The Queen Elizabeth II opened the new parliamentary session with a throne speech in the House of Lords today. In a throne speech, which outlined the government’s plans to pass new laws, the following was announced: "The new immigration law will put an end to freedom of movement and lay the foundation for a fair, modern immigration system that meets global requirements. My government intends to preserve the residency rights of resident citizens who made a great contribution to the country's economy." The main elements of the bill are: • Termination of free movement of EU citizens in accordance with UK law. • Establishment of a procedure governing the treatment of EU citizens arriving after January 2021, the treatment of citizens of non-EU countries, and the establishment of a procedure for treating EU citizens residing in the UK until Brexit date. • Clarification of the immigration status of Irish citizens in the UK after the abolition of the rules regulating free movement. • Clarification of the application deadline in accordance with the EU Settlement Scheme. • Granting EU citizens and their families the right to appeal against decisions in respect of the EU Settlement Scheme. The right of appeal for EU citizens who are denied residence will undoubtedly be very welcomed. At the moment, the only real remedy is an administrative review. The bill is forecasted to "pave the way for a new point-based immigration system." The government also plans to pass a bill on foreign offenders, which "will increase the maximum sentence for foreign offenders who return to the UK in violation of the deportation order." Today, in view of the current political situation, there is practically no chance of adopting these bills. However, it is entirely possible that in general elections in the coming months, the government will receive a majority in parliament and will insist on translating the bills passed today into legislative acts.
Immigration professionals often come across this question at the submission stage of various UK visa applications. What are the British Crown Dependencies? The Crown Dependencies are three island territories located within the British Isles. They are not part of the United Kingdom, but are closely connected to it. Each one is a separate jurisdiction: the Bailiwick of Jersey, the Bailiwick of Guernsey, and the Isle of Man. The Crown Dependencies are each self-governing, have directly elected legislative assemblies, and their own legal systems and courts of law. All are outside the European Union. They are not represented in the UK’s parliament and are not recognised as independent sovereign states. However, the UK government does remain responsible for each Crown Dependency’s defence policies and foreign affairs. Why are the Crown Dependencies flagged up in UK visa applications? In short, if you do want to live and work in one of the Crown Dependencies, making a UK visa application is the incorrect one to make. Each Crown Dependency has its own immigration processes and procedures for those wishing to work there, but their foundations lie in the Immigration Act 1971. In practice, the Crown Dependencies and the UK have similar, and in some cases identical, immigration requirements. Any condition attached to a UK visa (such as the police registration requirement, limited work permissions, and absolutely no recourse to public funds) would also apply to visas granted in the Crown Dependencies. Can I visit the Isle of Man, Jersey or Guernsey on a UK visa? In short, if you have been granted a UK visa, you do not need a separate visa to visit one of the Crown Dependencies. There is no immigration control between the UK and the Crown Dependencies, nor between the three islands themselves. The same can be said if you have a visa from one of the Crown Dependencies – you are permitted to subsequently visit the United Kingdom. If you wish to live and work in the UK, however, you would need to apply for a separate UK visa. How can I get a visa to live and work in one of the British Crown Dependencies? If you intend to live and work in one of the Crown Dependencies, you must apply for the correct residence visa. If eligible to apply, you may do so from within the UK or outside it. Once you have been granted a visa to live in one of the Crown Dependencies, you are also permitted to visit the UK.
04-10-19 – Why can’t my children join me in the UK?
Earlier this week, the Guardian newspaper published a story concerning Amber Murray, a U.S. researcher who got a job at Oxford as an assistant professor of geography, but whose two young daughters were denied entry visas to the UK. Ms. Murray's husband lives in Cameroon and gave his consent to the girls' stay with their mother in Oxford. So why were they denied visas? Regardless of the immigration status of parents, all children must meet the following requirements in order to move or join their parents in the UK: 1. The child must be under the age of 18 at the date of application 2. The child should not be married or be in a civil partnership and should not lead an independent life 3. As far as point-based visa applications are concerned, a child over 16 must show that he lives with his parents, or explain why not, and prove that his parents still provide for him financially. 4. Both parents must be residing legally in the UK or, if only one of the parents is in the UK, then: • This parent must be the only surviving parent; or • This parent should be solely responsible for raising the child; or • There must be good reasons for satisfying the application. It was because of the latter requirement that the Murray children could not join her in the UK.
The Court of Justice of the European Union has decided that a child is self-sufficient in EU law even if supported only by the earnings of a parent who does not have permission to work ( C-93/18 Bajratari). The case concerned an Albanian family living in Northern Ireland where a man had held a residence card enabling him to work. He continued to do so even after it expired. He had been joined by his wife and they had three children together, all born in Northern Ireland. Two of the children had obtained certificates of Irish citizenship, meaning that they were EU citizens. The wife and mother applied for a residence card of her own based on derivative rights of residence, arguing that her continued presence in the United Kingdom was necessary if her two EU citizen children were to remain within the EU. Her argument was based on the case of C-200/02 Zhu and Chen, which required her to show that her EU citizen children were self-sufficient. The family was supported by the father’s earnings, but these earnings were unlawful. The question for the court was whether the children were “self-sufficient” in EU law and therefore whether the parents might derive an EU law right of residence from the children. The application was rejected by the Home Office and appeals to the first-Tier and Upper Tribunals were unsuccessful. The Court of Justice held: “a Union citizen minor has sufficient resources not to become an unreasonable burden on the social assistance system of the host Member State during his period of residence, despite his resources being derived from income obtained from the unlawful employment of his father, a third-country national without a residence card and work permit”. The court emphasised that the family in this case has no recourse to public funds at all and that the father had been paying National Insurance and other tax contributions on his earnings.
The President of the Family Division concluded that the family courts have no jurisdiction to interfere with Home Office, even if they think it is necessary to protect a girl from female genital mutilation (FGM). The most they can do is to ask the Home Office to refrain from removing the child and to reconsider the removal decision in light of the family court’s determination. In response to media pressure in this case — reported as A (A Child: Female Genital Mutilation: Asylum)  EWHC 2475 (Fam) — the Home Office has agreed to wait until the family court proceedings have finished. The judgment highlights a worrying gap in the legislation designed to protect girls and women from FGM. The case concerns a ten year old girl, known as A, who was due to be removed to Bahrain with her mother. The mother is originally from Sudan, where she was subject to FGM as a child. There is a risk that both mother and daughter could be removed a second time from Bahrain to Sudan, where there is a high risk that A will be subject to FGM. A's school has informed Suffolk County Council of this risk. The council immediately applied for an order under Schedule 2 of the Female Genital Mutilation Act 2003 preventing anyone from taking A outside the United Kingdom. A family judge issued an order preventing the Home Office from removing her. The issue when the case came before the President of the Family Division was whether the judge had the power to make such an order. Sir Andrew McFarlane concluded that the order was made without jurisdiction and must be set aside. His reasons are based on the long-standing principle that the family courts cannot use their powers to interfere with immigration control because immigration decisions are made under a different statutory regime with different criteria. The overall decision in this case is disappointing, but McFarlane can hardly be blamed for following authority. Instead, the judgment illustrates a gap in the FGM legislation. Parliament should have included a power for the family courts to issue injunctions against the Home Office where necessary to protect girls from FGM.
The Court of Justice has handed down judgment on 19 September 2019 in the case of HMRC v Dakneviciute C-544/18 holding that “a woman who ceases self-employed activity in circumstances where there are physical constraints in the late stages of pregnancy and the aftermath of childbirth retains the status of being self-employed, provided that she returns to the same or another self-employed activity or employment within a reasonable period after the birth of her child”. The UK position has been that women who have even short periods of maternity leave lose their EU law right of residence and therefore lose their right to welfare benefits and stop accruing continuous residence to count towards permanent residence.
After eight years of researching music history at Glasgow University, Elizabeth Ford hoped her request for a visa extension would be swiftly granted. Instead, the Home Office gave the American academic two weeks to leave the country. Ford has held a research fellowship at Edinburgh University and is due to begin a new research fellowship at Oxford University. But this is now unlikely to happen after she received a letter from the Home Office in July, which said that her leave to remain, granted a year before, was erroneous, and that she must leave within two weeks. While the government has announced plans to offer two-year work visas for international students, nothing similar has been offered to researchers from abroad, who say the process is hostile, complicated and expensive. University leaders say the situation could block the talent coming to the UK. Mrs Ford came to Glasgow to do her PhD under a student visa, then obtained a doctoral extension visa for a year. Under the research fellowships she was not entitled to a fixed employment contract, so a charity sponsored her last visa applications. “It is focused on high income and nothing else. But it is unrealistic to expect new PhD students to find a permanent academic job with a high salary.”
The Home Office “rushed to penalise” international students accused of cheating in English language tests without checking the reliability of evidence, parliament’s spending watchdog has concluded. A report from MPs has concluded the Home Office responded with a “flawed reaction”, revoking visas before verifying evidence, which led to “injustice and hardship for many thousands of international students”. About 2,500 students have been forcibly removed from the UK after being accused of cheating in the exam run by third parties on behalf of non-profit organisation the Educational Testing Service (ETS). Another 7,200 left the country after being told they faced detention and removal if they stayed. Many have tried to prove their innocence in court: 12,500 appeals have been heard and at least 3,600 people have won their cases. “It is shameful that the department knows it could have acted against innocent people but has not established a clear mechanism for them to raise concerns,” the report said. The report also criticised the department for having “insufficient recourse to claim compensation”.
The Home Office has announced the two-year post study work visa. This visa was originally introduced in 2004 and banned by Theresa May in 2012. The date of implementation is not entirely clear yet, but the announcement suggests it will be available to students starting in the next academic year, September 2020. It is unknown whether current students already on courses in the UK will also benefit from the rule change. An estimated 14% of all university income is from the substantial fees paid by foreign students.
Administrative review In some circumstances, an applicant may challenge a decision on their application or in respect of their leave by applying for administrative review. This instrument mandates online applications for administrative reviews where the original application was made on line. This is in line with the Government’s wider modernisation programme of ‘digital by default’. Paper applications for administrative review will remain possible for those who made their original valid application on paper. Minor amendments relating to the Start-up and Innovator categories The Start-up and Innovator categories were introduced in March 2019. They are for people seeking to establish an innovative, viable and scalable business in the UK, whose business ideas are supported by an authorised endorsing body. The following changes are being made to these categories: • A change is being made to the Tier 4 (General) rules to allow students who have submitted a Start-up application supported by an endorsing body to commence their business activities whilst their application is being considered; • An exemption from the requirement for ‘start-up’ applicants not to have previously established a UK business is being added for Tier 4 (General) students on the doctorate extension scheme; Minor amendments to the Tier 1 (Investor) category The Tier 1 (Investor) category is for high net worth individuals making an investment of at least £2 million in the UK. The following changes are being made: • The changes made in March 2019 to closing dates are being flexed to allow applicants to make extension or settlement applications after these dates, provided that they move their qualifying investments out of UK Government bonds before either 6 April 2023 in the case of extension applications, or 6 April 2025 in the case of settlement applications. Minor amendment to Tier 1 rules – Exceptional talent criteria The Tier 1 (Exceptional Talent) category is for talented individuals in the fields of science, humanities, engineering, the arts and digital technology to work in the UK without the need to be sponsored for employment in a specific post. Applicants must be endorsed by a Designated Competent Body. At the request of one of the Designated Competent Bodies, Tech Nation, a number of changes have been made: • There must be three, rather than just two, letters of support provided by established organisations in the digital technology sector to permit more in-depth consideration of an individual’s skills and the contribution they would make to the sector; Minor amendment to update the accepted English language test providers and Exemptions to the English language testing requirement. An amendment is being made to Appendix B and Tier 2 (General) requirements to exempt doctors, dentists and nurses and midwives, when making a Tier 2 (General) application, from having to sit an approved English Language Test if they have already passed an English test accepted by the relevant professional regulatory body 5. A corresponding amendment is also being made to provide that Tier 2 doctors, dentists nurses and midwives who have passed such a test are treated as having demonstrated sufficient knowledge of the English language for the purpose of settlement. Amendments are being made so that applicants are no longer required to provide documents showing that they have sat an approved English Language Test but need only to provide the English Language Test unique reference number for checking. Minor amendment to Knowledge of language and Life (KOLL) Amendments are being made to Appendix KOLL so that applicants are no longer required to provide original documents as proof of passing the ‘Life in the UK’ test but need instead only to provide the unique reference number for checking. Tier 4: Switching into Tier 2 Tier 4 students studying at degree level or above are now permitted to apply to switch into the Tier 2 route within 3 months of the expected end date of their course, to facilitate such students taking up skilled work in the UK following the successful completion of their studies. A corresponding change is being made to the Tier 4 conditions of leave to allow such students to commence work with their Tier 2 sponsor if they have applied to switch into the Tier 2 route within 3 months of the expected end date of their course.