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Тема: Важные судебные решения и полезная информация для иммигрантов

  1. #851

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    07 February 2020 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org - +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)

    >>> Shamima Begum loses statelessness argument against citizenship deprivation: https://www.judiciary.uk/judgments/s...me-department/

    Despite Shamima Begum was born in the UK and was a British citizen, the Court found that she was also a citizen of Bangladesh and so would not be made stateless by being stripped of her British citizenship, the Special Immigration Appeals Commission has held. The main SIAC judgment is Shamima Begum v Secretary of State for the Home Department (SC/163/2019), while there is also a brief High Court judgment refusing a linked application for judicial review: [2020] EWHC 74 (Admin).

    How many Shamima Begums are out there? Since 2002 the government has amended and re-amended nationality law to make deprivation of citizenship easier. Since 2010 there has been a sharp increase in use of this amended and expanded legal power. Some 120+ people have been deprived of the British citizenship...
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  2. #852

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    12 February 2020 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org - +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)

    >>> Unlawful “curfew” amounted to false imprisonment at common law, Supreme Court confirms: https://www.bailii.org/uk/cases/UKSC/2020/4.html

    In a pointed reminder, perhaps, to those in government threatening to “update” the Human Rights Act, Lady Hale began her Supreme Court judgment in the case of R (Jalloh) v SSHD [2020] UKSC 4 thus:

    "The right to physical liberty was highly prized and protected by the common law long before the United Kingdom became party to the European Convention on Human Rights.".

    The case concerned a claim made by Mr Jalloh – his name apparently misspelled in the court below as Jollah – that, as a result of a nightly curfew between 11pm and 7am imposed under immigration powers for over two years, he had been falsely imprisoned, and was entitled to damages as a result.

    As summarised by Lady Hale:

    "This case is about the meaning of imprisonment at common law and whether it should, or should not, now be aligned with the concept of deprivation of liberty in article 5 of the ECHR.".

    The Secretary of State had argued in the Court of Appeal that a curfew amounted to voluntary compliance with a request to remain in a particular physical place.

    This argument was about as successful as the August 1991 "Putch" the USSR, and it was perhaps surprising to see the Secretary of State giving it another go.

    In response to these rehashed arguments, the Supreme Court held that

    "24. The essence of imprisonment is being made to stay in a particular place by another person. The methods which might be used to keep a person there are many and various. They could be physical barriers, such as locks and bars. They could be physical people, such as guards who would physically prevent the person leaving if he tried to do so. They could also be threats, whether of force or of legal process…

    25. In this case there is no doubt that the defendant defined the place where the claimant was to stay between the hours of 11.00 pm and 7.00 am. There was no suggestion that he could go somewhere else during those hours without the defendant’s permission.".

    Lady Hale betrayed some of the irritation on display in the courts below with the position taken by the Secretary of State:

    "The idea that the claimant was a free agent, able to come and go as he pleased, is completely unreal.".

    An interesting feature of the judgment is the court’s treatment of the argument that the concept of imprisonment in the tort of false imprisonment should now be aligned with the concept of deprivation of liberty within the meaning of Article 5 ECHR.

    In response, the Supreme Court hold that the protections under the common law in cases such as this are greater than those afforded by human rights legislation.

    Lady Hale characterised the state’s case on this point as:

    "asking this Court… not to develop the law but to make it take a retrograde step: to restrict the classic understanding of imprisonment at common law to the very different and much more nuanced concept of deprivation of liberty under the ECHR.".

    The current incumbents of Downing Street have made clear their intention – via the Conservative manifesto – to “update” the Human Rights Act. The Attorney General, Geoffrey Cox, was heard this morning at the Insti***e for Government putting some flesh on this idea:

    "We will update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security, and effective government.".

    What this decision indicates is that judges believe themselves able to protect the rights of individuals even without the aid of the Human Rights Act. Striding out purposefully from the pavilion to bat for the common law, the court holds that there is

    "every reason for the common law to continue to protect those whom is [sic] has protected for centuries against unlawful imprisonment.".

    In what is likely to be one of her final Supreme Court judgments before retirement, it feels somehow right that Lady Hale is still sending shots across the bows of those who wrongly believe that human rights in this country began with the European Convention.
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  3. #853

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    14 February 2020 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org - +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)

    >>> Surinder Singh route still requires genuine residence abroad: https://www.bailii.org/ew/cases/EWCA/Civ/2020/98.html

    The Court of Appeal has confirmed that in order to benefit from the Surinder Singh principle, the family involved must have genuinely resided in another EU country and have created or fortified their family life there. In Kaur & Ors v Secretary of State for the Home Department [2020] EWCA Civ 98 it rejected the argument that, as a result of the Court of Justice decision in C-202/13 McCarthy No.2, anyone with a residence card from another member state is entitled to have their family come and live with them in the United Kingdom.

    The facts of this case are not attractive. Mr Singh and Mrs Kaur had previously been married but divorced in 2004. The following year Mr Singh married a Polish national, obtained residence rights in the UK and became a British citizen in 2012. In 2013 he divorced his Polish wife and re-married Mrs Kaur. The couple went to live in Bulgaria with their children for 19 days in 2017 and Mr Singh obtained a residence permit. Then the family returned to the UK.

    The couple sought to rely on the Surinder Singh principle to get residence rights for Mrs Kaur and their children. That principle allows EU citizens to obtain residence rights for family members in their home country if they move elsewhere in the EU and then return. The idea is to ensure that EU citizens are not discouraged from moving to other European countries.

    To prevent abuse, the residence abroad must be genuine and in some way create or fortify family life.

    At their initial appeal the First-tier Tribunal, perhaps unsurprisingly, found that the residence in Bulgaria was not genuine and there was no attempt to develop a family life there. Nonetheless, it allowed the appeal on the ground that, following the decision in McCarthy No.2, any EU citizen with a residence card must be permitted to enter with their family members.

    The Upper Tribunal rejected that argument and the Court of Appeal was equally dismissive, ruling that McCarthy No. 2 was concerned with the procedural requirements on entry and not the substantive rules for residence rights:

    "There is in my judgment no basis for thinking that the CJEU in McCarthy (No. 2) intended to overrule the decision in O v Minister voor Immigratie, Integratie en Asiel. It did not say so and the two cases were dealing with very different issues. O v Minister voor Immigratie, Integratie en Asiel is referred to repeatedly in the McCarthy (No. 2) judgment (see [31], [34], [36], [54] and [62]), at one point being cited as “settled case law”, while at [62] the CJEU even referred to [60] of the judgment in O v Minister voor Immigratie, Integratie en Asiel as confirming that residence permits issued on the basis of EU law declare and do not create rights. It added that “the fact remains that … the member states are, in principle, required to recognise a residence card issued under article 10 of Directive 2004/38, for the purposes of entry into their territory without a visa”, going on to say at [63] and [64] that the United Kingdom was entitled to verify the correctness of the data appearing on the Spanish residence permit in that case, although it could not impose further conditions on entry additional to those provided for by EU law."

    Having reach that conclusion it was inevitable that the appeal would be dismissed as a result of the First-tier Tribunal’s findings that the period of residence in Bulgaria was not genuine.

    >>> Can a Tier 2(General) migrant's working hours and salary be reduced despite the salary being above the relevant Code of Practice threhsold ?

    Apparently, it cannot be reduced, according to the recent confirmation from the Home Office:

    "If a migrant’s hours are reduced and hence their salary is reduced from the salary stated on the migrant's Certificate of Sponsorship, this would be a breach of the guidance, despite the migrant's earning in excess of the relevant Code of Practice".
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  4. #854

    По умолчанию

    19 February 2020 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org - +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)

    >>> EU citizens’ rights during the Brexit transition period: https://publiclawproject.org.uk/late...sition-period/

    The Public Law Project has a new briefing on EU citizens’ rights during the transition period. It says:

    "The main takeaway is that throughout the transition period, until 31 December 2020, almost all EU rules will continue to apply in the UK. The jurisdiction of the Court of Justice of the European Union will continue until the end of the transition period. The four freedom: the freedoms of movement, services, capital and goods will continue until the end of the transition period. This means the UK will remain part of the customs union and [single] market until 31 December 2020 and British citizens will continue to be able to move freely around the EU and vice versa.

    More importantly EU nationals and their family members in the UK throughout the transition period should not be asked for proof of settled or pre-settled status to access healthcare, to rent property or to gain employment until 1 January 2021. An EU, EEA or Swiss passport or national identity card, or a residence card issued by the Home Office if someone is the family member of an EU, EEA or Swiss citizen, is sufficient to show that someone is lawfully in the UK and lawfully entitled to work and rent property until the end of the transition period.".

    The Brexit transition period ends on 31 December 2020, unless extended by mutual agreement.
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  5. #855

    По умолчанию

    19 February 2020 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org - +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)

    Important Update:

    >>> Government introduces a new immigration Points Based System (PBS): https://www.gov.uk/government/news/h...gration-system

    The government has released a few more details of what it calls a “points based system” for immigration to the UK after Brexit. To balance out the impending end of free movement of workers from the European Union, it would allow employers to sponsor migrant workers at lower salaries and skill levels than they can today, but with almost no provision for visas for people working in jobs that do not require A-level qualifications or higher.

    Today’s proposals are solely to do with economic migration: family migration, asylum and students are unaffected. They are — very optimistically — supposed to come into effect from January 2021.

    Skilled workers

    The system would introduce a limited element of flexibility in sponsored work visas (currently branded Tier 2, although the language of “tiers” is virtually absent from the policy paper).

    Sponsored workers would still need a job offer, English language skills and to be working at a certain skill level. That skill level would be reduced level 6 (degree) to level 3 (A-level), as was the case under the December 2018 white paper.

    There will still be a minimum salary required for a work visa. The headline salary threshold has been reduced to £25,600, in line with the Migration Advisory Committee’s recent recommendation. But it will no longer be the absolute minimum: some workers earning between £20,480 and £25,600 would still be able to get a visa, but only if they are highly qualified or working in shortage jobs.

    So in effect, the minimum salary for a UK work visa will be £20,480 for people working in jobs on the Shortage Occupation List or who have PhDs in science, technology, engineering or mathematics. It will be £23,040 for people with a PhD outside these subjects but nevertheless “relevant to the job”. For people with none of these characteristics, the minimum will be the headline £25,600.

    What of the May-era white paper proposal to scrap the annual cap on these work visas? That does reappear, although the word used is “suspend” rather than “abolish”. The Resident Labour Market Test will also go.

    The paper adds:

    "...here will continue to be different arrangements for a small number of occupations where the salary threshold will be based on published pay scales. We will set the requirements for new entrants 30% lower than the rate for experienced workers in any occupation and only use the base salary (and not the allowances or pension contributions) to determine whether the salary threshold is met."

    Lower-skilled workers

    There will be no visa route for “lower-skilled” workers. This is a change from the 2018 white paper, which had grudgingly proposed a system of 12-month work visas for people who do not meet the skills threshold outlined above. This would have been “for a transitional period after the UK’s exit from the EU”.

    The Johnson government no longer considers this necessary. This is primarily an ideological decision:

    "UK businesses will need to adapt and adjust to the end of free movement, and we will not seek to recreate the outcomes from free movement within the points-based system. As such, it is important that employers move away from a reliance on the UK’s immigration system as an alternative to investment in staff retention, productivity, and wider investment in technology and automation."

    In the meantime, businesses are told to make do with the existing pool of lower-skilled workers. This includes the millions of existing EU residents who have secured their right to remain post-Brexit under the EU Settlement Scheme. They will “provide employers with flexibility to meet labour market demands”.

    The paper also says that “we have committed to expanding the pilot scheme for seasonal workers in agriculture which will be quadrupled in size to 10,000 places”. So there will be visas for strawberry pickers, but not for care home workers.

    Highly skilled workers

    The Migration Advisory Committee had also said that the Tier 1 (Exceptional Talent) visa could be made points-based. Unsurprisingly, since the government introduced unrelated reforms to Exceptional Talent just days later, this recommendation is not followed.

    Instead, the paper proposes adding a new “unsponsored route” for the highly skilled alongside Exceptional Talent, with eligibility determined by personal characteristics.

    "Example characteristics for which points could be awarded include academic qualifications, age and relevant work experience."

    This would be much more Australia-style.

    But in light of past experience — the MAC pointed out that the Home Office itself had come to loathe points-based visas like Tier 1 (General) — the paper says that “this route will take longer to implement”. It adds that “we want to learn from previous experience of similar schemes in the UK that have highlighted certain challenges. The scheme will need to be designed to make sure it adds value and does not undermine the skilled worker route or create opportunities for abuse”. It may be doubted whether it will ever come to pass.

    What next?

    The most telling line of this paper is that “The Home Office will publish further detail on the points-based system in due course”. Further detail is practically overdue already: these broad brush strokes must now be translated into detailed Immigration Rules and procedures in time for January 2021.

    The Rules themselves are due for a general rewrite in line with Law Commission recommendations; the policy paper says that the government will be responding to these recommendations “shortly”.
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  6. #856

    По умолчанию

    20 February 2020 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org - +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)

    Court of Appeal lowers the bar for refusing tax discrepancy cases: https://www.bailii.org/ew/cases/EWCA/Civ/2020/157.html

    In the case of Tahir Yaseen v Secretary of State for the Home Department [2020] EWCA Civ 157, the Court of Appeal has reiterated that refusals on the ground of character or conduct require a balancing exercise, taking into account both positive and negative considerations.

    The appellant, Mr Yaseen, made an application for indefinite leave to remain on the basis of his ten-year lawful residence in the UK. His application was refused on character grounds, due to a tax issue.

    There are, however, two main differences between this case and others we have seen so far:

    - Mr Yaseen did not declare different incomes to HMRC and the Home Office. Rather, he did not submit three years worth of tax returns at all until after he submitted his application for indefinite leave and was called for an interview by the Home Office.
    - The Home Office refused the application relying not only on paragraph 322(5), but also on paragraph 276B(ii), which applies to indefinite leave to remain on the ground of ten years’ lawful residence in the UK.

    Paragraph 276B(ii) ended up being the “winning” paragraph from the Home Office point of view. It reads:

    "276B. The requirements to be met by an applicant for indefinite leave to remain on the ground of long residence… are that:



    (ii) having regard to the public interest there are no reasons why it would be undesirable for him to be given indefinite leave to remain on the ground of long residence, taking into account his:



    (c) personal history, including character, conduct…

    Paragraph 322(5) says:

    Grounds on which leave to remain and variation of leave to enter or remain in the United Kingdom should normally be refused…

    (5) the undesirability of permitting the person to remain… in the light of his conduct… character or dissociations…

    It is difficult to see the difference between the two. But the Court of Appeal agreed with the lower tribunals and the Secretary of State that a refusal under paragraph 322(5) requires a finding of dishonesty, while a refusal under paragraph 276B doesn’t. Similarly, it agreed that the case law on tax discrepancies does not apply to refusals under paragraph 276B.

    The court found, however, that before a refusal under paragraph 276B can be made, the decision-maker should conduct a balancing exercise taking into account both positive and negative factors relating to the applicant’s character. It decided that the First-tier Tribunal had failed to do so, and therefore remitted the case for the tribunal to reconsider.

    As mentioned before, it is difficult to follow the logic behind setting two different tests for paragraphs which read so much alike. All it does, it seems, is lower the bar for the Home Office. Officials can now rely on paragraph 276B instead of 322(5), without having to make a finding of dishonesty.

    People applying under the long residence rules who know there may be issues with their taxes would be well advised to submit “counter” evidence of their good character.
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  7. #857

    По умолчанию

    24 February 2020 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org - +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)

    >>> Global Talent Guidance: https://www.google.com/url?sa=t&rct=...2ezEqs11pc6u_k

    >>> Tier 2 and 5: Guidance for Sponsors. Now contains a whopping 205 pages: https://www.google.com/url?sa=t&rct=...7YbtV-NWHJ7ViN

    >>> European Economic Area nationals: qualified persons -Guidance: https://www.google.com/url?sa=t&rct=...bkFj7CXxALs7GN
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  8. #858

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    26 February 2020 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org - +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)

    >>> Permission should not be granted on the grounds as pleaded if there is, quite apart from the grounds, a reason why the appeal would fail: https://www.bailii.org/uk/cases/UKUT/IAC/2020/44.html

    Another unsuccessful reported appeal to assist the Ukrainian refugee who claimed asylum in the UK years after entering illegally and first travelling through a number of safe EU countries (where that refugee could claim asylum in the first place).

    This reported case that would perhaps have been more effective and appropriate as a passive-aggressive Post-it note stuck on the office kettle at Tribunal HQ:

    "Permission should not be granted on the grounds as pleaded if there is, quite apart from the grounds, a reason why the appeal would fail"

    That’s the whole headnote. All of it. From OK (PTA; alternative findings) Ukraine [2020] UKUT 44 (IAC).

    Notably the determination is written by one D O’Callaghan, formerly of Landmark Chambers and much missed at the immigration bar, who heard the case alongside President Lane. The determination is sound, naturally, but why on earth was it selected for reporting when so many other more interesting and important cases are not?
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  9. #859

    По умолчанию

    27 February 2020 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org - +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)

    >>> Adult step-children of EU citizens don’t qualify for family member residence cards: https://www.bailii.org/ew/cases/EWCA/Civ/2020/191.html

    Ronnie Latayan came to the UK from the Philippines on a visit visa in 2004 and has been here ever since, through multiple unsuccessful applications for further leave to remain. Now 46, Ms Latayan lives with her mother, a naturalised British citizen with an Irish partner.

    In Latayan v Secretary of State for the Home Department [2020] EWCA Civ 191, the Court of Appeal heard Ms Latayan’s appeal against her latest Home Office refusal. She had applied for an EEA residence card, arguing that she was a dependent of her mother’s partner. Ms Latayan described him as her “stepfather” and said that he sent her money in the Philippines between 1998 and 2004.

    The Court of Appeal had to decide whether Ms Latayan came under Regulation 7(1)(b)(ii) of the EEA Regulations 2006. To do so, she would have to be a “direct descendant” of her stepfather.

    Despite her not being his biological or adopted child, counsel for Ms Latayan made the “spirited argument” that a “de facto” or “real-world” parental relationship existed here. But Lord Justice Peter Jackson, giving several reasons, found otherwise:

    "a step-child of an EU citizen (meaning a child of a person who is in a relationship with an EU citizen, not being a marriage or a civil partnership) is not a direct descendant of the citizen within the meaning of the Regulations.

    A second ground of appeal was rejected as “no more than a disagreement with the [First-Tier Tribunal’s] assessment of evidence”, and the appeal dismissed.

    >>> Supreme Court: detention is unlawful if based on unlawful deportation order: https://www.bailii.org/uk/cases/UKSC/2020/7.html

    The Supreme Court has found in the case of DN (Rwanda) v Secretary of State for the Home Department [2020] UKSC 7 that the detention of a Rwandan man facing deportation was unlawful because the deportation order on which detention was based was itself unlawful. In this case the deportation order was unlawful because it was made under a piece of secondary legislation which was, unusually, subsequently declared unlawful by the Court of Appeal. DN (Rwanda) has wider application, enabling claims for damages for unlawful detention in other cases where a deportation order was unlawfully made.
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  10. #860

    По умолчанию

    28 February 2020 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org - +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)

    >>> Asylum backlog continues to rise: https://www.gov.uk/government/statis...ement-datasets

    The number of people with pending asylum cases has risen by almost 50% in just the last 12 months, new Home Office figures show.

    Over 56,000 asylum seekers and their dependants were awaiting an initial decision or further review at the end of 2019, compared to 38,000 at the end of 2018. That represents a 47% increase year on year.

    The number of people waiting just for an initial decision now stands at over 51,000. That figure has been rising steadily since the beginning of 2015, and has more than tripled over the period.

    Even more troublingly, 2019 saw a 75% increase in the number of people waiting more than six months for an initial decision. There were 17,000 asylum seekers in that position in December 2018, rising to 29,000 in December 2019.

    >>> Home Office brags about success of entrepreneur visa it abolished a year ago: https://homeofficemedia.blog.gov.uk/...february-2020/

    Yet another hilarious bit of spin in the Home Office’s “fact sheet” on yesterday’s immigration statistics:

    "…the UK continues to be a desirable location for the brightest and best around the world…

    The number of highly skilled visas issued [in 2019] has increased by 7% to 5,664.

    The majority of these (59%) were to entrepreneurs, coming to start businesses in the UK"

    It is true that 5,664 Tier 1 visas were issued in the calendar year 2019 (if you include dependants and not just main applicants). Of those, 3,342 (59%) were granted in the Tier 1 (Entrepreneur) category.

    That’s right: the Home Office is lauding the success of a visa that it abolished in March 2019. Most of the 3,342 Tier 1 (Entrepreneur) visas issued in 2019 came after the route closed to new applicants, the result of applications filed before 29 March 2019 still making their way through the system.

    The direct replacement for Tier 1 (Entrepreneur) was the Innovator visa. It was, by the Home Office’s own admission, designed to reduce the number of overseas entrepreneurs getting UK visas. In that noble aim the department has admirably succeeded: the combined number of entrepreneur-type visa applications has fallen off a cliff after Innovator replaced Entrepreneur.

    Put another way: in the last quarter of 2018, the Home Office issued 894 Tier 1 (Entrepreneur) visas, including dependants. In the last quarter of 2019, it granted just 66 Innovator visas.
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