Author: Adarsh Girijadevi

Court Of Appeal rules on the validity of UK visa applications made online.

In the case of R (Singh) v The Secretary of State for the Home Department [2018] EWCA Civ 1669 the Court of Appeal discussed transitional provisions in the Immigration Rules that apply to online applications which must be supported with further evidence sent later by post. The appellant argued that an application made online without supporting evidence was not valid and therefore did not count as an application for the purpose of deciding whether the “old” or “new” Rules applied. The Court of Appeal rejected this argument and ruled that the online application did count and therefore the previous Rules would apply. This meant the appellant could not benefit from a change to the Rules which required the Home Office to chase applicants for missing evidence and give them an additional 10 days to submit it.

Mr Singh had leave to remain as a student and made an online application for further leave on 22 October 2014, shortly before his leave expired. On 16 October 2014 the Secretary of State for the Home Department had changed the Immigration Rules on supporting documents. Previously, applicants had 15 days to supply those documents by post. If the deadline was missed the application would be automatically rejected. The new Rules told Home Office caseworkers to instead send a letter chasing up the missing documents and wait for a further ten days before rejecting the application. At the same time the Secretary of State made a Rule stating that applications made before 6 November 2014 would be decided on the basis of the old rule and applications made after that date would benefit from the new rule.

Mr Singh argued that this transitional rule only referred to “valid” applications made before 6 November 2014. His application never became valid because he had not sent his passport to the Home Office, therefore it did not fall to be considered under the old rules and he should benefit from the additional ten days provided by the new rules. Although the outcome of this case is unfortunate for Mr Singh it is difficult to challenge the conclusion reached by the Court of Appeal. It would be very surprising if the online application were not to count as an application as a matter of law when that term is used in other parts of the Immigration Rules.

BBC pull video aimed at children claiming immigration is in ‘our DNA

The BBC film aimed at GCSE pupils claimed Britain was “multicultural long before curry and carnival” and there isn’t such a thing as “pure Briton”. The assumptions made in the video, which had been in circulation since May, sparked a backlash and BBC was forced to withdraw the documentary. In the animated video, part of a series called Don’t Hate the Debate, the voiceover said: “Think immigration is a recent thing? Think again. “Because you see, you got the Celts, the Romans, the Anglo-Saxons and the Vikings, the Normans, the Flemish, the Irish, black Britons and Jewish people.

The video then seemed to issue a thinly-veiled attack on some right-wing parties calling for measures to curb immigration. Following the withdrawal of the video, a BBC spokesman said: “Don’t Hate the Debate is a series of films designed to help teachers enable classroom debates about topical issues.

 

Statement of changes

Statement of Changes Appendix EU – status for EU nationals and their families

The statement of changes to the Immigration Rules CM9675 of 20/7/18 contains new Appendix EU to be added to the rules and in force on 28/8/18 for the initial test phase. This is voluntary and applies only to persons on the payroll of the 12 NHS Trusts, and students and persons on the payroll of Liverpool Hope University, Liverpool John Moores University, and The University of Liverpool. The scheme will be rolled out on a phased basis from late 2018, to be fully open by 30 March 2019 (further details over the summer).

This, with parallel measures Immigration (Provision of Physical Data) (Amendment) (EU Exit) Regulations 2018 and The Immigration and Nationality (Fees) (Amendment) (EU Exit) Regulations 2018  is intended to align with the Statement of Intent on the EU Settlement Scheme of 21/6/18.

Appendix EU (see text in SoC) is structured as follows, in outline, by paragraphs:

  • Annex 1: definitions
  • EU2 to EU8: requirements and procedure for grants of settled status (ILR)
  • EU9: validity requirements for applications
  • EU11: eligibility requirements for settled status (ILR) for EU citizens and their family members, and EU12 for the family members of certain British citizens
  • EU14: eligibility requirements for pre-settled status (5 years’ LTR)
  • EU15 and EU16: basis on which an application under Appendix EU will or may be refused on grounds of serious criminality, other public policy considerations or deception, as reflected in the draft text of the Withdrawal Agreement.

Paragraph 1 of the SoC disapplies the general grounds for refusal in Part 9 for applications under App EU, except para 323(ii)  323. A person’s leave to enter or remain may be curtailed: … (ii) if he ceases to meet the requirements of the Rules under which his leave to enter or remain was granted;

Appendix EU provides that:

  • EU citizens and their family members who, by 31/12/20, have been continuously resident in the UK for five years will be eligible for ‘settled status’ (ILR).
  • EU citizens and their family members who arrive by 31/12/20, but who have resided here for less than 5 years, will generally be eligible for ‘pre-settled status’ (five years’ limited leave to remain in the UK), enabling them to stay until they have reached the five-year threshold, then apply for settled status.
  • Close family members (a spouse, civil partner, durable partner, dependent child or grandchild, and dependent parent or grandparent) living overseas will be able to join an EU citizen resident here after 31/12/20, where the relationship existed on that date and continues to exist when the person wishes to come to the UK. Provision for future children will be made, in line with the draft Agreement. A family member of a British citizen who is lawfully resident in the UK by 31/12/20 under Surinder Singh Reg 9 of the 2016 EEA Regulations will be eligible to apply under Appendix EU

The Explanatory Memorandum further states in paras 7.3-7 that

  • the requirements in App EU accord with the Withdrawal Agreement except where the UK applies more favourable criteria
  • beyond the Withdrawal Agreement terms there is no further discretion to refuse a valid application
  • administrative burdens will be minimised by only requesting necessary information (!)
  • Appendix EU is self-contained and displaces any provision made elsewhere in the Immigration Rules which would otherwise apply, e.g. in Part 1 (leave to enter or stay in the UK).
  • nationals of Norway, Iceland, Liechtenstein are not covered by the draft Withdrawal Agreement, but the intention is to secure ‘a similar deal’ for them and for UK citizens living in those countries
  • nationals of Ireland enjoy residence rights under the Common Travel Area arrangements between UK and ROI which are separate from the EU and not affected by the UK’s withdrawal, but they or their family members may apply under App EU if they wish

Update on Retained Right of Residence as a former spouse of a qualified person.

On 20th April 2018, the Court of Appeal and the Secretary of State in the case of Baigazieva v Secretary of State for the Home Department [2018] EWCA Civ 1088, clarified the law in relation to Retained Right of Residence. Prior to this case, it was interpreted that non-EEA national must prove that that their EEA national spouse was a qualified person at the time of the divorce decree. However, it is now established that the non-EEA national must only show that their EEA national spouse was a qualified person at the initiation of their divorce proceedings.

The Court of Appeal and the Secretary of State identified that the period between the commencement of divorce proceedings and the grant of divorce decree is quite critical. It was understood that once the termination of marriage is initiated, it will be unreasonable and highly-unlikely for the non-EEA national to obtain evidence of the EEA-national spouse’s employment status as the relationship ties are broken and dissolved. Due to this, the Court of Appeal clarified the interpretation of Regulation 10(5) of the Immigration (European Economic Area) Regulations 2016 and Article 13(2) of the Directive 2004/38/EC.

The position of the law in relation to retained right of residence is now clear. A non-EEA national will only be able to obtain retained right of residence once the divorce is granted legally, however the conditions for retaining right of residence will only be based until the commencement of divorce proceedings.

New Statement of Changes to Immigration Rules July 2018

New Statement of changes was passed to the Parliament on the 15th of June 2018. These changes will come into force on 6thof July 2018.

Changes are applicable to:

  • Returning Residents
  • Overstayers
  • Tier 1
  • Tier 2
  • Absences for Indefinite Leave to Remain Applications
  • Students
  • Afghan Citizens
  • Dubs Amendment and Section 67 of the Immigration Act 2016
  • Turkish Workers
  • Other Changes

Returning Residents

For those that have been absent from the UK for longer than two years, must apply for a leave to enter by re-establishing that they have convincing ties to the UK and that they do intend to make UK their permanent home. Those who have been absent for under two years can return without a visa. The new Rules also state that exceptions to the two-year rule for family members only now apply for the permanent diplomats.

 Overstayers

Paragraph 39E of the Immigration Rules allows Overstayers to make two consecutive applications as an exception. However, from 6th of July they will only be able to make and rely on the exception once. Also, Paragraph 320 (7BB) of the Rules will have changes. This means that out-of-time application made under the application of paragraph 39E will disregard the period of overstay pursuant paragraph 320(7B).

EXAMPLE:

Jamey’s leave was expiring on 05th  June 2018. Application for leave to remain as a spouse was submitted on 07th  June 2018. This application was out of time but within 14 days of his leave expiring. Jamey explained that he had been medically not well and hospitalised and hence could not have applied before. SSHD accepts this as a good reason beyond Jamey’s control, such that his application can be considered under the rules, disregarding the overstay. However, Jamey’s application is refused because he did not meet the English language requirement. The refusal is dated 10th  July.

Previously, relying on paragraph 39E, Jamey would have had an opportunity to make another application by 24th July, and again disregarding the overstay. From 6 July, this will no longer be possible for Jamey. 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.

Tier 1

There will no longer be rules in relation to indefinite leave to remain for Tier 1 (General) Migrants as the route is now closed as of 6th of April 2018. Applications submitted after 6th of July 2018 in relation to Tier 1 (Exceptional Talent) will widen for arts. The endorsement of arts applicants will now include individuals in the fashion industry.

Applicants under Tier 1 (Investor) can no longer take out dividend and interest payments generated before the investment portfolio purchase. In addition to this, Applicants must prove that the funds are only, duly invested in qualifying investments and that no loan is or has been secured against those funds. In relation to Tier 1 (Entrepreneur) applications, minor changes will reflect the timing requirement of letters from legal representatives and will reflect the provision for accountants to approve that the investment has in fact been only made on the applicant.

Tier 2

Visas for skilled non-EU workers were always limited. From 6th of July 2018, doctors and nurses will be exempt.

  • 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

Secretary of State, 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 will be subject to the Academic Technology Approval Scheme if they are going to study and learn knowledge and skills that can be used in the proliferation of weapons of mass destruction. All applicants must now obtain a certificate before they proceed irregardless of the length of their studies. Students will also be able to study on a study abroad programme even if the program was introduced newly in the current course.

Postgraduate migrants will now be able to bring their dependents with them to the UK as long as the course is six months or more. Students can provide evidence of previous qualifications online. This includes electronic copies from awarding bodies online checking services. However, this is up to the discretion of Home Office as they still have the right to ask and see the original copy.

As per documentary evidence requirements, the list varies depending on the country. The new changes will expand the country list allowing students to decide which evidence to submit based on where the application is made. Therefore, they will have the ability to choose from their country of residence or their country of nationality.

Afghan Citizens

New Rules are introduced to provide a route to settlement for Afghan citizens granted leave under these schemes, and their immediate family members. To be eligible for settlement, Afghan nationals and their family members will need to have lived in the UK with leave granted under the scheme for five years, and not fall for refusal because of good character. The application will be free of charge and there will be a specific form for settlement applications under this route, although that has not yet been released.

Dubs Amendment and Section 67 of the Immigration Act 2016

Children who do not qualify for international protection or humanitarian protection but are admitted to the UK under the Dubs amendment, can now be granted a new leave, Section 67 of the Immigration Act 2016 leave.

This leave will be granted if it is proven that:

  1. the person is not excluded from being a refugee under regulation 7 of the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 or excluded from a grant of humanitarian protection under paragraph 339D of these Rules;
  2. the person’s application for refugee status or humanitarian protection has been refused;
  3. there are no reasonable grounds for regarding the person as a danger to the security of the United Kingdom;
  4. the person has not been convicted by a final judgment of a particularly serious crime, and does not constitute a danger to the community of the United Kingdom; and
  5. none of the general grounds for refusal in paragraph 322 apply.

If the conditions are satisfied, the child will be given a leave for five years. The leave will not restrict the child from studying, working and accessing public funds. Furthermore, where the child is unable to obtain a national passport, they will be able to obtain a UK travel document as long as they are not refused on grounds of national security or public order. If the child completes five years of residence in the UK, they will be eligible for indefinite leave to remain and will not incur any application fees. Similarly, dependent children will also be given leave as long as the main applicant that has the parental responsibility is granted leave.

Turkish Workers

The UK Government is introducing the European Communities Association Agreement also known as Appendix ECAA or Ankara Agreement. This route will allow Turkish workers, business individuals and their family members to obtain indefinite leave to remain in the UK as long as certain conditions are met. They are as follows:

  1. their last grant of leave was under the ECAA;
  2. they have lived in the UK continuously for five years;
  3. they have shown sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, in accordance with Appendix KoLL;
  4. they have been able to support any family members with them without recourse to public funds to which they are not entitled; and
  5. they do not fall for refusal under general grounds for refusal.

Dependent children will be given indefinite leave to remain as long as the main applicant is granted leave. Dependent children do not have to prove the five years residence. However, partners of the main applicant need to show that they have resided in the UK for five years before they can be eligible for the indefinite leave to remain. Therefore, if the main applicant obtains the indefinite leave to remain before the partner reaches the five-year residence period, the partner can apply for further leave to remain so that they can obtain the five-year residence.

Other Changes

From 1st of July 2018, Croatian nationals will no longer require authorization to work or require registration cards to prove right to work as they will benefit from the entirety of EU Movement Rules. This will allow Croatian Nationals to apply freely as there will no longer be any more limits under the Tier 1 and Tier 2 route.

An adopted child who has limited leave as per Family Immigration Rules and is aged 18 years or above at the time of the application for indefinite leave to remain, must be able to satisfy the Knowledge of Language and Life requirement. Finally, changes will be made to the list of approved government authorized exchange schemes for Tier 5 migrants.

The full statement of changes can be viewed here.

Immigration rules to be eased to allow NHS to recruit more staff

The removal of medical staff from the cap will create more space for other skilled migrants to work in the UK, such as engineers and teachers.Immigration rules capping the number of foreign doctors and nurses working in the UK are set to be relaxed to allow the NHS to recruit more staff, Downing Street has confirmed.

Sajid Javid, the home secretary, has set out plans to remove overseas medical staff from the annual cap on skilled workers coming to the UK from Friday, currently limited to 20,700 “tier 2” visas per year. The removal of medical staff from the cap will create more space for other skilled migrants to work in the UK, such as engineers and teachers.The move adds to growing pressure on Theresa May to ditch her party’s goal of limiting annual net migration to the “tens of thousands”. It also shows the gap between Mr Javid and the prime minister, who was known for her tough stance on immigration when she headed up the Home Office. The Home Office will lay the regulations before parliament soon, which will come into force immediately.

More than 1,500 doctors from outside the European Economic Area (EEA) had visa applications refused between December 2017 and March 2018, according to the British Medical Journal. Earlier this month, Mr Javid signalled there could be a softer approach to immigration policy under his leadership at the Home Office, including looking again at the cap on “tier 2 visas”.

New Business start-up visa route announced by the Home Secretary

Home Secretary, Sajid Javid, has just announced that there will be a new visa available to those who wish to start a business in the UK, the Start-up Visa. For the longest time, the Home Office and its guidance has placed barriers for prospective entrepreneurs to enter the UK and proceed with their business venture. The Start-up visa will replace the Graduate Entrepreneur Route and will be open to a wider pool of talented entrepreneurs and business founders. However, as a requirement, applicants must be able to obtain an endorsement from either a university or an approved business sponsor. Nevertheless, the application process will be quicker than all other Entrepreneur Visa applications. The new visa is expected to launch in Spring 2019.

This initiative builds on other recent reforms to the visa system – including doubling the number of visas available on the Exceptional Talent route to 2,000 per year – and shows the Government’s commitment to making the UK a dynamic, open, globally-trading nation.

If you have further questions or / and is interested in this visa, please do not hesitate to contact us on 0330 058 3929.

Paragraph 322(5) of the Immigration Rules and Its Effect on Tier 1 Migrants

A recent investigation has shown that many of the Tier 1 Migrant workers that have made an Indefinite Leave to Remain application are facing deportation orders by the Home Office pursuant to paragraph 322(5) of the Immigration Rules even though they have not been criminally charged or fined by the HMRC. Home Office is being criticised heavily for wrongly applying this paragraph. Paragraph 322(5) was designed to tackle terrorism and disseminate those that are seen as a threat to national security. These rules were not designed to tackle those who are making changes to their tax records. Investigation has revealed that the Home Office is not proving beyond a reasonable doubt the intent to deceive HMRC or/ and Home Office and is solely relying on the failure of notifying all the relevant parties of changes to tax records. This has caused an outcry by many questioning the competence of the Home Office and its wrongful application of the relevant provisions of the Immigration Rules. It is argued that the Home Office’s incompetence will lead those with wrongful deportation orders to have a permanent “black” mark on their immigration history. Not only will the individuals be able to obtain visa to enter countries, they will face travel restraints and restrictions. Due to its sensitivity, MP’s and members of the House of Lords are now trying to create pressure groups to inform and prevent the Home Office from wrongly applying the Immigration Rules and deporting highly skilled migrants. Last month the home secretary, Sajid Javid, promised “all applications potentially falling for refusal under the character and conduct provisions of paragraph 322(5) … have been put on hold pending the findings of the current review”.

If you are a Tier 1 Migrant facing a deportation order based on amendments to your tax records or your ILR refused, please call one of our immigration experts on 0330 058 3929.

 

 

 

UK Visa Fees Increase from April 2018

The UK Visas & Immigration announced new fees for immigration and nationality coming into effect on 6 April 2018. The changes include increases to Tier 2 work visa fees, indefinite leave to remain and naturalization applications. We’ve highlighted some of the increases below but a full list can be found here.

TIER 2 VISAS

  • Overseas
    • Tier 2 General, Tier 2 ICT Long Term Staff up to 3 years: £610 (previously £587)
    • Tier 2 General, Tier 2 ICT Long Term Staff over 3 years: £1,220 (previously £1,174)
  • In country
    • Tier 2 General, Tier 2 ICT Long Term Staff up to 3 years: £704 (previously £677)
    • Tier 2 General, Tier 2 ICT Long Term Staff over 3 years: £1,408 (previously £1,354)

TIER 1 VISAS 

  • Tier 1 Entrepreneur overseas: £1,021 (previously £982)
  • Tier 1 Entrepreneur in country: £1,277 (previously £1,228)
  • Tier 1 Investor overseas and in country: £1,623 (previously £1,561)
  • Tier 1 Graduate Entrepreneur overseas: £363 (previously £349)
  • Tier 1 Graduate Entrepreneur in country: £493 (previously £474)

OTHER WORK VISAS 

  • Representative of overseas business (overseas application): £610 (previously £587)
  • Representative of overseas business (in country application): £704 (previously 677)
  • Tier 5 Temporary Worker & Youth Mobility Scheme: £244 (previously £235)

 SETTLEMENT & BRITISH NATIONALITY 

  • Indefinite Leave to Remain: £2,389 (previously £2,297)
  • Naturalisation as a British citizen: £1,250 (previously £1,202)

Please contact us on 020 3695 4626 if you need any assistance on UK immigration.

Owning & Operating a business may amount to private life under Article 8

The court of appeal recently considered the case of  Onwuje v Secretary of State for the Home Department [2018] EWCA Civ 331  under Article 8 and Underhill LJ accepted that “an entrepreneur’s ownership of, and involvement in, his or her business may also be regarded as an aspect of their private life for the purpose of article 8”, as stated in Niemietz v Germany (application no. 13710/88).

In Niemietz the European Court of Human Rights accepted that the concept of private life should not be limited to an “inner circle” but should include professional or business activities, “since it is, after all, in the course of their working lives that the majority of people have a significant, if not the greatest, opportunity of developing relationships with the outside world”.

Even though the appeal did not go through in this case, the comment is worth noting for future private life claims involving business aspect.