Areas of Expertise

Asylum Law

The United Kingdom has ratified the 1951 Geneva Convention Relating to the Status of Refugees and its 1967 Protocol and has transformed its provisions into domestic law. The true international meaning of the provisions have been interpreted by the senior courts in the United Kingdom on several occasions. 

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Family Reunion

Family Unity is not an obligation under the Refugee Convention but the Final Act of the United Nations Conference on the Status of Refugees and Stateless Persons did recommend governments to take necessary measures to protect a refugee’s family. Since October 2000 the immigration rules have made provision for the admission of pre-existing spouses and minor children (not de facto adopted children), which has been subsequently extended to cover partners in a relationship akin to marriage subsisting for two years.

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Judicial Review

Judicial review is a mechanism by which the High Court ensures that certain bodies act within the law. The court is not concerned with the merits of the decision sought to be challenged. Limitations of judicial review include being a discretionary remedy of last resort and will not often be a direct route to achieving a specific desired outcome. Where a statutory right of appeal exists an application for judicial review is unlikely to be entertained, even if it needs to be exercised out of country.

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Human Rights

The European Convention on Human Rights and Fundamental Freedoms 1950 has been incorporated into UK law through the Human Rights Act 1998 which came into force on 2 October 2000.  Conceptually a human rights challenge to a decision of a public body is distinct from a judicial review public law challenge although the appropriate procedure to seek a remedy against the public body may well be through an application for judicial review.

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Children

The withdrawal in 2008 of the UK’s immigration and nationality reservation from the UN Convention on the Rights of the Child 2003 and the coming into force of section 55 of the Borders, Citizenship and Immigration Act 2009 have brought new impetus to securing that the best interests of children are given due weight in decisions taken that affect them. Recent Senior Court judgments have reiterated the importance of giving voice in so far as possible to the views of the child and making decisions that give prominence to their well-being.

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Applying For Documentation

If you are an EEA or Swiss national, you can apply for a registration certificate, which is a document confirming your right of residence in the UK under European law.
When you have lived in the UK for a continuous period of 5 years under European regulations, you can apply for a document certifying permanent residence.

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British Citizenship

Since 1983, children born in the UK will only become British citizens if one of their parents is either a British citizen, settled in the UK or a member of the armed forces. In addition, children born in an overseas territory will also acquire citizenship if one of their parents is a citizen or settled in the UK or that territory at the time of their birth. A person will be ‘settled’ if ordinarily resident without being subject to any restriction on the period for which he may remain under immigration laws.

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Immigration Appeals

A right of appeal to the First-tier Tribunal (Immigration and Asylum Chamber) will exist against an ‘immigration’ or ‘EEA’ decision as defined in statute and regulations. Notice of whether and how to appeal will be included in the decision. Where there is no right of appeal, for example, against a refusal to register or naturalise a person as a British citizen, the only remedy is by way of judicial review.

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Deportation

Deportation is the compulsory removal of a non-British citizen from the UK and, as distinct from other forms of compulsory removal, a prohibition on return until the deportation order is revoked. Where there has been no removal and therefore no enforcement of a deportation order, an application may also be made to revoke the order while remaining in the UK.

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Detention and Bail

The use of the power to detain those liable to deportation or removal has risen sharply since the 1970s but remains constrained by public law principles most notably set out in the case of Hardial Singh and most recently refined by the Supreme Court in Lumba (Congo) and Mighty (Jamaica) v SSHD [2011] UKSC 12. These principles have been classified into 4 categories:

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Visitors (General)

There are a number of categories of visitors reflecting the variety of reasons people may visit the UK. Non-visa nationals coming for less than 6 months do not need prior entry clearance. Refusal of entry clearance for visa nationals attracts no right of appeal in the case of short-term and prospective students and non-family visitors.

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EC Residence Cards

Under European law, there is no legal requirement to for you to obtain documentation confirming your right of residence in the UK if you are a national of a country in the EEA.

Nevertheless, there are certain circumstances when a national of the European Economic Area (EEA) or Switzerland may want to apply for confirmation that they have the right to live in the UK.

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Points Based System

This five-tier system replaces many previous categories for immigration into the UK. Tiers 1, 2 and 5 entered into force in November 2008, Tier 4 entered into force on 31 March 2009 and Tier 3 is on indefinite hold as UKBA expects that all likely vacancies under this tier can be met by workers from the EU. The tiers are divided as follows:

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EEA Family Permits

An EEA family permit is issued under reg. 12 of the Immigration (EEA) Regulations 2006. The regulation provides:

‘Family member’ and ‘extended family member’ are defined in regulations 7 and 8 respectively.

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Marriage and Partnerships

An applicant seeking to obtain admission to the UK as a spouse must satisfy the entry clearance officer that the marriage is lawful and complies with the requirements of the Immigration Rules. A valid marriage requires that both parties had the necessary capacity to marry and that the celebration was in a valid form. A valid civil partnership requires the partners to be of the same sex, neither be lawfully married or already a civil partner, both over 16 years of age (with parental consent if one is under 18) and neither within prohibited degrees of relationship.

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Dependent Relatives

While international human rights legislation restricts the government’s ability to prevent family unification, it has been a target for successive governments to the extent that it is now largely limited to the nuclear family. And government efforts to reduce net migration are further set to target the family migration route just as it has with migration in-flow routes of work and study.

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Long Residence

The ‘long residence’ immigration rule distinguishes between lawful continuous residence which confers eligibility for settlement after 10 years and continuous residence partly or wholly unlawful, conferring eligibility only after 14 years. Continuity of lawful residence may be broken by late applications of leave extensions.

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Illegal Working

A condition attached to limited leave may include a restriction on employment or occupation. An automatic extension of leave extends the condition and a person can only be guilty of the offence of breaching the condition during a period in which they apply. A person who takes employment after the expiry of leave is not committing an additional offence to that of overstaying leave even though his employer is.

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EEA Regulations Amended

  1. A.The Immigration (European Economic Area) Regulations 2006 (SI 2006/1003)

 

These Regulations transpose Directive 2004/38/EC (‘the Citizens Directive’) into UK law and thereby:

  1. 1.Sets out the rights of EEA nationals and their family members to be admitted to and reside in the UK in certain capacities, including the criteria for acquiring rights of permanent reside.
  2. 2.Enables documentation to be secured by those exercising free movement rights in a relevant capacity (or their family members); and
  3. 3.Defines the powers to deny or revoke documentation on grounds of public policy, public health or public security.

 

  1. B.The Immigration (European Economic Area) (Amendment) Regulations 2012, (SI 2012/1547), into force 16 July 2012

 

These Regulations make amendments to SI 2006/1003 in order to:

  1. 1.Give effect to the judgments of the ECJ in cases of: Chen (C-200/02), Ibrahim (C-310/08) and Teixeira (C-480/08) which establish new rights to enter and reside in the UK. The UKBA calls these ‘derivative’ rights but it is more accurate to refer to them as ‘derived’ rights. They are ‘derived’ because they do not stem directly from the Directive.

 

 

  • Reg 15(1A) exclude time spent in the UK pursuant to a derived right from contributing to the time necessary to acquire a permanent right of residence. This is arguably inconsistent with a broad interpretation of Art 16 of the Directive and Alarape [2011] UKUT 413 (IAC).

 

  • New Regulation 15A sets out the conditions which a person must satisfy to qualify for a derived right of residence.

 

  • Those who satisfy the conditions may:

-qualify for an EEA family permit if overseas under amended reg. 12;

-may assert a right to enter at the UK border under amended re. 11 (4); or

-qualify for a ‘derivative’ residence card if applying in the UK under new reg 18A.

 

  • The following categories of people are provided for:

-primary carers of self-sufficient EEA national children (but note r. 257C of HC 395 (as amended) which sets out requirements for LTE/R as the primary carer or relative of an EEA national self-sufficient child);

-children of EEA national workers or former workers where the child is in education in the UK (no provision for children of self-employed but pending ref in C-147/11: Czop);

-primary carers of children of EEA national workers or former workers where that child is in education in the UK; and

-dependent children under the age of 18 of the primary carers in each of the above categories.

  • A person relying on reg 15A(2) (a Chen right) must be accompanying or joining a child for whom they are the primary carer in the UK. A problem may arise when the child is temporarily outside the UK (eg, for a holiday).
  • A person relying on reg 15A(3) (an Ibrahim/Texeira/art 10 reg 492/11 right) must have previously resided in the UK. This reflects the fact that it requires the child of a former worker to have been in the UK for the right to accrue.
  • A person relying on reg 15A(4) (an Ibrahim/Texeira right) must be accompanying or joining a relevant person who is or has resided in the UK as the child of a former worker. Again, problems may arise where the child of a former worker is temporarily outside the UK.
  • A person relying on reg 15A(5) (Chen and Ibrahim/Texeira/art 10 192/11 + [for minors whose 1ry carer has derived right under 15A(2) or (4) and requiring minor to leave would prevent 1ry carer residing in UK]) must be accompanying a person who meets the criteria for reg 15A(2) or reg 15A(4) where they are accompanying a relevant person and both seek admission for the first time. It appears to make no provision for joining a relevant person in the UK.

 

  • A new and specific application form is expected to be published on the UKBA website for such persons. Until that form is published, persons can apply using EEA2 form with a cover letter explaining the reason for the application to:

UKBA, European Applications, PO Box 306, Dept 110, L2 0QN.

 

  1. 2.Give effect to the judgments of the ECJ in the cases of Lassal (C-162/09), Dias (C-325/09), McCarthy (C-434/09) and Ziolkowski and others (C-424/10 and 425/10) which restrict the terms on which free movement rights can be exercised.
  • The definition of “EEA national” has been amended following the ECJ’s decision in McCarthy which held that the Directive does not cover dual nationals who have not exercised free movement. Reg 2(1) now defines EEA national as “a national of an EEA State who is not also a British citizen”- as also amended by para. 7 of Sch 1 to SI 2012/2560 . Dual nationals will be able to take into account their British citizenship only and will not be able to benefit from their other EEA nationality for free movement purposes. The only route under the Regs for UK nationals’ family members now open is reg 9 (Surinder Singh cases). This is subject to transitional provisions which safeguard the rights of those who: have already been able to benefit from their second nationality or have pending applications or appeals at 16/7/12. The main category who it will affect is those who naturalized in the UK after having exercised Treaty rights who will no longer be able to rely on the Regs with respect to their family members.

 

  • Amendments have also been made to allow EEA nationals to rely upon continuous periods of residence of 5 years spent in accordance with earlier instruments of EU law (eg. the 2000 Regulations which were the predecessor to the 2006 Regs) but only where the conditions governing the right to residence was satisfied throughout the relevant period (subject to certain provisos relating to absences leading to a loss of right of residence). This appears to reflect ECJ cases of Lassal and Dias.

 

  1. 3.Make amendments to better reflect operational practice and/or to implement agreements reached in relation to UK’s implementation of the Directive.
  • Reg 2 has been amended to make it clear that a person will not, under the regulations, be regarded as a family member (spouse, civil partner or durable partner) of another person where they already have another (spouse, civil partner or durable partner) in the UK. This is in line with domestic and EHCR law which aim to protect against polygamy,
  • Reg 4 amends the definition of student to include those studying at bodies recognized for the purpose of study, to bring it into line with the current accreditation system. It covers persons studying at a publicly funded establishment or an establishment otherwise approved by the SSHD.
  • Reg 10 is amended to clarify that a person with a permanent right of residence can also be a person in relation to whom a family member can assert a retained right of residence. This is an improvement.
  • Reg 12 is amended to enable a person with a retained right of residence to be able to obtain an EEA family permit. Both reg 12(5) and (6) take priority despite the omission of the word ‘But’ from the beginning of the latter. It may result in a situation where only after a document for the previous partner is revoked will a family permit be issued with consequential difficulties for the existing partner.

 

  1. 4.Extend the public policy, public health and public security powers to enable wider refusal of documentation and denial of residence rights.
  • New reg 20A reflects the power in the Directive to cancel a right to reside on public health/policy/security grounds where that individual has not applied for documentation and it is not possible to remove that person from the UK.
  • Reg 21A introduces a new, lower standard for expulsion of those with derived rights on the standard of “conducive to the public good”.
  • Reg 24 is amended to make clear that a person and their members will not be detained unless for reasons of public policy/health/security. However, those with derived rights do not get one month to leave when a reg 19(3) removal decision is made unlike other EEA migrants by virtue of reg 24(7). It is not clear that they should be treated differently where the rights derive from the rights of children.
  • Reg 13, 14 and 15 reflect the power in the Directive to deny an actual right of residence where documentation has been taken away on grounds of public policy/health/security.

 

  1. 5.Amend the rights of appeal and evidence required when asserting a right of appeal.
  • New Reg 15B provides for a right of residence to continue while an appeal against certain decisions under the Regulations could be brought or are pending. Similar to s. 3C and s3D of IA 1971.
  • Reg 26 is amended to require a family member (‘direct’ in reg7 or other (OFM) in reg 8) of an EEA national to produce evidence of identity and nationality when asserting a right of appeal. Reg 26 is also amended to confirm the ROA for family members with a retained right of residence.
  • Reg 27 is amended to prevent persons outside the UK from being able to enter the UK soley to bring an appeal against a documentation decision.
  • Regs 25 and 27 are also amended to reflect the approach and wording of the Nationality, Immigration and Asylum Act 2002 concerning certification of asylum and human rights claims.

 

  1. C.The Immigration (European Economic Area) (Amendment) (No. 2) Regulations 2012, (SI 2012/2560), into force 8 November 2012

These Regulations make amendments to SI 2006/1003 in order to:

1.         Give effect to the judgments of the CJEU in the cases of C-83/11 Secretary of State for the Home Department v Muhammad Sazzadur Rahman and Others (‘Rahman’) and C-34/09 Gerardo Ruiz Zambrano v Office national de l’emploi (ONEm) (‘Zambrano’) and to address a number of issues concerning the transposition of Directive 2004/38/EC and the practical application of the 2006 Regulations. The amendments/ changes are as follows:

 

1.1  Paragraph 1 of the Schedule to these Regulations gives effect to the ECJ’s decision in Rahman by amending regulation 8(2)(a) so as to remove the stipulation that a person must have resided in a country other than the UK with the EEA national of whom they claim to be an extended family member.

  • Rahman had been referred to the ECJ by the Upper Tribunal in MR and ors (EEA extended family members) Bangladesh [2010] UKUT 449 (IAC)- promulgated 24/2/11.
  • The Grand Chamber, in a judgment delivered 5/9/12, noted the distinction drawn in the Directive between direct family members (art 2(2)) who enjoy a right of entry and residence and OFMs (art 3(2)) whose entry and residence only has to be facilitated (albeit that those with a relationship of particular dependence with a Union citizen are to be conferred a certain advantage over other TCNs).
  • Facilitation required extensive examination of personal circumstances and, in the event of refusal, reasons. Member states have a wide discretion as regards the selection of factors to be taken into account when conducting such an examination, as long as the criteria are consistent with the normal meaning of the term ‘facilitate’ and do not deprive that provision of its effectiveness (§19).
  • The CJEU held that the wording of the Directive did not support the conclusion that family members of a Union citizen who do not fall under the definition in Art 2 (2) and who have duly demonstrated their dependence on that citizen can be excluded from scope of Art 3 (2) soley because they have not resided in the same State as that citizen (§28). The CJEU held that it was clear that the situation of dependence (eg, economic, membership of household or health grounds) can exist without the OFM having resided in the same State or having been a dependent shortly before or at the time the Union citizen settled in the host State (§33).
  • On the other hand, the situation of dependence must exist, in the country from which the family member comes, at the time when he applies to join the Union citizen (§33).

 

1.2  Paragraphs 2 and 3 of the Schedule to these Regulations give effect to the ECJ’s decision in Zambrano by amending regulations 11 and 15A of the 2006 Regulations in order to confer rights of entry and residence on the primary carer of a British citizen who is residing in the United Kingdom where the denial of such a right of residence would prevent the British citizen from being able to reside in the United Kingdom or in an EEA State (reg. 2(1) of the 2006 Regs now defines an EEA State as a member State of the European Union (other than the United Kingdom), Norway, Iceland, Liechtenstein or Switzerland.

 

1.3  Paragraph 4 of the Schedule to these Regulations amends regulation 21A of the 2006 Regulations in order to ensure that the provisions of Part 4 of the 2006 Regulations (refusal of admission and exclusion etc) apply to the restriction of the rights of entry and residence flowing from regulation 15A(4A) in a modified form.

 

1.4  Paragraph 5 of the Schedule to these Regulations makes a number of changes to regulation 26 of the EEA Regulations, which specifies when a person may appeal under the EEA Regulations. A new paragraph (2A) is inserted into re. 26 so as to ensure that someone who claims to be the durable partner of an EEA national may only appeal under the Regulations where he or she can provide evidence which is sufficient to satisfy the Secretary of State as to the existence of the relationship in question. Reg 26(3) of the 2006 Regulations is amended in order to make it clear that this provision does not apply to EEA nationals. Reg 26(3A) of the 2006 Regulations is amended in order to clarify that the stipulations which it contains concerning the exercise of appeal rights apply in relation to both persons claiming a derived right to reside and persons claiming a derived right to enter the United Kingdom. It is also amended so as to stipulate the proof which someone claiming a right to enter or reside pursuant to regulation 15A(4A) must produce in order to be entitled to appeal against an EEA decision.

 

1.5  Paragraph 6 of the Schedule to these Regulations inserts a new regulation 29A into the 2006 Regulations which will make it clear that the Secretary of State may accept alternative evidence of identity and nationality where a person is unable to comply with a requirement of the 2006 Regulations concerning the holding or production of a valid national ID card or passport due to circumstances beyond his or her control.

 

  1. 2.Various amendments to social security benefits regulations, with effect from 8/11/12, aim to prevent those relying upon Art 20 TFEU following Ruiz Zambrano, from getting benefits, by preventing those with that right to reside from acquiring the habitual residence necessary to prevent them being persons from abroad and ineligible for benefits.

Changes to Part 8 and 13 of the immigration rules

  1. A.What are they?
  2. 1.During 2011 the Government consulted on proposed reforms to family migration and on how the qualified nature of Article 8 ECHR (the right to respect for private and family life) should operate in immigration cases. The independent Migration Advisory Committee also consulted on the level at which the proposed minimum income threshold for sponsoring family migrants should be set. The Government then decided on the changes it would make and set them out in a ‘Statement of Intent: Family Migration’ (June 2012).
  3. 2.On 13 June 2012 the Government laid before Parliament a Statement of Changes to the Immigration Rules (HC 194) to come into force on 9 July 2012. Among their stated purpose was:
  • To make changes to the routes for those primarily of non-EEA nationality applying for leave to enter/remain on the basis of their family relationship with a British citizen or a person settled in the UK.
  • To provide a clear basis for considering immigration family and private life cases in compliance with Art 8 ECHR, to reflect the qualified nature of Art 8, setting requirements which ‘correctly’ balance the individual right to respect for private or family life with the public interest in safeguarding the economic well-being of the UK by controlling immigration and in protecting the public from foreign criminals.
  • To introduce a route for migrants to qualify for leave to remain on the basis of their private life in the UK and at the same time abolishing the 14-year long residence route to settlement for those in the UK unlawfully.
  • To introduce a consistent approach to dealing with applications for LTR from migrants whose previous leave has expired, by enabling them to qualify for LTR where the application is made within 28-days of the expiry of their previous leave.

  • 3.HC194, para. 115, inserted a new Appendix into the Immigration Rules (HC 395) called Appendix FM, which largely replaces Part 8 of the Immigration Rules, and now governs decisions [D] made in relation to applications from third country nationals (TCNs) seeking entry clearance [EC], leave to enter [LTE] (see GEN 2.1 of Appx FM), leave to remain [LTR] (as including applications for variation of leave) or indefinite leave to remain (ILTR) in the categories set out below.
    1. a.A partner [P] (spouse, civil partner, fiancé or proposed civil partner, or person who has been living in a relationship akin to marriage or civil partnership for at least 2 years prior to date of application: GEN 1.2 of Appx FM);
    2. b.Bereaved Partner [BP];
    3. c.Victim of Domestic Violence [DV];
    4. d.Child of a parent with limited leave as parent or partner [C];
    5. e.Parent [PT];
    6. f.Adult Dependent relatives [DR].

 

  1. 4.Issues may arise in relation to decisions made between 9/7/12 and 20/7/12 when Cm 8423 came into force. Cm 8423 was laid on 19/7/12 following the Supreme Court case of R (Alvi) v SSHD [2012] UKSC 33, which was handed down on 18/7/12. It held (at §§57, 97, 109, 122 and 128) that any requirement which if not satisfied would lead to an application being refused, is a “rule” within the meaning of s. 3(2) of the Immigration Act 1971. As Appendix FM GEN 1.4 originally allowed requirements to be included in “related guidance” (the IDIs), for example in specifying types of evidence that were required to be produced, such requirements are likely to be construed as “rules” within the meaning of s. 3(2) IA 1971 and as they were not subject of Parliamentary scrutiny, are likely to be considered to be unlawful.

 

  1. 5.Cm 8423 at para. 235, inserted a new Appendix into the Immigration Rules, Appendix FM-SE, which now sets out the specified evidence, in the Immigration Rules (rather than policy guidance), that applicants need to provide to meet the requirements of the rules in Appendix FM.

 

  1. B.Do they apply?
  2. 1.As a result of transitional arrangements, those who have made an application under the immigration rules which has been submitted or granted before 9/7/12 in the following categories, will remain subject to the immigration rules in force on 8/7/12 until settlement, subject only to meeting the criminality threshold (and from Oct 2013, the knowledge of life in the UK and language requirements if applicable).

 

  • person exercising rights of access to a child resident in the UK (see Part 7 of the Immigration Rules);
  • fiancé(e);
  • proposed civil partner;
  • spouse;
  • civil partner;
  • same sex partner;
  • unmarried partner;
  • child;
  • partner of a Points Based System migrant;
  • adult dependent relative;
  • post-flight family member of a person granted refugee leave or humanitarian protection in the UK;
  • 14 year long residence rule.

 

It was confirmed that the effect of A280 (c) (ii) of the immigration rules (as inserted by §91 of HC 194), is that applicants who have been granted entry clearance or limited leave to enter or remain before 9/7/12 in one the above-mentioned specified categories will remain subject to the rules in force on 8/7/12 (without any of the new additional requirements applying) if and when they make a subsequent application even if (a) it is not based upon a relationship with the same person as the previous grant of leave, and (b) regardless of how long ago the leave had been granted (ie, even if it had expired).

 

  1. 2.The new rules will also not apply to someone who has been granted Discretionary Leave outside the immigration rules before 9/7/12. They will continue to be dealt with under the DL policy through to settlement, subject again, to the individual also meeting the new criminality threshold in the suitability sections of Appendix FM.

 

  1. C.How Do They Work?

 

  1. 1.Over-stayers and Re-entry Bans

1.1      A new definition of “overstayed” or “overstaying” is inserted into the definition section of the Immigration Rules to mean the applicant has stayed in the UK beyond the latest of:

 

(i)              the time limit attached to the last period of leave granted, or

(ii)             beyond the period that his leave was extended under sections 3C or 3D of the Immigration Act 1971, or

(iii)            the date that an applicant receives the notice of invalidity declaring that an application for leave to remain is not a valid application, provided the application was submitted before the time limit attached to the last period of leave expired.”

 

1.2      Applications from family members who have overstayed by more than 28 days are likely to be refused on this basis alone (save for those seeking LTR as a victim of domestic violence or as a bereaved partner). It is an eligibility (immigration status) requirement for partners (E-LTRP.2.2) and parents (E-LTRPT.3.2)- that they have not overstayed for a period of more than 28 days- but this does not exist where the exception (EX.1) applies (see below).

 

1.3      With effect from 1/10/12, other immigration rules, including for those persons studying and working in the UK), have likewise been amended to only allow any period of overstaying for a period of 28 days or less to be disregarded.

 

1.4    Caseworkers continue to have a discretion to consider whether there are exceptional circumstances which prevented the applicant from submitting the application in-time.

 

1.5            In order to incentivize voluntary departure and save significant public expense incurred through enforced removal, para. 320(7B)(d)(i) of the Immigration Rules was changes by HC194 to apply a re-entry ban only in those cases where the migrant overstays by more than 90 days (a change from 28 days). Rule 320(7C) is deleted. Rule A320 is now inserted in Part 9 of the Immigration Rules to state that paras 320 (save for (3), (10) and (11)) and 322 do not apply to applications for EC, LTR or ILR under Appendix FM.

 

1.6           Rule 320(7B) now provides:

‘(7B) where the applicant has previously breached the UK's immigration laws (and was over 18 at the time of his most recent breach)by:

(a) Overstaying;

(b) breaching a condition attached to his leave;

(c) being an Illegal Entrant;

(d) using Deception in an application for entry clearance, leave to enter or remain (whether successful or not);

unless the applicant:

(i) Overstayed for 90 days or less and left the UK voluntarily, not at the expense (directly or indirectly) of the Secretary of State;

(ii) used Deception in an application for entry clearance more than 10 years ago;

(iii) left the UK voluntarily, not at the expense (directly or indirectly) of the Secretary of State, more than 12 months ago;

(iv) left the UK voluntarily, at the expense (directly or indirectly) of the Secretary of State, more than 2 years ago; and the date the person left the UK was no more than 6 months after the date on which the person was given notice of the removal decision, or no more than 6 months after the date on which the person no longer had a pending appeal; whichever is the later;

(v) left the UK voluntarily, at the expense (directly or indirectly) of the Secretary of State, more than 5 years ago; or

(vi) was removed or deported from the UK more than 10 years ago.

Where more than one breach of the UK's immigration laws has occurred, only the breach which leads to the longest period of absence from the UK will be relevant under this paragraph.’

 

  1. 2.Overview of Appendix FM

For each class of applicant in Appendix FM [P, BP, DV, C, PT, DR], a valid application will need to be made and they will need to be either outside the UK (if EC) or in the UK. In addition, save for LTR applications by partners (LTRP) and parents (LTRPT), all applicants will need to meet all the applicable suitability (either S-EC or S-LTR) and eligibility requirements (relationship, immigration status, financial, language) for the particular type of application. In relation to LTRP or LTRPT applications, the applicant does not need to meet all the eligibility requirements where the ‘Exception (EX.1)’ applies.

 

  1. 3.The Exception (EX)

3.1            This potentially applies to applicants who either:

 

(a) have a child who is British or lived in the UK for 7 years prior to application and it would be unreasonable to expect the child to leave the UK; or

(b) are in a relationship with a partner (who is British, settled or with refugee/humanitarian protection leave) and there are insurmountable obstacles with that partner continuing outside the UK.

 

3.2            Where EX.1 applies, the application cannot be refused on the grounds of overstaying (E-LTRP.2.2 and E-LTRPT.3.2).

 

3.3            Where EX.1 does not apply and the eligibility and or suitability requirements of the rules (as set out in Appendix FM) are not met, UKBA caseworkers still have a discretion to consider whether there are exceptional factors which make refusal unreasonable. For example, where there are issues over a child’s welfare that need to be addressed before return.

 

3.4            In relation to EX.1 (a), if the applicant has parental responsibility for a child, there is no criminality involved, and their removal would force the British citizen child to leave the European Union, not only will it be unreasonable to expect the child to leave but the applicant is likely to be given documentation attesting to their derived right to reside under reg 15A(4) of SI 2006/1003 (as amended) following Zambrano. It is only if they are not considered to have such a derived right that consideration will be given as to whether they fall within scope of EX1.

 

  1. 4.The Suitability Requirement

4.1            The suitability requirements are S-EC and S-LTR. They both contain mandatory (“will be refused.. if any paragraphs 1.2 to 1.7 apply”) and discretionary requirements (“will normally be refused… if any of paragraphs 2.2 to 2.4 apply”).

 

4.2            The mandatory suitability requirements are slightly different in both S-EC and S-LTR. They include, in addition to criminality thresholds: (1) if considered ‘undesirable’ to grant them entry or leave to remain because of their conduct, character, associations or other reasons, and (2) failure, without reasonable excuse to: (a) attend interview when required, (b) provide specified information when required, (c) undergo a medical or provide a medical report when required.

4.3            The discretionary requirements are: (1) submission of false info, reps or docs (whether or not to applicant’s knowledge) or failure to disclose material facts; (2) failure to pay NHS charges of at least £1000; (3) Not providing a maintenance or accommodation undertaking when requested or required.

 

 

  1. 5.The Financial Requirement

5.1            This is part of the eligibility requirements that family members must meet if EX.1 does not apply.

 

5.2            It does not apply to those migrants working or studying under the Points Based System (PBS) who are able and wish to bring dependants to the UK under the PBS rules, it does (potentially) affect those applying as partners [P] or children of those with limited leave to enter or remain as a partner or parent, both when applying for entry clearance and further leave to remain.

 

5.3            Following analysis by the Migration Advisory Committee in November 2011, the government have introduced a new minimum gross income requirement of £18,600 (the level at which in most cases a couple receive no income-related benefits) for those wishing to sponsor a non-EU partner to enter and settle in the UK. The income requirement is higher for those applying to bring a child under the age of 18 with the partner, rising to £22,400 for one child (additional gross annual income of £3,800) “to reflect the educational and other costs arising in such cases”, and an additional £2,400 for each further child.

 

5.4            The couple will need to meet the minimum income threshold at three stages of application – when the partner applies to come to the UK (EC), when they apply for further leave to remain after 2.5 years in the UK (LTR), and when they apply for indefinite leave to remain after five years here (ILR).

 

5.5            The income threshold will be particularly difficult for people to meet when making an initial application to bring a partner into the UK from overseas, because the partner’s overseas earnings will not be taken into account (it is only if the partner is already working legally in the UK that their earnings will count). Cash savings, other non- employment and pensions of both partners will count. Once the couple are in the UK, it will be easier for them to meet the requirement as the UK earnings, non-employment income and savings of both partners, but not third party support, will then count.

 

5.6            In general terms, Appendix FM-SE states that an applicant must meet:

‘(a) The level of financial requirement applicable to the application under Appendix FM; and

(b) The requirements specified in Appendix FM and this Appendix as to:

 

(i) The permitted sources of income and savings;


(ii) The time periods and permitted combinations of sources applicable to each permitted source relied upon; and


(iii) The evidence required for each permitted source relied upon.’

 

5.7           The level of savings required to meet any shortfall in gross annual income is based on the level of employment-related and/or other income at the date of application.

 

5.8            For the purposes of E-LTRP.3.1(b)(i), a minimum of £16k in cash savings is required to be held in order for specified savings above that amount to be counted towards any shortfall. This is because £16k is the level of savings at which a person generally ceases to be eligible for income-related benefits.

 

5.9            In addition, the shortfall from the gross annual income threshold must be multiplied by 2.5, to reflect the 2.5 years/ 30-month period that will be granted to the applicant before they have to make a further application.

 

5.10               To demonstrate how the requirement works, the following 2 examples assist: (i) where the couple have an income of say £15,000 at the date of application, the shortfall of £3,600 would need to be multiplied by 2.5 to give £9,000 which would then need to be added to the ‘floor’ amount of £16k to give a figure of £25,000 that would need to be held in cash savings; (ii) in the event that there was no income that could be counted towards the financial requirement, from either employment, self-employment or non-employment; the couple would need to have £62,500 in cash savings. In other words, £16k + (2.5 x £18,600).

 

 

  1. 6.New Private life Rule

6.1            It is the long residence provisions of the Immigration Rules (as amended) that will be considered. Where an applicant has 10 years continuous lawful residence, an application for an extension of stay may be granted even if they have overstayed as long as it was for a period of 28 days or less: r. 276B(v) and 276A1.

 

6.2            For those who do not have that period of continuous lawful residence, and do not have a period of 20 years continuous residence (lawful and or unlawful but discounting any periods of imprisonment), the new rule 276ADE considers both the age of the applicant (less than 18, ><18-25, 18+) and the length of their residence in the UK at the date of application.

 

6.3            If aged 18 or over and lived less than 20 years in the UK, it is only if the applicant has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK that the application could meet with success under r. 276ADE(vi).

 

  1. 7.Criminality

7.1            In respect of those migrants who have committed crimes in the UK, the question of whether they can invoke either a family life (r. 399- which is similar to but different from EX.1) or a private life (r. 399A- which is similar but different to r. 276ADE) ‘exception’ seems to depend on whether they have been sentenced (not on a suspended basis unless ‘activated’) for at least 4 years (as revised after any appeal).

 

7.2            If they have (including life, indefinite and indeterminate), it would need to be a very rare/ exceptional case where removal would be considered to have consequences sufficiently serious to prevent deportation.

 

7.3            If the sentence is less than 4 years/ 48 months, deportation may be resisted under immigration r. 399 or r. 399A.

 

7.4            In either case, r. 397 appears to give the caseworker a discretion in exceptional circumstances, to consider that the public interest in deportation is outweighed even where it is not considered that removal pursuant to the deportation order would be contrary to either the Refugee or Human Rights Convention.

 

7.5            In terms of family life, r. 399 (a) relates to those with children (BCs or 7 years prior to application) in respect of whom there are no other family members able to care for them; and r. 399(b) relates to those with partners (BC, settled, RC/HP leave) who have been in the UK with valid leave for a continuous period of 15 years (less time served in prison) before the decision and insurmountable obstacles to family life with the partner continuing outside the UK.

 

7.6            In terms of private life, an applicant must have no ties with their country of origin. What is meant by this is set out at §6.1 of the ‘Criminality Guidance for Article 8 Cases’ IDI to Part 13. It also requires at least 20 continuous years (excluding imprisonment) or, if younger than 25 years of age, half one’s life spent in the UK.

 

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