23-01-20 – Boris Johnson’s olive branch on family migration to Northern Ireland

The Irish Times has recently published its report on the recent visit of the UK Prime Minister to Belfast. The text of this report states as follows: The UK Government has reviewed the consistency of its family migration arrangements, taking into account the letter and spirit of the Belfast Agreement and recognising that the policy should not create incentives for renunciation of British citizenship by those citizens who may wish to retain it. The UK Government will change the rules governing how the people of Northern Ireland bring their family members to the UK. This change will mean that el...

20-01-20 – New Home Office guidance on refusing settlement over tax discrepancies

The Home Office has published the specific guidance on settlement applications by migrants who previously held Tier 1 (General) leave and who declared different sets of earnings to the Home Office and HMRC. The document must be read alongside the more general guidance published in October, which covers the refusal of applications where the person has made a false representation. Underlying principles of the guidance Caseworkers are to use the guidance in all applications where there were earning discrepancies, even if declared in previous applications. It is relevant not only to people who ove...

16-01-20 – Visa appointment fees rise with no warning

The cost of an appointment at visa application centres in the UK has risen with no warning given to applicants or their representatives. Sopra Steria, the outsourcing company that runs UK Visa and Citizenship Services, has hiked appointment costs from £60 to £69.99 for a standard appointment and from £125 to £135 for appointments on Saturdays or out of regular office hours. Solicitors John Vassiliou in Edinburgh, Bryony Rest in Newcastle and John Atkins in Exeter have all reported higher fees when attempting to book appointments for clients over the past 48 hours, so it appears to be applicabl...

14-01-20 – Law Commission Recommends a Complete Redraft of Immigration Rules

The Law Commission suggests that redrafting the current overly complex and impracticable document of Immigration Rules would enhance legal certainty and transparency for potential applicants. Such overhaul would also build a more economical route for the courts and the Home Office. The Immigration Rules that can be found on Gov.uk website online are the documents that lay out the exact requirements for granting or refusing migrants’ applications to enter and remain in the United Kingdom. These documents have long been criticised to be confusing and unclear for users of all levels. Accordingly, the Law Commission, which is an independent law reform body, recommends a redraft of the 1,100 pages of the Rules. Improved drafting and smaller number of changes that are added on ad hoc basis as ‘statement of changes’ in future would complement the complete restructure. The last complete restructure took place in 1994, which is over 25 years ago and the current version of the rules has since grown hugely and chaotically which therefore emphasizes the need of another restructuring. In terms of restructuring the Rules, two possible approaches are set out in the report: Firstly, the “common provisions” up front, followed by the particular rules for each route. The second approach would be to put all the rules that apply to a given route under one heading, even if that means numerous repetition throughout the Rules. Although the Law Commission’s remit does not extend to varying any of the Immigration Policies, the report does recommend that “suitability for the non-expert user” be among the foundation principles of the redrafting of the Rules. The report also recommends making the lists of evidence contained in the Rules non-exhaustive, which would provide more flexibility on the evidence required in support of the application.

13-01-20 – Effects on Ms Meghan Markle’s route to British Citizenship if moved abroad

The Duke and Duchess of Sussex have recently revealed that they intend to step down as senior royals and intend to ‘balance their time between North America and the UK’. How would such a change affects the Duchess’ eligibility to obtaining indefinite leave to remain? One of the requirements of applying for indefinite leave to remain obligates ‘the applicant and their partner to have intend to live together permanently in the UK’ ‘… or there is a good reason, consistent with a continuing intention to live together permanently in the UK, for any period in which they have not done so’.  This mean...

13-12-19 – The Conservative plan for immigration after Brexit

The Conservative Party has confidently won the December general election and a mandate for their policy of an “Australian-style points based system” for immigration. Here are the following key changes the Conservative government plans to make after Brexit: 1. A points-based system The single new system will allocate points on a range of criteria. It will categorise newly arrived immigrants into three separate categories: • ‘Exceptional talent / contribution – highly educated migrants who have received world-leading awards or otherwise demonstrated exceptional talent, sponsored entrepreneurs setting up a new business or investors. These will not require a job offer and will receive fast-track entry. • ‘Skilled workers’ – workers who meet the criteria of the points-based system and have a confirmed job offer. Special types – such as our NHS Visa – will also receive fast-track entry and reduced fees. • ‘Sector-specific rules-based’ – made up of specific temporary schemes such as for low-skilled labour, youth mobility or short term visits (e.g., touring). These will be revised on an ongoing basis based on expert advice from the MAC. These visas will be time-limited and will not provide a path to settlement. Once the free movement is ended and electronic travel authorisation (ETAs) is introduced, all prospective migrants will be screened on the basis of previous criminality, and those with serious convictions will be barred from coming to the UK. 2. A new role of the Migration Advisory Committee (‘the MAC’) The MAC will be required to publish an annual report via a public letter to the Home Secretary, advising the Government on how to deliver on its objectives – i.e. to get net migration down while addressing emerging gaps in the labour market – including sector specific advice. The MAC will continue to perform advisory functions and the Home Secretary will have full discretion over decisions related to the future immigration system. The MAC will also be required to monitor the needs of the labour market on an ongoing basis to ensure that the Home Secretary has the information needed to make decisions rapidly. Once the new digital immigration status is in place, this will enable the MAC to better understand the impact of immigration on specific communities. 3. A digital immigration status to combat illegal overstaying beyond 2022 Beyond 2022, all migrants will have a full digital status, making it easier for legal migrants to prove their status, as well as allowing for improved enforcement. All visas will be time-limited, with usual indefinite leave to remain rules applying for those who are identified as ‘exceptional’ or ‘high-skilled’. In-country switching between visas will be allowed, but overstaying a visa will count against an individual in their new application. All migrants will pay the health surcharge for every year of their visa, unless and until they have gained settled status – usually not before they have been here for five years. There is a provision for equal treatment of EEA and non-EEA migrants’ regarding access to benefits, making sure people pay in before they can take out. In order to achieve the government will: • Immediately begin work to set up a formal exchange programme with the Australian and Canadian governments to allow experts to come to the UK and share best practice with officials during the development of the system. • Appoint an expert implementation group to ensure roll-out of the new immigration system from January 2021.

12-12-19 – The public’s attitude toward immigration is changing

One fifth of British people have become more positive about immigration over the last few years, mainly because of a more “positive publicity” about immigration. Over 20% of people surveyed by the research firm Ipsos MORI have recently become more positive about the impact of immigration, of which half had changed their views after becoming more aware of how much migrants contribute to the country. Ipsos MORI has been surveying British adults on their attitudes to immigrants since 2015. The headline finding is that 47% of people now think that immigration has had a positive impact, compared to 29% who think it is negative. That is a significant improvement since the EU referendum. That question looks back at the impact of immigration to date; when asked to look forward to whether immigration should be reduced, a majority (54%) are still against this, but that has fallen from 67% in early 2015. Returning to the question of whether migration has had a positive or negative impact up to now, 21% of people had changed their mind over the past few years, becoming either more positive or less negative. Of those, 51% said that they had shifted views because “the discussions over the past few years have highlighted how much immigrants contribute to the UK”. That means that around 276 people out of the 2520 surveyed, or 11%, had both changed their mind and given positive coverage of immigration as a reason for doing so.

04-12-19 – Consequences of missing the EU Settlement Scheme deadline

If you are planning to apply for the EU Settlement Scheme there is an application deadline, meaning that if you miss the deadline to apply for a post-Brexit status you will be unlawfully resident in the UK. It is not clear what will happen to people who have not made an application by the deadline. It is possible that the government may remove them from the UK. According to the Home Office people who miss the deadline for “a good reason” will still be able to apply. So far, no details have been given as to what makes a good reason. In the Home Office guidance covering late applications from non-EU nationals one can find a restrictive good reasons policy. Examples include hospital admission for emergency treatment or a close family bereavement. This restrictive policy applies to migrants who already know the conditions of their immigration status, including the date on which it expires. The situation with the EU citizens who have come to live in the UK, some of them many years ago, under free movement law and whose right to live in the UK was never conditional on a status being granted by the Home Office is very different. Under these strict rules, Settlement Scheme applicants will have to account for and possibly provide evidence for their delayed applications, even though they may never have been aware of the need to apply for settled status. Potentially, such people, may be denied their access to the NHS, benefits, employment and accommodation as well detained and even sent out of the country. It may also hinder their application, as unlawful residence is considered a criminal offence in the UK. Any Home Office policy on late applications should be in the spirit of its June 2018 statement of intent, according to which securing EU citizens’ rights is and always has been a top priority. Penalising those who fail to apply within the deadline can hardly been seen as a way to secure these top priority rights. An alternative approach is to make the EU Settlement Scheme a declaratory scheme rather than by way of application. Organisations such as JCWI and the3million are campaigning for a declaratory scheme as a way to automatically guarantee the right to remain, so people need only register and not apply to prove their residence status. Under such a scheme, if the EU residents miss the registration deadline they will be considered as undocumented and not unlawful. This would be the only sure way to avoid another Windrush scandal.

04-12-19 – Home Office’s fee waiver policy is challenged in the Upper Tribunal

The Upper Tribunal is to consider a legal challenge to the government’s policy on immigration fee exemptions. The Home Office’s policy has been strongly criticised as it wrongly focuses on whether migrants would be made “destitute” by the fee, when the correct test should be whether they can afford to pay or not. According to the Home Office guidance the applicants for a fee waiver need to show that one of the following three circumstances apply: 1. They are destitute 2. They would be made destitute by the payment of the fee 3. There are exceptional circumstances If none of the above can be demonstrated, the waiver application will be refused. And without payment, the main application for leave to remain will be rejected as invalid. That is what happened to the family of five involved in this case, whose leave to remain fees amount to over £7,000. They provided evidence that they cannot afford this but were not able to establish destitution because they have somewhere to live. The family’s solicitors, Duncan Lewis, argue on the family’s behalf that this focus on outright destitution is unlawful. The correct test should be a simple affordability: do they have the money or not? The Home Office says that the policy is compatible with the leading cases of Omar [2012] EWHC 3448 (Admin) and Carter [2014] EWHC 2603 (Admin). Saul Stone of Duncan Lewis says that “if we are successful in this case, or are able to secure changes to the policy through settlement, it is likely to be beneficial for a large cohort of people”.

02-12-19 – The new Home Office policy on statelessness

Background on statelessness Back in 2013 the Home Office introduced a statelessness determination procedure introducing Part 14 to the Immigration Rules. Eligible stateless people can regularise their immigration status and access some of the benefits guaranteed under the 1954 Convention on the Status of Stateless Persons. Under Part 14, applicants can be recognised as stateless and granted leave to remain in the UK. If granted leave to remain under Part 14, stateless people can reunite with their families on a similar basis with refugees and have access to nearly the same benefits as refugees. In April 2019 Part 14 was amended, bringing in the following main changes: • The duration of leave granted to persons under Part 14 was extended from two and a half to five years. • Paragraph 407 was amended to require that those granted indefinite leave to remain under Part 14 have had five years leave to remain as a stateless person, rather than a combination of different types of leave as had previously been possible. The most substantial changes • A new section introducing changes in how the Home Office should deal with applicants who have outstanding asylum claims and permitting, for the first time, asylum and statelessness applications to proceed in parallel in some circumstances. • The section on “General grounds for refusal” adds a helpful requirement that even where the general grounds apply, the caseworker “must still consider whether an applicant meets the definition of a stateless person”. If the applicant is stateless and inadmissible to any country (with a right of permanent residence), the Home Office may need to grant leave outside the Rules. The new section on “Further leave applications” also confirms that where the applicant is stateless and not admissible to any other country, but the general grounds apply, the caseworker “should look to grant leave outside the Rules”. • Changes to the administrative review procedure. These confirm that where caseworking errors are found on administrative review and the case is returned to the statelessness determination team, the case should go to a different caseworker. The new caseworker should reconsider it within three months and their decision should be subject to a “second pair of eyes” check by a Senior Caseworker or Higher Executive Officer. Although not stated in the policy instruction, the applicant should also be provided with reasons why their application for administrative review did or did not succeed. The instructions clarify that, on refusal, applicants must be advised that they are entitled to administrative review. There is also clarification that there is no fee for the administrative review of decisions relating to Part 14 because there is no fee for the underlying application.