11-11-19 – Cambridge academic misses out on Indefinite Leave to Remain due to excess absences

A recent post by a young Cambridge academic who was refused indefinite leave to remain after spending a year abroad has triggered a viral reaction on Twitter. Asiya Islam, a sociology PhD student, made her application under the so-called “long residence” rule. In accordance with this rule, people who have lived lawfully in the UK for a “continuous period” of ten years can apply for indefinite leave to remain.  However, continues residence can be “broken” if too much time is spent outside the UK within this ten year period as was the case with Ms Islam who spent twelve months in India conducting research for her Cambridge PhD. Ms Islam relied on the Immigration Rules which were changed on 1 October 2019 to expressly state that overseas research absences will be disregarded for applicants in PhD-level occupations.  The problem for Ms Islam is that this exemption only applies to people who are applying for settlement after five years in the UK holding a Tier 2 work visa sponsored by an employer which is an entirely different immigration category.  The wording of the guidance implies that the absences must arise out of “compelling or compassionate circumstances”. Compassionate circumstances might be for example frequent trips outside the UK to care for a terminally ill parent. A compelling event could be if the applicant is physically prevented from returning to the UK, for example, because of an air-traffic control strike or unexpected hospitalisation abroad.  What next for Asiya Islam? If Ms Islam’s previous visa has not yet expired then this refusal should not effect her status. She will be allowed to remain on the terms of her previous visa until that visa expires.   However, if her last visa expired while the indefinite leave application was under consideration, she will be given a right of appeal in accordance with the Convention on human rights. Alternatively, she may be able to renew her previous visa for the time being or apply for an alternative visa.

08-11-19 – New NHS Visa Announced

The Conservative Party plans to introduce the so-called NHS Visa as part of its proposals to create an Australian-style immigration system if they win the general parliamentary election. The goal is to ensure that the National Health Service (NHS) attracts foreign doctors and nurses to the country after free movement has ceased to exist after Brexit. From today's media reports we know that such a visa will cost 464 pounds, which will be half the cost of the usual fee. The visa process will be accelerated — decisions will be made within two weeks — and NHS workers applying for this route will have access to some form of payment system to pay the immigration health surcharge by way of instalments from their salary as soon as they arrive into the UK.

05-11-19 – Recent changes and the effects on £1m investors

Back in November 2014, the government has implemented a change in the Tier 1 (Investor) Route in which the minimum investment threshold has been raised from £1m to £2m. This means that qualifying investments worth £1m is no longer enough to apply for an investor visa in the UK- they will now be required to invest at least £2m in qualifying investments. The route has undergone further changes in October 2019 when the Home Office imposed a ‘deadline’ for investors who entered route before 29 March 2019 in regards to their applications for Further Leave to Remain and Indefinite Leave to Remain. Changes made to the Tier 1 (Investor) Route are as below: An investor who entered the route relying on £1m investment and wishes to continue living in the UK will need to submit their application for Further Leave to Remain before 6th April 2020 If they have missed submitting their Further Leave to Remain application before 6th April 2020, they would have to increase their investments from £1m to at least £2m An investor who intends to apply for Indefinite Leave to Remain relying on £1m investment will need to submit their application for Indefinite Leave to Remain before 6th April 2022 If they have missed submitting their Indefinitely Leave to Remain application before 6th April 2022, they would have to increase their investment for £1m to at least £2m Important point to note is that part of the eligibility requirements is that they have reached the relevant qualifying period during which they have made and met the minimum investment threshold. If they had missed the deadline, the relevant period would begin from the date they increase their investments from £1m to £2m. From March 2019, governments bonds are no longer one of the qualifying investments for the Tier 1 (Investor) applications. Present investors who rely on investments in government bonds must apply for Further Leave to Remain before 6th April 2023. Present investors who rely on investments in government bonds must apply for Indefinite Further Leave to Remain before 6th April 2025.

31-10-19 – The New Graduate Immigration Route

Will the new Graduate Immigration Route actually work? The new Graduate Immigration Route will be eligible to Tier 4 student visa graduates who have finished their degree at undergraduate level or above at a UK higher education provider which holds a “track record of compliance”. In order to secure the ‘Higher Education Provider’ status, the Tier 4 sponsor (i.e. the educational institution) must progress through a 4-year period of assessments regarding compliance. Furthermore, the term ‘track record of compliance’ is defined in the Home Office Guidance as demonstrating a history of “immigration compliance” and “educational oversight”. In other words, a graduate’s ability to apply for a work visa under the new Graduate Immigration Route is indirectly interweaved with whether their educational institutions are administered to standard. Students will therefore find themselves in a difficult place, as they would not be involved in university administrative system. Therefore, meeting the proposed new Graduate Immigration Route requirements are not completely in their control and consequently there will be chances that their applications be rejected for reasons that are beyond their control. Types of Employment The new Graduate Immigration Route will last for two years and successful applicants will be able to take on employment of any type at any skill level. However, at the end of the two-year period there will not be any extension applications available. Those who desire to continue working in the UK will then have to switch into Tier 2 (General) work visa by meeting its skills and salary thresholds. When will this route be available? This route will be open for applications in the summer of 2021. The Home Office released that “it takes time to develop a new immigration route and ensure the framework is in place for it to successfully operate”.

31-10-19 – How overstaying on your visa can cause serious problems

The worst aspect of the current immigration rules on overstaying is that it becomes a serious legal problem after just 14 days. There is nothing you can do to rectify the situation by belatedly applying to renew it. You have to leave the country immediately, with all the incurred trauma and expense and without any guarantee that you will ever be able to return. In accordance with paragraph 39E into Part 1 of the Immigration Rules the Home Office will disregard a period of overstaying provided that: the application was made within 14 days of the applicant’s leave expiring and the Secretary of State considers that there was a good reason beyond the control of the applicant or their representative, provided in or with the application, why the application could not be made in-time. Guidance issued by the Home Office offers some examples of a “good reason”: the applicant was admitted to hospital for emergency treatment (evidenced by an official letter verifying the dates of admission and discharge and the nature of the treatment) A close family bereavement An educational institution was not sufficiently prompt in issuing a Confirmation of Acceptance for Studies Imagine you are a successful business man. You have arrived into the UK as a sponsored employee on a Tier 2 work visa and had lived in the UK continuously for five years, making you eligible for indefinite leave to remain (ILR). You just passed the Life in the UK test and ready to apply for indefinite leave to remain. As you are completing the form and inputting your biometric card details, you notice that your visa had actually expired over 30 days ago. It was an easy mistake to make, you are a very busy man and you just got the month wrong. Perhaps you were hoping that your employer or the Home Office would have reminded you that it was expiring. However, your employer is not obliged to keep track of your visa situation and the Home Office does not issue reminders. After you discovered your mistake, you had been a knowing overstayer for over a month which meant that you were committing an ongoing criminal offence. You had to urgently pack your bags and leave the country and are unable to apply for most types of entry clearance because of having overstayed by more than 30 days. Even if this re-entry ban hadn’t applied, you could not just apply for a fresh Tier 2 visa from abroad, as that requires a mandatory twelve month “cooling off period”. Luckily for you, you have been in a relationship with a British citizen for over two years. You were able to return to your home country, work remotely during this time, and apply for a priority partner visa. You can return to the UK with a partner visa but your clock for ILR has reset to zero and so you will not be eligible for ILR for another five years, and citizenship one year after that.  Your error cost you, at minimum, about £7,150 in additional visa application fees. This does not take into account priority processing charges, legal fees, urgent flights, and accommodation costs while waiting abroad for a visa. 

31-10-19 – Detainees with indefinite leave to remain are not entitled to Home Office accommodation

An immigration detainee who has indefinite leave to remain must apply to their local council for housing benefit rather than for a bail address or asylum support provided by the Home Office. In R (AT (Guinea))) v Secretary of State for the Home Department [2019] EWHC 2709 the claimant AT had previously been granted indefinite leave to remain but had claimed asylum when the Home Office tried to deport him. AT was granted bail by the First-tier Tribunal on three occasions. The judge insisted that AT is discharged to a stable address. Unfortunately, AT was not able to provide that for himself, so he applied to the Home Office for asylum accommodation under section 95 of the Immigration and Asylum Act 1999. When rejected, he appealed that decision to the asylum support department of the First-tier Tribunal. The appeal was dismissed on the ground that he was not “destitute” within the meaning of the legislation because he could apply for support from his local authority. Nigel Poole QC agreed with the specialist social support judge: The Claimant was, until 22 January 2019, a person with indefinite leave to remain. Accordingly, whilst the appeal against his deportation order was pending, he was not under “immigration control” for the purposes of the 1999 Act, and therefore he was not excluded from eligibility to benefits under s.115 of the 1999 Act. As a result, Nigel Poole QC rejected AT’s claim that the Home Office had behaved irrationally when refusing to provide him with accommodation. The above case illustrates that the Home Office support with accommodation should only be used as a last resort.

30-10-19 – Immigration campaigners have filed a lawsuit to determine how the Home Office algorithm, which filters out applications for a UK visa actually works

This is the court’s first attempt to establish how an artificial intelligence program affects immigration policy decisions regarding entry into the country. The newly created Foxglove advocacy group for justice in the new technology sector has supported the Joint Immigration Welfare Council (JCWI) initiative to force the Home Office to explain on what basis the algorithm “sorts” visa applicants. Both groups said they fear that the “sorting tool” using artificial intelligence has created three channels for applicants, including a “quick channel” that leads to “priority visas for white people.” Home Office insists that the algorithm is only used to sort submitted applications. It claims that the final decision rests with people, not artificial intelligence. A spokesperson for the Home Office said: "We have always used processes that allow British immigration authorities to efficiently distribute immigration cases." Corey Crider, director of Foxglove, refutes Home Office's statement. “Home Office insists that its visa issuing algorithm does not have racial bias, but that is far from true. The system distributes the applicants in a green, yellow and red channels according to nationality - and it is easy to guess who will be in the green line and who is not that lucky. It's illegal". Home Office claims the new system is fully compliant with the 2010 Equality Act. He added that out of more than 3.3 million applications for a visa to the UK, by the end of June this year, 2.9 million people have received the right to enter the UK.

29-10-19 – Asylum seekers with an autistic child are illegally placed in a studio apartment

The High Court found that the Home Office violated the law by placing a Nigerian asylum seeker with two young children in a studio apartment for 14 months. From the decision in the case of P (O) v Home Office [2019] EWHC 2734, it follows that the Home Office did not take into account the interests of children and also did not find housing in the light of its affordability and cost. Previously, the family was housed in a two-bedroom house in a residential area of ​​London in accordance with Section 17 of the 1989 Children Act. After applying for asylum, the applicant and her children - two-year-old L and five-year-old M - were granted the right to asylum in accordance with Section 95 of the Immigration and Asylum Act 1999. M suffers from autism with developmental delay, lack of a sense of danger and physical aggression. He needs the constant supervision of adults, as well as his own space. Not only was the studio itself inappropriate and did not meet the needs of the family, there was also the risk that if the family was evicted from a two-bedroom house, M. would not be able to attend a school for children with developmental disabilities. Home Office agreed that the studio apartment did not meet the needs of M and asked its private contractor, Clear Springs, to look for suitable housing. Clear Springs, in turn, did not take any steps for this. This served as the basis for the conclusion of the Deputy High Court Judge Matthew Gullick that the Home Office violated the law: In making this decision, the judge took into account: length of family’s staying in the studio apartment (14 months) Home Office knew for a year that family safety was in question if they continued to live in a studio apartment Home Office should have known that Clear Springs took no steps to find new housing Decision makers did not take into account the interests of both children: This decision is a useful guide in cases where the housing provided by the Home Office may not be acceptable when it comes to children or people with disabilities.

25-10-19 – The Court of Appeal gives hope for asylum for Ukrainian draftees

Last year, the Upper Tribunal refused to recognise the applicant as a refugee, despite the fact that it acknowledged the risk that a conscript from Ukraine would be associated with organizations committing acts contrary to international humanitarian law. The Court of Appeal recently found that in PK (Ukraine) v. Home Office [2019] EWCA Civ 1756, the Upper Tribunal erred in considering objective evidence and documents that are fundamental to the lawsuit. The case law PK, a citizen of Ukraine, sought asylum in 2014, a year after his entry into the UK. His asylum application was based on evidence of his draft for military service in the Ukrainian army after receiving two summons. PK told Home Office that he had ignored the summons and that if he returned to his homeland, he could be taken into custody, which would constitute a violation of his rights in accordance with Article 3 of the European Convention on Human Rights (ECHR). However, the Home Office dismissed PK's claim, finding the evidence inaccurate and forged. The Upper tribunal raised the following questions: • Can the military service to which the applicant is called include actions that are contrary to the basic norms defined by international law? • Are there concerns that the applicant will be taken into custody, and if so, will Article 3 of the European Convention on Human Rights apply in this case? The court considered that such actions were “unlikely, but not excluded”, but, nevertheless, dismissed the appeal. The court also found that the most likely punishment for evading military service would be a fine, and therefore did not see a violation of the rights of the PK under Article 3 of the ECHR. Appeal The main issue raised by the Court of Appeal was what should be the penalty for draft evasion so that a draft evader can be considered a refugee in accordance with the Convention. Judge Rupert Jackson concluded that “the person who evades conscription and there are fears of him being taken into custody has a right to asylum,” and that the issue “did not receive proper examination” by the trial court. Thus, the appeal was successfully concluded and the case was referred for review to the Upper Tribunal.

17-10-19 – Refugee dependant family members may be deported from the UK if the situation in their country of origin has changed

Granting refugee status usually implies the existence of certain circumstances that would make it illegal for a person to return to his country of origin. But circumstances may change, and this may affect whether a person will continue to have a refugee status. Article 1C (5) of the Refugee Convention and paragraph 339A (v) of the Immigration Rules give the Home Office the right to revoke refugee status if the circumstances in which the person has been recognized as a refugee have changed. The situation may be completely different if the person who has been granted refugee status is a dependent person, and his parents are escaping in the UK from persecution in their country. In the case of Secretary of State v. K.N. (DRC) [2019] The EWCA Civ 1665 the Court of Appeal found that refugee status could be revoked if the circumstances that led to the granting of status changed. Refugee status may be revoked due to a criminal offense K.N. came to the UK at the age of nine. He and other members of his family were recognized as refugees in 1994 due to the political activities of his father in the Democratic Republic of the Congo. K.N. He was convicted of various crimes and ultimately convicted of conspiracy to robbery in June 2012, for which he was sentenced to imprisonment for four and a half years. The Home Office has attempted to deport K.N. in accordance with article 72 of the 2002 Law on Citizenship, Immigration and Asylum. It was assumed that K.N. poses a danger to society because of the crimes he committed. The Home Office also sent K.N. a letter annulling his refugee status stating that “the circumstances surrounding his initial asylum application have changed since fundamental and lasting changes have taken place in the Democratic Republic of Congo”. K.N. appealed against both decisions. The court considered that the actions of K.N. do not fall under Section 72 of the Law, and, accordingly, that his refugee status cannot be anulled. The High Court also ruled in favour of K.N. in the decision on deportation. The court found that he was not recognized as a refugee in his own right, but "because his parents were recognized as refugees." Consequently, “any political changes in the Democratic Republic of Congo were not related to the circumstances in connection with which he was recognized as a refugee”. The Court of Appeal found that, in accordance with Article 1C (5) and paragraph 339A (v): “The withdrawal of refugee status is not allowed solely because of a change in the basis on which the defendant was granted this status, “a change in the circumstances in connection with which he was recognized as a refugee ” is also required.