3C of the 1971 Act) while his appeal is pending. The Tribunal may then be asked to decide whether the appellant qualifies for indefinite leave under the Long Residence Rule.”
If the appellant has already had the hearing and is just waiting for the decision, there is no benefit to the appellant in waiting until the appeal rights are exhausted unless the appellant needs a positive finding on an ancillary matter in order to succeed under 276B – for example, if the appellant needs a finding that the appellant has not used ETS deception, for example.
>>> There is no residence requirement for registration in case the child is born in the UK but is then taken overseas for a number of years, and the parents are divorced. If, say the father is granted ILR and is naturalized as a British citizen, the child can then generally be registered as a minor British citizen at any time.
>>> Submitting the missing documents after the application was lodged is not a good idea
The reason is described in the para 34 of the Rules. Also, as an example, the para D of the Appendix FMSE states that:
“D. (a) In deciding an application in relation to which this Appendix states that specified documents must be provided, the Entry Clearance Officer or Secretary of State (“the decision-maker”) will consider documents that have been submitted with the application, and will only consider documents submitted after the application where sub-paragraph (b), (e) or (f) applies.”
The difficulty is that the date of submission is usually the date of posting under para 34 of the Rules. Therefore, if an applicant deliberately does not provide any documents at the time of the application, not reassurance can be assumed that the application can then unilaterally submit additional
documentation unless requested by the caseworker.
>>> Home Office News: Free citizenship for the Windrush generation (23 April 2018): https://www.gov.uk/government/news/free-citizenship-for-the-windrush-generation?utm_source=7922be37-e454-45fd-9826-030081adb79f&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
Members of the Windrush generation who arrived in the UK before 1973 will be eligible for free citizenship, the Home Secretary Amber Rudd announced today.
>>> Home Office Statement: Home Secretary statement on the Windrush generation (23 April 2018): https://www.gov.uk/government/speeches/home-secretary-statement-on-the-windrush-generation?utm_source=5d4e8056-5c40-416c-89a4-ac22f56c1c55&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
The Home Secretary's statement to the House of Commons on the Windrush generation.
>>> Home Office Guidance: Undocumented Commonwealth citizens resident in the UK (23 April 2018): https://www.gov.uk/government/publications/undocumented-commonwealth-citizens-resident-in-the-uk?utm_source=6bd84325-b032-4e6f-bb50-734793c5ff87&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
Information about what undocumented long-term residents of the UK need to do to obtain documents showing their status here.
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> Sole responsibility vs EEA applications
Apparently, the sole responsibility may be the wrong test for EEA family permits in line with the case of the UTT case of YAN MA: HTTP://WWW.BAILII.ORG/UK/CASES/UKAITUR/2018/EA031032015.HTML
At the same time, the consent of both of the parent s is expected in line with : https://www.gov.uk/government/publications/eea-family-permits-eun02/eea-family-permit-eun02?utm_source=FM+master+list&utm_campaign=9fc1ef7993-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_792133aa40-9fc1ef7993-116194677&mc_cid=9fc1ef7993&mc_eid=1af5cd4d48#eun221-applications-from-direct-descendants-under-18
“21. EUN2.21 Applications from direct descendants under 18
In order to protect the interests of minors, ECOs should ensure that they have established parental responsibility for children applying for EEA family permits as direct descendants of EEA nationals, particularly where one or both parents will not be accompanying the child to the UK. In these cases it is reasonable to ask for the written consent of the child’s parent(s) or legal guardian(s) for the child to travel before issuing the EEA family permit.”
>>> The Premium Settlement Service Package is the USA (and only) allows the applicant applying for Settlement to keep both the passport and the Priority Service together
>>> Appeals (modernised guidance): https://www.gov.uk/government/collections/appeals-modernised-guidance
This collection brings together cross-cutting guidance used by UK Visas and Immigration to make decisions about appeals
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> Tier 2 applicants and the drop of salary due to the foreign currency fluctuations
According to the UK BA, a salary may at no point drop below a minimum threshold due to exchange rate fluctuations.
>> UK Visas and Immigration Guidance: Undocumented Commonwealth citizens resident in the UK (25 April 2018): https://www.gov.uk/government/publications/undocumented-commonwealth-citizens-resident-in-the-uk?utm_source=2812259d-204f-4edc-9a7e-bc116367875f&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
Information about obtaining evidence for undocumented long-term residents of the UK to prove their status here.
25 April 2018: We have added information for landlords and employers conducting checks on undocumented Commonwealth citizens.
>>> UK Visas and Immigration Guidance Collection: Employers: illegal working penalties (25 April 2018): https://www.gov.uk/government/collections/employers-illegal-working-penalties?utm_source=5e8d6255-b37d-4485-84c9-3b71e677e01f&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
Information to help employers prevent illegal working and understand the fines (civil penalties) they face when they employ illegal workers.
25 April 2018: Added a link to new guidance for employers conducting right to work checks on undocumented Commonwealth citizens.
>>> Home Office and UK Visas and Immigration Guidance Collection: Migrant journey (18 April 2018): https://www.gov.uk/government/collections/migrant-journey?utm_source=f9078236-1942-4129-b285-848e4bf91606&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
A series of publications that explore migrants' journeys through the UK's immigration system.
The publications provide evidence on the behaviour of migrants entering the UK immigration system for the main routes of entry to the UK and the common pathways through the immigration system that result in settlement.
From the seventh report a more descriptive title has been adopted to indicate that this analysis provides information on changes over time in migrants’ visa and leave status.
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> UK Visas and Immigration Guidance Collection: Appeals (modernised guidance) (27 April 2018): https://www.gov.uk/government/collections/appeals-modernised-guidance?utm_source=779e8f64-5ae2-4b4d-9e45-01af774ebb7f&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
This collection brings together cross-cutting guidance used by UK Visas and Immigration to make decisions about appeals.
>>> UK Visas and Immigration Guidance: Appeal hearings (27 April 2018): https://www.gov.uk/government/publications/appeal-hearings?utm_source=0ef64a1e-d67e-4ca4-bd72-18e9cc1da559&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
How UK Visas and Immigration manage administrative processes for appeal hearings.
27 April 2018: Guidance document updated.
>>> UK Visas and Immigration Guidance: Prepare appeal (27 April 2018): https://www.gov.uk/government/publications/prepare-appeal?utm_source=a2053e0c-e4e9-438c-9795-b5e6f007710d&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
Modernised guidance for how UK Visas and Immigration prepares a case after an appeal is lodged.
27 April 2018: Guidance document updated.
>>> UK Visas and Immigration Guidance: Appeals process (27 April 2018): https://www.gov.uk/government/publications/appeals-process?utm_source=289d899c-083b-4cc1-b287-ce6d3ac53d87&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
Guidance for UK Visas and Immigration staff on allocating, expediting, adjourning and concluding appeals.
27 April 2018: First published.
>>> UK Visas and Immigration Guidance: Appeal bundles (27 April 2018): https://www.gov.uk/government/publications/appeal-bundles?utm_source=86a7a467-8b4a-444d-b304-1b4249487e1e&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
Guidance for UK Visas and Immigration staff on how to prepare an appeal bundle and update caseworking systems.
27 April 2018: First published.
>>> UK Visas and Immigration Guidance: Endorsing bodies: Tier 1 (Graduate Entrepreneur) (01 May 2018): https://www.gov.uk/government/publications/endorsing-bodies-tier-1-graduate-entrepreneur?utm_source=1d039675-9d1a-4183-917b-34d47ee542e1&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
List of authorised institutions for Tier 1 (Graduate Entrepreneur).
1 May 2018: We have updated the list of authorised institutions.
>>> UK Visas and Immigration Guidance: Returns preparation (02 May 2018): https://www.gov.uk/government/publications/returns-preparation?utm_source=2da62f6c-f86c-45dd-8af9-b2c55830454b&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
Guidance on arranging removals for officers dealing with immigration enforcement matters within the UK.
2 May 2018: Replaced the returns preparation with a new version.
>>> Correspondence from EU Parliament to Home Secretary re. online application for EU Citizens in UK post Brexit (30 April 2018): http://www.europarl.europa.eu/news/en/press-room/20180430IPR02805/brexit-meps-concerned-over-eu-citizens-registration-process
MEPs sent a letter to UK Secretary of State raising concerns about the online application system to register the 3.5 million EU citizens living in the UK after Brexit.
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> Surinder Singh route may be also suitable for the EEA partners of the British citizens on the basis that if family members include EEA nationals, then the Regulation 9 may also apply: https://www.gov.uk/government/publications/free-movement-rights-family-members-of-british-citizens
>>> ILR BRP card only “valid” until 31 December 2024 – less than 10 years - why ?
The reason is the 2024 expiry date is due to an encryption requirement by the EU.
From the UK BA:
“The 31 December 2024 validity date is due to a requirement by the EU to restrict BRPs which do not incorporate the next generation of encryption technology.
As the UK intends to introduce the new technology during 2016 the date restriction affects only BRPs issued to adults with settled status (ILR/NTL).
Any BRP rightfully held on 01 July 2024 that is restricted will be replaced free of charge, with the balance of the 10 year period initially expected being issued on a new BRP.
This means that anyone who has paid a fee in expectation of receiving ten year evidence of settled status will still do so, but it will be spread over two BRPs.
The date restriction does not change the entitlements of the rightful holder to work, access services/benefits or travel. The rightful holder still has settled status.”
>>> Tier 1 Entrepreneur – legal representative’s confirmation in relation to para 41(a)(vii) of the Appendix A
The relevant financial institution’s in-house lawyers may be be able to provide the letter in paragraph 41(a)(vii), namely
“an original letter (or letters) from one or more legal representatives (who are not the applicant or the third party) confirming that the third party’s declaration and the letter from the financial institution contain the genuine signatures of the required signatories - paragraph 41(a)(vii) of Appendix A”
>> Tier 2 License sponsorship and the Resident Labour Market Test – the abolition of the Universal Jobmatch web site
The Universal Jobmatch will be replaced by 'Find a Job' on 14 May 2018. The UK BA has not yet updated their Guidance. At the same time the UK BA is aware of this the UK BA intends to shortly update their rules and guidance to reflect the change. The job adverts posted on either Universal Jobmatch (before it closed and which are still within the normal timescales) or the new Find a Job service can be used for the purpose of satisfying the Resident Labour Market Test.
From the UK BA:
“Transitional arrangement won’t be needed. We plan to update the Rules and guidance in the next scheduled update abut in the meantime, references to Universal Jobmatch should be interpreted as including its successor ‘Find a job’.
We’ve been advised that ‘Find a job’ will be available to employers from 14 May. No new jobs can be posted on Universal Jobmatch after 17 May, however as Universal Jobmatch won’t close until 18 June, the resident workforce will still be able to view advertisements placed on it for 28 days. After 18 June the adverts will disappear as they aren’t being migrated to the new platform.
As always, sponsors will be required to retain evidence:
Where the vacancy has been advertised online through Jobcentre Plus or Jobcentre Online, you must keep a screen shot from the relevant government website on the day the vacancy is first advertised which clearly shows all of the following:
• logo of the relevant government website hosting the job advertisement
• contents of the advert
• vacancy reference number for Universal Jobmatch vacancies this is the ‘Job ID number’ and for Jobcentre Online this is the Job Reference number
• date
• URLfor Universal Jobmatch vacancies this also contains the Job ID number
• closing date for applications
Note: the GOV.UK website will, over time become the main portal for government services and information in the UK. The following are accepted as relevant government websites for jobs advertised using Universal Jobmatch or, Jobcentre Plus for jobs advertised before 19 November 2012:
• JobCentre Online
• GOV.UK
• Direct Gov
Note: if the website clearly shows the date the vacancy was first advertised, the screen shot can be taken at any point during the period the vacancy is advertised.
Appendix D of the Sponsor guidance (from where the above information was taken) will be updated in due course to include references to ‘Find a job’.