Category: New Guidance

Guidance for migrants who are unable to return to China due to Coronavirus

In view of the extreme results of the Coronavirus outbreak, the Home Office has recently issued new guidance on immigration provisions for individuals in the UK who are unable to return to China.

On 17th February 2020, the Home Office published instructions for Chinese nationals currently in the UK, who have been compliant with the conditions of their visa prior to the coronavirus outburst, will be subject to an automatic extension of their leave until 31st March 2020. This will only apply if the leave has an expiry date between 24th January 2020 and 30th March 2020.

No action is required by the individuals in subject and No Biometric Residence Permit cards will be renewed. The status of the visas will be automatically updated on the UK Visas and Immigration’s systems.

Non-Chinese and non-EEA nationals in the UK, who are resident in China, will also be able to obtain an extension of their leave if they are able to demonstrate that they are usually resident in China; however, those individuals are required to contact the coronavirus immigration helpline on 0800 678 1767, which is available Monday to Friday, 9 AM to 5 PM

Chinese nationals in the UK on a Tier 2 Intra-Company Transfer visa who want to switch to a Tier 2 General visa can now (exceptionally) apply to switch from within the UK. This is only applicable if the current visa has an expiry date between 24th January 2020 and 30th March 2020. Relevant fees will still apply and requirements of a Tier 2 General visa will still need to be met, with the exception that application should be made from China.

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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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