UK & EEA Immigration Visas and Appeals. Tier1/2/3/4/5, EEA Family Permits, Spouse/Fiance(e) Visas, Students, Visitors, Dependant Relatives, Bail, Asylum, Removal and Deportation issues

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Важные судебные решения и полезная информация для иммигрантов
03 December 2018 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – Mob : +44(0)7791145923

>>> Latest immigration stats: EU residence document applications back on the rise: https://www.ons.gov.uk/peoplepopulationa...lmigration

>>> Appeals law: a “new matter” includes EU law arguments: https://www.bailii.org/uk/cases/UKUT/IAC/2018/385.html

In Oksuzoglu (EEA appeal – “new matter”) [2018] UKUT 00385 (IAC), the appellant was a Ukrainian national and the sponsor was a British national. They had spent some seven months in Cyprus and on their return to the UK, the appellant applied for a residence card invoking the Surinder Singh principle.

The official headnote:

"(1) By virtue of schedule 2(1) of the Immigration (EEA) Regulations 2016 (‘the 2016 Regs’) a “new matter” in section 85(6) of the Nationality, Immigration and Asylum Act 2002 includes not only a ground of appeal of a kind listed in section 84 but also an EEA ground of appeal.
(2) The effect of the transitory and transitional provisions at schedules 5 and 6 of the 2016 Regs is as follows:
(a) All decisions made on or after 1 February 2017 are to be treated as having been made under the 2016 Regs, whatever the date of the application;
(b) Regulation 9 of the 2016 Regs applies (through the medium of the transitory provisions) to all decisions made on or after 25 November 2016 whatever the date of the application;
© In all other respects the Immigration (EEA) Regulations 2006 apply if (i) the application was made before 25 November 2016 and (ii) the decision was made before 1 February 2017.".

>>> More Article 3 appeals rejected as Court of Appeal stands firm on Paposhvili: https://www.bailii.org/ew/cases/EWCA/Civ/2018/2482.html

In MM (Malawi) [2018] EWCA Civ 2482 the Court of Appeal has again confirmed that there is indeed a discrepancy between the domestic law on Article 3 medical cases as set out in the House of Lords case of N v Secretary of State for the Home Department [2005] UKHL 31 and the recent European Court of Human Rights judgment in Paposhvili v Belgium (application no. 41738/10). The court also conceded that it is arguable that Paposhvili extends Article 3 protection to anyone who would suffer a significant reduction in life expectancy, though it did not

>>> Children (asylum policy guidance): https://www.gov.uk/government/collection...=immediate

Asylum policy guidance for asylum applications involving children.

This collection contains asylum policy guidance used by UK Visas and Immigration to make decisions on asylum applications involving children.

>>> Home Office can’t accidentally grant section 3C leave by deciding an invalid application: https://www.bailii.org/ew/cases/EWCA/Civ/2018/2612.html

R (Basir) v Secretary of State for the Home Department [2018] EWCA Civ 2612 is about section 3C of the Immigration Act 1971. Section 3C works as follows: where a person makes a valid application to extend his or her leave to enter or remain and the application is refused, that person’s immigration status is extended during any waiting time for the application to be decided or for an appeal to be decided. (Except the exception to the general rule when the application is decided before the original visa expires.)

If you are on section 3C leave, you can’t use that breathing space to make a new application for leave. It is only really intended to keep your stay in the UK legal while the extension application is being considered/appealed — not to try your luck with a different application entirely while that is going on.
Русскоговорящий иммиграционный адвокат высшей категории: консультации, проверка заявлений, ведение дел: www.legalcentre.org  Mob/Viber/WhatsApp:+44(0)7791145923, Skype: immigration_lawyer

UK & EEA Immigration Visas and Appeals. Tier1/2/3/4/5, EEA Family Permits, Spouse/Fiance(e) Visas, Students, Visitors, Dependant Relatives, Bail, Asylum, Removal and Deportation issues

05 December 2018 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – Mob : +44(0)7791145923

>>> EU Advocate General: the United Kingdom CAN cancel Brexit if it wants to: http://curia.europa.eu/juris/document/do...cid=184123

A top legal adviser to the Court of Justice of the European Union has recommended that the UK be allowed to cancel its Article 50 notification triggering Brexit and stay in the EU if it wants. Advocate General Sánchez-Bordona writes in an Opinion released recently that the UK has the legal right to withdraw its Article 50 notification, even without the agreement of other EU countries — so long as this happens before the withdrawal agreement is concluded and has parliamentary approval.
Русскоговорящий иммиграционный адвокат высшей категории: консультации, проверка заявлений, ведение дел: www.legalcentre.org  Mob/Viber/WhatsApp:+44(0)7791145923, Skype: immigration_lawyer


07 December 2018 – Just useful and interesting UK & EEA Immigration Law news and up-dates from the Legal Centre – Open 7 days a week - www.legalcentre.org – Mob : +44(0)7791145923

>>> UKVI update: Tier 1 (Investor) visa was suddenly suspended at midnight on the 6th December 2018 (via ILPA)

The suspension only affects new applicants, not extensions, filing after the suspension comes into effect.

The Home Office briefing note should be published today.

>>> UKVI Guidance: Points-based system: evidential flexibility: https://www.gov.uk/government/publicatio...=immediate

Modernised guidance for how UK Visas and Immigration uses evidential flexibility when considering applications.
Updated Points-based system: evidential flexibility document to latest version.
Русскоговорящий иммиграционный адвокат высшей категории: консультации, проверка заявлений, ведение дел: www.legalcentre.org  Mob/Viber/WhatsApp:+44(0)7791145923, Skype: immigration_lawyer


08 December 2018 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – Mob : +44(0)7791145923

>>> Tier 1 (Entrepreneur) visas to be scrapped in Points Based System shake-up

The immigration minister, Caroline Nokes, gave us a sneak preview of a range of tweaks to the rules that will be laid “shortly”. The changes include:

•    Introducing the “Start-up” visa (announced in June)
•    Scrapping the Tier 1 (Entrepreneur) route and replacing it with an “Innovator” visa
•    Big changes to the Tier 1 (Investor) route, which is suspended in the meantime
•    Allowing architects to get Tier 1 (Exceptional Talent) visas
•    Some “minor, more technical changes” to Tier 1 and Tier 2 (i.e. nasty surprises in the small print)
•    Clamping down on the Tier 5 (Temporary Worker – Religious Worker) route, “prohibiting Tier 5 Religious Workers filling roles as Ministers of Religion”
•    Introducing a cooling-off period for Tier 5 so that nobody can get a second Religious Worker or Charity Worker visa until a year has passed since their first one expired
•    Introducing the pilot scheme for seasonal agricultural workers (announced in September)
More details to follow when the full statement is issued by the Government.

>>> Court of Appeal guidance on costs in ETS cases: https://www.bailii.org/ew/cases/EWCA/Civ/2018/1572.html
Русскоговорящий иммиграционный адвокат высшей категории: консультации, проверка заявлений, ведение дел: www.legalcentre.org  Mob/Viber/WhatsApp:+44(0)7791145923, Skype: immigration_lawyer

UK & EEA Immigration Visas and Appeals. Tier1/2/3/4/5, EEA Family Permits, Spouse/Fiance(e) Visas, Students, Visitors, Dependant Relatives, Bail, Asylum, Removal and Deportation issues

10 December 2018 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – Mob : +44(0)7791145923

>>> The UK BA fails to implement the Tier 1 (Investor) suspension

From ILPA:

“ILPA understands from the Home Office that there is no suspension as yet of the Tier 1 (Investor) visa.
The Home Office cannot say if or when any suspension will happen, or how much notice we will get.
Needless to say, ILPA is extremely disappointed by the situation, which makes a mockery of the principles of certainty and stability inherent in the rule of law.”

>>> Court of Justice of the European Union holds that Brexit can be unilaterally cancelled: http://curia.europa.eu/juris/document/do...id=1195903

The Court of Justice of the European Union has found that the UK can cancel Brexit by withdrawing its Article 50 notification, without having to get the permission of other EU countries. The result in case C 621/18 Wightman and Others means that, if political circumstances change soon, the UK could remain in the EU on the same terms as now.

There are conditions. The UK would have to officially change its mind “through a democratic process”, widely interpreted to mean new legislation to reverse the European Union (Notification of Withdrawal) Act 2017. The “unequivocal and unconditional” change of mind would have to be notified in writing to the European Council. If Brexit day (29 March 2019) arrives or the withdrawal agreement drawn up by negotiators comes into force, it will be too late.
Русскоговорящий иммиграционный адвокат высшей категории: консультации, проверка заявлений, ведение дел: www.legalcentre.org  Mob/Viber/WhatsApp:+44(0)7791145923, Skype: immigration_lawyer


11 December 2018 – Just useful and interesting UK & EEA Immigration Law news and up-dates from the Legal Centre – Open 7 days a week - www.legalcentre.org – Mob : +44(0)7791145923

>>> The UK BA online FLR(M) application form is providing wrong information

It has been reported that the UK BA online application form FLR(M) only refers to the need for an A1 CEFR certificate even where a 2nd spouse extension is sought, while the minimum and the correct level for the extension is currently A2 CEFR.

Whilst that is not an issue for lawyers submitting applications (who should know what is needed) it will create real issues for applicant’s given the incorrect information.

You have been warned!

>>> Can a visitor be granted leave to remain in the UK if the visitor’s British spouse dies in the UK ?

Potentially, yes, case to case dependent, via the currently available FLR(HRO) application form.
Русскоговорящий иммиграционный адвокат высшей категории: консультации, проверка заявлений, ведение дел: www.legalcentre.org  Mob/Viber/WhatsApp:+44(0)7791145923, Skype: immigration_lawyer


11 December 2018 – Just useful and interesting UK & EEA Immigration Law news and up-dates from the Legal Centre – Open 7 days a week - www.legalcentre.org – Mob : +44(0)7791145923

>>> Statement of changes to the Immigration Rules: HC 1779, 11 December 2018 (11 December 2018): https://www.gov.uk/government/publicatio...=immediate

The main changes:

•Introduce a new seasonal workers scheme; and
•Expand protection offered to victims of domestic abuse, to include partners of
refugees who have not yet gained indefinite leave to remain, as a result of the
judgment in the case of A v Secretary of State for the Home Department (2017).



Changes relating to Tier 1 of the Points-Based System


Tier 1 (Exceptional Talent)

•    The endorsement of arts applicants is being widened to include those in the
field of architecture. These applicants will be assessed by the Royal Institute
for British Architects operating within the endorsement remit of Arts Council
England;

•For consistency, the grant periods for entry clearance applications have been
amended to include an addition 4-month period for each potential grant of
leave. This provides applicants with extra time to meet the qualifying period
for settlement and reduces the likelihood that they would have to apply for
further extension applications. Currently only applicants who request 5 years’
leave qualify for the additional 4-month period;

•Other changes are being made to the criteria for endorsement by each
Designated Competent Body, at those bodies’ requests. These include changes
to the evidential requirements for digital technology applicants who, as a result
of the Tech Nation online application form, are no longer required to supply
paper copies of their specified evidence to the Home Office; and amendments
within Arts Council England rules to ensure consistency across its subendorsers

Changes relating to Tier 2 of the Points-Based System (PBS)

•A change is being made to include the Academic Technology Approval
Scheme (ATAS) requirement for Tier 2 (ICT) applicants extending
leave in the United Kingdom. Applicants in all PBS routes are required
to obtain an ATAS certificate before studying a postgraduate
qualification in certain sensitive subjects, knowledge of which could be
used in programmes to develop weapons of mass destruction (WMDs)
or their means of delivery. The requirement for ICT extension
applications had previously been excluded in error;

•Remove references to ‘Universal Jobmatch’ from the Rules covering
the Resident Labour Market Test (RLMT). Universal Jobmatch (UJM)
was replaced by the ‘Find A Job’ service on 14 May 2018, with UJM
permanently closing on 17 June 2018;

•Changes to fix incorrect cross references in paragraph 78C(g) relating
to inward investment requirements, and in table 11B, relating to the
RLMT for creative occupations;

•Including reference to the appropriate salary to be paid to nurses or
midwives who are undertaking the Observed Structured Clinical
Examination (OSCE) to obtain Nursing and Midwifery Council
registration.

Changes relating to Tier 4 of the Points-Based System

•    The definitions of “degree level study", “foundation degree” and "post-graduate level
study" are being updated to replace the references to the "National Qualifications
Framework" with "Regulated Qualifications Framework" as the latter is now the
framework used to determine levels of study in the UK.

•    A definition of a “higher education provider” is being added to the introduction
section of the rules to reflect the changes to Tier 4 arising from the higher education
reform in England, including the introduction of the Office for Students, and so that
institutions in the Devolved Administration have the same ability to offer privileges to
their students as institutions in England. Accordingly, references to “higher education
institutions”, where appropriate, are being changed to “higher education provider”.

•    A definition of a “track record of compliance” is being added to the introduction
section of the rules. Changes are being made to Parts 6A and 8 of the Immigration
Rules, to set out when a student who is sponsored by a higher education provider with
a track record of compliance will receive conditions of leave which entitle them to
work, apply for further Tier 4 leave in the UK, and bring dependants. These changes
will come into effect on 1 August 2019 and are being made in support of the changes
to Tier 4 arising from the higher education reform in England.

•    A change is being made to Appendix C to make clear that Tier 4 applicants, who rely
on student loans or funds from official financial sponsors, are not required to
demonstrate that the funds have been held for a period of 28 consecutive days. A
minor change is being made to clarify that a Tier 4 migrant must have the funds
available to them on the date of application, except where the funds are being
provided as a financial loan and the student separately confirms when the funds will
be available to them.

•    In Appendix C, a change is being made to clarify that if the applicant is a Tier 4
(Child) Student the specified documents submitted with their application must
confirm who is providing the maintenance funds for their use in studying and living in
the UK and that the funds will remain available to them unless used to pay for course
fees and living costs.

•    Amendments are being made to the rules in Appendix C to make them gender neutral

Changes relating to Tier 5 of the Points-Based System


•    General quota related changes

•    Introduction of a 12-month cooling off period for charity and religious workers

•    Introduction of the new seasonal workers pilot scheme - the formal date of implementation for this pilot will be announced in due course

Minor changes to the Visitor, Ancestry and the Electronic Visa Waiver visa routes


Changes to domestic violence provisions

•    The case of A v the Secretary of State for the Home Department ruled that the
definition of ‘settled person’ in Appendix FM should be expanded, for the purposes of
domestic abuse policy, to include people with refugee status who have not yet
completed the five-year period required to be granted indefinite leave to remain. The
judge held that because 95% of refugees gain indefinite leave to remain following the
end of the five-year period, indefinite leave to remain can be considered a legitimate
expectation. The effect is that a sponsored partner should have the same expectation
of settlement and therefore of protection under domestic abuse provisions.

•    As a result, the eligibility for indefinite leave to remain, as a victim of domestic abuse
under paragraph E-DVILR.1.2 and 1.3, is being clarified to include partners of people
with refugee status who have not yet been granted ILR. E-DVILR.1.2 is also being
amended to include partners granted leave under paragraph 352A where their sponsor
has not yet gained indefinite leave to remain.

•    To clarify, only one grant of leave can be made under paragraph 352A. There is
therefore no reference in E-DVILR.1.2.(a) to a subsequent grant of leave being made
under this section.
Русскоговорящий иммиграционный адвокат высшей категории: консультации, проверка заявлений, ведение дел: www.legalcentre.org  Mob/Viber/WhatsApp:+44(0)7791145923, Skype: immigration_lawyer

UK & EEA Immigration Visas and Appeals. Tier1/2/3/4/5, EEA Family Permits, Spouse/Fiance(e) Visas, Students, Visitors, Dependant Relatives, Bail, Asylum, Removal and Deportation issues

12 December 2018 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – Mob : +44(0)7791145923

>>> Advance NHS charges for overseas visitors comply with the Equality Act: https://www.bailii.org/ew/cases/EWHC/Adm.../3392.html

The High Court has ruled that the regulations for charging non-residents in advance for non-urgent NHS treatment are lawful. In R (MP) v Secretary of State for Health and Social Care [2018] EWHC 3392 (Admin), decided yesterday, the court rejected a claim that the government had a duty to consult before introducing advance charging and that it had not complied with the public sector equality duty

>>> Can EEA nationals and their family members still be applying for the Residence/Permanent Residence etc during the Brexit transition period ?

Yes, according to the UK BA:

“There will remain scope for applications for documentation under the EEA Regulations while these continue to operate during the implementation period to 31 December 2020, in line with the draft WA.
And such an application should not be treated as withdrawn where the applicant submits an application under the EU Settlement Scheme, as the person can hold a document under the EEA Regulations and UK immigration status under the scheme.

We will continue to keep the gov.uk guidance under review. The need to maintain continuity of residence in order to qualify for settled status is emphasised in the ‘Important information’ enclosed with the decision letter sent to those granted pre-settled status.”

>>> Tier 1 (Investor) Update from the UK BA

“The Tier 1 (Investor) visa is not currently suspended. However, the Government remains committed to reforming the route. A further announcement will be made in due course.

Any suspension would be implemented through changes to the Immigration Rules.

Regards,

Home Office | Migration Policy”

>>> More information on the new UK BA Tier 5 Agricultural Scheme

We saw it some 12-15 years ago, run by Condordia. Now it is back, to be run by Concordia and the Pro Force Limited. Namely:

Seasonal worker pilot

The seasonal worker pilot will be run under the existing Tier 5 (Temporary Worker) category. It will be open to applicants over the age of 18. In addition to making some amendments to Part 8 relating to dependants, and Part 6A of the Immigration Rules (in particular the part under the sub-heading “Tier 5 (Temporary Worker) Migrants), the statement of changes introduces a new appendix into the Rules, Appendix U.

“Edible horticulture sector” (namely vegetable, fruits, vines and mushrooms) and “seasonal work” are defined in the introduction to the Rules. Seasonal work is defined as “employment which fluctuates or is restricted according to the season or time of the year”.

The explanatory memo says that “the formal date of implementation for this pilot will be announced in due course”.

Successful applicants will be issued leave starting 14 days before the beginning of the period of engagement and ending 14 days after the end of that period of engagement, but never for longer than six months in any 12-month period. They will not be allowed to carry on any other work than the work they are being sponsored for. It also seems that they will not be allowed to be accompanied by their family members to the UK.
Русскоговорящий иммиграционный адвокат высшей категории: консультации, проверка заявлений, ведение дел: www.legalcentre.org  Mob/Viber/WhatsApp:+44(0)7791145923, Skype: immigration_lawyer




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