Важные судебные решения и полезная информация. Антон Коваль, адвокат 07791145923

[antontony]

16 November 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)


>>> UK BA advice on collection of Biometric Residence Permits (BRP) for customers arriving from overseas


Customers arriving from overseas, and who have been allocated a BRP, should collect their BRP at their designated collection point at the earliest opportunity upon arrival in the UK unless they are required to quarantine in line with UK government guidance.


Those customers required to quarantine should not collect their BRP until after they have completed this period of isolation.


Customers are reassured that BRPs will be held at their designated collection point for up to 90 days from the start date printed on their vignette and will be available for collection once they have fulfilled any quarantine requirements.


Customers will not face any penalties if they are unable to collect their BRP within ten days of arrival in the UK due to quarantine requirements.


Further details on collecting a BRP can be found here: https://www.gov.uk/biometric-residence-permits/collect


>>> Coronavirus (COVID-19): jobs that qualify for travel exemptions:
https://www.gov.uk/government/public...k-border-rules


>>> Frontier workers in the UK: rights and status: https://www.gov.uk/guidance/frontier..._content=daily


Guidance for frontier workers who want to continue working in the UK or who wish to begin employment in the UK.


>>> Fees for citizenship applications and the right of abode: https://www.gov.uk/government/public...m-6-april-2018


Added a biometric enrolment fee: there is a separate fee of £19.20 for each person requiring biometric enrolment which must be paid in addition to the application fee.


>>> Appendix FM guidance: COVID-19 financial requirement update : https://www.gov.uk/government/public..._content=daily


Coronavirus(COVID-19)concession


Instruction for handling cases which raise the impact of the 2020 COVID-19 pandemic as grounds for not meeting the minimum income requirement in an entry clearance, leave to remain or indefinite leave to remain applications under the family Immigration Rules.


This guidance sets out the approach you must take over defined periods, when deciding a case, to ensure applicants are not disadvantaged as a result of circumstances beyond their control because of COVID-19.


Income received via the Coronavirus Job RetentionScheme or the CoronavirusSelf-Employment Income Support Scheme can count as employment or self-employment income. Where there is evidenceof a temporary loss of income due to COVID-19 during the period 1 March 2020 and 1 January 2021 you will apply the following concessions:


•a temporary loss of employment income between 1 March and1 January 2021 due to COVID-19, will be disregarded provided the minimum income requirement was met for at least 6months immediately prior to the date the income was lost - this is for a loss of employment income between 1 March 2020 to 1 January 2021 due to COVID-19 an applicant or sponsor furloughed under the Government’s Coronavirus Job Retention Scheme or job support scheme will be deemed as earning 100% of their salary


•a temporary loss of annual income due to COVID-19 between 1 March 2020 and 1 January 2021 will generally be disregarded for self-employmentincome, along with the impact on employment income from the same period for future applications.


•evidential flexibility may be applied where an applicant or sponsor experiences difficulty accessing specified evidence due to COVID-19 restrictions

[antontony]

17 November 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)


>>> Replace or correct a UK citizenship certificate: https://www.gov.uk/get-replacement-c...ip-certificate


Guidance on how to replace or correct an error in the Naturalziation certificate

[antontony]

20 November 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)


>>> Employers handed 246 pages of guidance on new worker sponsorship system: https://www.gov.uk/government/public...-for-employers


"The document from hell just got longer". Now it contains the whapping 246 pages.


First off, the guidance now runs to 246 pages in total. Somehow, they’ve managed to add another 37 pages to what was already a hideously long set of instructions.


Secondly, they’ve divided what was at least a single, easily searchable document into five separate documents:


-Part 1: Apply for a licence
-Part 2: Sponsor a worker – general information
-Part 3: Sponsor duties and compliance
-Sponsor a Skilled Worker
-Sponsor an Intra-Company Worker


For now, it seems that anyone hoping for a more simplified sponsorship system at this point in time will be disappointed and may need professional legal advice (such as from the Legal CEntre, www.legalcentre.org), to pass the "246 hurdles" of the new Guidance


>>> No procedural unfairness in refusing work visa where sponsor doesn’t engage: https://www.bailii.org/ew/cases/EWCA/Civ/2020/1525.html


In the recent case of Topadar v Secretary of State for the Home Department [2020] EWCA Civ 1525 the Court of Appeal considers two questions:


1. At what point is an immigration application decided by the Home Office?
2. Is it procedurally unfair for the Home Office to refuse an application due to the applicant’s sponsor (i.e. their employer) failing to provide additional information (without the applicant ever being made aware of the request)?


The answers:


1. When a decision is issued – an administrative review of that decision is not an extension of the decision-making process;
2. No – there is no absolute or universal requirement that the Home Office must give an applicant prior notice of something that might affect the consideration of their application.

[antontony]

21 November 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)

>>> Pandemic rules for immigration appeals declared unlawful: https://www.bailii.org/ew/cases/EWHC...2020/3103.html

Upper Tribunal immigration appeals during the coronavirus pandemic are unlawful. Mr Justice Fordham held that the President of the Upper Tribunal’s guidance leans too heavily in favour of deciding cases on the papers rather than having a hearing, a situation that is “inconsistent with basic common law requirements”. The tribunal must now write to everyone who lost a paper appeal since 23 March 2020 telling them to seek legal advice. The case is Joint Council for the Welfare of Immigrants v President of the Upper Tribunal (Immigration and Asylum Chamber) [2020] EWHC 3103 (Admin).

[antontony]

23 November 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)


>>> Q & A: EU frontier workers visas in the UK

From the UK BA:


⦁ What is the general thinking around making the permit a type of exemption from immigration control rather than a type of immigration permission?


Frontier workers have rights under the citizens’ rights agreements which means they must continue (as now) to be exempt from the requirement to hold leave to enter or remain in the UK.


⦁ How, if at all, will the COVID pandemic be taken into account when assessing a person’s eligibility for a frontier worker permit? For example we know of individuals who ordinarily travel into the UK for work but have not done so since the lockdown started in March. Will flexibility be given on this?


Guidance for applicants to the scheme who have been affected by illness or travel restrictions due to Covid-19 will be published shortly.




⦁ Can exemption from immigration control as a frontier worker be used for individuals who wish to continue to work or be self-employed in the UK only occasionally in the future, provided their pattern of work or self-employment in the UK meets the definition of not being primarily resident in the UK as set out in The Citizens’ Rights (Frontier Workers) (EU Exit) Regulations 2020 (the frontier worker regulations), reg 3(3)?
We have answered this and your following question together below.


⦁ What will be the minimum amount of previous work/self-employment in the UK that will be accepted when making an initial frontier worker permit application or renewal (if this has already been confirmed), or alternatively, when is guidance on this point expected to be made available? For instance would someone who travels into the UK to work once a month be deemed to be a worker?


Frontier workers must have met (at 11pm 31 December 2020) and continue to meet thereafter all three elements of the definition of frontier worker at Regulation 3. i.e. they are:


⦁ an EEA national;
⦁ not primarily resident in the United Kingdom; and
⦁ either—
1. a worker in the United Kingdom;
2. a self-employed person in the United Kingdom; or
3. a person treated as a worker or self-employed person in the United Kingdom by virtue of regulation 4.


This covers a broad range of economic activities, from people who cross the border every day, to those who come less frequently or for longer periods of time. It includes those whose only work activity is in the UK, and those for whom only part of their overall activity is in the UK.


If an EEA citizen has carried out genuine and effective work in the UK by the end of the transition period whilst residing elsewhere, their rights are protected under the Agreements.
For as long as person continues to meet the definition of frontier worker, they have rights under the agreements. We will publish guidance in due course which will set out in detail who will be considered a worker or self-employed person under the frontier worker scheme.


We will publish guidance in due course which will set out in detail who will be considered a worker or self-employed person under the frontier worker scheme.


⦁ What will be the position for a person who holds a frontier worker permit, but who wishes to come to the UK during the period of its validity for a recreational visit – will they still be able to enter in reliance on the permit?


A frontier worker is only exempt from the need to hold leave to enter or remain in the UK by virtue of their frontier worker rights (i.e. the rights they have as a frontier worker under Part 2 of the Withdrawal Agreement, Part 2 of the EEA EFTA Separation Agreement or Part 2 of the Swiss Citizens’ Rights Agreement). If they wish to come to the UK for a purpose other than work or self-employment, such as a recreational visit they will need leave, for example, as a visitor.


⦁ Will a person who has valid leave under the EU Settlement Scheme be precluded from holding a frontier worker permit? (We think the answer to this is yes but would be grateful for confirmation)


The EU Settlement Scheme provides the necessary leave for those resident in the UK prior to 31 December 2020, whereas frontier workers are required not to be primarily resident in the UK. The two schemes should not overlap in the majority cases.


A person who has valid leave under the EU Settlement Scheme does not need a frontier worker permit to work or be self-employed in the UK as they already have those rights. There is no benefit to the EU Settlement Scheme leave holder in holding a frontier worker permit.


However, a person who has valid leave under the EU Settlement Scheme is not precluded from holding a frontier worker permit where they meet the requirements of The Citizens’ Rights (Frontier Workers) (EU Exit) Regulations 2020.


Similarly, EEA citizens who are frontier working in the UK may have been resident in the UK for sufficient periods in the course of their work here to be eligible for the EU Settlement Scheme.


⦁ Regarding the second query above, we would in particular be interested to know whether a person whose activities in the UK ordinarily fall within the range of activities allowed under the Immigration Rules for business visitors will be considered eligible for a frontier worker permit. We are aware that for some of our clients, some of their time spent in the UK will be of this nature, but it may also extend to productive work on other occasions.


The work a frontier worker carries out in the UK must be ‘genuine and effective’, and not marginal and ancillary to their lifestyle as a whole.


‘Not marginal and ancillary’ means the economic activity carried out in the UK must not involve so little time and money as to be largely irrelevant to the lifestyle of the applicant whilst in the UK. For example, attending an interview or an individual meeting, or taking part in one off competitions or auditions in the UK would not be considered genuine and effective work.


⦁ If there are any other points that the Home Office would like to emphasise to stakeholders about the arrangements for frontier worker permits, please can you also let us know?
Applications for the frontier worker permit scheme will open on 10 December this year. Applications for a frontier worker permit will be made online, and will be simple, streamlined and free of charge.


Until 1 July 2021, protected frontier workers can continue to enter the UK using a valid passport or national identity card. There is no deadline for making applications to the frontier worker permit scheme. However, from the end of the grace period (1 July 2021) frontier workers will be required to hold a valid frontier worker permit in order to evidence their right to enter the UK on this basis.


Irish citizens have a right to enter the UK under existing Common Travel Area arrangements which is independent of their right of admission as a frontier worker. This means Irish citizen frontier workers are not required to obtain a frontier worker permit to come to the UK and work, although they can apply for one if they wish.

[antontony]

24 November 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)


>>> New regulations to wipe free movement from the sta***e book: https://www.legislation.gov.uk/uksi/...roduction/made


These new regulations follow hard on the heels of the Immigration Act 2020. Where that Act provides for the high-level repeal of EU free movement laws, these regulations make dozens of changes to the plumbing of the immigration system to bring EU migrants fully within its scope. (But they should not affect existing residents with EU Settlement Scheme status, nor Irish citizens - full stop.)


For example, there are various amendments to the laws on getting married in the UK as a foreign national and on sham marriage investigations. Like non-EU citizens today, EU citizens will in future have to give notice at a Register Office if they wish to get married in the UK (even to a British citizen). But as the explanatory memo explains, “Irish citizens and individuals with status under the EUSS (or who have a pending application under the EUSS submitted by the deadline of 30 June 2021) will continue to be exempt”. The change will nonetheless cost the Church of England up to £1.9 million over ten years in lost fees from Reading of the Banns, an alternative to Register Office notification that will now be closed to many Anglican couples.


>>> Court of Appeal reverts to Home Office-friendly approach to service of decision letters: https://www.bailii.org/ew/cases/EWCA/Civ/2020/1527.html


The Court of Appeal has decided in Alam v Secretary of State for the Home Department [2020] EWCA Civ 1527 that sending a decision letter to a person’s last known address will generally be sufficient proof that the letter has been received. To prove otherwise, it must be shown the letter was intercepted and did not arrive, not merely that the person was unaware of the letter.


The importance of keeping the Home Office up to date


The central lesson remains the same: advising the Home Office when you move address is important.


If the Home Office sends an important letter to an old address, despite you updating them with your new address, they will not be able to get past the first hurdle of showing that the letter was posted to the last known address (as required by the legislation). But if you have not told them your new address, they cannot really be blamed. The burden will fall on you to prove that the letter was not received i.e. not delivered to your last known address. This is likely to be difficult.


You can update your address using this form on the gov.uk website.

[antontony]

26 November 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)

>>> Non-binary identity can form basis of asylum claim, Upper Tribunal finds: https://www.bailii.org/uk/cases/UKUT/IAC/2020/313.html

A non-binary gender identity can form the basis of an asylum claim, the Upper Tribunal has expressly confirmed for the first time. The case is Mx M (gender identity – HJ (Iran) – terminology) El Salvador [2020] UKUT 313 (IAC).

>>> UK breached European convention in deporting man without proper human rights assessment: https://hudoc.echr.coe.int/eng#%7B%22itemid%22:[%22001-205796%22]%7D

The court unanimously found that the UK’s supposedly Article 8 compliant deportation rules don’t preclude judges from following the correct approach to assessing the proportionality of deportation, and that the Upper Tribunal had failed to do so in Mr Unuane’s case (European Court of Human Rights like Unuane v The United Kingdom (application no. 80343/17). ), breaching Article 8.

>>> Appeal judges clash over false document rules: https://www.bailii.org/nie/cases/NICA/2020/38.html

When is a “false document” not a “false” document? In LLD v Secretary of State for the Home Department [2020] NICA 38, the Court of Appeal in Northern Ireland held that a document cannot itself be dishonest. Dishonesty requires an assessment of the state of mind of the person submitting the document as part of their immigration application.

[antontony]

27 November 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)

>>> Litigation debt - Home Office/UK Immigration: https://www.gov.uk/government/public...itigation-debt

Guidance on how UK Visas and Immigration deals with litigation debts owed to the Home Office from applicants.

>>> Can one travel to other EU countries with the new EU Settelment Scheme Biometric Residence Card (BRC) ?

Apparently not, as the Home Office confirm that:

"Please note that a BRC issued under EEA Regulations provides your client with an exemption from the requirement to obtain a visa to travel to another Member State of the European Union. A BRC issued under the EU Settlement Scheme does not, and if your client chooses to exchange their current BRC for a BRC issued under the EU Settlement Scheme, they will be required to apply for a Schengen visa to travel to another EU Member State. They only need to apply to replace their biometric residence card issued under the EEA Regulations when it expires and then only if they intend to travel outside the United Kingdom, as they can rely upon their digital status to prove their right to stay, work or study in the United Kingdom."

[antontony]

27 November 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)


>>> Home Office is experiencing delays in considering outstaidng applications now

From the Home Office:


"Due to Coronavirus restrictions applicants are currently experiencing longer waiter times than normal. However, our 6-month service standard is still in place, and we will be in touch in due course with further information."

[antontony]

Massive Home Office UK Immigration Guidance change/withdrawal

So many links that it was viable to provide the graphics at this stage, as follows:

New_guidance_01_12_2020.JPG

Removed_guidance_01_12_2020.JPG