News

28.11.2019 - Invalid applications result in gaps in continuous lawful residence

Mistakes made on application forms, including innocent mistakes may render an application invalid and accordingly result in a gap in an individual’s “continuous lawful residence” in the UK. This is important because in most cases of Indefinite Leave to Remain applications, there is a necessary period of “continuous lawful residence” in the UK as part of the requirements to meet in order to make a successful application. The applicant in Das (paragraph 276B – s3C – application validity) Bangladesh [2019] UKUT 354 (IAC) was unfortunate in this regard. Background facts of the case Mr Das made an application on 11 September 2008 to extend his student visa in the UK. Instead of using the August 2008 version, he mistakenly used to April 2008 version of the application form. When this fact was become known, he submitted his application on the correct form and subsequently was granted his student visa extension. When Mr Das applied for Indefinite Leave to Remain on the basis of 10 years’ continuous lawful residence 10 years, the Home office refused his application because of the wrong form mistake he made in 2008. At that time, he had submitted the new form after the expiry of his visa, which made him an ‘over-stayer’ until his application was granted several months later in March 2009. The Upper Tribunal’s reasoning The court propounded that submitting the wrong form automatically invalidates an application. The situation was deemed to be “materially indistinguishable” from failure to pay the required application fee, which also invalidates an application automatically. Accordingly, there was a gap in Mr Das’ “continuous lawful residence” in the UK and the appeal was dismissed.

28.11.2019 - The Innovator Visa Update

The Innovator visa, launched in March 2019 has attracted a total of 14 applications in its first six months of operation. That compares to 997 applications for its predecessor visa, Tier 1 (Entrepreneur), over the same period last year. Some applications for the now closed Entrepreneur route are still making their way through the system, but hardly any Innovator visas are replacing them. 12 out of those 14 applications have now been approved. The problem is that the visa is extremely unappealing to the type of experienced entrepreneurs it is pitched at.

20.11.2019 - A 54-day Stopover Recognised as “in transit” for Refugee Convention

In Idahosa v R [2019] EWCA Crim 1953, the Court of Appeal has ruled that an asylum seeker who had stopped over in the United Kingdom for 54 days en route to Canada can rely on the exception to false documents offences available to refugees. The court took a purposive and generous approach to interpreting the Refugee Convention to conclude that even a stopover of 54 days met the requirement of remaining “in transit” to another country to claim asylum. What is the ‘false documents offence exception’? The Refugee Convention necessitates that contracting states do not prosecute refugees for immigration offences, which are linked with seeking international protection, including using false documents to enter a country to claim refuge. UK law has accordingly applied the exception to domestic cases, such as in the decision in R (Adimi) v Uxbridge Magistrates Court [1999] EWHC Admin 765 where it was held that the protection awarded by the Refugee Convention must also apply to refugees who are “in transit” from their country of origin to the country in which they intend to claim asylum. Background facts to the case of Idahosa Mr Idahosa entered the UK lawfully from Nigeria and intended to travel onwards to Canada to claim asylum. His stay in the UK was expected to be brief however prolonged when his agent was unable to arrange his travel to Canada. After 54 days, he was arrested at Gatwick Airport attempting to board a flight to Canada using a false British passport, which he was using as it allows visa-free travel to Canada. The false documents offence exception was applied in his case as the court concluded that Mr Idahosa remained intent on leaving the UK for Canada to be reunited with his partner. He was not able to do so merely because he was prosecuted at Gatwick Airport. The Court of Appeal accordingly had quashed his conviction. This judgement demonstrates that the Court of Appeal grapples complicated issue of public international law to obtain a result which does not neglect fundamental rights.

19.11.2019 - The law that precludes a child from obtaining British citizenship from her biological British father in cases where her mother is married to someone else

There now may be a re-evaluation in the law in this area as a result of a government’s decision to drop its appeal against a landmark ruling made in the case of K [2018] EWHC 1834 (Admin). Brief background to the case Born in the UK, K’s biological parents were of British and Pakistan nationalities. She was then issued with a British passport shortly after she was born. However, the Passport Office later found that the child’s mother was still married to a Pakistani citizen and consequently have drawn back the child’s British Passport. In reality, the child’s mother had left her abusive husband several years before the child was born. The law in this area According to Section 50(9A) of the British Nationality Act 1981, a child’s father is defined as the husband of the woman who gives birth to the child at the time of the child’s birth, regardless of any biological relations. However, if the woman is unmarried, the biological father can be recognised as the child’s father for citizenship purposes. These definitions are crucial when it comes to determination of a child’s nationality at birth. According to Section 1(1) of the British Nationality Act 1981, children born in the UK are only British citizens at birth if at time of birth, one of their parents is British or has ‘settled status’ in the UK. Issues in K’s case Due to the facts that K’s mother was still legally married to her Pakistani husband at the time of birth of K and that K’s mother did not yet have settled status in the UK- K was not technically British at birth. Judge’s comments The judge in K considered that the effect of Section 50(9A) of the Act was discriminatory and incompatible with human rights law. Despite this, pursuant to the wording of the Act, the Passport Office’s action had not been unlawful. The judge had then made a “declaration of incompatibility”, which intends to convey a cue to the government to revise the law in this area. Furthermore, the judge thinks that the discretionary route for citizenship application under Section 3(1) of the 1981 Act is problematic for cases like K. Section 3(1) permits the Home Office to register children as British citizens if it “thinks fit” and provided they are of good character. A supplementing guidance states that caseworkers are to register such children “where there is compelling evidence that someone other than the mother’s husband is the child’s natural father”. The judge is of the opinion that this route was an unsatisfactory solution, as the determination upon a grant of citizenship in such circumstances should not be discretionary; it should be a legal right. Regardless of this, the Home Office at first decided to appeal the decision and propounded that to change the Section 50(9A) of the Act would have consequences in other areas such as in surrogacy cases. They were granted permission to appeal but has now withdrawn its appeal. It is unclear what moves the department plan to take next but hopefully this could be sign for change.

14.11.2019 - Home Office’s Shocking Refusal Letters

Some of the refusal letters contain outrageous yet real excuses for declining a visa or asylum claim, to list a few… 1. A woman had made an asylum claim and told the Home Office that she was a victim of domestic violence. The Home Office rejected this claim by stating that ‘’You stated you suffer domestic violence within a year after your marriage, but your husband has funded you visit to the UK and you visited United Arab Emirates and the UK 3 times within 10 years. This is not credible.” The Home Office officer seemed to have decided that a partner who funds his partner’s holidays can not be a violent person. 2. In certain circumstances, UK residents can be deported from the UK due to criminal convictions or that their presence in the UK is otherwise not “conducive to the public good”. In opposing such arguments with regards to one Jamaican national’s case, the Home Office has stated “You spent the first formative years of your life in Jamaica and as such, it is considered that you are familiar with the cultural, social and economic aspects of life in Jamaica” In reality, the relevant Jamaican national had left Jamaica at age three therefore could not have been “familiar with the cultural, social and economic aspects of life in Jamaica’’. 3. The third case is regarding a father of a British child who applied for Leave to Remain in the UK. His 14 year old child wrote a letter pleading with the Home Office not to take her father away but had to face the cold and cruel response from the Home Office stating “… best interest of a child are not to be interpreted as a requirement to bend and sway to the every whim and demand of a child”. This very problematic response contradicts the Home Office’s legal requirement to take into account of the best interests of children when making immigration decisions. In this case, the Home Office interpreted the child’s need as merely a “whim”.

11.11.2019 - Cambridge academic misses out on Indefinite Leave to Remain due to excess absences

A recent post by a young Cambridge academic who was refused indefinite leave to remain after spending a year abroad has triggered a viral reaction on Twitter. Asiya Islam, a sociology PhD student, made her application under the so-called “long residence” rule. In accordance with this rule, people who have lived lawfully in the UK for a “continuous period” of ten years can apply for indefinite leave to remain.  However, continues residence can be “broken” if too much time is spent outside the UK within this ten year period as was the case with Ms Islam who spent twelve months in India conducting research for her Cambridge PhD. Ms Islam relied on the Immigration Rules which were changed on 1 October 2019 to expressly state that overseas research absences will be disregarded for applicants in PhD-level occupations.  The problem for Ms Islam is that this exemption only applies to people who are applying for settlement after five years in the UK holding a Tier 2 work visa sponsored by an employer which is an entirely different immigration category.  The wording of the guidance implies that the absences must arise out of “compelling or compassionate circumstances”. Compassionate circumstances might be for example frequent trips outside the UK to care for a terminally ill parent. A compelling event could be if the applicant is physically prevented from returning to the UK, for example, because of an air-traffic control strike or unexpected hospitalisation abroad.  What next for Asiya Islam? If Ms Islam’s previous visa has not yet expired then this refusal should not effect her status. She will be allowed to remain on the terms of her previous visa until that visa expires.   However, if her last visa expired while the indefinite leave application was under consideration, she will be given a right of appeal in accordance with the Convention on human rights. Alternatively, she may be able to renew her previous visa for the time being or apply for an alternative visa.

08.11.2019 - New NHS Visa Announced

The Conservative Party plans to introduce the so-called NHS Visa as part of its proposals to create an Australian-style immigration system if they win the general parliamentary election. The goal is to ensure that the National Health Service (NHS) attracts foreign doctors and nurses to the country after free movement has ceased to exist after Brexit. From today's media reports we know that such a visa will cost 464 pounds, which will be half the cost of the usual fee. The visa process will be accelerated — decisions will be made within two weeks — and NHS workers applying for this route will have access to some form of payment system to pay the immigration health surcharge by way of instalments from their salary as soon as they arrive into the UK.

05.11.2019 - Recent changes and the effects on £1m investors

Back in November 2014, the government has implemented a change in the Tier 1 (Investor) Route in which the minimum investment threshold has been raised from £1m to £2m. This means that qualifying investments worth £1m is no longer enough to apply for an investor visa in the UK- they will now be required to invest at least £2m in qualifying investments. The route has undergone further changes in October 2019 when the Home Office imposed a ‘deadline’ for investors who entered route before 29 March 2019 in regards to their applications for Further Leave to Remain and Indefinite Leave to Remain. Changes made to the Tier 1 (Investor) Route are as below: An investor who entered the route relying on £1m investment and wishes to continue living in the UK will need to submit their application for Further Leave to Remain before 6th April 2020 If they have missed submitting their Further Leave to Remain application before 6th April 2020, they would have to increase their investments from £1m to at least £2m An investor who intends to apply for Indefinite Leave to Remain relying on £1m investment will need to submit their application for Indefinite Leave to Remain before 6th April 2022 If they have missed submitting their Indefinitely Leave to Remain application before 6th April 2022, they would have to increase their investment for £1m to at least £2m Important point to note is that part of the eligibility requirements is that they have reached the relevant qualifying period during which they have made and met the minimum investment threshold. If they had missed the deadline, the relevant period would begin from the date they increase their investments from £1m to £2m. From March 2019, governments bonds are no longer one of the qualifying investments for the Tier 1 (Investor) applications. Present investors who rely on investments in government bonds must apply for Further Leave to Remain before 6th April 2023. Present investors who rely on investments in government bonds must apply for Indefinite Further Leave to Remain before 6th April 2025.

31.10.2019 - The New Graduate Immigration Route

Will the new Graduate Immigration Route actually work? The new Graduate Immigration Route will be eligible to Tier 4 student visa graduates who have finished their degree at undergraduate level or above at a UK higher education provider which holds a “track record of compliance”. In order to secure the ‘Higher Education Provider’ status, the Tier 4 sponsor (i.e. the educational institution) must progress through a 4-year period of assessments regarding compliance. Furthermore, the term ‘track record of compliance’ is defined in the Home Office Guidance as demonstrating a history of “immigration compliance” and “educational oversight”. In other words, a graduate’s ability to apply for a work visa under the new Graduate Immigration Route is indirectly interweaved with whether their educational institutions are administered to standard. Students will therefore find themselves in a difficult place, as they would not be involved in university administrative system. Therefore, meeting the proposed new Graduate Immigration Route requirements are not completely in their control and consequently there will be chances that their applications be rejected for reasons that are beyond their control. Types of Employment The new Graduate Immigration Route will last for two years and successful applicants will be able to take on employment of any type at any skill level. However, at the end of the two-year period there will not be any extension applications available. Those who desire to continue working in the UK will then have to switch into Tier 2 (General) work visa by meeting its skills and salary thresholds. When will this route be available? This route will be open for applications in the summer of 2021. The Home Office released that “it takes time to develop a new immigration route and ensure the framework is in place for it to successfully operate”.

31.10.2019 - How overstaying on your visa can cause serious problems

The worst aspect of the current immigration rules on overstaying is that it becomes a serious legal problem after just 14 days. There is nothing you can do to rectify the situation by belatedly applying to renew it. You have to leave the country immediately, with all the incurred trauma and expense and without any guarantee that you will ever be able to return. In accordance with paragraph 39E into Part 1 of the Immigration Rules the Home Office will disregard a period of overstaying provided that: the application was made within 14 days of the applicant’s leave expiring and the Secretary of State considers that there was a good reason beyond the control of the applicant or their representative, provided in or with the application, why the application could not be made in-time. Guidance issued by the Home Office offers some examples of a “good reason”: the applicant was admitted to hospital for emergency treatment (evidenced by an official letter verifying the dates of admission and discharge and the nature of the treatment) A close family bereavement An educational institution was not sufficiently prompt in issuing a Confirmation of Acceptance for Studies Imagine you are a successful business man. You have arrived into the UK as a sponsored employee on a Tier 2 work visa and had lived in the UK continuously for five years, making you eligible for indefinite leave to remain (ILR). You just passed the Life in the UK test and ready to apply for indefinite leave to remain. As you are completing the form and inputting your biometric card details, you notice that your visa had actually expired over 30 days ago. It was an easy mistake to make, you are a very busy man and you just got the month wrong. Perhaps you were hoping that your employer or the Home Office would have reminded you that it was expiring. However, your employer is not obliged to keep track of your visa situation and the Home Office does not issue reminders. After you discovered your mistake, you had been a knowing overstayer for over a month which meant that you were committing an ongoing criminal offence. You had to urgently pack your bags and leave the country and are unable to apply for most types of entry clearance because of having overstayed by more than 30 days. Even if this re-entry ban hadn’t applied, you could not just apply for a fresh Tier 2 visa from abroad, as that requires a mandatory twelve month “cooling off period”. Luckily for you, you have been in a relationship with a British citizen for over two years. You were able to return to your home country, work remotely during this time, and apply for a priority partner visa. You can return to the UK with a partner visa but your clock for ILR has reset to zero and so you will not be eligible for ILR for another five years, and citizenship one year after that.  Your error cost you, at minimum, about £7,150 in additional visa application fees. This does not take into account priority processing charges, legal fees, urgent flights, and accommodation costs while waiting abroad for a visa.