News

03.10.2019 - 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.

02.10.2019 - Child is deemed self-sufficient if supported by parent working without work permit

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.

01.10.2019 - Family courts have no power to prevent removal of children at risk of FGM abroad

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) [2019] 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.

24.09.2019 - Court of Justice finds that self-employed women have maternity rights

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.

23.09.2019 - Researcher is asked to leave the UK after being granted a leave to remain

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.”

17.09.2019 - Home Office 'rushed to penalise' students accused of cheating

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”.

10.09.2019 - Return of two-year post study work visa announced

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.

08.09.2019 - Statement of changes into immigration rules presented to Parliament

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.

29.08.2019 - Calls for nationality profiling to stop sham marriages ‘very worrying’

The Home Office defines a sham marriage or sham civil partnership as 'one where the relationship is not genuine but one party hopes to gain an immigration advantage from it. There is no subsisting relationship, dependency, or intent to live as husband and wife or civil partners. Sham marriages are frequently arranged by intermediaries for payment. In 2018, a sham marriage gang was jailed after its members made more than £500,000 by setting up immigrants with European brides so they could stay in the UK. Women from Eastern Europe are known to have been trafficked to the UK and exploited as sham brides for immigration offenders. The Home Office has said it considers sham marriage to be ‘one of the most significant threats to immigration control’. Such marriages can provide UK residence rights to an entire family who would otherwise have no right to be here. There was a fivefold increase in reports of suspected sham marriages by registrars over the past decade and a 50% increase between 2012 and 2018. Previous measures requiring a 'certificate of approval' from the HO for marriages involving non-UK partners were abolished in May 2011 after being struck down by the courts on the grounds that they contravened Article 12 of the European Convention on Human Rights (the right to marry and to found a family). MigrationWatch UK, the organisation, which campaigns for tougher restrictions on immigration, made the suggestion to start profiling by nationality after claiming there had been a rise in reports of sham marriages over four years. Calls for nationality profiling to be carried out in a bid to detect sham marriages have been branded “very worrying” by immigration lawyers. Poppy Firmin, a caseworker in immigration and public law at Duncan Lewis Solicitors, told the PA news agency: “The Home Office are doing a very good job already of interfering and delaying with interviews” and “They are subjecting genuine couples to really degrading questions”. The 2014 Immigration Act included new provisions, which came into force in March 2015. In particular, the gap between notifying intent to marry and the ceremony was extended from 15 to 28 days and could be further extended to 70 days in order to allow the Home Office enough time to investigate the genuineness of the relationship.

22.08.2019 - New Innovator visa attracts just four applicants in first three months

According to Home Office there have been only four applications for the new Innovator visa for foreign entrepreneurs since its introduction in April 2019. Two of those applications have been resolved, of which both were granted. What is interesting is that the visa it replaced on 29 March 2019 — Tier 1 (Entrepreneur) — had 1,900 applications in 2018. These figures will raise questions about the viability of the Innovator route. Aimed at experienced foreign entrepreneurs who have at least £50,000 in capital behind them, it requires applicants to be endorsed by one of a limited number of endorsement bodies. Experts had warned that the design of the Innovator visa scheme is flawed. Issues include the frequent need to participate in a business accelerator programme to secure endorsement; having to give up equity in the start-up; and the “extremely high” bar for getting settlement. The model is perceived as unattractive to the calibre of people who would meet the criteria for an Innovator visa, which include being able to bring their start-up business into international markets. The Home Office said in the past that it expects to grant fewer visas under the new Innovator and Start-up routes than under the schemes they replace, however, it seems unlikely that such an insignificant number of applications would make the cost of designing and administering the route worthwhile. The Start-up visa is off to a slightly better start. It attracted 32 entry clearance applications in its first quarter of operation, of which 25 were decided on and 23 granted. However, these numbers are still very small.