Author: Adarsh Girijadevi

Home Office publishes new guidance on false representations further to Balajigari case

The Home Office has issued new policy guidance on 09th October 2019 on false representation refusals; the full document can be accessed here.

The Home Office have always taken a very strict course of action when it came to applications made under false representations. However following a landmark case it has now resulted in the new guidance on how false representation refusals will be decided on. In the case of Balajigari v Secretary of State for the Home Department [2019] EWCA Civ 673 it was held by the Court of Appeal, that the Home Office had in fact unlawfully refused many applications; on the basis that the applicants were not given the opportunity to defend the claim of deception and dishonestly put forward by the Home Office.

The key details are outlined below.

Applicants will normally have the burden of proof to show that they meet all requirements of the rules, but in the event of a false representation being suspected, the burden of proof is then on the Home Office to show not only that the applicant’s representations was false but will also need to show that the applicant was dishonest.

Therefore refusals cannot be made where there are only doubts, concerns or where there is not sufficient information. It must be confirmed that there was either dishonesty or deception involved. If an application is likely to be refused, then a ‘Minded to Refuse notification’ letter will need to be sent to the applicant. This is where the applicant will be given the opportunity to explain and clear up the inconsistencies found in the application. Usually 14 calendar days is given to allow for the applicant to gather the necessary documents needed as evidence.Two conditions which must be fulfilled before issuing a Minded to Refuse notification:

  • The applicant may not necessarily know about the information you have considered or its significance, for example information obtained directly from another Government Department.
  • The implications for an applicant of a finding of dishonesty are significant.

According to the current Immigration rules, if in a previous application it was found that a false representation was made, then the Home Office can refuse new entry clearance, leave to remain, visitors, family members (Appendix FM) and armed forces applications. However it is to note that applications made under Appendix V and FM, do have separate provisions that apply.

When false representations are made because of benefit fraud or tax evasion, then a refusal will be made under public policy grounds, as these representations would not be sufficiently serious to meet the threshold to refuse. In  Balajigari, the Court of Appeal ruled that this practice is lawful, or at least it can be if done the right way. Please read the full document on the link outlined in the beginning of this article to understand the new guidance in full.

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Government publishes fact sheet providing clarifications on new Graduate Immigration Route

The UK Government on 14th October 2019 published a new graduate immigration route for international students to remain in the UK for two years following the completion of their studies; the Home Office blog can be accessed here.

The key details are outlined below.

This new graduate immigration route is available for international students who have completed their undergraduate or above higher education. To be eligible students must have complied with immigration rules throughout their time in the UK and must have a valid Tier 4 visa when making the application. Successful applicants will be allowed to stay and work at any skill level (or look for work) in the UK for two years.

Students will not need to have a sponsor or Certificate of Sponsorship (CoS). Tier 4 sponsors will not be required to fulfil sponsorship duties for their students if they switch to the graduate immigration route, however they will still be responsible for the students. Graduates will also be able to switch into skilled work once they have secured suitable employment. The route will open in the summer of 2021 for graduates (who will graduate on or after summer 2021) to apply for. Students whose Tier 4 visa expires before summer 2021 and students who will graduate before summer 2021, will not be able to make use of this route. They can however switch into skilled work route instead. The graduate immigration route does not count towards settlement and it is non-extendable. However graduates who switch in skilled work can then apply for settlements once they fulfil the requirements.

A new application will need to be made and will require payment for visa fees and Immigration Health Surcharge – currently the fees have not been released. This new graduate immigration route for international students has been created by the UK government to help increase education exports to £35 billion and the number of international higher education students to 600,000 by 2030. Please read the full blog on the link outlined in the beginning of this article for more information.

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Immigration Rule Changes published on 09 September 2019

The Immigration rule changes were announced by the UK Government on 09th September 2019 as Statement of Changes HC 2631; the full document can be accessed here. 

The Key changes are outlined below.

Tier 2

The announcement has seen a number of positive changes made under the Tier 2 route both helping migrants and sponsoring organisations.

  • There has been some additions to the Shortage Occupation List  such as web designers, engineers, health/ medical, biological scientists, psychologists, veterinarians, architects and IT specialists. The advantage of these positions now classified as shortage occupation is that, those businesses employing migrants under these positions are no longer required to meet the Resident Labour Market Test requirements (RLMT). The applicants will also be exempted from the higher earnings threshold required for settlement as well. The key changes are for those who run IT businesses and Restaurants. All positions under SOC Codes 2135 IT business analysts, architects and systems designers, 2136 Programmers and software development professionals and 2137 Web design and development professionals are now classified under shortage skilled occupation. These positions contribute a large workforce in IT  and is definitely expected to make significant improvements to the industry.  The other key change is that restaurants who offer take away service can now employ skilled chefs and this is expected to help a lot of small and medium restaurants struggling to find chef from within the UK.
  • Schools will be pleased that advertising roles on the gov.uk “Teaching Vacancies” platform will now meet the requirements of an acceptable RLMT advertising method.
  • The rules on migrant salaries in the run-up to those applying for indefinite leave to remain where there has been a temporary reduction in earnings will be extended to cover a wider group – the rules will extend to those absent from work due to sickness, statutory parental leave, assisting in a national or international humanitarian or environmental crisis and engaging in legal strike action – this is in addition to those on maternity, paternity, shared parental and adoption leave.
  • Some salary rates have been modified and will apply to certificates of sponsorship assigned on or after 6 October 2019. PhD level occupations will be exempt from the (20,700) annual limit on visas for skilled non-EU workers from 6 October 2019.
  • Employees sponsored in Ph.D. level SOC codes with UK absences for research purposes and relating to their visa sponsorship, will no longer have these absences counted within the indefinite leave to remain (settlement) absence rules. By way of reminder, migrants granted leave since 11 January 2018 must not exceed 180 days’ absence in any rolling 12-month period.

Students

Changes have been made so that students on Tier 4 (General) visas will be able to start working for Tier 2 sponsors within 3 months of the completion of their degree. Students who have been supported by an endorsing body can also start their business activities whilst their application for a start-up application is pending.Another change is being made to allow Tier 4 students studying at masters’ and PhD level to start a different course of study with their current sponsor while they have leave, without having to make an application from overseas.

Other changes:

  • English language tests and Life in the UK certificates – applicants will be able to rely on their unique reference number, no longer requiring their paper test certificate.Appendix O will no longer exist, and details of acceptable English tests will be on the main gov.uk page.

  • Many technical changes have been made to the EU Settlement Scheme rules (known as EUSS) – particularly for the family members of UK nationals returning from a European Economic Area (EEA) Member State or Switzerland. Most of the changes appear to provide clarity. There have also been some big changes to the “suitability” EUSS rules covering circumstances where applications may or must be refused.

  • Administrative reviews (a mechanism to challenge decisions) must now be submitted online unless the original application was made on a valid paper form.

  • Changes will also be made to the deadlines for applying for administrative review under the EUSS rules, and a discretionary rule to allow late applications will be removed – this change is not likely to be welcomed, particularly for applicants granted pre-settled status when they believe they qualify for settled status.

  • Tech Nation, one of the endorsing bodies for Tier 1 (Exceptional Talent) applicants, will now require three, rather than two, letters of support by established organisations in the digital technology sector for endorsement.

  • Any organisations applying to become an endorsing body may be refused on the grounds of ‘criminality or other actions or behaviour which are non-conducive to the public goo’ or due to conflicts of interest. On the positive side, under the start-up and innovator scheme, there will be an exemption for students on doctorate extension scheme from the requirement to apply as innovators if they have previously established business in the UK.

Please read the full changes on the link outlined in the beginning of this article to understand all changes implemented.

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Government announces Post Study Work Visa for International Students

The UK government announced its plans to offer extended post study work visas for international graduates for two years after graduating, compared with four months currently. The decision reverses one of the most contentious policies from Theresa May’s time being in charge of Immigration.

It is not entirely clear when the rules will be implemented, but the announcement appears to suggest that that new route will be opened to students from next academic year. There is no further information at present that suggests that the scheme will benefit current students already enrolled on courses in the UK.

There has been a push from the business and education sectors to relax the rules for international students for a long time. This was supported by several former and current cabinet members, including the former home secretary Sajid Javid.

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Home Secretary to lift post-study restrictions for International students

Home Secretary Sajid Javid has called for a lifting of post-study work restrictions for International students in the UK. It was announced on 7 June that he had accepted Jo Johnson’s (former University Minister) clause for students at recognised universities to have an automatic right to stay on to work for two years on their Tier 4 student visa.

The earlier Post Study Scheme was replaced with a 4 month stay in 2012 by then Home Secretary Theresa May in an attempt to lower net migration figures. However, recently the government acknowledged that this causes issues and announced it would raise this to 6 months. Mr. Javid wrote on Financial Times: “It makes no sense to send some of the brightest and most enterprising people in the world straight home after their time here.”

Sajid Javid is a contender for the Conservative party leadership and his announcement was welcomed by UK universities and student community. Sajid Javid has received a huge boost to his Conservative party leadership campaign after securing the support of Ruth Davidson in the battle for Downing Street. It is not yet clear when this will be implemented and we will update this article as and when more news on the topic arise.

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Stateless child

Immigration Rule Changes for Stateless Applicants

The Stateless applicants are considered under Part 14 of the immigration rules paragraph 401 to 416 which sets put the rules and requirements in detail.

The key change that is being introduced,  increase the initial period of leave for those who qualify from 30 months to five years’ limited leave, after which they can apply for settlement. It is also now required that, in order to qualify for stateless leave, the applicant must show that they cannot acquire a nationality or a right to permanent residence in another country to which they may be entitled. This may be problematic in most cases to prove the negative.  It is also worth noting that applications for stateless leave will be refused where a person does not provide sufficient evidence that they have taken such steps, even if they are technically ‘stateless’ because they do not hold a nationality at the time of their application. There are also other minor changes in respect of family members.

The rules are made stricter to avoid abuse and to prevent applications from those  who can acquire the nationality of another country but choose not to. The changes are unlikely to impact the registering for British citizenship under nationality act.

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extended family

Extended Family of EU nationals gets appeal rights back under new regulations.

The appeal rights for the Extended family member (EFM) of an EU national has a complicated history when first the Upper Tribunal ruled that it did not exist in 2016, which was over turned by Court of Appeal a year later.

On 2 July 2018, The Court of Justice of the European Union’s gave its ruling in the Banger case. On the issue of whether it is compatible with Directive 2004/38/EC to operate a rule of national law which precludes an appeal to a court or tribunal against a decision refusing to issue a residence card to a person claiming to be an extended family member, the CJEU held that a national court must be able to evaluate whether the refusal decision rests on “a sufficiently solid factual basis” and whether the decision-maker complied with the requisite procedural safeguards governing any denial of entry or residence.

The Home Office recently also requested the claimant in response to a judicial review challenge to withdraw on the basis that the 2016 regulations will also be changed to allow appeal rights. Immigration (European Economic Area Nationals) (EU Exit) Regulations 2019 were laid before the parliament on 07 March 2019 and Appeal rights are expected to be implemented within 21 days of this.

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Investor visa

Key changes to the Tier 1 Investor visa route announced by Home Office

The Tier 1 Investor visa category will remain opened contrary to the rumours that this route will be suspended or closed. The published changes to the rules make clear that the Tier 1 Investor visa category will remain open to new applicants from 29 March 2019.

The key changes are listed below.

  • Applicants will need to have held their investment funds for at least 2 years prior to the date of application;
  • The Home Office will have power to refuse an application where there are reasonable grounds to believe that the funds have been, or will be, transferred internationally by means which are unlawful in any of the countries involved;
  • Applicants will need to provide confirmation from a UK bank that it has carried out all required due diligence checks and Know Your Customer enquiries.

The new rules will not require investors to undergo enhanced checks on their financial situations and business histories, carried out by a UK-regulated auditor, before making a visa application, as was previously anticipated. Applicants will no longer be able to simply buy up UK national debt to qualify as an investor. Purchase of UK government bonds is being excluded as a qualifying investment.Transitional arrangements for current investor visa holders will be in place until 5 April 2023 for extension applications and 5 April 2025 for settlement applications. Full changes announced can be seen at Statement of Changes to the Immigration Rules HC1919.

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start up visa

Tier 1 Graduate Entrepreneur to be replaced with Start-up visa

The new Start-up visa will replace Graduate Entrepreneur exclusively for UK graduates from 5 July 2019. The Start-up category is an expanded version of Tier 1 Graduate Entrepreneur category. Applicants do not need to meet the requirement of having a graduate degree and to secure initial funding. Successful applicants will be granted 2 years’ leave (previously one year) and will be able to progress into the Innovator category to continue developing their businesses in the UK after that time. The key new requirement is that the initial applications must be endorsed by a relevant body (not yet defined in the statement of changes) to confirm that the business ideas are innovative, viable and scalable.

Tier 1 (Graduate Entrepreneur) applicants apply on the basis of endorsement letters from Higher Education Institutions (HEI) or the Department for International Trade (DIT) may use this letters until 5 July 2019 and these may continue to be issued until 05 April 2019. Tier 1 (Graduate Entrepreneur) migrants will be able to switch into the new Start-up route if they have not yet had their maximum two grants of leave under the Tier 1 (Graduate Entrepreneur) route. If their Start-up endorsement is from the same endorsing body (HEI or DIT) as in their previous Tier 1 (Graduate Entrepreneur) application, their business ideas will not need to meet the new Start-up criteria in relation to innovation and scalability.

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Innovator Visa

Innovator visa introduced to replace Tier 1 Entrepreneur

The Home Office announced on 7 March 2019 by statement of changes (HC1919) regarding the closure of Tier 1 Entrepreneur route and introducing ‘innovator’ and ‘start-up’ visa categories. Tier 1 (Entrepreneur) applications can continue to be made until 29 March 2019.

The Innovator visa category is intended for more experienced business people and will require an endorsement in addition to the £50,000 to invest in their business from any legitimate source (reduced from £200,000 for most applicants in the current Tier 1 Entrepreneur category). There will not be any funding requirement for those switching from the Start-up category (replacing graduate entrepreneur) who have made significant achievements against their business plans. The Innovator category may lead to a settlement in the UK. Innovators will be eligible to apply for indefinite leave to remain after 3 years continuous residence in the UK as innovators, provided they satisfy at least two of a list of criteria relating to how much money they invested, how much the business grew and/or how many jobs they created.

There is not yet a set list of organisations that can endorse someone for an innovator visa, but we understand that endorsing bodies like Tech Nation will be participating in this scheme. Extension applications for Tier 1 Entrepreneur migrants will remain open until 5 April 2023, and settlement applications until 5 April 2025.

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