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Тема: Важные судебные решения и полезная информация для иммигрантов

  1. #801

    По умолчанию

    30 October 2019 – 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)

    >>> Tribunal finds “centre of life” integration and intention tests irrelevant in Surinder Singh cases:

    The Upper Tribunal has finally, some six years after the test was introduced into domestic regulations, taken a good, hard look at the “centre of life” test applied by the Home Office to Surinder Singh cases.

    The new case is ZA (Reg 9. EEA Regs; abuse of rights) Afghanistan [2019] UKUT 281 (IAC). Unsurprisingly the tribunal finds there is no basis for the centre of life test at all in EU law and it is not to be applied when judges assess Surinder Singh cases. The determination goes through cases including Surinder Singh itself, Akrich, O and B, Emsland Stärke (on abuse of rights) and the following helpful guidance is given at paragraph 75:

    “(i) Where an EU national of one state (“the home member state”) has exercised the right of freedom of movement to take up work or self-employment in another EU state (“the host state”) , his or her family members have a derivative right to enter the member state if the exercise of Treaty rights in the host state was genuine;
    (ii) “genuine” must be interpreted in the sense that it was real, substantive, or effective [not in the sense of the opposite of false or untrue or for that matter, tainted by dishonesty];
    (iii) An analysis of “genuine” residence cannot involve the consideration of the motives of the persons who moved except in the limited sense of what they intended to [do] in the host member state
    (iv) Whether family life was established and/or strengthened, requires a qualitative assessment which will be fact-specific; the burden of doing so lies on the appellant;
    (v) There must in fact have been an exercise of Treaty rights; any work or self-employment must have been “genuine and effective” and not marginal or ancillary;
    (vi) The assessment of whether a stay in the host state was genuine does not involve an assessment of the intentions of the parties over and above a consideration of whether what they intended to do was in fact to exercise Treaty rights;
    (vii) There is no requirement for the EU national or his family to have integrated into the host member state, nor for the sole place of residence to be in the host state; there is no requirement to have severed ties with the home member state; albeit that these factors may, to a limited degree, be relevant to the qualitative assessment of whether the exercise of Treaty rights was genuine;
    (viii) The requirement to have transferred the centre of one’s life to the host member state is not a requirement of EU law, nor is it endorsed by the CJEU;
    (ix) If it is alleged that the stay in the host member state was such that reg. 9 (4) applies, the burden is on the Secretary of State to show that there was an abuse of rights.”

    The big question is whether the Home Office will amend the EEA Regulations to get rid of the offending centre of life test and other irrelevant considerations. Probably not. Ministers and civil servants seem hell bent on preventing family members of British citizens from living in the UK wherever possible. Applications will continue to be refused by immigration officials on a legally incorrect basis but those with the resources to appeal ought to be able to get a significant number of such cases overturned at the tribunal.

    >>> New Long Residence guidance: https://www.google.com/url?sa=t&rct=...U9yX5WSSPhU_Jw

    The document states:

    "Changes from last version of this guidance

    • Events that break continuous residence: reference to ‘31st October 2016’ deleted and replaced with ‘24 November 2016’
    • Time spent outside the UK : reference to ‘6th October 2016’ deleted and replaced with ‘24 November 2016’
    • Breaks in lawful residence : amendment to first and last bullet point in second paragraph
    • Applications made before 24 November 2016 amendment to first and last bullet point in second paragraph"

    >>> New guidance documents for Tier 2, Tier 4; new endorsing bodies for innovator and start-up visas

    Tier 2 sponsor guidance and RCOS allocation data

    New Tier 2 sponsor guidance was published.

    Guidance for sponsors: a long list of changes is at pages 13-19 : https://www.google.com/url?sa=t&rct=...onNlIhxE9EaXL_

    Appendix A: The document lists the following changes:

    • Table 5 (additional information to sponsor migrants in digital technology shortage occupations), and other references to digital technology occupations, have been deleted following changes to the Immigration Rules on 6 October 2019 – see ‘Digital technology shortage occupations’ below for further information
    • cover page and contents page added
    • a number of clarifications and minor drafting and formatting amendments
    • links updated or corrected
    Appendix D: The document lists the following changes:
    • Part 1b: clarification of the circumstances in which a Tier 2 or Tier 5 sponsor is required to check the migrant’s date of entry to the UK
    • Part 2g-h: updated to include reference to the GOV.UK ‘Teaching Vacancies’ online job-search service
    • Part 4b and 4d: text stating that it is not necessary to retain evidence of qualifications or relevant professional registration for contractual service suppliers or independent professionals deleted, as this did not accurately reflect the Immigration Rules or sponsor guidance
    • other minor housekeeping changes

    Tier 4 guidance: https://www.google.com/url?sa=t&rct=...zNyRaj1aYbDuzx

    The document lists the following changes:

    • Links have been updated throughout the document to make it easier for students and sponsors to navigate
    • Additional guidance has been included to make it clear that students may be asked to attend more than one credibility interview
    • Additional guidance has been included to clarify that when an applicant is switching into the student route from another points-based system route the new course must start within 28 days of the expiry of their permission to stay.
    • The reference to the applicant’s legal guardian being named on the birth certificate has been removed as this isn’t applicable and ensures the guidance is consistent with the Immigration Rules.
    • A clarification has been made to confirm that the period before the course starts is considered to be outside of term-time and therefore students who are permitted to work are able to so on a fulltime basis during this period.
    • References to Tier 1 (Graduate Entrepreneur) have been removed following the closure of this route. These have been replaced with ‘Start-Up migrant’. Additionally, guidance has been added that confirms that these applicants can undertake self-employed work whilst awaiting a decision on their application.
    • The exemptions to academic progression have been updated to clarify that Tier 4 students studying a PhD or doctoral qualification are able to apply for leave to remain from within the UK where they are extending in order to continue studying the course they had undertaken in their last grant of leave.

    New endorsing bodies for innovator and start-up visas

    The updated lists can be accessed on the government website here (innovator): https://www.gov.uk/government/public...dorsing-bodies and here (start-up): https://www.gov.uk/government/public...rt-up/start-up

    >>> Home Office admits double counting in the EU settlement statistics

    The Home Office has confirmed that it counts repeat applications to the EU Settlement Scheme as new applications. It appears that thousands of repeat applications from EU citizens already granted pre-settled status have been counted towards the total number of applications. This makes Home Office statistics unreliable and raises questions over the integrity of its reporting.

    What should the Home Office do now?

    Firstly, it should confirm whether the system allows only one repeat application, or multiple.

    Secondly, the number of repeat applications needs to be reported separately from new applications. Re-applications and re-applicants also need to be separated in the statistics if multiple applications are allowed. Repeat applications are to be expected from pre-settled status holders, but multiple applications are not.

    Thirdly, and most importantly, re-application outcomes need to be reported separately and scrutinized. Should a repeat application outcome be anything but a grant of settled status, it would raise questions over the Home Office assurances that nobody is being refused on eligibility grounds.

    As Madeleine Sumption, director of the Migration Observatory at Oxford University, says in the Financial Times: “the longer we don’t have that data, the more meaningless the statistics will become”.
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  2. #802

    По умолчанию

    31 October 2019 – 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)

    >>> Detainees with indefinite leave to remain not entitled to Home Office accommodation: https://www.bailii.org/ew/cases/EWHC...2019/2709.html

    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. R (AT (Guinea))) v Secretary of State for the Home Department [2019] EWHC 2709 (Admin) is about the interaction between mainstream benefits for people not subject to immigration control, and support for those in the immigration system. AT unusually fell into both groups; he had previously been granted indefinite leave to remain but had claimed asylum when the Home Office tried to deport him.

    Entitlement to mainstream benefits

    AT was granted bail in principle by the First-tier Tribunal on three occasions. As is often the case, the judge was happy for AT to be released into the community, but wanted him 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 arm of the First-tier Tribunal. The appeal was dismissed on the ground that he was not “desti***e” within the meaning of the legislation because he could apply for support from his local authority.

    Nigel Poole QC, sitting as a deputy High Court judge, 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. Those benefits included housing benefit. Thus, the Claimant was, at all relevant times, not excluded from eligibility for housing benefit and other social security benefits. As such he had the means of obtaining adequate accommodation upon his release from detention, were that to occur. Under s.95(3)(a) of the 1999 Act he was not desti***e. Accordingly, he was not entitled to the provision of support under that section.”

    For the same reasons, the judge also concluded that AT was not entitled to bail accommodation under Schedule 10 of the Immigration Act 2016:

    "For the avoidance of doubt, it is clear in my judgement that Schedule 10 did not apply at the earlier date of 16 May 2018. At that time the Claimant was granted bail on condition of being offered schedule 10 accommodation. He was however entitled to benefits and so would have been able to support himself at an address if one had been specified. Further, since no specific address was identified in the bail application or grant of bail, it is difficult to see how Schedule 10 would be engaged, notwithstanding the reference to it in the condition for bail granted by the First-tier Tribunal."

    The judge was also quite critical of AT for having failed to make proper enquiries about local authority support:

    “I have seen little evidence that the Claimant took steps to secure benefits or accommodation support to which he was entitled. Some correspondence has been provided from after the First-Tier Tribunal’s decision that s.95 did not apply, but there is generally a lack of evidence of timely or sustained engagement with the local authority or other authorities and agencies. It was not argued before me that the Claimant would not have been granted benefits or which he was potentially entitled. I have not been provided with evidence that the Secretary of State obstructed the Claimant from seeking benefits and support to which he was potentially entitled.”

    As a result, Nigel Poole QC rejected AT’s claim that the Home Office had behaved irrationally when refusing to provide him with accommodation.

    He also rejected AT’s separate claim that he had been unlawfully detained despite the serious delays in obtaining travel documents from the Guinean authorities highlighted by AT’s representatives. In this case, travel documents were authorised in “early 2019” but had not been provided by the time of the hearing in September.

    Home Office support as a last resort

    This case seems to suggest that having indefinite leave to remain makes it more difficult to obtain a bail address. AT was granted accommodation as a failed asylum seeker quickly once his asylum appeal had been refused and a deportation order made against him. However, we know from other cases (such as DM (Tanzania) that the process of obtaining bail accommodation from the Home Office is incredibly slow. It appears that AT did not appreciate the need to apply for housing benefit and that he could have applied for a grant of bail conditional on the local authority providing him with housing support.

    The important lesson to take away from this judgment is that the High Court will not look kindly on claims brought by people who blame the Home Office for failing to provide bail accommodation before they have exhausted other types of social assistance.
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  3. #803

    По умолчанию

    05 November 2019 – 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)

    >>> Tier 1(Investor) 1M warning/reminder !

    The government increased the minimum investment threshold under the Tier 1 (Investor) scheme from £1 million to £2 million back in November 2014.

    Existing Tier 1 (Investor) visa holders did not need to increase the level of their investment. They were able to apply for ILR and as the qualifying period is five years, most £1m investors will have qualified by now. But not all.

    There are still those with limited leave, who have had to keep on extending their visa, on the basis of a £1m investment. Usually the reason they have not qualified for ILR by now is because:

    • they have had excessive absences from the UK in the qualifying period for ILR (more than 180 days per year, or, since January 2018, 180 days in any 12-month period); and/or
    • their English is not at an acceptable level; and/or
    • they are under 65 and are unable to pass the Life in the UK test

    During the course of this year — most recently in the October 2019 statement of changes the Home Office has made a number of further changes to the route.

    The effect of all the recent changes means that many investors who entered the route before 29 March 2019 will not be able to secure further leave or ILR beyond a certain date, unless they make changes to their investment portfolio and/or increase the level of their qualifying investment. The steps needed differ depending on when an applicant entered the route and the type of investments they have made.

    Deadlines

    An investor who needs to extend their stay relying on a £1m investment will need to file their application before 6 April 2020.
    To extend after that date, they would have to increase their investment to at least £2m.

    An investor relying on £1m in an ILR application will need to file that application before 6 April 2022.

    If they can’t file it by then because they don’t meet the requirements, they will need to increase the investment to at least £2m before applying.

    Importantly, increasing the investment is not enough. They will only be able to qualify for ILR when they have also clocked up the relevant qualifying period starting from the date they increased their investment: five years if £2m, three years if £5m, two years if £10m). Time already spent under the route just won’t count anymore.

    These changes mean that £1m investors need to map out their future plans carefully.

    The UK Government Bonds

    Those whose investments include government bonds (or gilts as they are also known) face another potential complication. As part of the general tightening up of the route, government bonds were removed as a qualifying investment for a new Tier 1 (Investor) visa from March 2019.

    In order to succeed, extension applications where the investment still includes government bonds must be made before 6 April 2023. ILR applications relying on government bonds must be made before 6 April 2025.

    This doesn’t just refer to £1m investors, but to anyone who entered the route before 29 March 2019.

    Applications filed after the above dates that rely on government bonds held after those dates will be refused. For the application to be successful, the investment must be moved out of government bonds and into share capital or loan capital in active and trading UK registered companies (regarded generally as a higher risk form of investment).

    Conclusion

    The Home Office guidance for Tier 1 Investors (last updated on 1 October 2019) contains this nifty chart which demonstrates how complicated they’ve made things for investors intending to apply for ILR – see page 35 here: https://www.gov.uk/government/public...ier-1-investor

    Anyone still relies on investments under the old £1m rules, and/or who is relying on government bonds, should map out now the steps they’ll need to take in order to qualify for ILR (including extending their stay where needed).

    This is likely to involve a number of changes such as limiting absences, improving English, increasing investment funds and/or changing the type of investment.
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  4. #804

    По умолчанию

    08 November 2019 – 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 Fact sheet: Graduate Immigration Route – Further update: https://homeofficemedia.blog.gov.uk/...gration-route/

    On 11 September 2019 the UK Government announced the creation of a new immigration route which will enable international students to remain in the UK for two years after they have completed their studies.

    Key Points:

    • The Graduate Immigration Route will be available to international students who have completed a degree at undergraduate level or above at a Higher Education Provider with a track record of compliance and who have a valid Tier 4 visa at the time of application.
    • Successful applicants on this route will be able to stay and work, or look for work, in the UK at any skill level for a maximum period of two years. Graduates will be able to switch into skilled work once they have found a suitable job.
    • The new route will be launched in the summer of 2021, meaning that any eligible student who graduates in the summer of 2021 or after will be able to apply for the route. This includes students who have already started their courses. Universities will also be able attract students starting in the 2020/21 academic year on the basis that they will benefit.
    • The launch of the route demonstrates the government’s support for our education sector, and commitment to the International Education Strategy, which sets out our ambition to increase education exports to £35 billion and the number of international higher education students to 600,000 by 2030.
    • The graduate immigration route will require a new application.
    • It will include the payment of a visa fee and the Immigration Health Surcharge. The exact fee will be set out in due course.
    • Those who graduate and whose Tier 4 leave expires before the route is introduced will not be eligible, however, most of these students will have had no expectation of benefitting from such a route when they applied to study in the UK.
    Statistics:
    • In the year ending June 2019, the number of sponsored student visa applications rose 9% to 236,679. This included an 11% increase for the higher education sector to 201,919.

    Frequently asked questions:

    Why can’t it be implemented sooner?

    It takes time to develop a new immigration route and ensure the framework is in place for it to successfully operate. Introducing the route in the summer of 2021 will mean that all students who graduate in the summer of 2021 or after will benefit, regardless of when they started their course. This route was announced in September 2019 to ensure that universities and stakeholders could promote the route when attracting prospective students. It will enable students to decide where to study, knowing they have the option of staying in the UK to work after completing their studies.

    Will students who are already here be able to benefit?

    Any student who successfully completes their degree-level course at a qualifying insti***ion in the summer of 2021 or after will be eligible. This includes students who are already studying. Those whose Tier 4 leave expires before the route is introduced will not be eligible for it, however, most of these students will have had no expectation of benefitting from such a route when they applied to study in the UK. These students can still benefit from the generous provisions which allow them to switch in the skilled work route on favourable terms.

    Will universities be expected to act as sponsors for those students on the graduate immigration visa after they have graduated?

    Individuals applying for the Graduate Immigration Route will not need a sponsor. Tier 4 sponsors will not need to fulfil any sponsorship duties for their students if they switch onto the Graduate Immigration Route and students will not need a Certificate of Sponsorship (CoS) to apply under this route. Tier 4 sponsors, however, will continue to be responsible for their students while they are studying.

    Will this route count towards settlement?


    The route is non-extendable and does not count towards settlement. However, graduates who find an appropriate job and meet the requirements will be able to switch into skilled work, which is a route to settlement.

    >>> Any overstaying technically breaks long residence, Court of Session agrees: https://www.bailii.org/scot/cases/Sc...19_CSOH_81.pdf

    The controversial English Court of Appeal long residence case of Ahmed has now been endorsed north of the border by the Court of Session in Mbomson v Secretary of State for the Home Department [2019] CSOH 81. Lord Malcolm’s decision is short: although not bound by the Court of Appeal’s decision, his lordship is nevertheless persuaded by it and accordingly endorses it.

    What was the decision in Ahmed and now Mbomson? The courts have interpreted the sloppily drafted Immigration Rules on long residence to hold that any period of overstaying, no matter how small, will break “continuous lawful residence” for the purposes of a 10-year long residence application. Residence is broken, in this context, regardless of whether or not it was absolved by the granting of a subsequent application.

    The rules do not permit a grant of leave on long residence grounds where there has been a break in continuous lawful residence through overstaying, but the guidance clearly allows caseworkers to exercise discretion in disregarding certain periods of overstaying. See page 16:

    “Gaps in lawful residence

    You may grant the application if an applicant:
    • has short gaps in lawful residence through making previous applications out of time by no more than 28 calendar days where those gaps end before 24 November 2016
    • has short gaps in lawful residence on or after 24 November 2016 but leave was granted in accordance with paragraph 39E of the Immigration Rules
    • meets all the other requirements for lawful residence”

    It is clear from the above that applications where there is past overstaying can be granted, and that the Home Office is not concerned about the kinds of overstaying listed.

    The next section of the document says:

    “Any decision to exercise discretion and not refuse the application on these grounds must be authorised by a senior caseworker at senior executive officer (SEO) grade or above.
    When granting leave in these circumstances, the applicant must be granted leave outside the rules for the same duration and conditions that would have applied had they been granted leave under the rules.”

    So any period of overstaying should indeed normally lead to a refusal, as per the Rules and the interpretation of both the English and Scottish courts, but that such applications can (and should if eligible) nevertheless be granted outside of the Immigration Rules rather than under paragraph 276B.
    It seems to be the only logical way of reconciling the otherwise harsh Immigration Rules on the one hand and the relatively generous policy on the other.

    If one thing is clear, it’s that the Home Office needs to get its collective finger out and set the record straight.

    >>> Start-up and Innovator visas: Guidance for endorsing bodies: https://www.google.com/url?sa=t&rct=...wBS4fhgOaSP9Tb

    >>> UK ancestry guidance update: https://www.google.com/url?sa=t&rct=...SusK_vQkXk4MZr

    This resource can be accessed aove. There are substantial changes to this document which are listed on pages 4-8.
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  5. #805

    По умолчанию

    11 November 2019 – 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)

    >>> I got married in my national Embassy in the UK. Will my marriage be accepted by the Home Office ?

    Under the Marriage Act 1994 it is only possible for an embassy to be listed as an approved building (https://www.gov.uk/government/public...-premises-list) for a civil marriage in the UK if the premises are regularly available to the public for use for the solemnization of marriages or the formation of civil partnerships, and public access to any proceedings in approved premises must be permitted without charge.

    Currently, no diplomatic premises in the UK are approved for marriage or civil partnership.

    >>> New NHS visa announced: https://news.sky.com/story/general-e...paign-11857046

    The UK Government is planning to introduce a “NHS visa” as part of their proposals for an Australian style points based immigration system should they win the general election.

    The aim is to ensure that the NHS is able to source overseas doctors and nurses once EU free movement comes to an end post-Brexit. From today’s media reports we know that the visa will cost £464, half the normal fee. The visa process will be fast-tracked — decisions will be made within two weeks — and NHS workers applying through this route will have access to some form of payment system to repay the immigration health surcharge in instalments via their salary once in the UK.

    It sounds promising. The reduced fee is certainly a positive step and hopefully a sign that the government accepts that the current immigration system has become exorbitantly expensive. The fast-track processing is less exciting, as most non-settlement visas can already be processed via a priority service within a week for a fee of around £250. What will be interesting is whether this enhanced processing is offered free of charge for NHS workers, or if in the small print there will be hidden costs attached — fees to book appointments or scan documents, for instance — which visa applicants often get stung by.

    The fact that NHS workers have to pay the £400 per year NHS surcharge in the first place is laughable. At the very least they should get some form of John Lewis-style employee discount. A repayment system will still mean a nurse losing £2,000 from their salary over several years, on top of the up-front visa fee.

    Exempting them from the charge altogether would show a real intent to broaden the UK’s appeal to foreign medical professionals.

    The announcement shines a tiny bit more light on the government’s overall plans for the immigration system. The Home Secretary, Priti Patel, has said that the new visa route is “part of our plan for an Australian-style, points-based immigration system that allows us to control numbers while remaining open to vital professions like nurses”. We still do not know whether this antipodean vision will be in addition to, or a replacement for, our current points based system. The indications are that this new visa will be outside the Tier 2 work visa apparatus — which raises the question of whether our current sponsorship system will be maintained.

    Again, though, this is another example of politicians claiming that a points based system will allow them to control net migration, when the evidence, and the UK’s own recent history, shows that this reasoning is flawed. With ministers unable to say whether the Conservatives want immigration to go up or down, honest answers on why we need an Australian points based system are way overdue.
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  6. #806

    По умолчанию

    12 November 2019 – 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)

    >>> Confirmed: children with foreign stepfathers are being unlawfully denied citizenship

    The Home Office has dropped its appeal against a judgment that children whose mother is married to someone other than their father are being unlawfully discriminated against by British nationality legislation.

    In July 2018, the High Court ruled that part of the British Nationality Act 1981 is incompatible with Article 8 of the European Convention on Human Rights. The case was K (A Child) v Secretary of State for the Home Department [2018] EWHC 1834 (Admin).

    The provision in question was section 50(9A). It states that:

    For the purposes of this Act, a child’s father is –

    “(a) the husband, at the time of the child’s birth, of the woman who gives birth to the child…”

    This can prevent a child’s biological father from being recognised as the child’s legal father for the purpose of passing on his British citizenship. In K’s case, the Home Office tore up her British passport, saying that she wasn’t legally a citizen — even though she could prove that her biological father was British. The effect of section 50(9A) was her mother’s new husband was treated as her father, denying K citizenship.

    The High Court found that:

    “the scheme of section 50(9A) of the BNA 1981 as the Defendant currently reads and applies it breaches the Claimant’s right under Article 14 ECHR read with Article 8, to enjoy equal access to the ability to acquire her biological father’s nationality which she would enjoy if her mother had not been married to a man other than her biological father at the time of her birth.”

    The Home Office initially appealed. But Law Lane Solicitors, representing K, now say that the appeal has been abandoned.
    The government is expected to take remedial action to change the law. That was what happened after the Supreme Court made a declaration of incompatibility about a different element of nationality law in Johnson [2016] UKSC 56. But this could take some time: Johnson was handed down in October 2016, and the resulting remedial order not made until July 2019.

    What can children caught by section 50(9A) do in the meantime? They can apply for registration as British at the Home Office’s discretion, but this costs over £1,000 and involves a good character test.

    There’s a decent argument that such a fee would be unlawful: the Home Office has already conceded in Williams [2017] EWCA Civ 98 that the power to charge a nationality or immigration fee may not be exercised incompatibly with the European Convention on Human Rights (see paragraph 30). Victims of the Windrush scandal did not have to pay for citizenship: the Home Secretary could do the same for children currently being denied citizenship unlawfully.

    Challenging the good character test in such cases would be more complicated, as unlike the fee it is required by primary legislation. All the same, families where a child is being denied automatic citizenship because their mother has remarried should seek advice on their options.
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  7. #807

    По умолчанию

    13 November 2019 – 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)

    >>> I do not have a current passport. Can I still use my expired passport in the immigration application ?

    The answer is “depending on the application type”. In line with para 34(b)(ii) of the UK Immigration Rules:
    (b) Proof of identity for the purpose of this paragraph means:



    (ii) if the applicant does not have a valid passport or national identity card, their most recent passport or (except a PBS applicant) their most recent national identity card; or



    >>> Can I travel while my EU Settled Status (EUSS) application is pending ?

    The answer is “Yes”.

    “The EUSS caseworker guidance : https://www.gov.uk/government/public...guidancestates that:

    “An application made under Appendix EU will not be treated as automatically withdrawn if the applicant travels outside the Common Travel Area before the application has been decided.”
    Помощь русскоговорящего адвоката высшей категории: консультации, проверка заявлений, ведение дел: www.legalcentre.org Mob/Viber/WhatsApp:+44(0)77 911 45 923, Skype: immigration_lawyer

  8. #808

    По умолчанию

    14 November 2019 – 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 revisits human rights in immigration appeals: https://www.bailii.org/ew/cases/EWCA/Civ/2019/1925.html

    The case of interest is Lal v Secretary of State for the Home Department [2019] EWCA Civ 1925.

    In this case, Ms Lal had been here as a student since 2011 and her leave was due to expire in 2015. Four months prior, she married Mr Wilmhurst, a British citizen, and applied to stay in the UK under Appendix FM of the Immigration Rules.

    Refused over doubt about the marriage

    The sole reason for refusal was because the Home Office didn’t believe the marriage was genuine and subsisting. We don’t know the reasoning for sure, but one would be astonished if a major part of the reasoning was not the 40-year age difference between the couple and the timing of the marriage.
    Such refusals are pretty straightforward to nail down, for the most part. At the First-tier Tribunal, three of Mr Wilmhurst’s four children gave evidence. They all agreed that Mr Wilmhurst was indeed in a genuine relationship.

    It did not help.

    Insurmountable obstacles to family life

    Complicating matters, Ms Lal seems to have accepted that that she had to show “insurmountable obstacles to family life continuing outside the UK”. It looks like she conceded that the requirements of paragraph EX.1 of Appendix FM had to be met despite this never being raised in the refusal letter.

    The Court of Appeal was quick to raise an eyebrow and had “doubt” whether meeting EX.1 was actually an issue but, as courts do, they still went on to write a treatise about it.
    Indian climate an insurmountable obstacle?

    At the First-tier Tribunal, evidence was led that Mr Wilmhurst — who is in his 70s — would not be able to cope with the heat in India and that meant there were insurmountable obstacles. The First-tier Tribunal agreed. The Upper Tribunal did not.
    Judge Storey in the Upper Tribunal was pretty annoyed at all this. Whilst he agreed the marriage was genuine, he did not think an inability to cope with heat was insurmountable:

    “…[the] judge was required to undertake… an objective assessment of whether Mr KW could in fact cope with the heat and whether a difficulty of this kind would pose an insurmountable obstacle… Difficulty [in] coping with heat is not in itself a serious hardship in a country where there is air conditioning and available urban environments built to protect people against the heat.”

    The Court of Appeal allowed permission on the question of whether the “insurmountable obstacles” test was subjective or objective.

    An objective test, but still a test

    The court outlined the Supreme Court’s decision in Agyarko v SSHD [2017] UKSC 11. In Agyarko, Lady Hale held that the test was to be applied in a way which was “practical and realistic” and said:

    “The test cannot… be… subjective… To treat it as such would substantially dilute the intended stringency of the test and give an unfair and perverse advantage to an applicant whose partner is less resolute or committed to their relationship over one whose partner is ready to endure greater hardship to enable them to stay together.”

    But, the Court of Appeal said, it was not enough to base a conclusion on the Upper Tribunal’s “sweeping statement” about air conditioning. The facts had to be explored thoroughly; where in India could the couple live; what were the average temperatures; could the heat be mitigated by air conditioning; were there any cooler places to live? There was nothing fundamentally wrong with a finding that a person’s sensitivity to heat was an insurmountable obstacle, but evidence was required.

    Relationship formed while immigration status precarious

    The other very interesting takeaway from the judgment was a critical look at the Upper Tribunal’s reasoning on the relationship being formed whilst Ms Lal’s immigration status was precarious.
    Section 117B of the Nationality, Immigration and Asylum Act 2002 says that

    “(4) Little weight should be given to—
    (a) a private life, or
    (b) a relationship formed with a qualifying partner,
    that is established by a person at a time when the person is in the United Kingdom unlawfully.
    (5) Little weight should be given to a private life established by a person at a time when the person’s immigration status is precarious.”

    The Upper Tribunal judge thought that this “required him to attach little weight to a couple’s relationship when that relationship has been entered into at a time when the applicant’s immigration status is precarious”.

    This, the Court of Appeal said, was wrong. Nowhere in section 117B does it say that little weight must be given to a relationship formed with a qualifying partner when a person’s immigration status is precarious (as distinct to unlawful).

    Rather, it is open to courts and tribunals to give such weight to the relationship as is appropriate:

    “Clearly there are degrees of precariousness in a person’s situation ranging from, at one extreme, someone who is in the country in breach of immigration laws and is liable to removal through to someone who has been present lawfully in the country for some years and is on a pathway to settled status (such as the five or ten year partner route in the UK) but does not yet have indefinite leave to remain. It would be unreasonable to attach equal weight to family relationships established by individuals in such different legal situations and there is no “settled jurisprudence” which requires this. Rather, the Jeunesse case makes clear that a person’s immigration status may greatly affect the weight to be given to their right to respect for family life.”

    Ultimately, all of this discussion was academic as Ms Lal and Mr Wilmhurst were now parents to a British child; section 117B(6) was therefore engaged. The Upper Tribunal’s decision was set aside, and it is up to the Home Office to reconsider matters.
    Once again, there is nothing here which is brand new but it is useful as a reminder that even in cases where there are not children, paragraph EX.1(b) is still very much arguable (even though a lot of the time it feels like the Home Office is mindlessly rejecting these cases!). The key is to take the time to properly explain, particularise and provide supporting evidence of a claim.
    Помощь русскоговорящего адвоката высшей категории: консультации, проверка заявлений, ведение дел: www.legalcentre.org Mob/Viber/WhatsApp:+44(0)77 911 45 923, Skype: immigration_lawyer

  9. #809

    По умолчанию

    15 November 2019 – 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)

    >>> Complete withdrawal of asylum support breaches EU law: http://curia.europa.eu/juris/documen...=1&cid=1470078

    The Court of Justice of the European Union has ruled that it is unlawful to completely withdraw all housing and financial support from an asylum seeker, even if they have breached the rules of an accommodation centre. In Case C-233/18 Haqbin v Federaal Agentschap voor de opvang van asielzoekers, the court sharply rebuked Belgium for imposing a total withdrawal of support on a child asylum seeker for failing to comply with the rules.

    The case concerned an unaccompanied child from Afghanistan who sought asylum in Belgium. He was housed at the Broechem reception centre, where he became involved in a brawl. The child was arrested by the police but released the following day with no further action.

    Nevertheless, the director of the Broechem reception centre imposed a 15-day exclusion from the centre as a punishment. During this time the child spent several nights sleeping in public parks in Brussels as well as finding friends to stay with.

    EU law provides for sanctions to be imposed on asylum seekers who break the rules at a reception centre. The Reception Conditions Directive states:

    “Member States may determine sanctions applicable to serious breaches of the rules of the accommodation centres as well as to seriously violent behaviour.”

    The court ruled that reduction or withdrawal of housing and other support from an asylum seeker might be an appropriate sanction within the meaning of the rule, even though it is not explicitly mentioned:

    “it is appropriate to note, first, that a measure for reduction or withdrawal of material reception conditions in respect of an applicant on account of serious breaches of the rules of the accommodation centres or seriously violent behaviour consti***es, in the light of the aim and the detrimental consequences thereof for the applicant, a ‘sanction’ in the ordinary meaning of that word and, secondly, that that provision is included in Chapter III of the directive, which is dedicated to the reduction and withdrawal of such conditions. It follows that the sanctions envisaged in the directive may, in principle, concern material reception conditions.”

    But the court clarified that any sanction imposed must be proportionate and not result in a violation of the asylum seeker’s dignity:

    “… any sanction within the meaning of Article 20(4) thereof must be objective, impartial, reasoned and proportionate to the particular situation of the applicant and must, under all circumstances, ensure access to health care and a dignified standard of living for the applicant.”

    The total withdrawal of material support, as was imposed by the Belgian authorities in this case, did not comply with EU law because it necessarily violated the child’s dignity:

    “A sanction that is imposed exclusively on the basis of one of the reasons mentioned in Article 20(4) of Directive 2013/33 and consists in the withdrawal, even if only a temporary one, of the full set of material reception conditions or of material reception conditions relating to housing, food or clothing would be irreconcilable with the requirement, arising from the third sentence of Article 20(5) of the directive, to ensure a dignified standard of living for the applicant, since it would preclude the applicant from being allowed to meet his or her most basic needs such as those mentioned in the previous paragraph.”

    Having decided the case against the Belgian government, the court went on to emphasise the importance of taking into account both the vulnerability of an unaccompanied child asylum seeker and their best interests:

    “Moreover, according to Article 23(1) of Directive 2013/33 the best interests of the child are a primary consideration for Member States when implementing the provisions of the directive that involve minors.”

    This case is a great result and vindication for the child’s lawyers, although perhaps little consolation for the child that it has taken three years for a court to rule that it was unlawful to make him street homeless. The Court of Justice relies heavily on national courts to ensure that EU law is respected and it is disappointing that the Belgian court that originally considered the matter was not prepared to find that imposing such a severe sanction on a child was disproportionate.
    Помощь русскоговорящего адвоката высшей категории: консультации, проверка заявлений, ведение дел: www.legalcentre.org Mob/Viber/WhatsApp:+44(0)77 911 45 923, Skype: immigration_lawyer

  10. #810

    По умолчанию

    18 November 2019 – 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)

    >>> Indefinite Leave to Enter (ILE) on-line application form for children to come into the UK can be found here: https://visas-immigration.service.gov.uk/other-ooc

    >>> Useful successful case on long separation in case of the Entry Clearance as unmarried partners: https://www.bailii.org/uk/cases/UKAI...065352014.html

    >>> Home Office withdraws appeal in case on s 50(9A) BNA 1981

    The Secretary of State has withdrawn her appeal against the decision of the Administrative court in R(ota K, a child by her litigation friend) v SSHD [2018] EWHC 1834 (Admin).

    The case concerned paternity of a child for the purposes of acquiring British citizenship. K’s passport was withdrawn and she was informed that she was not ‘British’ even though she could prove by DNA that her father is British. Section 50(9A) of the British Nationality Act 1981 says that if a woman is married at the time of a child’s birth, for the purposes of British nationality law, her husband will be deemed to be the father, even if there is irrefutable proof that another man is the biological father.

    On K’s application for judicial review, the Administrative Court declared that section 50(9A) of the British Nationality Act 1981 (the BNA) is incompatible with Article 14 ECHR, read with Article 8 ECHR because it discriminates unlawfully against children whose mothers are married to a man other than the child’s father when the child is born. An affected child will not be entitled to British nationality through the biological father but could apply to be registered at the ‘discretion’ of the Home Secretary, at a fee currently of over a thousand pounds (£1012) and, if aged over 10 years subject to a requirement to be of ‘good character’. The judge concluded that although ‘certainty’ under the law was a legitimate aim, the aims did not justify such a fee nor the risks associated with the discretion whether to grant citizenship rather than a right to claim it as the child of a British citizen.

    The Secretary of State appealed. Permission was granted on the basis that it was arguable that the judge had failed to consider the wider impact of her conclusions on, for example, children born through surrogacy. However, the appeal was later withdrawn with the effect that the declaration made by the court below remains in place. The question is – what next for children who have been discriminated against in this way?

    In Johnson [2016] UKSC 56, the Supreme Court declared that a provision of the BNA which imposed the ‘good character’ requirement on children required to register as British solely as a consequence of their mother’s marital status as the time of the birth was similarly incompatible with article 14 taken with article 8 as it was discriminatory. In making the declaration the court observed [38]:

    “… where a person has not automatically acquired citizenship at birth, it is reasonable to expect him to apply for it, even if he is entitled to be registered if he does so. This avoids the risk of inconvenient results and provides everyone with clarity and certainty. But it is not reasonable to impose the additional hurdle of a good character test upon persons who would, but for their parents’ marital status, have automatically acquired citizenship at birth, as this produces the discriminatory result that a person will be deprived of citizenship status because of an accident of birth which is no fault of his.”

    As a consequence of the court’s declaration, the Home Secretary placed a remedial order before parliament. Any remedial process necessarily takes some time (although in this case much time has been lost as a consequence of the Home Secretary’s withdrawn appeal) and indeed the Secretary of State has a wide discretion whether to take remedial steps by way of a remedial order or draft amended legislation or indeed may elect to do nothing. So, what are affected children to do in the mean time?

    Next steps

    Children who may be caught by s 50(9A), for instance by the denial of passports or citizenship are advised to seek expert advice. There are good grounds to argue that the Secretary of State cannot lawfully charge the £1012 fee for registration in such cases. The issue of the ‘good character’ requirement is somewhat more complex.

    >>> Family life, private life and exceptional circumstances: https://www.gov.uk/government/public...l-circumstance

    The latest version states the following changes: "The words ‘(except where entry is being granted as a fiancé, fiancée or proposed civil partner)’ have been deleted from the end of the first paragraph in Decision to grant entry clearance or leave to remain as a partner on a 5 or 10-year route".

    >>> Guidance update: EU Settlement Scheme: EU, other EEA and Swiss citizens and their family members: https://www.gov.uk/government/public...orker-guidance

    The document states the following changes:

    "Amendments have been made to reflect the changes to Appendix EU made in Statement of Changes in Immigration Rules: HC 170, laid on 24 October 2019, mainly in respect of provision for the operation of the EU Settlement Scheme in the event that the UK leaves the European Union without a deal."

    >>> UKVI guidance update: Criminal investigation: sham marriage: https://www.google.com/url?sa=t&rct=...20N4vrUVfx8mnY

    This document includes information about:

    • the definition of a sham marriage

    • offences relating to sham marriages

    • prosecuting authorities for criminal offences in relation to sham marriages

    • Crown Prosecution Service (CPS) suggested good practice and scenarios for potential suspects and charges

    • planned visits to a designated register office

    • European Economic Area (EEA) removal options


    The latest version states the following changes:


    "Revised to include up to date definition of sham marriage, update of links to legislation and other guidance products and removal of items no longer required"
    Помощь русскоговорящего адвоката высшей категории: консультации, проверка заявлений, ведение дел: www.legalcentre.org Mob/Viber/WhatsApp:+44(0)77 911 45 923, Skype: immigration_lawyer

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