Author: Adarsh Girijadevi

Sharia divorce not covered under EU Laws

The European Court of Justice recently considered a case relating to a couple in Germany who divorced in a Sharia court in Syria. The court found that they cannot have their divorce validated under EU law. ECJ said ‘member states must decide for themselves whether to recognise “private divorces”, such as those performed in Sharia courts’.

Islamic law allows a man to divorce his wife instantly by saying “talaq” (divorce) three times.This case is ECJ’s first ruling on the subject.The ECJ said the regulation “does not apply, by itself, to the recognition of a divorce decision delivered in a third country”.It added that a unilateral declaration of divorce before a religious court does not fall under the scope of the regulation.

The Impact of this and UK’s stand on the matter is yet to be seen. However, any previous relationships being ended this way could face issues when making an immigration application for a new spouse.

Visa conditions do not count unless notified in writing by the Home Office

Court of Appeals Decision in  the case of Anwar v Secretary of State for the Home Department [2017] EWCA Civ 2134 confirms that if the Home Office wishes to impose visa conditions, it must give people written notice of those conditions. If the Home Office fails to do this, or is unable to produce evidence that the notice was sent, it will be unable to rely on any purported breach of a visa condition to justify a decision to refuse a subsequent application, curtail a person’s leave, or remove a person from the UK.

Anwar, from Pakistan, had been studying at two institutions simultaneously, but only one was named on his Certificate of Acceptance of Studies (CAS). This is a document which must be issued by a university or college before leave to remain as a student can be granted. Immigration Rules indicates that leave to remain as a student will be granted subject to a condition prohibiting study except at the institution providing the CAS. However Court of Appeal agreed that Immigration Rules themselves are not sufficient to impose conditions; the condition must be applied to the individual case by issuing a written notice.

This decision could have wide-reaching ramifications, given that it is not currently Home Office practice to outline any conditions imposed when granting a visa application. As the Home Office amends its practice, there may still be cases in which it is unable to demonstrate that it has complied with the requirement to give written notice of any visa conditions.

Changes to the UK Immigration Rules from 11 January 2018

New Statement of changes was passed to the Parliament on the 7th of December 2017. These changes will come into force from 11th of January 2018.

Summary of Changes:

  • The introduction of an electronic entry clearance visa to replace a physical vignette in the passport;
  • Flexibility for Tier 4 students switching to Tier 2 sponsorship; and
  • A new requirement for PBS dependants to not spend more than 180 days in any 12-month period outside the United Kingdom in order to qualify for Indefinite Leave to Remain.

Changes in Detail:

  • Tier 1 (Exceptional Talent).

The number of available endorsements will double from 1,000 to 2,000 places per year. There will be a pool of not allocated places distributed to five Designated Competent Bodies (DCBs),which can be drawn on by any of the five bodies on a first-come-first-serve basis.Furthermore, Tier 1 (Exceptional Talent) visa holders who are classed as “world leaders” in their field may be able to qualify for accelerated settlement after three years of continuous residence, instead of five years. As a result of the changes, this category, while relatively limited in its application, could potentially offer another immigration option for very highly-skilled migrants working in specific industries.

  • Tier 1 (Entrepreneur).

The applicants will no longer be able to rely on funds or investment that have been provided by another Tier 1 (Entrepreneur) Migrant, or that migrant’s business or close family member. The interpretation of a “close family member” will depend on the facts of the case.This to prevent misuse of the route by recycling of funds.Changes to the job creation rules for extension and settlement applications will be implemented to enable applicants to apply even if their current leave was granted less than 12 months ago. However, in such cases, the jobs must have existed for at least 12 months before the date of the current application.

Applicants relying on investment from a venture capital firm will now be required to also provide a letter from the firm confirming the date(s) the funds were transferred to the applicant or invested in their business and that the firm was registered with the Financial Conduct Authority at the time. This requirement is added to counter ongoing abuse relating to venture capital funding.

  • Tier 2 (General).

The UK government is welcoming researchers into the United Kingdom. Exemption from the Resident Labour Market Test (RLMT) will be applied to researchers who are recipients of supernumerary research awards and fellowships and for established research team members sponsored by either a Higher Education Institution or a Research Council.

  • Tier 4 Students switching to Tier 2.

Tier 4 students who have successfully passed their course in the United Kingdom are typically able to switch to Tier 2 sponsorship without the Sponsor being required to undertake the RLMT. From January 11, 2018, United Kingdom Visas and Immigration (UKVI) will apply some welcome flexibility, in that Tier 4 students will no longer be required to pass their course before being able to switch to Tier 2. Instead, the requirement will be that they have completed their course and are able to evidence this.This in theory should allow students to apply for their Tier 2 visas much more quickly, without having to wait for their exam results.

  • Tier 4 students studying part-time.

Tier 4 (General) Students can now apply to study a part-time course under their Tier 4 visa as long as the course is studied at an academic level over Scottish Credit and Qualifications Framework Level 11 or Regulated Qualifications Framework level 7. Part-time students will not, however, be able to:

  • Extend their leave in the United Kingdom under the new Tier 4 rules;
  • Bring family members into the United Kingdom as a dependant under their visa;
  • Work during their studies; or
  • Switch visa categories in country.
  • Tier 5.

The annual quota of places available under the Tier 5 (Youth Mobility Scheme) has been updated.There is a slight reduction in the number places available for Australia Nationals from 35,500 to 34,000.There is an increase of 1,000 places from 13,000 to 14,000 for New Zealand.There is also a small increase from 5,500 places for Canada to 6,000.

  • PBS Dependants.

Dependants of PBS migrants (including Tier 2) have not historically been subject to the absences requirement (i.e. spending no more than 180 days per year outside of the United Kingdom) when applying for Indefinite Leave to Remain. The new Immigration Rules confirm, however, that dependants of PBS migrants who make any visa application (including an extension application) on or after January 11, 2018 will need to ensure they are not away from the United Kingdom more than 180 days during any 12-month period from that point onwards. This is a significant departure from the existing provisions. Businesses may wish to establish whether this could affect its PBS population whose family members do not regularly reside in the United Kingdom.

PBS dependants submitting an application on or after January 11, 2018 will have to prove to the UKVI that their relationship to the main applicant is both subsisting and genuine. Previously, there was no requirement to evidence that the relationship was genuine.

  • Visitors 

From 11 January 2018, visitors who hold a standard or marriage/civil partnership visit visa will be allowed to transit the UK without the need to obtain a separate transit visa.There is also clarification that visitors are not permitted to study at an academy or a school maintained by a Local Authority.

  • Electronic entry clearance 

A new electronic entry clearance system is being rolled out from 2018. Individuals with electronic clearance will only have to present their passport or identity documents at the UK border for the Immigration Officer to check electronically for entry clearance. Electronic entry clearance will be trialled initially with a pilot group, ahead of wider implementation.

If you have a question about how the changes affect you or your organisation, please contact us. Our team of UK immigration law experts are on hand to answer your queries.

The full statement of changes in Immigration Rules can be found at HC309

Court of Appeal says No special rules for children of Gurkhas

The legal arguments on family life between adult children and parents are notoriously tricky. The guise in which the issue arose in Pun & Anr (Nepal) v Secretary of State for the Home Department [2017] EWCA Civ 2106 was whether non-dependent adult children could qualify under the Gurkha policy. The court ultimately held that the absence of dependency was fatal to the family’s case.

In this case, the appellants were the son and daughter-in-law of Mr Ril Pun. The wife had arrived in the UK on a Tier 4 (General) Student visa. The husband had joined her shortly afterwards. Both then applied for Indefinite Leave to Remain as adult dependent relatives of Mr Ril Pun. The application was refused primarily on the basis that neither was actually dependent and that their private life in the UK was insufficient to bring them within the scope of the Gurkha policy.

Whilst the position with adult children has always been difficult, this case highlights just how important demonstrating dependency is. Even the historic injustice to Gurkhas could only be given limited weight, in the interests of maintaining immigration control. In the general run of cases, there is unlikely to be any Gurkha policy argument to make. Such cases start on the back foot.

Employment Upper Tribunal says failure to provide evidence of right to work not a fair reason to dismiss.

In the case of Baker v Abellio London Ltd [2017] UKEAT 0250_16_0510the Employment Appeal Tribunal found that not having documents confirming an employee’s right to work is not in itself a fair reason for dismissal. However, genuinely believing that you need the documents can be a fair reason for dismissal.

It is good news that there is no requirement on an employer to obtain certain documents to continue employing someone. If an employer is satisfied that its employee has the right to work  for example because they have evidence that an application was made on time; or they have a positive verification from the Home Office of the employee’s right to work – they cannot dismiss the employee only because they do not have a document demonstrating that right.

On the other hand, that does not solve the situation when employers are simply not satisfied that the employee has the right to work in the first place, which is often what happens.

Whilst Baker v Abellio is good news in cases where clients work for employers who accept that they have the right to work, those clients whose employers suspect otherwise will continue to rely on the Home Office’s often unreliable Employer Checking Service.

Please speak to our legal team on 020 3695 4626 if you need any further advise.

TOEIC issue-court ruled that accused people have in-country right of challenge

The Court of Appeal has held in Ahsan v Secretary of State for the Home Department (Rev 1) [2017] EWCA Civ 2009 that people accused of cheating on the TOEIC English language test and threatened with removal from the UK have the right to challenge that decision in this country rather than from abroad.

Lord Justice Underhill said that:

an out-of-country appeal would not satisfy the Appellants’ rights, either at common law or under article 8 of the Convention, to a fair and effective procedure to challenge the decisions to remove them; and that in those circumstances, subject to the human rights claim issue considered below, they were entitled to proceed with such a challenge by way of judicial review.

The court did not accept the Secretary of State’s argument that the application for judicial review should be rejected because the appellants could pursue an in-country appeal by way of a human rights application instead. The court has, helpfully, given for the assistance of practitioners a short summary of its reasoning at the conclusion of a lengthy judgment, although Underhill LJ stressed that it carries a risk of over-simplification. The summary is as follows:

(1) In deciding by what route a decision to remove someone on the basis that they cheated in a TOEIC test can be challenged, the starting-point is to establish whether the decision was made under the 2014 Act regime or its successor. (If it was made prior to 20 October 2014 it will fall under the old regime, and if it was made after 5 April 2015 it will fall under the new regime; in between those dates the position depends on the effect of the applicable commencement and transitional provisions.)

(2) If the decision falls under the old regime it will have been taken under section 10 of the 1999 Act in its unamended form. The person affected by the decision will generally have a right only to an out-of-country appeal, under section 82 of the 2002 Act, read with section 92 (1): they will not, except by unusual chance, have a right to an in-country appeal under the “human rights claim” provision of section 92 (4), because they will not typically have made such a claim prior to the removal decision: see para. 15.

(3) What the Court holds in part (A) – see in particular paras. 72-98 – is that an out-of-country appeal is not an effective remedy where (a) it would be necessary for the appellant to give oral evidence on such an appeal and (b) facilities for him or her to do so by video-link from the country to which they will be removed are not realistically available. It accordingly holds, subject to (4) below, that persons against whom such a decision is made will be entitled to challenge the decision by way of judicial review; that is so whether or not their article 8 rights are engaged. In reaching that conclusion the Court follows the approach of the Supreme Court in Kiarie and Byndloss to what are substantially similar circumstances and distinguishes its previous decisions in Mehmood and Ali and Sood. The Court finds that both conditions were satisfied in the present cases and observes that condition (a) is likely to be satisfied in TOEIC cases generally (see para. 91) and that in typical cases condition (b) is likely to be satisfied also (see para. 90).

(4) Notwithstanding (3), the Court at para. 99-127 accepts that in principle permission to proceed by way of judicial review could be refused if the person in question could achieve an equivalent remedy by an in-country human rights appeal under the 2014 Act regime, subject to the Home Secretary’s power to certify the claim as wholly unfounded. But such a remedy would only be equivalent if the three conditions identified at para. 116 above are satisfied, which they were not in these cases.

(5) Part (B) of the judgment concerns a challenge to the certification of a human rights claim in a particular case to which the 2014 Act regime applies. The Court finds that the certificate is liable to be quashed. The decision does not directly depend on the issue of whether the Appellant cheated in his TOEIC test, but the Court makes some observations about the appropriateness of certification where that is the determinative issue: see para. 156.

(6) The judgment also discusses the authorities on the extent to which the article 8 rights of students may be engaged by their removal prior to completion of their studies (see paras. 84-88) and the obligations of the Secretary of State to facilitate return in cases where a person who has been removed is successful in an out-of-country appeal (see para. 133).

If you were affected by the TOEIC refusal and unsure how this judgement affects you, please give our legal team a call on 020 3695 4626.

EU citizens retain free movement rights after naturalisation in host state

The Court of Justice of the European Union has found in the case of C-165/16 Lounes 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 court has held that the UK has wrongly been refusing to recognise free movement rights for such EU citizens since 2012.

The case has particular significance to those EU citizens who have naturalised as British following the Brexit referendum because it means that the UK has wrongly been denying them their EU law rights in the meantime. The victory is a Pyrrhic one for them, perhaps, because after Brexit these rights will be lost, unless the UK agrees that free movement law continues in some form, for example with a transitional deal.

The judgment does not just apply to EU citizens coming to the UK, though. It has considerable significance across the EU for the integration of long term residents from other EU countries.

New settled status updates for EU citizens

The government on 07th November 2017 offered further reassurance for EU citizens and their family members by setting out further details of how its new settled status scheme will operate.Those applying to stay in the UK after we leave the EU will not have their applications refused on minor technicalities and caseworkers considering applications will exercise discretion where appropriate. We expect the majority of cases to be granted.

EU citizens will also be given a statutory right of appeal, in line with their current rights through the Free Movement Directive, if their application is unsuccessful.In a technical document sent to the European Commission as part of negotiations, the government reiterates how the new system will be streamlined, low-cost and user-friendly, with EU citizens consulted on its design.

The Prime Minister has been clear that safeguarding the rights of EU citizens living in the UK and UK nationals in Europe is the first priority for negotiations and she said last month that an agreement is within touching distance. Secretary of State for Exiting the EU, David Davis said:

We have been clear that safeguarding the rights of EU citizens is our top priority in our negotiations. They make a huge contribution to our economy and society and we do not want to see that change as a result of our decision to leave the EU.

We will support everyone wishing to stay to gain settled status through a new straightforward, streamlined system.

The last negotiation round saw real progress in this area and I believe the document we have published today can facilitate the deal we need to guarantee the rights of UK citizens living in the EU27, and vice versa.

The document commits to:

  • giving EU citizens plenty of time to apply, with a 2-year grace period after we leave the EU to make an application for settled status
  • minimising the documentary evidence that applicants need to provide and enabling caseworkers to contact applicants to resolve minor issues
  • keeping the cost of an application to no more than that of a British passport
  • giving EU citizens a statutory right of appeal, in line with their current rights through the Free Movement Directive, if their application is unsuccessful
  • making decisions solely on the criteria set out in the Withdrawal Agreement, with no discretion for other reasons for refusal
  • introducing a digital, streamlined and user friendly application system
  • not requiring EU citizens to have held comprehensive sickness insurance or to provide fingerprints
  • a simpler, lower cost process for those who already have permanent residence documentation.

The document also sets out that applicants will be asked to declare any criminal convictions and be checked against UK security databases. This is a reasonable measure to keep the country safe from those who have abused our hospitality by committing serious crimes.

If you are unsure whether to apply for a EEA PR document now or wait for the simplified process as detailed above, please get in touch with us to discuss more on 020 3695 4626.

Immigration Act puts further obligations on banks to check the Immigration status of customers.

The Immigration Act 2014 prohibited firms from opening current accounts for people who don’t have leave to remain in or enter into the UK. The Immigration Act 2014 has been amended by the Immigration Act 2016 and these amendments come into force on 30 October 2017.

There will be a number of additional requirements on firms including a requirement to carry out periodic checks of the immigration status of existing current account customers. This will include accounts opened before the 2014 Act prohibition came into force and will encompass situations where accounts may have been opened during a period of lawful stay but where the migrant has remained in the UK after their leave has expired.

The first immigration check is required to be carried out for the quarter beginning on 1 January 2018. Firms will be checking for accounts operated by a disqualified person (i.e. a person who is in the UK but who does not have the required leave to enter or remain in the UK).

The firm must then inform the Home Office if any account is identified and the Home Office will then carry out a check. The Home Office will have a range of options including requiring firms to close the account as soon as possible and power to apply to the Court to freeze an account until the individual leaves the UK.

The Immigration Act 2014 (Bank Accounts) Regulations will be amended to extend the Financial Conduct Authority (FCA) duty to monitor and enforce compliance with the new requirements. The FCA is currently consulting on its approach to the amended Immigration Act and regulations including reporting, monitoring and enforcement.

What do you need to know?

New accounts

Where the check identifies that the applicant is a disqualified person, firms must refuse to open the account. This prohibition includes:

  • opening joint current accounts for any disqualified persons
  • opening a current account where the disqualified person is a signatory or is identified as a beneficiary
  • adding any disqualified person as a current account holder, signatory or identified beneficiary in relation to an existing current account

Where firms refuse to open a current account due to concerns the person is a disqualified person, the firm must tell that person the reason for the refusal (as long as doing so does not conflict with obligations under other legislation e.g. Anti-Money Laundering legislation). Particular wording has been prepared by the Home Office which can be used where firms have refused an account.

Existing accounts

In terms of existing accounts, from 1 January 2018, firms will also be required to carry out quarterly immigration checks and any accounts found to be operated by a disqualified person must likewise be reported to the Home Office.

What do firms need to do?

  • make arrangements to comply with the Immigration Act 2016 and ensure that the relevant checks are put in place and employees are aware of the obligations and receive the necessary training;
  • put in place record-keeping procedures so that they can demonstrate compliance with the Immigration Act 2016 to the FCA. Firms will need to keep these records for at least 5 years. Firms will also need to confirm to the FCA each year that they are complying with their obligations under the Immigration Act;
  • terms and conditions will need to be updated in order to take account of the new quarterly checks; and
  • any issues with compliance will need to be reported to the FCA in the usual way.

Implications of the Immigration Act

This will place yet a further obligation on firms to monitor account activity. Appropriate systems and checks will need to be put in place to ensure compliance with this new obligation. Industry experts have expressed concerns that these requirements will make it harder for legitimate customers to open bank accounts.

Questions have also been raised about where liability will lie if things go wrong. In circumstances where a search brings up a number of names this may lead to the incorrect bank accounts being frozen or closed which could lead to claims being issued against firms. Appropriate records will need to be maintained to show why decisions have been made in order to evidence a firms compliance with the act.

Firms will also need to ensure its policies and procedures are clear and comply with other legislative requirements.

Who is affected?

You have been refused a current account

Banks and building societies are required to carry out immigration status checks on people applying for current accounts. Under the Immigration Act 2014 they must refuse your application for a new current account (or an application to add you as a signatory or identified beneficiary to a new or existing current account) if you are a disqualified person.

You may be disqualified if you are in the UK and need leave to enter or remain (under the Immigration Act 1971) and don’t have leave to be here. This could be because you:

  • never had leave to enter or remain (because you entered the UK illegally)
  • had leave but stayed after it expired or was revoked
  • are an European Economic Area (EEA) national subject to deportation action who has exhausted all rights of appeal

Your account has been closed

Banks and building societies are required to carry out immigration status checks on people who hold current accounts. If you are identified as being disqualified from holding an account, then, under the Immigration Act 2014 the bank or building society must close your accounts (or restrict access where you are a signatory or identified beneficiary, or the account is jointly held with a non-disqualified person). You may be disqualified if you are in the UK and need leave to enter or remain (under the Immigration Act 1971) and don’t have leave to be here. This could be because you:

  • never had leave to enter or remain (because you entered the UK illegally)
  • had leave, but stayed after it expired or was revoked
  • are an European Economic Area national subject to deportation action who has exhausted all rights of appeal.

The Home Office has the power under the Immigration Act 2014 to apply for a freezing order in relation to current accounts for disqualified person.

Query the decision

If a bank or building society refuses your application for a current account or closes your current account under the Immigration Act 2014, it will normally tell you why. If you believe there’s been a mistake, you should contact the Home Office with evidence of your lawful immigration status. If you have a right to be in the UK, the Home Office will change your details so you can re-apply to open a current account or re-open your existing account.

If you have any further questions or require any assistance relating issues with your bank account give us a call on 020 3695 4626 or email us on enquiries@citylegalservices.co.uk

EEA (EFM) Appeal rights – Case of SALA overturned in the court of appeal

The EEA – Extended family member’s appeal rights were withdrawn further to the judgement in the case of Sala (EFMs: Right of Appeal : Albania) [2016] UKUT 411 (IAC). The Upper Tribunal in this case has ruled that there is no right of appeal against a decision by the Home Office to refuse a residence card to a person claiming to be an extended family member.

A a direct result of this judgement, the Home Office updated their guidelines regarding the appeal rights & all subsequent application refusals did not carry any right of appeal. The First Tier tribunal also invalidated appeals outstanding with them which caused a real panic among the appellants.

The court of appeal considered this in the case of MK Pakistan & overturned the judgement yesterday by allowing the appeal on the interpretation grounds. The effect of the decision is that all those appeals pending under the 2006 Regulations should now be able to proceed. Those that have resulted in notices of invalid appeal will need to be challenged. This point may be slightly academic now, in the sense that only the 2006 Regulations are directly affected, but the path to a challenge to the 2016 Regulations now exists.

If you are affected by SALA case and wants any further advise on how to challenge this, please call one of our experts on 020 3695 4626.