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
The updated guidance naturally takes into account the significant changes brought about by the Immigration Act 2016.
The new guidance says that a bail hearing will be listed “as soon as possible, normally within three working days”. That does seem a bit ambitious. Only time will tell how readily the tribunal’s already stretched resources can cope with the bout of new cases which the expedited bail system and the automatic referral provisions will trigger.
The guidance also requires (in accordance with the Tribunal Procedure Rules) that the Secretary of State produce a bail summary in advance of the hearing and a copy of any removal directions. It will be useful to see how strict judges are in implementing this part of the Procedure Rules. In my experience, the Home Office routinely fails to provide any such summaries or copies of removal directions with little or no consequences.
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 Form: Apply for a permanent residence document or permanent residence card: form EEA (PR) (9 May 2018)
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.
The Home Office has issued a revised guidance that should help asylum seekers and other migrant children in the UK who have been banned from studying under changes introduced at the beginning of the year.
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
“when the competent national authority receives, from a third-country national, an application for a right of residence for the purposes of family reunification with a Union citizen who is a national of the Member State concerned, that authority cannot refuse to examine that application solely on the ground that the third-country national is the subject of a ban on entering that Member State.”
>>> The role of the court in the Judicial Reviews
In judicial review cases the court plays a supervisory role: it will check whether the public body decision-maker has made a particular decision lawfully. It will not re-make the decision based on the merits, or what it thinks the decision ought to have been. But as established in the case of Harrison v SSHD [2003] EWCA Civ 432, where a legal right to citizenship is concerned, a person can bring proceedings in the High Court for a declaration that he or she is so entitled. The case is also a useful example of a powerful remedy for individuals whose right to automatic citizenship has been disputed by the state, where evidence is properly and fully evaluated by an impartial court.
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 Court of Appeal in Youssef v Secretary of State for the Home Department [2018] EWCA Civ 933 decided that the appellant was disqualified from refugee status because he had incited terrorist acts in general. There was no requirement for there to be a link between his incitement and a specific terrorist act.
The Court of Appeal in SC (Zimbabwe) v SSHD [2018] EWCA Civ 929 gives yet another new decision on the deportation of foreign criminals, this time on the definition of “persistent offenders”. Its discussion of the concept, while interesting enough, makes no real changes to the law as set down previously by the Upper Tribunal.
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 to apply for indefinite leave to remain in the UK in various immigration categories and for a biometric residence permit.
This form keeps being updated by the UK BA now every month ! Previous version of the form is dated April 2018 ! The old form can be used up to 21 days from the introduction of the new form. Be careful !
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 R (Lauzikas) v Secretary of State for the Home Department [2018] EWHC 1045 (Admin) marks an important development in the law on the detention of European nationals pending deportation. The key finding is that the standards set out in the Free Movement directive, including proportionality and necessity, must govern the decision to detain, and not merely the linked decision to deport.
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 number of people removed from the UK by the Home Office is at its lowest level in well over a decade, new statistics show. Fewer than 7,000 migrants were recorded as leaving the UK under either an enforced or voluntary Home Office scheme in January-March 2018 — the lowest in any given quarter since 2005.
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
>>> Which is the correct test to apply for Settlement as a spouse/partner of a British citizen/Settled person ?
>>> Can an immigration application, for example, FLR(FP), be still lodged when the migrant is in detention ?
Yes, apparently, in line with the Section GEN, para GEN.1.9.(a)(ii) of the Appendix FM:
“(ii) where a migrant is in immigration detention. A migrant in immigration detention or their representative must submit any application or claim raising Article 8 to a prison officer, a prisoner custody officer, a detainee custody officer or a member of Home Office staff at the migrant’s place of detention”.
The immigration application fee waiver may be applicable in this case.
>>> Can a valid immigration application under the UK Immigration Rules be made with an expired passport ?
Yes, apparently, in line with the para 34(5)(b)(ii):
(b) Proof of identity for the purpose of this Rule means:
(ii) if the applicant does not have a valid passport or national identity card, their most recent passport or (except a PBS applicant) their most recent national identity card
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
Interesting development on in-country applications. A new service delivered by outsourcing firm Sopra Steria will see supporting information processed at local libraries rather than people having to post it in with their application:
“Under the new arrangements people using the service will be able to submit biometric information including photos, fingerprints, and signatures and their supporting evidence at a single appointment. The evidence will then be copied and sent to UKVI, meaning that people won’t have to hand over important documents, such as passports, whilst the applications are processed.”.
The contract is widely seen as part of the preparations for registering over three million EU citizens and their families for settled status after Brexit. It will begin in October 2018.
>>> Tribunal opens door to awards of costs against Home Office for unreasonable behaviour – the case of Awuah (No 2) (8 December 2017)
A heavyweight Presidential panel sitting in the First-tier Tribunal has made multiple awards of costs against the Home Office for unreasonable behaviour and given guidance on the proper approach to making such awards in future. Despite the decision being promulgated in December 2017, the Upper Tribunal’s Reporting Committee has elected not to report the decision and it has not yet been added even to the databases of unreported decisions.
What started as a minor aberration has now turned into a worrying trend. The Home Office confirmed on 24 May that we have hit the monthly cap on visas for skilled non-EU workers for the sixth month in a row. On top of that, Freedom of Information data shows that the situation does not look like it will ease up any time soon.
The visa “cap” was introduced by the coalition government in 2010 to curb the number of new applicants who could come to the UK every year on a Tier 2 General visa. It was until recently an entirely benign piece of policy which enabled the government to confidently declare that it was controlling net migration, while in reality having very little real practical effect on the Tier 2 system. Over the last few months it has begun to show its teeth.
As the result – the backlog is not clearing. The last few months have seen it hover around the 45 to 50 points mark — equivalent to a job with a salary of £50,000. This means that requests for certificates for jobs with salaries under £50K are highly likely to be refused.
The Court of Appeal upholding a decision to deport a foreign criminal is hardly front-page news at the moment. But Mwesezi v Secretary of State for the Home Department [2018] EWCA Civ 1104 throws up some interesting reminders about how to approach Strasbourg jurisprudence in this area.
The appellant is a Ugandan national who had accepted in the First-tier Tribunal that he had committed offences “of extreme seriousness”. He sought to rely on his Article 8 right to a private life to prevent his removal. Mr Mwesezi has a conviction of more than four years in prison, and therefore needed to show that there were “very compelling circumstances” in his case to outweigh the public interest in his deportation.
The First-tier Tribunal agreed with the appellant, but was overturned on appeal by the Upper Tribunal.
The Court of Appeal agreed with its Upper Tribunal counterparts. Mr Mwesezi had committed very serious offences as an adult. He had no compelling family ties. Of particular importance was the finding that the appellant would not face very significant obstacles to his integration in Uganda.
The Court of Appeal in R (Joshi) v Secretary of State for the Home Department [2018] EWCA Civ 1108 has decided that a claim is a human rights claim if in substance, regardless of form, it is a human rights claim.
Having received an application asking for extension of time in which to find a Tier 4 sponsor on the basis of Article 8 rights, the Secretary of State was entitled to read it as a human rights claim founded on those rights, and entitled to certify it as clearly unfounded.
>>> Upper Tribunal time limits: clock starts to run when written decisions are <sent> :
This one took effect on 14 May 2018 and is about the time limit for appeals to the Upper Tribunal. Basically the clock starts ticking on the date that written reasons are sent out — not the date on which they are received.
This is the effect of the Tribunal Procedure (Amendment) Rules 2018 (2018 No. 511 (L. 7)). They amend Rule 33 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (SI 2014 No. 2604 (L. 31)). Rule 33 originally ran as follows:
33.—(1) A party seeking permission to appeal to the Upper Tribunal must make a written application to the Tribunal for permission to appeal.
(2) Subject to paragraph (3), an application under paragraph (1) must be provided to the Tribunal so that it is received no later than 14 days after the date on which the party making the application was provided with written reasons for the decision.
(3) Where an appellant is outside the United Kingdom, an application to the Tribunal under paragraph (1) must be provided to the Tribunal so that it is received no later than 28 days after the date on which the party making the application was provided with written reasons for the decision.
So, whatever the position before, it is now clear that an in-country appellant has 14 days, from the day on which written decisions are put in the post, to appeal to the Upper Tribunal. An out-of-country applicant has 28 days to appeal from the date of postage.
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
R (Eroje) v Secretary of State for the Home Department [2018] EWHC 1010 (Admin) is a shocking story of Home Office incompetence which led to the unnecessary and unlawful detention of someone who had made repeated attempts to leave the UK voluntarily.
Buried in the government’s official reply to a recent report of the Home Affairs committee of MPs is the following nugget:
"We keep all our Immigration Rules under review, and respond to feedback from applicants and other interested parties where appropriate. For example, in January 2018 we implemented re-written rules for Tier 1 (Entrepreneur) which are clearer and easier to follow, and in addition, we have announced plans to build on the success of the new visitor Rules introduced in April 2015, and simplify the Immigration Rules for work categories along similar lines. We will use plain English [and] remove the out-dated terminology of tiers and points-scoring. Our aim is to make the rules as easy as possible for applicants and their sponsors to understand and use.”
The Law Commission is already working on a project to redraft the Immigration Rules so as to make them clearer. This proposed simplification of the rules for work visas specifically will, one assumes, have a similar objective: clearer language without changing the substance. I don’t know exactly how that will work if you’re talking about removing points from a System that is famously Based on Points, but any simplification must be welcome in principle.
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 test for an Article 8 claim to stay in the UK within the Immigration Rules is whether there are “insurmountable obstacles” to continuing family life outside the UK. But even if an applicant does pass this test, there is a further hurdle: whether removal is disproportionate. An important question here is what weight the test under the Immigration Rules has in making this decision on proportionality.
At least, that was the position until the recent decision in TZ (Pakistan) and PG (India) v Secretary of State for the Home Department [2018] EWCA Civ 1109. The Court of Appeal has now stated that, where Article 8 is engaged, satisfying the Immigration Rules also means that removal is disproportionate. An applicant who gets over the first Article 8 hurdle need not worry about the second.
>>> The Court of Justice of the European Union handed down a decision in the case of C-647/16 Adil Hassan v Prefet du Pas-de-Calais concerning the Dublin III Regulation
Headnote:
“When a person travels to a Member State after making a request for international protection in another Member State, the first Member State cannot decide to transfer that person to the second Member State before that second State has agreed to the request to take that person back”.
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
In ZN (Afghanistan) and KA (Iraq) [2018] EWCA Civ 1059, the Court of Appeal considered the tricky issue of costs in public law cases, in a scenario where the appeals were withdrawn following consent orders.
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
• EU nationals arriving in the UK between 29 March 2019 and 31 December 2020, and intending to stay longer than three months, will need to register (no particular details on this registration scheme are available at present)
• EU nationals and their family members will have until 30 June 2021 to apply under the new “EU Exit Settlement Scheme”
• The new EU Exit Settlement Scheme will be launched by the end of 2018
• EU nationals residing in the UK before 31 December 2020 will be able to have their family members join them, provided those family relations existed before that date. Future partners will need to meet the requirements of the domestic Immigration Rules (aka Appendix FM, £18 600+ threshold, TB, English language tests etc)
• The Dublin III arrangements will continue to apply during the transitional period
>>> Same-sex spouses should benefit from free movement rights, says CJEU: eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:158:0077:0123:en:PDF
Following a reference made to the Court of Justice of the European Union (CJEU) by the Romanian Constitutional Court, the CJEU has ruled that “spouses” in Directive 2004/38 include same-sex spouses.
The case is C-673/16 Relu Adrian Coman and Others v Inspectoratul General pentru Imigrări and Others and the CJEU’s press release summarises the finding as follows:
“Although the Member States have the freedom whether or not to authorise marriage between persons of the same sex, they may not obstruct the freedom of residence of an EU citizen by refusing to grant his same-sex spouse, a national of a country that is not an EU Member State, a derived right of residence in their territory”.
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
>>> What if the FLRM extension application refused on the basis of failing to meet the A2 English language level test requirement ?
The answer is “appeal”, as such a refusal is likely to be disproportionate and unlawful.
Para 32B of the Rules states:
…
the decision-maker may discount the test certificate or result and require the applicant to provide a new test certificate or result from an approved provider which shows that they meet the requirement, if they are not exempt from it.
The, the Appendix FM section 1.21states:
If there is uncertainty as to whether a test certificate, result or other specified document was previously accepted by the Home Office as part of a successful previous partner or parent application, the decision maker may request other specified evidence from the applicant to demonstrate that they meet the English language requirement.
If the only reason for the refusal was a suspect English test, then a fair and sensible ECO/caseworker would have given the applicant an opportunity to provide other specified evidence.
Moreover, the case-law notes in HU071822015 & Ors. [2017] UKAITUR HU071822015 (14 August 2017) states:
“This appeal came before me for an error of law hearing on 19 July 2017. I found an error of law in the decision of the First tier Tribunal, which I append. The parties agreed I could re-make the decision without the need for an oral hearing, but with the assistance of written submissions, which I have now received.
2. The only issue outstanding, it now being accepted that the Appellants meet the financial requirements of the Rules, is whether the Entry Clearance Officer erred in failing to contact the first Appellant to request an English language certificate from an approved provider, in line with the principle of evidential flexibility. This is now set out in Appendix FM SE, the relevant provisions of which are as follows: …
…
Answer
36. I conclude that the answer to the question identified in para 1 above is “yes”: the agency’s refusal of Mr Mandalia’s application was unlawful because, properly interpreted, the process instruction obliged it first to have invited him to repair the deficit in his evidence.”
…
So the course of the action could be to appeal, take the test (prior to appeal decision) and cite above.
>>> Applying for a UK visa from the USA – settlement and non-settlement applications process
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 Court of Session has refused to make a reference to the Court of Justice of the European Union in Luxembourg to determine whether the UK’s notice that it is leaving the EU under Article 50 can be cancelled.
Given that the subject matter involved “the most contentious and political debate of our time” [paragraph 62], the Court of Session (Scotland’s equivalent to the High Court) decided that it fell outside its jurisdiction. It is a long-standing tenet of the UK constitution that the courts do not adjudicate on political matters. The democratic process is liable to be subverted if, on questions of moral and political judgements, opponents of a particular position can achieve through the courts what they can not achieve in Parliament (to paraphrase Lord Bingham in Countryside Alliance v Attorney General [2007] UKHL 52 at [45]).
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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 EEA national child apply for Registration as a British citizen without first obtaining Permanent Residence in the UK ?
“Regulation 7 amends paragraphs 7, 13 and 14 of Schedule 2 to the 2003 Regulations, which set out particular requirements as respects applications under sections 4(2) and 6(1) and (2) of the 1981 Act, respectively. Pursuant to the amended paragraphs, applicants relying upon an EU right of permanent residence in the United Kingdom in order to meet the relevant statutory requirement in the 1981 Act must provide with their application a valid permanent residence card or document certifying permanent residence or a residence permit or residence document issued under the Immigration (European Economic Area) Regulations 2000 which is endorsed under the immigration rules to show permission to remain in the United Kingdom.”
>>> How to calculate the amount of adequate maintenance if the sponsor receives one of the specified allowances in order to sponsor a foreign spouse ?
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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 Entry Clearance Office (ECO) revoke the issued Indefinite Leave to Enter vignette, issued in error or discretionally ?
“ECOs cannot revoke entry clearance that has taken effect as leave to enter (i.e. once the person has arrived in UK), or revoke, cancel or curtail that leave.”.
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An important decision by the UK Court of Appeal (Baigazieva v Secretary of State for the Home Department [2018] EWCA Civ 1088) confirming that a third country national, in order to retain a right to reside in the UK in reliance on Regulation 10(5), does not need to show that their former EEA spouse exercised treaty rights as a “qualified person” until the divorce, the decree absolute, itself. Rather, it is sufficient to show that the former EEA spouse exercised treaty rights until divorce proceedings were commenced.
According to one part of the announcement, it will replace the Tier 1 (Graduate Entrepreneur) route from spring 2019, although another part of the press release refers to it as an expansion, rather than a replacement.
The first big difference between the new proposal and what currently exists is that applicants will not have to be recent graduates (left university within the last two years, as currently required under the Sirius programme) in order to apply for endorsement.
The second big difference is that the group of entities which can endorse an applicant with a business idea is expanded from approved Higher Education Institutions and the government’s own entrepreneur programme, to “approved business sponsor(s), including accelerators”.
This would mark a further move by the Home Office towards the greater use of third-party endorsements in the immigration system, currently the model used for applications in the Tier 1 (Exceptional Talent) route.
The announcement also refers to making “the visa process faster and smoother for entrepreneurs coming to the UK” although no details are given on this.
However, the original MAC report suggested that the accelerators – those “approved business sponsors” mentioned in the press release – should have to put a certain amount of cash into the start-up:
“Accelerators should be required to provide a minimum investment, perhaps somewhere in the region of £20,000 to £30,000, usually in exchange for equity in the business to ensure that they are suitably incentivised to select only high potential entrepreneurs.”.
With the above requirement it is hard to believe that the new programme will be really popular.
The Home Secretary has today laid a Statement of Changes to the Immigration Rules to exempt doctors and nurses from the limit on visas for skilled non-EU workers. Sajid Javid and Jeremy Hunt, the Health Secretary, announced in a press release that “there will be no restriction on the numbers of doctors and nurses who can be employed through the Tier 2 visa route”.
The NHS accounts for around 40% of all Tier 2 places, according to the Home Office.
All changes will come into force on 6 July 2018, although some only apply to applications made after that date.
Returning residents
Iindefinite leave to remain automatically lapses after two years’ absence from the UK. It is possible to have indefinite leave restored if you can show strong ties to the UK.
The new Rules make clearer the distinction between people who have been absent for under two years, and those who have been absent for longer than two years. The former are no longer called “returning residents” and can return without a visa. The latter must apply for leave to enter and must show that they have strong ties to the UK and intend to make the UK their permanent home. Previously, the Rules simply said that returning residents had to show, “for example, that they had lived here most of their life”. This seems to be a relaxation of the position, which may be in order to cater for people returning under the Windrush scheme — the explanatory memorandum makes that link, at any rate.
Exceptions for overstayers
As it is currently drafted, paragraph 39E of the Immigration Rules allows overstayers to benefit from the exceptions for overstayers in two consecutive applications. Applicants applying after 6 July will only be able to rely on the exceptions once. For example:
Sergei’s leave was expiring on 15 June 2017. He submitted an application for further leave to remain as a spouse on 20 June 2017. This application was out of time but within 14 days of his leave expiring. Sergei explained that he had been urgently hospitalised and could not have applied before. The Secretary of State accepts this as a good reason beyond Sergei’s control, such that his application can be considered under the rules, disregarding the overstay.
However, Sergei’s application is refused because he did not meet the financial requirement. The refusal is dated 7 July.
Previously, relying on paragraph 39E, Sergei would have had an opportunity to make another application by 19 July, and again disregarding the overstay. From 6 July, this will no longer be possible for Sergei. It is now only possible for an applicant to apply for further leave within 14 days of the expiry of the previous leave disregarding the overstay once.
Another change to rules for overstayers, this time positive, is at paragraph 320(7BB) of the Rules, relating to general grounds for refusal. Paragraph 320(7B) means that an applicant who previously overstayed for 90 days or more before 6 April 2017, or for 30 days or more after 6 April 2017, might have an application for entry clearance refused for up to ten years.
Paragraph 320(7BB) sets out the periods of overstay which are disregarded. From 6 July 2018, a period of overstay pending the determination of an out-of-time application where paragraph 39E applied will be disregarded when calculating the period of overstaying in paragraph 320(7B).
Tier 1 (General)
The rules relating to indefinite leave to remain for Tier 1 (General) Migrants will be deleted as the route closed on 6 April 2018.
Tier 1 (Exceptional Talent)
For applications submitted after 6 July 2018, the endorsement of arts applicants is being widened to include those in the fashion industry who are operating leading designer fashion businesses.
Other changes are being made to the criteria for endorsement by each Designated Competent Body, including to evidential requirements and eligible awards for applicants in film and television.
Tier 1 (Investor)
Changes are made so that:
• Applicants cannot withdraw interest and dividend payments generated before they purchased their investment portfolio
• There is a further obligation on financial firms to scrutinise the suitability of applicants’ investment by having to confirm that the funds have only been invested in qualifying investments, and no loan has been secured against those funds.
Tier 1 (Entrepreneur)
There are minor amendments on when letters from legal representatives confirming signatures are required, and provision for accountants to confirm the investment has been made on the applicant’s behalf.
Tier 2
In summary doctors and nurses are now exempt from the limit on visas for skilled non-EU workers.
Other, smaller, changes to the Tier 2 (General) route include:
• Deletion of references to jobs sponsored at level 4 of the Regulated Qualifications Framework, as, since June 2012, this was increased to RQF level 6.
• Clarification that an applicant cannot own more than 10% of shares, even if indirectly (for example via another corporate entity), in a limited company sponsoring them, save for certain exceptions. The old Rules did not specify that an application could not own the shares indirectly.
• Applicants applying after 6 July 2018 who have been absent on maternity, paternity, shared parental or adoption leave will now need to submit evidence of the adoption or birth.
• Finally, a migrant who has been absent for work without pay for four weeks or more will no longer have their Tier 2 leave curtailed when the absence was for assisting with a national or international humanitarian or environmental crisis overseas, providing their sponsor agreed to the absence(s) for that purpose.
Absences for indefinite leave to remain applications
Certain visa categories, including a number of the work-based categories, require an applicant to show they have been “continually resident” in the UK over a five-year period before they can apply for indefinite leave to remain.
Continuous residence can be broken by absences for a period of 180 days or more in 12 months. Prior to 11 January 2018, the 180-day limit could not be exceeded in any of the five 12-month periods preceding the date of the application. A recent statement of changes, of 7 December 2017, meant that from 11 January 2018, an application could be refused if at any point over the five qualifying years, the 180-day limit is exceeded in any 12-month period.
The change was so significant that a number of immigration practitioners lobbied for the change to only apply to those who were granted leave after 11 January 2018. The request has been accepted by the Secretary of State, who has introduced a transitional arrangement to ensure that the new absences calculation rule does not adversely affect applicants whose absences occurred during leave granted under Rules in place prior to 11 January.
A second change to the Rules relating to when continuous residence is broken brings the entry clearance provisions in line with the more generous in-country provisions. Continuous residence will usually not be considered to be broken when the applicant left and returned provided they had leave, and there are some exceptions. Two new exceptions have been added:
• where the applicant makes an application for entry clearance within 14 days of the leave expiring and the Secretary of State considers that there was a good reason beyond the control of the applicant or their representative why the application could not be made during the currency of continuing limited leave; or
• where a successful application for entry clearance is made following the refusal of a previous application to which an exception applied, and the application was made within 14 days of that refusal (or the expiry of the time limit for making an in-time application for administrative review, or any administrative review or appeal being concluded, withdrawn or abandoned or lapsing).
Students
Students who study certain subjects and learn “knowledge and skills that could be used in the proliferation of weapons of mass destruction” are subject to the Academic Technology Approval Scheme (ATAS). They must obtain a certificate before they can start studying those subjects. The Rules will be changed such that this requirement will be applied to all students regardless of the length of their studies (it previously only applied to those courses in excess of six months).
Other changes include:
• students are allowed to study on a study abroad programme, regardless of when the programme is added to their course
• The minimum length that a postgraduate course needs to be in order for a Tier 4 migrant to be eligible to bring dependants with them to the UK is being reduced from 12 months to 6 months
• Evidence of previous qualifications now include print-outs from awarding bodies’ online checking services, although the Home Office may still ask to see the original certificates of qualification or transcript of results
• Students from certain countries are subject to different documentary requirements under Tier 4 of the Points Based System. The list of eligible countries is expanded and students may benefit from those different requirements even if they apply from their country of residence, and that is different from their country of nationality.
Other changes
Other changes include:
• Removal of Croatians from the limit of allocated endorsements for Tier 1 (Exceptional) Talents and Tier 2 Certificates of Sponsorships. This is because, from 1 July 2018, the fifth-year anniversary of Croatia’s entry in the EU, Croatian nationals will no longer need authorisation to work in the UK and will benefit fully from EU movement rules.
• Changes to list of approved government authorised exchange schemes for Tier 5 migrants
• Confirmation that an adopted child with limited leave under the family Immigration Rules, who is aged 18 years or above by the time of their application for indefinite leave to remain, will need to meet the Knowledge of Language and Life requirement
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>>> Settled status for EEA citizens – the details have been announced – READ VERY CAREFULLY !
Stop the press – the settled status will be a virtual thing – it will NOT be a document. How this will help the EEA citizens to prove their status at work, to the LandLord etc – go figure. Literary.
Anyway, the details as they have been announced today by the Government.
Roughly 3.5 million EU nationals will need to apply for “settled status” or “pre-settled status” by June 2021, depending on whether they have lived in the UK for five years or under five years by the time they apply. This will be a VIRTUAL (see the explanatuion below) UK immigration status confirming the right to live and work in Britain, underpinned by a draft Withdrawal Agreement between the UK and the EU.
The applications under the scheme will cost £65, or half that for children under 16. There is still no specific deadline for when people can begin to apply, but it will be “fully open” by 30 March 2019 — the first full day of Brexit.
The three key requirements of a successful application under the scheme would be:
• Presence in the UK
• EU nationality
• No serious criminal record
The statement of intent fleshes out the requirements and application process. It is not, however, a comprehensive guide. The phrase “further details will be provided in due course” appears multiple times and many aspects remain unsettled — such as when people will be able to apply on paper rather than online, for instance.
“No physical document will be issued” as proof of status. This is potentially a problem for people having to prove their right to rent or work in the age of the “compliant environment”. Will landlords and employers be willing to check an online database or will they simply turn to a native applicant who is less bother?
Interesting points include:
• Confirmation “those who are continuously resident in the UK but who happen to be abroad” when the post-Brexit transition ends on 31 December 2020 will be covered by the scheme. There is also a detailed definition - https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/718237/EU_Settlement_Scheme_SOI_June_2018.pdf#page=14 - of “continuously resident”.
• Confirmation that EU citizens “will not be required to show that they meet all the re-quirements of current free movement rules, such as any requirement to have held comprehensive sickness insurance”.
• Confirmation that applicants will not need to pay the Immigration Health Surcharge on top of their £65
• Those who get “pre-settled status” (for those in the UK for less than five years) will not have to pay again to get full settled status
• A table (Annex A - https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/718237/EU_Settlement_Scheme_SOI_June_2018.pdf#page=36 ) of ev-idence that will be accepted by the Home Office as proof of residence
• Details of the precise legal status that will be granted under UK law (indefinite or limited leave to remain)
• The scheme will be open to citizens of non-EU Iceland, Liechtenstein, Norway and Switzerland “on a similar basis as for EU citizens”
• The scheme will be open to Surinder Singh family members but NOT Zambrano, Chen or Ibrahim/Teixeira carers
• Irish citizens, who do not need to apply for settled status, “may do so if they wish”
• The scheme will be monitored by the Independent Chief Inspector for Borders and Immigration before an Independent Monitoring Authority is set up as required by the draft Withdrawal Agreement
The bottom line is, as we have been telling application for a long time, get your Permanent Residence NOW and apply to become a British citizen BEFORE Brexit. At least you will have a paper document on hand to confirm your status. We are here to help, now: https://legalcentre.org/Initial-Consultation.html
26 June 2018 – Read the reviews about our assistance to immigrants and their families like
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 Section 117B(6) of the Immigration Act 2014 and removal
The Section 117B(6) of the Immigration Act 2014 states that :
… (6)In the case of a person who is not liable to deportation, the public interest does not require the person’s removal where—
(a)the person has a genuine and subsisting parental relationship with a qualifying child, and
(b)it would not be reasonable to expect the child to leave the United Kingdom.
This is a rather useful section when lodging a family rights based application under the Appendix FM when the application, for example, does not have a valid leave (visa) to remain in the UK.
>>> Different name in your national passport ? You may not be issued a new British passport then !
27 June 2018 – Read the reviews about our assistance to immigrants and their families just like yours :-)
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 appellant raise Human Rights grounds on appeal following an EEA application refusal ?
The answer is likely to be “No” in line with the case Amirteymour v SSHD, EWCA Civ 353, unless the appellant was issued with the Section 120 Notice and/or also submitted (concurrently, paid for) the Human Rights application.
In other words the Human Rights cannot be raised in the EEA Applications or Appeals (Amirteymour v SSHD, EWCA Civ 353). The reasoning is that the right of appeal (under regulation 26(1)) is specifically a right of appeal against an EEA decision. The EEA appeal should focus on EEA law.
28 June 2018 – Read the reviews about our assistance to immigrants and their families like yours ?
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 visa national child, who was born in the UK, lived in the UK for a period of 10 continued years and then who left the UK, be registered as a British citizen ?
The answer is “Yes”.
For example, Taras was born in the UK on the 1st May 1998. His parents were not British citizens and never had leave in the UK. They never left the UK until 2010, when the whole family relocated to Ukraine.
Taras is now 20 years old and continues to live in Ukraine. Provided he can meet the good character requirement, Taras is entitled to make an application to register as a British citizen, as he was born there after the 1st January 1983, lived in the UK for the first 10 years of his life, and was never absent for more than 90 days in any one of those 10 years.
In the case of R (Nesiama & Ors) v Secretary of State for the Home Department [2018] EWCA Civ 1369, the Court of Appeal found that “residence” in the UK means “physical presence”, such that continuous residence in an application for indefinite leave to remain may be broken by too many absences from the country, irrespective of other factors such as owning property, maintaining a home, paying taxes or other private and family connections in Britain. Absences may, therefore, prevent a person from acquiring indefinite leave to remain, even when their “home”, or “residence” on a more common sense understanding of that term, may very well be in the UK.
02 July 2018 – Read the reviews about our assistance to immigrants and their families like yours ?
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 Visa applications – how much saving do you need for a wife and 2 children ?
Quoting the current Rules:
Financial requirements
E-ECP.3.1. The applicant must provide specified evidence, from the sources listed in paragraph E-ECP.3.2., of-
(a) a specified gross annual income of at least-
(i) £18,600;
(ii) an additional £3,800 for the first child; and
(iii) an additional £2,400 for each additional child; alone or in combination with
(b) specified savings of-
(i) £16,000; and
(ii) additional savings of an amount equivalent to 2.5 times the amount which is the difference between the gross annual income from the sources listed in paragraph E-ECP.3.2.(a)-(d) and the total amount required under paragraph E-ECP.3.1.(a);
04 July 2018 – Read the reviews about our assistance to immigrants and their families like yours ?
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
>>> Applying for a UK spouse/fiancé/partner visa ? Make sure that you pass the correct English language test !
Apparently, there is a difference between the A1 IELTS General Training and the A1 IELTS for UKVI General Training tests, despite being on the same level, that is, the A1 CEFR.
So, which is the correct test for the UK spouse/fiancé/partner visa (the so-called Appendix FM applications) ? The answer is the A1 IELTS for the UKVI General Training as it contains the UK VI reference number without which the UK VAC cannot approve the Settlement application.
A number of applicants are being caught by the poorly drafted Appendix O, which only specifies the “IELTS” test, not IELTS for UKVI.
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.
That means that a professionally prepared and assisted appeal (see www.legalcentre.org) has certain chances to succeed.
06 July 2018 – Read the reviews about our assistance to immigrants and their families like yours ?
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
09 July 2018 – Read the reviews about our assistance to immigrants and their families like yours ?
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
This is an unsuccessful challenge to a good character naturalization refusal. The claimant sought to argue that the policy of refusing citizenship on the ground of bad character where the person had broken immigration laws in the preceding decade was ultra vires the British Nationality Act 1981. The case is R (Al Enein) v Secretary of State for the Home Department [2018] EWHC 1615 (Admin).
In Teh v Secretary of State for the Home Department [2018] EWHC 1586 (Admin) the High Court has found that a British Overseas Citizen (BOC) can be stateless under the Immigration Rules if he or she has no other nationality. This is an interesting and pragmatic finding which highlights the largely useless nature of BOC status.
The position of Irish citizens is different to that of other EEA nationals. Irish citizens are not normally subject to any form of immigration control on arrival in the United Kingdom, because Ireland is part of the Common Travel Area. If you are an Irish national, you will be free of immigration time restrictions for naturalization purposes. You do not need to apply for a permanent residence document before you apply for naturalization.”
11 July 2018 – Read the reviews about our assistance to immigrants and their families like yours :-)
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 visas: what to do if the migrant was terminated and then re-instated ?
The UK BA response in this case is:
“Once the sponsor has made the decision to terminate a migrants employment they should report this via the SMS within 10 days. If however the migrant is re-instated for any reason the sponsor could log back into the SMS and withdraw the report if the leave to remain had not been curtailed at that stage. If the leave had been curtailed we would then ask the curtailment team to re-instate the leave due to an Employment tribunal outcome and await their decision.”
12 July 2018 – Read the reviews about our assistance to immigrants and their families like yours :-)
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
>>> Changes to the EEA Regulations come into force on 24 July 2018
The latest, and presumably last, amendments to the EEA Regulations were laid before Parliament on 3 July 2018. The Immigration (European Economic Area) (Amendment) Regulations 2018 (SI 2018 No. 801) will come into force on 24 July 2018.
Implementing a number of cases decided by the Court of Justice of the European Union, the amendments make the following changes to the Immigration (European Economic Area) Regulations 2016 (SI 2016 No. 1052).
Dual nationals
Since 2012, the Secretary of State has interpreted the case of C-434/09 McCarthy to mean that British citizens who also hold the nationality of another EU country cannot rely on the EEA Regulations when sponsoring their family members. Unless they could use the so-called Surinder Singh route, dual British/EU citizens had to rely on (more restrictive) British domestic rules to sponsor their family members.
In the case of C-165/16 Lounes, the Court of Justice found instead that EU citizens who move to the UK and later naturalise as British retain their free movement rights under EU law, even though they have become British.
The Regulations are amended to reflect the judgment in Lounes. Dual nationals can rely on EU law so long as they exercised treaty rights before naturalising as British citizens.
It seems that this change will survive Brexit. In fact, the Statement of Intent of 21 June 2018 (paragraph 6.5) confirms that family members of this category of dual nationals will be allowed to apply for status to live in the UK under the coming EU Settlement Scheme.
Retaining self-employed status
This change comes following the Court of Justice decision in C-442/16 Gusa.
The conditions where an EEA citizen can retain self-employed status are brought into line with the conditions under which an EEA citizen can retain worker status. The advantage of being able to keep self-employed status is that the person is considered to be “exercising treaty rights”. That means they continue to live lawfully in the UK, have access to certain benefits, are able to have family members join them in the UK, and can count time towards the five years’ residence needed to acquire permanent residence.
Self-employed EEA citizens can now retain that status where:
• They are temporarily unable to work as self-employed as the result of an illness or accident
• They are in “duly recorded involuntary unemployment” after having been self-employed persons, provided that they:
o registered as jobseekers
o entered the UK as self-employed or to seek self-employed work, or were in the UK seeking employment or self-employment immediately after having enjoyed a right to reside as self-employed, self-sufficient or student
o provide evidence of seeking employment or self-employment and having a genuine chance of being engaged
• They are involuntarily no longer self-employed and are doing vocational training, or
• They voluntarily stopped being self-employed in order to do vocational training related to their previous occupation
Those seeking employment who have already worked for a year as self-employed can retain status for longer than six months where they provide compelling evidence of continuing to seek employment and having a genuine chance of being engaged. Those who worked for less than one year can only retain their status for a maximum of six months.
Of course, if the reassurances given by the British government materialise, EU nationals will not be asked to prove that they have exercised treaty rights in the UK to be able to remain living here after Brexit. So if all goes well, this change will have a very small impact, and for a very short amount of time only.
Surinder Singh
These changes are somewhat late, in that they give effect to the 2014 case of C-456/12 O and B. This was about the “Surinder Singh route”. That allows non-EU family members of British citizens to rely on the more generous EU rules on coming to join their loved one in the UK where:
• the British citizen was exercising treaty rights in another EEA country or acquired the right to permanent residence there
• the applicant and the British citizen resided together in that other EEA country
• their residence in the EEA country was genuine
The Regulations are amended such that, in addition to the above, an applicant relying on this route must show that
• they were the family member of the British citizen in the other EEA country, and
• genuine family life was created or strengthened during their joint residence there
This change is unlikely to make a huge difference to many applicants. If the first three requirements are met, it is likely the two new requirements would also have been met.
Exclusion and deportation orders
Changes are made to the Regulations such that a person who is subject to an exclusion or a deportation order under the EEA Regulations does not have:
• a right of admission
• an initial right of residence
• an extended right of residence, or
• a permanent right of residence
Someone who is subject to such an order and applies for a family permit or residence document will have their application deemed invalid.
These changes should only apply to people who have an exclusion or deportation order under EU law, rather than under British domestic rules. In fact, in the case of C-82/16 K.A. & Others v Belgium, the Court of Justice found that applicants who are subject to an entry ban under national law cannot be precluded from applying for a right to reside under EU law.
Primary carers of EEA nationals
The EEA Regulations provide for some primary carers of EEA nationals to obtain rights to reside in the UK.
Under the EEA Regulations 2016, one of the criteria to be considered a primary carer was to be the sole carer or to share the care equally with someone who was not an “exempt person”. An exempt person is someone with the right to reside under the EEA Regulations, the right of abode or indefinite leave to remain in the UK.
This clear and accessible guide covers the legal requirements for EU residence documents and the practicalities of making an application including advice on documents and forms.
In other words, if Sergei, a Russian national, was sharing the responsibility to care for Anna, a British national, with Anna’s mother, a Latvia national exercising treaty rights, then Sergei could not be considered a primary carer under European law.
Following the case of C-133/15 Chavez-Vilchez and others, the definition of primary carer is widened. It now includes those who share responsibility equally with someone else, even if that someone is an “exempt person”.
Deportation and permanent residence
The case of C 424/16 Vomero. The Court of Justice found that where an EEA national has resided in the UK for ten years, they must have acquired the right to permanent residence before being entitled to the enhanced protection against expulsion. The Regulations are amended to make that clear.
Other amendments
Other minor amendments to the Regulations include that:
• When a family member applies for an EEA family permit or residence document, they must also submit the EEA national’s identity card and passport. It is unclear how this constitutes a change as this has in fact been the case for a while in guidance and applications were rejected when the identity document of the EEA national was not submitted.
• EEA family permits can be issued in an electronic format.
• There is a clarification as to when a person must be outside the UK to bring an EEA appeal.
Of course, for how long those changes will remain relevant is yet to be seen. We can only hope that the positive changes, including for primary carers and dual nationals, will re-appear in the domestic rules on EEA nationals and their family members after Brexit.
The right of free movement for EU migrants could be replaced with something more like the arrangements making travel easier for Canadian business people, the Home Secretary has said. Sajid Javid told the Home Affairs committee of MPs today that free movement will end after Brexit, “full stop”, and repeatedly mentioned the immigration components of an Canadian-EU trade deal — limited to “labour mobility” for professionals — as an example of what could replace it.
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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
>>> Free movement rights: family members of British citizens – the Surinder Singh route: https://www.gov.uk/government/publications/free-movement-rights-family-members-of-british-citizens
Guidance on how to consider an application for a residence card made by a family member of a British citizen.
>>> Caseworker guidance for applications under the Surinder Singh route: https://www.gov.uk/government/publications/caseworker-guidance-for-applications-under-the-surinder-singh-route-from-january-2014
Guidance issued to caseworkers from January 2014 for handling applications under the Surinder Singh route.
>>> Processes and procedures for EEA documentation applications: https://www.gov.uk/government/publications/processes-and-procedures-for-eea-documentation-applications
Guidance on applications for a document to confirm a right of residence in the UK for a family member of a European Economic Area (EEA) national.
>>> EEA family permit: EUN02 : https://www.gov.uk/government/publications/eea-family-permits-eun02/eea-family-permit-eun02#eun214-can-family-members-of-british-citizens-qualify-for-an-eea-family-permit-surinder-singh-cases
>>> EEA, Swiss nationals and EC association agreements (modernised guidance) and EEA modernized guidance: https://www.gov.uk/government/collections/eea-swiss-nationals-and-ec-association-agreements-modernised-guidance
This collection brings together the modernized guidance about EEA and Swiss nationals and EC association agreements used by UK Visas and Immigration.
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 guidance for judges on granting immigration bail: https://www.judiciary.gov.uk/wp-content/uploads/2018/05/bail-guidance-2018-final.pdf
The updated guidance naturally takes into account the significant changes brought about by the Immigration Act 2016.
The new guidance says that a bail hearing will be listed “as soon as possible, normally within three working days”. That does seem a bit ambitious. Only time will tell how readily the tribunal’s already stretched resources can cope with the bout of new cases which the expedited bail system and the automatic referral provisions will trigger.
The guidance also requires (in accordance with the Tribunal Procedure Rules) that the Secretary of State produce a bail summary in advance of the hearing and a copy of any removal directions. It will be useful to see how strict judges are in implementing this part of the Procedure Rules. In my experience, the Home Office routinely fails to provide any such summaries or copies of removal directions with little or no consequences.
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
>>> Yet again the NEW EEA(PR) application form has been introduced: https://www.gov.uk/government/publications/apply-for-a-permanent-residence-document-or-permanent-residence-card-form-eea-pr?utm_source=b4e1bbbb-9eaf-43f4-9ace-59085f4f773c&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
Home Office Form: Apply for a permanent residence document or permanent residence card: form EEA (PR) (9 May 2018)
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.
>>> Home Office Guidance Collection re: Offender Management (9 May 2018): https://www.gov.uk/government/publications/offender-management?utm_source=46516688-b61c-4331-8b03-3cc0208b3694&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
Guidance on immigration offender management for officers dealing with enforcement immigration matters within the UK.
>>> Home Office softens line on “no study” restrictions for refugee children: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/705600/immigration-bail-v2.0ext.pdf
The Home Office has issued a revised guidance that should help asylum seekers and other migrant children in the UK who have been banned from studying under changes introduced at the beginning of the year.
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
>>> Entry bans do not preclude residence card applications, says Court of Justice: http://curia.europa.eu/juris/document/document.jsf?text=&docid=201821&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=417248
Head note:
“when the competent national authority receives, from a third-country national, an application for a right of residence for the purposes of family reunification with a Union citizen who is a national of the Member State concerned, that authority cannot refuse to examine that application solely on the ground that the third-country national is the subject of a ban on entering that Member State.”
>>> The role of the court in the Judicial Reviews
In judicial review cases the court plays a supervisory role: it will check whether the public body decision-maker has made a particular decision lawfully. It will not re-make the decision based on the merits, or what it thinks the decision ought to have been. But as established in the case of Harrison v SSHD [2003] EWCA Civ 432, where a legal right to citizenship is concerned, a person can bring proceedings in the High Court for a declaration that he or she is so entitled. The case is also a useful example of a powerful remedy for individuals whose right to automatic citizenship has been disputed by the state, where evidence is properly and fully evaluated by an impartial court.
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
>>> Asylum can be refused for general promotion of terrorism: http://www.bailii.org/ew/cases/EWCA/Civ/2018/933.html
The Court of Appeal in Youssef v Secretary of State for the Home Department [2018] EWCA Civ 933 decided that the appellant was disqualified from refugee status because he had incited terrorist acts in general. There was no requirement for there to be a link between his incitement and a specific terrorist act.
>>> Court of Appeal weighs in on “persistent offenders”: http://www.bailii.org/ew/cases/EWCA/Civ/2018/929.html
The Court of Appeal in SC (Zimbabwe) v SSHD [2018] EWCA Civ 929 gives yet another new decision on the deportation of foreign criminals, this time on the definition of “persistent offenders”. Its discussion of the concept, while interesting enough, makes no real changes to the law as set down previously by the Upper Tribunal.
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: Settle in the UK in various immigration categories: form SET(O) (16 May 2018): https://www.gov.uk/government/publications/application-to-settle-in-the-uk-form-seto
Form to apply for indefinite leave to remain in the UK in various immigration categories and for a biometric residence permit.
This form keeps being updated by the UK BA now every month ! Previous version of the form is dated April 2018 ! The old form can be used up to 21 days from the introduction of the new form. Be careful !
>>> UK Visas and Immigration Guidance: Undocumented Commonwealth citizens resident in the UK (14 May 2018): https://www.gov.uk/government/publications/undocumented-commonwealth-citizens-resident-in-the-uk?utm_source=62ccb4e7-abb5-4795-8d4f-ab047a9bd8ab&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.
>>> UK Visas and Immigration Guidance: Returns preparation (15 May 2018): https://www.gov.uk/government/publications/returns-preparation?utm_source=22b90a2c-c7ee-47d9-9e57-f3af959b0db4&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
Guidance on arranging removals for officers dealing with immigration enforcement matters within the UK.
15 May 2018: Removed the Member of Parliament (MP) representations document as this Arranging removal document has replaced it.
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
>>> High Court throws spanner in the works of automatic detention policy: http://www.bailii.org/ew/cases/EWHC/Admin/2018/1045.html
The case of R (Lauzikas) v Secretary of State for the Home Department [2018] EWHC 1045 (Admin) marks an important development in the law on the detention of European nationals pending deportation. The key finding is that the standards set out in the Free Movement directive, including proportionality and necessity, must govern the decision to detain, and not merely the linked decision to deport.
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
>>> Number of migrants removed from UK continues to decline: https://www.gov.uk/government/statistics/immigration-statistics-year-ending-march-2018-data-tables
The number of people removed from the UK by the Home Office is at its lowest level in well over a decade, new statistics show. Fewer than 7,000 migrants were recorded as leaving the UK under either an enforced or voluntary Home Office scheme in January-March 2018 — the lowest in any given quarter since 2005.
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
>>> Which is the correct test to apply for Settlement as a spouse/partner of a British citizen/Settled person ?
Apparently, the IELTS Life Skills in Listening and speaking at the A1 level. One may be tempted to pass the higher level UKVI Academic IELTS test, yet despite being a higher level test, the Settlement application under the Appendix FM is likely to be refused.
This is the UK BA, folks ! ©
>>> Can an immigration application, for example, FLR(FP), be still lodged when the migrant is in detention ?
Yes, apparently, in line with the Section GEN, para GEN.1.9.(a)(ii) of the Appendix FM:
“(ii) where a migrant is in immigration detention. A migrant in immigration detention or their representative must submit any application or claim raising Article 8 to a prison officer, a prisoner custody officer, a detainee custody officer or a member of Home Office staff at the migrant’s place of detention”.
The immigration application fee waiver may be applicable in this case.
>>> Can a valid immigration application under the UK Immigration Rules be made with an expired passport ?
Yes, apparently, in line with the para 34(5)(b)(ii):
(b) Proof of identity for the purpose of this Rule means:
(ii) if the applicant does not have a valid passport or national identity card, their most recent passport or (except a PBS applicant) their most recent national identity card
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 streamlined service” for in-country applications announced: https://www.gov.uk/government/news/sopra-steria-has-been-awarded-a-new-ukvi-contract?utm_source=7fafc1b1-9e17-49c7-8770-2884427d1572&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
Interesting development on in-country applications. A new service delivered by outsourcing firm Sopra Steria will see supporting information processed at local libraries rather than people having to post it in with their application:
“Under the new arrangements people using the service will be able to submit biometric information including photos, fingerprints, and signatures and their supporting evidence at a single appointment. The evidence will then be copied and sent to UKVI, meaning that people won’t have to hand over important documents, such as passports, whilst the applications are processed.”.
The contract is widely seen as part of the preparations for registering over three million EU citizens and their families for settled status after Brexit. It will begin in October 2018.
>>> Tribunal opens door to awards of costs against Home Office for unreasonable behaviour – the case of Awuah (No 2) (8 December 2017)
A heavyweight Presidential panel sitting in the First-tier Tribunal has made multiple awards of costs against the Home Office for unreasonable behaviour and given guidance on the proper approach to making such awards in future. Despite the decision being promulgated in December 2017, the Upper Tribunal’s Reporting Committee has elected not to report the decision and it has not yet been added even to the databases of unreported decisions.
>>> Pressure on the visa quota system continues to build, new figures show: https://www.gov.uk/government/publications/employer-sponsorship-restricted-certificate-allocations/allocations-of-restricted-certificates-of-sponsorship
What started as a minor aberration has now turned into a worrying trend. The Home Office confirmed on 24 May that we have hit the monthly cap on visas for skilled non-EU workers for the sixth month in a row. On top of that, Freedom of Information data shows that the situation does not look like it will ease up any time soon.
The visa “cap” was introduced by the coalition government in 2010 to curb the number of new applicants who could come to the UK every year on a Tier 2 General visa. It was until recently an entirely benign piece of policy which enabled the government to confidently declare that it was controlling net migration, while in reality having very little real practical effect on the Tier 2 system. Over the last few months it has begun to show its teeth.
As the result – the backlog is not clearing. The last few months have seen it hover around the 45 to 50 points mark — equivalent to a job with a salary of £50,000. This means that requests for certificates for jobs with salaries under £50K are highly likely to be refused.
>>> Court of Appeal puts Maslov deportation guidance in its place: http://www.bailii.org/ew/cases/EWCA/Civ/2018/1104.html
The Court of Appeal upholding a decision to deport a foreign criminal is hardly front-page news at the moment. But Mwesezi v Secretary of State for the Home Department [2018] EWCA Civ 1104 throws up some interesting reminders about how to approach Strasbourg jurisprudence in this area.
The appellant is a Ugandan national who had accepted in the First-tier Tribunal that he had committed offences “of extreme seriousness”. He sought to rely on his Article 8 right to a private life to prevent his removal. Mr Mwesezi has a conviction of more than four years in prison, and therefore needed to show that there were “very compelling circumstances” in his case to outweigh the public interest in his deportation.
The First-tier Tribunal agreed with the appellant, but was overturned on appeal by the Upper Tribunal.
The Court of Appeal agreed with its Upper Tribunal counterparts. Mr Mwesezi had committed very serious offences as an adult. He had no compelling family ties. Of particular importance was the finding that the appellant would not face very significant obstacles to his integration in Uganda.
>>> Certification of accidental human rights claim upheld: http://www.bailii.org/ew/cases/EWCA/Civ/2018/1108.html
The Court of Appeal in R (Joshi) v Secretary of State for the Home Department [2018] EWCA Civ 1108 has decided that a claim is a human rights claim if in substance, regardless of form, it is a human rights claim.
Having received an application asking for extension of time in which to find a Tier 4 sponsor on the basis of Article 8 rights, the Secretary of State was entitled to read it as a human rights claim founded on those rights, and entitled to certify it as clearly unfounded.
>>> Upper Tribunal time limits: clock starts to run when written decisions are <sent> :
This one took effect on 14 May 2018 and is about the time limit for appeals to the Upper Tribunal. Basically the clock starts ticking on the date that written reasons are sent out — not the date on which they are received.
This is the effect of the Tribunal Procedure (Amendment) Rules 2018 (2018 No. 511 (L. 7)). They amend Rule 33 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (SI 2014 No. 2604 (L. 31)). Rule 33 originally ran as follows:
33.—(1) A party seeking permission to appeal to the Upper Tribunal must make a written application to the Tribunal for permission to appeal.
(2) Subject to paragraph (3), an application under paragraph (1) must be provided to the Tribunal so that it is received no later than 14 days after the date on which the party making the application was provided with written reasons for the decision.
(3) Where an appellant is outside the United Kingdom, an application to the Tribunal under paragraph (1) must be provided to the Tribunal so that it is received no later than 28 days after the date on which the party making the application was provided with written reasons for the decision.
So, whatever the position before, it is now clear that an in-country appellant has 14 days, from the day on which written decisions are put in the post, to appeal to the Upper Tribunal. An out-of-country applicant has 28 days to appeal from the date of postage.
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
>>> Woman denied passport, then detained for failure to leave UK: http://www.bailii.org/ew/cases/EWHC/Admin/2018/1010.html
R (Eroje) v Secretary of State for the Home Department [2018] EWHC 1010 (Admin) is a shocking story of Home Office incompetence which led to the unnecessary and unlawful detention of someone who had made repeated attempts to leave the UK voluntarily.
>>> No more tiers: points to be taken out of the Points Based System? See https://publications.parliament.uk/pa/cm201719/cmselect/cmhaff/1075/107502.htm
Buried in the government’s official reply to a recent report of the Home Affairs committee of MPs is the following nugget:
"We keep all our Immigration Rules under review, and respond to feedback from applicants and other interested parties where appropriate. For example, in January 2018 we implemented re-written rules for Tier 1 (Entrepreneur) which are clearer and easier to follow, and in addition, we have announced plans to build on the success of the new visitor Rules introduced in April 2015, and simplify the Immigration Rules for work categories along similar lines. We will use plain English [and] remove the out-dated terminology of tiers and points-scoring. Our aim is to make the rules as easy as possible for applicants and their sponsors to understand and use.”
The Law Commission is already working on a project to redraft the Immigration Rules so as to make them clearer. This proposed simplification of the rules for work visas specifically will, one assumes, have a similar objective: clearer language without changing the substance. I don’t know exactly how that will work if you’re talking about removing points from a System that is famously Based on Points, but any simplification must be welcome in principle.
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
>>> Satisfying the Immigration Rules enough for Article 8 success: http://www.bailii.org/ew/cases/EWCA/Civ/2018/1109.html
The test for an Article 8 claim to stay in the UK within the Immigration Rules is whether there are “insurmountable obstacles” to continuing family life outside the UK. But even if an applicant does pass this test, there is a further hurdle: whether removal is disproportionate. An important question here is what weight the test under the Immigration Rules has in making this decision on proportionality.
At least, that was the position until the recent decision in TZ (Pakistan) and PG (India) v Secretary of State for the Home Department [2018] EWCA Civ 1109. The Court of Appeal has now stated that, where Article 8 is engaged, satisfying the Immigration Rules also means that removal is disproportionate. An applicant who gets over the first Article 8 hurdle need not worry about the second.
>>> The Court of Justice of the European Union handed down a decision in the case of C-647/16 Adil Hassan v Prefet du Pas-de-Calais concerning the Dublin III Regulation
Headnote:
“When a person travels to a Member State after making a request for international protection in another Member State, the first Member State cannot decide to transfer that person to the second Member State before that second State has agreed to the request to take that person back”.
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
>>> No costs awarded despite “clearly unfounded” certification being withdrawn: http://www.bailii.org/ew/cases/EWCA/Civ/2018/1059.html
In ZN (Afghanistan) and KA (Iraq) [2018] EWCA Civ 1059, the Court of Appeal considered the tricky issue of costs in public law cases, in a scenario where the appeals were withdrawn following consent orders.
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 Government’s current intentions in relation to the EU nationals after Brexit – an UPDATE: https://publications.parliament.uk/pa/cm201719/cmselect/cmhaff/1075/107502.htm
• EU nationals arriving in the UK between 29 March 2019 and 31 December 2020, and intending to stay longer than three months, will need to register (no particular details on this registration scheme are available at present)
• EU nationals and their family members will have until 30 June 2021 to apply under the new “EU Exit Settlement Scheme”
• The new EU Exit Settlement Scheme will be launched by the end of 2018
• EU nationals residing in the UK before 31 December 2020 will be able to have their family members join them, provided those family relations existed before that date. Future partners will need to meet the requirements of the domestic Immigration Rules (aka Appendix FM, £18 600+ threshold, TB, English language tests etc)
• The Dublin III arrangements will continue to apply during the transitional period
>>> Same-sex spouses should benefit from free movement rights, says CJEU: eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:158:0077:0123:en:PDF
Following a reference made to the Court of Justice of the European Union (CJEU) by the Romanian Constitutional Court, the CJEU has ruled that “spouses” in Directive 2004/38 include same-sex spouses.
The case is C-673/16 Relu Adrian Coman and Others v Inspectoratul General pentru Imigrări and Others and the CJEU’s press release summarises the finding as follows:
“Although the Member States have the freedom whether or not to authorise marriage between persons of the same sex, they may not obstruct the freedom of residence of an EU citizen by refusing to grant his same-sex spouse, a national of a country that is not an EU Member State, a derived right of residence in their territory”.
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
>>> What if the FLRM extension application refused on the basis of failing to meet the A2 English language level test requirement ?
The answer is “appeal”, as such a refusal is likely to be disproportionate and unlawful.
Para 32B of the Rules states:
…
the decision-maker may discount the test certificate or result and require the applicant to provide a new test certificate or result from an approved provider which shows that they meet the requirement, if they are not exempt from it.
The, the Appendix FM section 1.21states:
If there is uncertainty as to whether a test certificate, result or other specified document was previously accepted by the Home Office as part of a successful previous partner or parent application, the decision maker may request other specified evidence from the applicant to demonstrate that they meet the English language requirement.
If the only reason for the refusal was a suspect English test, then a fair and sensible ECO/caseworker would have given the applicant an opportunity to provide other specified evidence.
Moreover, the case-law notes in HU071822015 & Ors. [2017] UKAITUR HU071822015 (14 August 2017) states:
“This appeal came before me for an error of law hearing on 19 July 2017. I found an error of law in the decision of the First tier Tribunal, which I append. The parties agreed I could re-make the decision without the need for an oral hearing, but with the assistance of written submissions, which I have now received.
2. The only issue outstanding, it now being accepted that the Appellants meet the financial requirements of the Rules, is whether the Entry Clearance Officer erred in failing to contact the first Appellant to request an English language certificate from an approved provider, in line with the principle of evidential flexibility. This is now set out in Appendix FM SE, the relevant provisions of which are as follows: …
…
Answer
36. I conclude that the answer to the question identified in para 1 above is “yes”: the agency’s refusal of Mr Mandalia’s application was unlawful because, properly interpreted, the process instruction obliged it first to have invited him to repair the deficit in his evidence.”
…
So the course of the action could be to appeal, take the test (prior to appeal decision) and cite above.
>>> Applying for a UK visa from the USA – settlement and non-settlement applications process
See all the details here: https://www.gov.uk/government/publications/usa-apply-for-a-uk-visa/apply-for-a-uk-visa-in-the-usa
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
>>> When law and politics collide: Brexit in the Court of Session: https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2018csoh61.pdf?sfvrsn=0
The Court of Session has refused to make a reference to the Court of Justice of the European Union in Luxembourg to determine whether the UK’s notice that it is leaving the EU under Article 50 can be cancelled.
Given that the subject matter involved “the most contentious and political debate of our time” [paragraph 62], the Court of Session (Scotland’s equivalent to the High Court) decided that it fell outside its jurisdiction. It is a long-standing tenet of the UK constitution that the courts do not adjudicate on political matters. The democratic process is liable to be subverted if, on questions of moral and political judgements, opponents of a particular position can achieve through the courts what they can not achieve in Parliament (to paraphrase Lord Bingham in Countryside Alliance v Attorney General [2007] UKHL 52 at [45]).
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 EEA national child apply for Registration as a British citizen without first obtaining Permanent Residence in the UK ?
The answer if “No”, in line with the http://www.legislation.gov.uk/uksi/2015/1806/note/made
“Regulation 7 amends paragraphs 7, 13 and 14 of Schedule 2 to the 2003 Regulations, which set out particular requirements as respects applications under sections 4(2) and 6(1) and (2) of the 1981 Act, respectively. Pursuant to the amended paragraphs, applicants relying upon an EU right of permanent residence in the United Kingdom in order to meet the relevant statutory requirement in the 1981 Act must provide with their application a valid permanent residence card or document certifying permanent residence or a residence permit or residence document issued under the Immigration (European Economic Area) Regulations 2000 which is endorsed under the immigration rules to show permission to remain in the United Kingdom.”
>>> How to calculate the amount of adequate maintenance if the sponsor receives one of the specified allowances in order to sponsor a foreign spouse ?
The answer can be found in the case of Ahmed (benefits: proof of receipt; evidence) [2013] UKUT 84(IAC): http://www.bailii.org/uk/cases/UKUT/IAC/2013/00084_ukut_iac_2013_sa_bangladesh.html
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 Entry Clearance Office (ECO) revoke the issued Indefinite Leave to Enter vignette, issued in error or discretionally ?
Apparently, they may not, as if activated, then it may be binding: https://www.gov.uk/government/publications/revocation-of-an-entry-clearance-ecb18/revocation-of-an-entry-clearance-ecb18#ecb181-when-can-an-eco-revoke-an-entry-clearance
“ECOs cannot revoke entry clearance that has taken effect as leave to enter (i.e. once the person has arrived in UK), or revoke, cancel or curtail that leave.”.
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
>>> Retained Rights of Residence for non-EEA citizens – No need to show the ex-EEA spouse’s economic activity during the divorce period: http://www.bailii.org/ew/cases/EWCA/Civ/2018/1088.html
An important decision by the UK Court of Appeal (Baigazieva v Secretary of State for the Home Department [2018] EWCA Civ 1088) confirming that a third country national, in order to retain a right to reside in the UK in reliance on Regulation 10(5), does not need to show that their former EEA spouse exercised treaty rights as a “qualified person” until the divorce, the decree absolute, itself. Rather, it is sufficient to show that the former EEA spouse exercised treaty rights until divorce proceedings were commenced.
>>> Home Secretary announces new “start-up” Immigration Route: https://www.gov.uk/government/news/new-start-up-visa-route-announced-by-the-home-secretary?utm_source=f0fa6803-0e14-4297-9404-6b4f48b1ac0e&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
According to one part of the announcement, it will replace the Tier 1 (Graduate Entrepreneur) route from spring 2019, although another part of the press release refers to it as an expansion, rather than a replacement.
The first big difference between the new proposal and what currently exists is that applicants will not have to be recent graduates (left university within the last two years, as currently required under the Sirius programme) in order to apply for endorsement.
The second big difference is that the group of entities which can endorse an applicant with a business idea is expanded from approved Higher Education Institutions and the government’s own entrepreneur programme, to “approved business sponsor(s), including accelerators”.
This would mark a further move by the Home Office towards the greater use of third-party endorsements in the immigration system, currently the model used for applications in the Tier 1 (Exceptional Talent) route.
The announcement also refers to making “the visa process faster and smoother for entrepreneurs coming to the UK” although no details are given on this.
However, the original MAC report suggested that the accelerators – those “approved business sponsors” mentioned in the press release – should have to put a certain amount of cash into the start-up:
“Accelerators should be required to provide a minimum investment, perhaps somewhere in the region of £20,000 to £30,000, usually in exchange for equity in the business to ensure that they are suitably incentivised to select only high potential entrepreneurs.”.
With the above requirement it is hard to believe that the new programme will be really popular.
>>> NHS exemption from Tier 2 visa quota confirmed in changes to Immigration Rules: https://www.gov.uk/government/publications/statement-of-changes-to-the-immigration-rules-hc1154-15-june-2018
The Home Secretary has today laid a Statement of Changes to the Immigration Rules to exempt doctors and nurses from the limit on visas for skilled non-EU workers. Sajid Javid and Jeremy Hunt, the Health Secretary, announced in a press release that “there will be no restriction on the numbers of doctors and nurses who can be employed through the Tier 2 visa route”.
The NHS accounts for around 40% of all Tier 2 places, according to the Home Office.
All changes will come into force on 6 July 2018, although some only apply to applications made after that date.
Returning residents
Iindefinite leave to remain automatically lapses after two years’ absence from the UK. It is possible to have indefinite leave restored if you can show strong ties to the UK.
The new Rules make clearer the distinction between people who have been absent for under two years, and those who have been absent for longer than two years. The former are no longer called “returning residents” and can return without a visa. The latter must apply for leave to enter and must show that they have strong ties to the UK and intend to make the UK their permanent home. Previously, the Rules simply said that returning residents had to show, “for example, that they had lived here most of their life”. This seems to be a relaxation of the position, which may be in order to cater for people returning under the Windrush scheme — the explanatory memorandum makes that link, at any rate.
Exceptions for overstayers
As it is currently drafted, paragraph 39E of the Immigration Rules allows overstayers to benefit from the exceptions for overstayers in two consecutive applications. Applicants applying after 6 July will only be able to rely on the exceptions once. For example:
Sergei’s leave was expiring on 15 June 2017. He submitted an application for further leave to remain as a spouse on 20 June 2017. This application was out of time but within 14 days of his leave expiring. Sergei explained that he had been urgently hospitalised and could not have applied before. The Secretary of State accepts this as a good reason beyond Sergei’s control, such that his application can be considered under the rules, disregarding the overstay.
However, Sergei’s application is refused because he did not meet the financial requirement. The refusal is dated 7 July.
Previously, relying on paragraph 39E, Sergei would have had an opportunity to make another application by 19 July, and again disregarding the overstay. From 6 July, this will no longer be possible for Sergei. It is now only possible for an applicant to apply for further leave within 14 days of the expiry of the previous leave disregarding the overstay once.
Another change to rules for overstayers, this time positive, is at paragraph 320(7BB) of the Rules, relating to general grounds for refusal. Paragraph 320(7B) means that an applicant who previously overstayed for 90 days or more before 6 April 2017, or for 30 days or more after 6 April 2017, might have an application for entry clearance refused for up to ten years.
Paragraph 320(7BB) sets out the periods of overstay which are disregarded. From 6 July 2018, a period of overstay pending the determination of an out-of-time application where paragraph 39E applied will be disregarded when calculating the period of overstaying in paragraph 320(7B).
Tier 1 (General)
The rules relating to indefinite leave to remain for Tier 1 (General) Migrants will be deleted as the route closed on 6 April 2018.
Tier 1 (Exceptional Talent)
For applications submitted after 6 July 2018, the endorsement of arts applicants is being widened to include those in the fashion industry who are operating leading designer fashion businesses.
Other changes are being made to the criteria for endorsement by each Designated Competent Body, including to evidential requirements and eligible awards for applicants in film and television.
Tier 1 (Investor)
Changes are made so that:
• Applicants cannot withdraw interest and dividend payments generated before they purchased their investment portfolio
• There is a further obligation on financial firms to scrutinise the suitability of applicants’ investment by having to confirm that the funds have only been invested in qualifying investments, and no loan has been secured against those funds.
Tier 1 (Entrepreneur)
There are minor amendments on when letters from legal representatives confirming signatures are required, and provision for accountants to confirm the investment has been made on the applicant’s behalf.
Tier 2
In summary doctors and nurses are now exempt from the limit on visas for skilled non-EU workers.
Other, smaller, changes to the Tier 2 (General) route include:
• Deletion of references to jobs sponsored at level 4 of the Regulated Qualifications Framework, as, since June 2012, this was increased to RQF level 6.
• Clarification that an applicant cannot own more than 10% of shares, even if indirectly (for example via another corporate entity), in a limited company sponsoring them, save for certain exceptions. The old Rules did not specify that an application could not own the shares indirectly.
• Applicants applying after 6 July 2018 who have been absent on maternity, paternity, shared parental or adoption leave will now need to submit evidence of the adoption or birth.
• Finally, a migrant who has been absent for work without pay for four weeks or more will no longer have their Tier 2 leave curtailed when the absence was for assisting with a national or international humanitarian or environmental crisis overseas, providing their sponsor agreed to the absence(s) for that purpose.
Absences for indefinite leave to remain applications
Certain visa categories, including a number of the work-based categories, require an applicant to show they have been “continually resident” in the UK over a five-year period before they can apply for indefinite leave to remain.
Continuous residence can be broken by absences for a period of 180 days or more in 12 months. Prior to 11 January 2018, the 180-day limit could not be exceeded in any of the five 12-month periods preceding the date of the application. A recent statement of changes, of 7 December 2017, meant that from 11 January 2018, an application could be refused if at any point over the five qualifying years, the 180-day limit is exceeded in any 12-month period.
The change was so significant that a number of immigration practitioners lobbied for the change to only apply to those who were granted leave after 11 January 2018. The request has been accepted by the Secretary of State, who has introduced a transitional arrangement to ensure that the new absences calculation rule does not adversely affect applicants whose absences occurred during leave granted under Rules in place prior to 11 January.
A second change to the Rules relating to when continuous residence is broken brings the entry clearance provisions in line with the more generous in-country provisions. Continuous residence will usually not be considered to be broken when the applicant left and returned provided they had leave, and there are some exceptions. Two new exceptions have been added:
• where the applicant makes an application for entry clearance within 14 days of the leave expiring and the Secretary of State considers that there was a good reason beyond the control of the applicant or their representative why the application could not be made during the currency of continuing limited leave; or
• where a successful application for entry clearance is made following the refusal of a previous application to which an exception applied, and the application was made within 14 days of that refusal (or the expiry of the time limit for making an in-time application for administrative review, or any administrative review or appeal being concluded, withdrawn or abandoned or lapsing).
Students
Students who study certain subjects and learn “knowledge and skills that could be used in the proliferation of weapons of mass destruction” are subject to the Academic Technology Approval Scheme (ATAS). They must obtain a certificate before they can start studying those subjects. The Rules will be changed such that this requirement will be applied to all students regardless of the length of their studies (it previously only applied to those courses in excess of six months).
Other changes include:
• students are allowed to study on a study abroad programme, regardless of when the programme is added to their course
• The minimum length that a postgraduate course needs to be in order for a Tier 4 migrant to be eligible to bring dependants with them to the UK is being reduced from 12 months to 6 months
• Evidence of previous qualifications now include print-outs from awarding bodies’ online checking services, although the Home Office may still ask to see the original certificates of qualification or transcript of results
• Students from certain countries are subject to different documentary requirements under Tier 4 of the Points Based System. The list of eligible countries is expanded and students may benefit from those different requirements even if they apply from their country of residence, and that is different from their country of nationality.
Other changes
Other changes include:
• Removal of Croatians from the limit of allocated endorsements for Tier 1 (Exceptional) Talents and Tier 2 Certificates of Sponsorships. This is because, from 1 July 2018, the fifth-year anniversary of Croatia’s entry in the EU, Croatian nationals will no longer need authorisation to work in the UK and will benefit fully from EU movement rules.
• Changes to list of approved government authorised exchange schemes for Tier 5 migrants
• Confirmation that an adopted child with limited leave under the family Immigration Rules, who is aged 18 years or above by the time of their application for indefinite leave to remain, will need to meet the Knowledge of Language and Life requirement
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
>>> Settled status for EEA citizens – the details have been announced – READ VERY CAREFULLY !
Stop the press – the settled status will be a virtual thing – it will NOT be a document. How this will help the EEA citizens to prove their status at work, to the LandLord etc – go figure. Literary.
Anyway, the details as they have been announced today by the Government.
The Headline announcement: https://www.gov.uk/government/news/home-office-publishes-details-of-settlement-scheme-for-eu-citizens
The 40 (!) pages Statement of Intent: https://www.gov.uk/government/publications/eu-settlement-scheme-statement-of-intent
The 60 (!!) pages Draft Immigration Rules document: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/718237/EU_Settlement_Scheme_SOI_June_2018.pdf#page=41
YOU ALREADY HAVE A 100 PAGE DOCUMENT
Roughly 3.5 million EU nationals will need to apply for “settled status” or “pre-settled status” by June 2021, depending on whether they have lived in the UK for five years or under five years by the time they apply. This will be a VIRTUAL (see the explanatuion below) UK immigration status confirming the right to live and work in Britain, underpinned by a draft Withdrawal Agreement between the UK and the EU.
The applications under the scheme will cost £65, or half that for children under 16. There is still no specific deadline for when people can begin to apply, but it will be “fully open” by 30 March 2019 — the first full day of Brexit.
The three key requirements of a successful application under the scheme would be:
• Presence in the UK
• EU nationality
• No serious criminal record
The statement of intent fleshes out the requirements and application process. It is not, however, a comprehensive guide. The phrase “further details will be provided in due course” appears multiple times and many aspects remain unsettled — such as when people will be able to apply on paper rather than online, for instance.
“No physical document will be issued” as proof of status. This is potentially a problem for people having to prove their right to rent or work in the age of the “compliant environment”. Will landlords and employers be willing to check an online database or will they simply turn to a native applicant who is less bother?
Interesting points include:
• Confirmation “those who are continuously resident in the UK but who happen to be abroad” when the post-Brexit transition ends on 31 December 2020 will be covered by the scheme. There is also a detailed definition - https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/718237/EU_Settlement_Scheme_SOI_June_2018.pdf#page=14 - of “continuously resident”.
• Confirmation that EU citizens “will not be required to show that they meet all the re-quirements of current free movement rules, such as any requirement to have held comprehensive sickness insurance”.
• Confirmation that applicants will not need to pay the Immigration Health Surcharge on top of their £65
• Those who get “pre-settled status” (for those in the UK for less than five years) will not have to pay again to get full settled status
• A table (Annex A - https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/718237/EU_Settlement_Scheme_SOI_June_2018.pdf#page=36 ) of ev-idence that will be accepted by the Home Office as proof of residence
• Details of the precise legal status that will be granted under UK law (indefinite or limited leave to remain)
• The scheme will be open to citizens of non-EU Iceland, Liechtenstein, Norway and Switzerland “on a similar basis as for EU citizens”
• The scheme will be open to Surinder Singh family members but NOT Zambrano, Chen or Ibrahim/Teixeira carers
• Irish citizens, who do not need to apply for settled status, “may do so if they wish”
• The scheme will be monitored by the Independent Chief Inspector for Borders and Immigration before an Independent Monitoring Authority is set up as required by the draft Withdrawal Agreement
Those familiar with the notoriously complex UK Immigration Rules will be overjoyed to learn that there will be a new “Appendix EU - https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/718237/EU_Settlement_Scheme_SOI_June_2018.pdf#page=41 ” for Home Office decision-makers to follow in deciding on settled status applications. There will be a short period of consultation on the draft Rules issued today, but I am told that the aim is to have them finalised and laid before Parliament before the next recess on 24 July 2018.
The bottom line is, as we have been telling application for a long time, get your Permanent Residence NOW and apply to become a British citizen BEFORE Brexit. At least you will have a paper document on hand to confirm your status. We are here to help, now: https://legalcentre.org/Initial-Consultation.html
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 Section 117B(6) of the Immigration Act 2014 and removal
The Section 117B(6) of the Immigration Act 2014 states that :
… (6)In the case of a person who is not liable to deportation, the public interest does not require the person’s removal where—
(a)the person has a genuine and subsisting parental relationship with a qualifying child, and
(b)it would not be reasonable to expect the child to leave the United Kingdom.
This is a rather useful section when lodging a family rights based application under the Appendix FM when the application, for example, does not have a valid leave (visa) to remain in the UK.
>>> Different name in your national passport ? You may not be issued a new British passport then !
The Passport Office’s normal policy is to refuse when an applicant used different names in a foreign passport. See https://www.gov.uk/government/publications/change-of-name-guidance
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 appellant raise Human Rights grounds on appeal following an EEA application refusal ?
The answer is likely to be “No” in line with the case Amirteymour v SSHD, EWCA Civ 353, unless the appellant was issued with the Section 120 Notice and/or also submitted (concurrently, paid for) the Human Rights application.
In other words the Human Rights cannot be raised in the EEA Applications or Appeals (Amirteymour v SSHD, EWCA Civ 353). The reasoning is that the right of appeal (under regulation 26(1)) is specifically a right of appeal against an EEA decision. The EEA appeal should focus on EEA law.
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 visa national child, who was born in the UK, lived in the UK for a period of 10 continued years and then who left the UK, be registered as a British citizen ?
The answer is “Yes”.
For example, Taras was born in the UK on the 1st May 1998. His parents were not British citizens and never had leave in the UK. They never left the UK until 2010, when the whole family relocated to Ukraine.
Taras is now 20 years old and continues to live in Ukraine. Provided he can meet the good character requirement, Taras is entitled to make an application to register as a British citizen, as he was born there after the 1st January 1983, lived in the UK for the first 10 years of his life, and was never absent for more than 90 days in any one of those 10 years.
>>> The meaning of “residence” for indefinite leave to remain applications: http://www.bailii.org/ew/cases/EWCA/Civ/2018/1369.html
In the case of R (Nesiama & Ors) v Secretary of State for the Home Department [2018] EWCA Civ 1369, the Court of Appeal found that “residence” in the UK means “physical presence”, such that continuous residence in an application for indefinite leave to remain may be broken by too many absences from the country, irrespective of other factors such as owning property, maintaining a home, paying taxes or other private and family connections in Britain. Absences may, therefore, prevent a person from acquiring indefinite leave to remain, even when their “home”, or “residence” on a more common sense understanding of that term, may very well be 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
>>> Appendix FM Spouse Visa applications – how much saving do you need for a wife and 2 children ?
Quoting the current Rules:
Financial requirements
E-ECP.3.1. The applicant must provide specified evidence, from the sources listed in paragraph E-ECP.3.2., of-
(a) a specified gross annual income of at least-
(i) £18,600;
(ii) an additional £3,800 for the first child; and
(iii) an additional £2,400 for each additional child; alone or in combination with
(b) specified savings of-
(i) £16,000; and
(ii) additional savings of an amount equivalent to 2.5 times the amount which is the difference between the gross annual income from the sources listed in paragraph E-ECP.3.2.(a)-(d) and the total amount required under paragraph E-ECP.3.1.(a);
The math works out as follows:
16000 + (2.5 x (18600 + 3800 + 2400))
= 16000 + (2.5 x 24800)
= 16000 + 62000
= 78000
So the total amount of savings for the spouse and 2 children is, therefore, £78 000.
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
>>> Applying for a UK spouse/fiancé/partner visa ? Make sure that you pass the correct English language test !
Apparently, there is a difference between the A1 IELTS General Training and the A1 IELTS for UKVI General Training tests, despite being on the same level, that is, the A1 CEFR.
So, which is the correct test for the UK spouse/fiancé/partner visa (the so-called Appendix FM applications) ? The answer is the A1 IELTS for the UKVI General Training as it contains the UK VI reference number without which the UK VAC cannot approve the Settlement application.
A number of applicants are being caught by the poorly drafted Appendix O, which only specifies the “IELTS” test, not IELTS for UKVI.
>>> Half of all immigration appeal 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.
That means that a professionally prepared and assisted appeal (see www.legalcentre.org) has certain chances to succeed.
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
>>> Today the Home Office updated for the 3rd time in JUST 4 MONTHS its SETO application form: https://www.gov.uk/government/publications/application-to-settle-in-the-uk-form-seto
One can use the old form within the 21 calendar days from the date the new form is being introduced (and provided the correct fee is paid).
>>> Current UK BA Guidance on registering children as British citizens : https://www.gov.uk/government/publications/children-nationality-policy-guidance
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
>>> Refusing citizenship for historic evasion of immigration control confirmed as lawful: http://www.bailii.org/ew/cases/EWHC/Admin/2018/1615.html
This is an unsuccessful challenge to a good character naturalization refusal. The claimant sought to argue that the policy of refusing citizenship on the ground of bad character where the person had broken immigration laws in the preceding decade was ultra vires the British Nationality Act 1981. The case is R (Al Enein) v Secretary of State for the Home Department [2018] EWHC 1615 (Admin).
>>> Can a British Overseas Citizen be stateless? – See http://www.bailii.org/ew/cases/EWHC/Admin/2018/1586.html
In Teh v Secretary of State for the Home Department [2018] EWHC 1586 (Admin) the High Court has found that a British Overseas Citizen (BOC) can be stateless under the Immigration Rules if he or she has no other nationality. This is an interesting and pragmatic finding which highlights the largely useless nature of BOC status.
>>> The Republic of Ireland citizens are deemed as having the Settled status in the UK for the purpose of Naturalization. See page 15 of https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/680277/an-guide-feb-18.pdf
“Irish nationals
The position of Irish citizens is different to that of other EEA nationals. Irish citizens are not normally subject to any form of immigration control on arrival in the United Kingdom, because Ireland is part of the Common Travel Area. If you are an Irish national, you will be free of immigration time restrictions for naturalization purposes. You do not need to apply for a permanent residence document before you apply for naturalization.”
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 visas: what to do if the migrant was terminated and then re-instated ?
The UK BA response in this case is:
“Once the sponsor has made the decision to terminate a migrants employment they should report this via the SMS within 10 days. If however the migrant is re-instated for any reason the sponsor could log back into the SMS and withdraw the report if the leave to remain had not been curtailed at that stage. If the leave had been curtailed we would then ask the curtailment team to re-instate the leave due to an Employment tribunal outcome and await their decision.”
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
>>> Changes to the EEA Regulations come into force on 24 July 2018
The latest, and presumably last, amendments to the EEA Regulations were laid before Parliament on 3 July 2018. The Immigration (European Economic Area) (Amendment) Regulations 2018 (SI 2018 No. 801) will come into force on 24 July 2018.
Implementing a number of cases decided by the Court of Justice of the European Union, the amendments make the following changes to the Immigration (European Economic Area) Regulations 2016 (SI 2016 No. 1052).
Dual nationals
Since 2012, the Secretary of State has interpreted the case of C-434/09 McCarthy to mean that British citizens who also hold the nationality of another EU country cannot rely on the EEA Regulations when sponsoring their family members. Unless they could use the so-called Surinder Singh route, dual British/EU citizens had to rely on (more restrictive) British domestic rules to sponsor their family members.
In the case of C-165/16 Lounes, the Court of Justice found instead that EU citizens who move to the UK and later naturalise as British retain their free movement rights under EU law, even though they have become British.
The Regulations are amended to reflect the judgment in Lounes. Dual nationals can rely on EU law so long as they exercised treaty rights before naturalising as British citizens.
It seems that this change will survive Brexit. In fact, the Statement of Intent of 21 June 2018 (paragraph 6.5) confirms that family members of this category of dual nationals will be allowed to apply for status to live in the UK under the coming EU Settlement Scheme.
Retaining self-employed status
This change comes following the Court of Justice decision in C-442/16 Gusa.
The conditions where an EEA citizen can retain self-employed status are brought into line with the conditions under which an EEA citizen can retain worker status. The advantage of being able to keep self-employed status is that the person is considered to be “exercising treaty rights”. That means they continue to live lawfully in the UK, have access to certain benefits, are able to have family members join them in the UK, and can count time towards the five years’ residence needed to acquire permanent residence.
Self-employed EEA citizens can now retain that status where:
• They are temporarily unable to work as self-employed as the result of an illness or accident
• They are in “duly recorded involuntary unemployment” after having been self-employed persons, provided that they:
o registered as jobseekers
o entered the UK as self-employed or to seek self-employed work, or were in the UK seeking employment or self-employment immediately after having enjoyed a right to reside as self-employed, self-sufficient or student
o provide evidence of seeking employment or self-employment and having a genuine chance of being engaged
• They are involuntarily no longer self-employed and are doing vocational training, or
• They voluntarily stopped being self-employed in order to do vocational training related to their previous occupation
Those seeking employment who have already worked for a year as self-employed can retain status for longer than six months where they provide compelling evidence of continuing to seek employment and having a genuine chance of being engaged. Those who worked for less than one year can only retain their status for a maximum of six months.
Of course, if the reassurances given by the British government materialise, EU nationals will not be asked to prove that they have exercised treaty rights in the UK to be able to remain living here after Brexit. So if all goes well, this change will have a very small impact, and for a very short amount of time only.
Surinder Singh
These changes are somewhat late, in that they give effect to the 2014 case of C-456/12 O and B. This was about the “Surinder Singh route”. That allows non-EU family members of British citizens to rely on the more generous EU rules on coming to join their loved one in the UK where:
• the British citizen was exercising treaty rights in another EEA country or acquired the right to permanent residence there
• the applicant and the British citizen resided together in that other EEA country
• their residence in the EEA country was genuine
The Regulations are amended such that, in addition to the above, an applicant relying on this route must show that
• they were the family member of the British citizen in the other EEA country, and
• genuine family life was created or strengthened during their joint residence there
This change is unlikely to make a huge difference to many applicants. If the first three requirements are met, it is likely the two new requirements would also have been met.
Exclusion and deportation orders
Changes are made to the Regulations such that a person who is subject to an exclusion or a deportation order under the EEA Regulations does not have:
• a right of admission
• an initial right of residence
• an extended right of residence, or
• a permanent right of residence
Someone who is subject to such an order and applies for a family permit or residence document will have their application deemed invalid.
These changes should only apply to people who have an exclusion or deportation order under EU law, rather than under British domestic rules. In fact, in the case of C-82/16 K.A. & Others v Belgium, the Court of Justice found that applicants who are subject to an entry ban under national law cannot be precluded from applying for a right to reside under EU law.
Primary carers of EEA nationals
The EEA Regulations provide for some primary carers of EEA nationals to obtain rights to reside in the UK.
Under the EEA Regulations 2016, one of the criteria to be considered a primary carer was to be the sole carer or to share the care equally with someone who was not an “exempt person”. An exempt person is someone with the right to reside under the EEA Regulations, the right of abode or indefinite leave to remain in the UK.
This clear and accessible guide covers the legal requirements for EU residence documents and the practicalities of making an application including advice on documents and forms.
In other words, if Sergei, a Russian national, was sharing the responsibility to care for Anna, a British national, with Anna’s mother, a Latvia national exercising treaty rights, then Sergei could not be considered a primary carer under European law.
Following the case of C-133/15 Chavez-Vilchez and others, the definition of primary carer is widened. It now includes those who share responsibility equally with someone else, even if that someone is an “exempt person”.
Deportation and permanent residence
The case of C 424/16 Vomero. The Court of Justice found that where an EEA national has resided in the UK for ten years, they must have acquired the right to permanent residence before being entitled to the enhanced protection against expulsion. The Regulations are amended to make that clear.
Other amendments
Other minor amendments to the Regulations include that:
• When a family member applies for an EEA family permit or residence document, they must also submit the EEA national’s identity card and passport. It is unclear how this constitutes a change as this has in fact been the case for a while in guidance and applications were rejected when the identity document of the EEA national was not submitted.
• EEA family permits can be issued in an electronic format.
• There is a clarification as to when a person must be outside the UK to bring an EEA appeal.
Of course, for how long those changes will remain relevant is yet to be seen. We can only hope that the positive changes, including for primary carers and dual nationals, will re-appear in the domestic rules on EEA nationals and their family members after Brexit.
>>> Sajid Javid sasys that the free movement could be replaced with “labour mobility” for executives: https://www.parliamentlive.tv/Event/Index/1005d715-94ba-4981-88bb-670c704f2e68
The right of free movement for EU migrants could be replaced with something more like the arrangements making travel easier for Canadian business people, the Home Secretary has said. Sajid Javid told the Home Affairs committee of MPs today that free movement will end after Brexit, “full stop”, and repeatedly mentioned the immigration components of an Canadian-EU trade deal — limited to “labour mobility” for professionals — as an example of what could replace it.