News

Telephones 14/11/2018

Dear All,

 

Due to technical issues our telephone lines are not working at present.  There is a countrywide issue with Horizon which is being resolved at present.  We apologise for any inconvenience.  We will keep you posted.  Please email in the event of an emergency.  

Paddington Bear applies for a visa

I have always been a fan of Paddington Bear. What’s not to love. He’s a resourceful, hardworking and loving bear, but how would the most loveable immigrant bear fare with an application for leave to remain in the UK?

 

Paddington, you will remember, arrived in the UK and despite initial reluctance on part of the Brown family, became an integral part of their household. Later, his Aunt Lucy joins him, and they live happily ever after with the Browns, or so we hope.  But what happens to Paddington and Aunt Lucy if they are required to apply for leave to remain? Afterall, we were not told about their immigration status in the UK and sadly there are no amnesty programmes, yet, for bears. Let’s set the scene, Paddington arrived in the UK when he was 6 years old. He was joined by Aunt Lucy when he was 10 and since then they have been living in the UK. Paddington is now 14 years old, having lived in the UK for 7 years. Aunt Lucy has been looking after Paddington since her arrival and has herself been living in the UK for 4 years. They continue to live with the Browns.

 

Paddington and Aunt Lucy should consider an application under the Immigration Rules Appendix FM: family members. EX.1(a). which provides that:

 

“(i) the applicant has a genuine and subsisting parental relationship with a child who-

(aa) is under the age of 18 years, or was under the age of 18 years when the applicant was first granted leave on the basis that this paragraph applied;

(bb) is in the UK;

(cc) is a British Citizen or has lived in the UK continuously for at least the 7 years immediately preceding the date of application; and

(ii) taking into account their best interests as a primary consideration, it would not be reasonable to expect the child to leave the UK.”

 

To qualify Aunt Lucy will need to show that she has a parental relationship with Paddington. The fact that she is his aunt rather than his parent does not preclude her from having a “parental relationship” with Paddington. The meaning of Parental relationship has not been defined by statute but under caselaw:

 

“It is not necessary for an individual to have “parental responsibility” in law for there to exist a parental relationship…..whether a person who is not a biological parent is in a “parental relationship” with a child for the purposes of s.117B(6) of the Nationality, Immigration and Asylum Act 2002 depends on the individual circumstances and whether the role that individual plays establishes he or she has “stepped into the shoes” of a parent.”

 

R (on the application of RK) v Secretary of State for the Home Department (s.117B(6); “parental relationship” (IJR) [2016] UKUT 31 (IAC)

 

The next consideration is Paddington’s circumstances; he is clearly under 18 years, is in the UK and has been living here continuously for 7 years preceding their application. The Home Office is further required to consider Paddington’s interests as “primary consideration”. Unfortunately, satisfaction of the above requirements is not enough.

 

The most difficult aspect of our loveable bear’s application is the issue of whether “it would not be reasonable to expect the child (bear) to leave the UK”. Appendix FM EX1(a) (ii) as noted above has been the subject of considerable caselaw. The Home Office’s definition of “reasonable” is akin to the story of Paddington in that it is often, in my experience, unrealistic. It is therefore crucial that Paddington submits good evidence of his integration in the UK. This can be school reports and statements from the Browns. In some cases, a Psychologist or an Independent Social Worker’s report may be helpful. It is equally important to provide evidence of the likely harm Paddington will be subject to if returned to Peru. Reports on the stability of the country, treatment of children and its education system will likely be relevant. It is for Paddington to provide evidence and persuade the Home office of his case, so he must prepare it well. Evidence and legal representations should complement each other; apply the law to the facts.

 

With any luck, Paddington and Aunt Lucy will be granted leave to remain in the UK, leaving them to live happily ever after or at least until they are next required to extend their leave to remain which should be before their leave expires in 30 months’ time. 

 

I would like to give credit for the idea of the above to Free Movement (www.freemovement.org.uk) where it explored Paddington in the context of Asylum and hostile environment in immigration.  

How to win Immigration Appeals

 

There have been substantial changes to appeal procedure and law in the last decade. Today Immigration Law is more challenging than ever; what is the secret to a successful appeal? The answer? Preparation, Preparation, Preparation.

 

The process starts with good appeal grounds which should refer to relevant law. All too often, I come across grounds that appear only to plead to the good graces of the Tribunal, this will not work. Judges are required to apply the law and no matter how sympathetic the Judge may be to your case, they are bound by legal doctrine. Apply the law to your facts. The grounds need not be long, but they must be relevant. Remember quantity does not mean quality.

 

For the hearing itself, start with a good statement. Remember that the Judge will not know your case and will be dealing with numerous cases on the day. A generic statement will at best be unhelpful. Always provide a chronology of dates as this will put into context the history of your case. This is particularly important when your case involves lengthy residence in the UK, where many events have taken place such as the birth of children.

 

Your bundle for the hearing should be indexed and paginated with the core documents such as statements taking prime position. If you are including foreign documents, these must be translated. Always bring the original documents with you but they do not need to be included in the bundle you send to the Tribunal. Do not forget to send a copy of your bundle to the Home Office’s Presenting Officer’s Unit. If you need an interpreter, you must inform the Tribunal as soon as you can, preferably when you lodge your appeal. It is good practice to call them a week before your hearing to check that they have arranged for an interpreter.

 

On the day of the hearing, your witnesses should bring their original IDs such as passports in case the Tribunal requires confirmation of their identity. Be prepared to wait as there is no allocated time other than that your hearing will be listed for the morning or afternoon session. Beware that if you are raising a “new matter” the Home Office is required to consent to the new matter’s consideration on the day. If they do not, then the matter will be adjourned or heard without the new matter. My experience is that the Home Office increasingly object to “new factors” even where they do not amount to new matters. Do not readily accept the Home Office’s contention that the new factor is a new matter – be prepared to argue against this.

 

A difficult and seemingly impossible case can be won. By the same token, a straightforward case can be lost because of lack of preparation. A very recent case I dealt with proves this. The case relates to a same sex couple both without leave to remain. The Tribunal Judge held that their removal will violate their Human Rights in that they will not be able purse their relationship. On the 28th of August 2018, both received their grant of leave. As I have said, preparation, preparation, preparation.

 

EEA Permanent Residence

There have been no changes to the rights or status of EU nationals in the UK following the referendum on whether the UK should remain within the EU. Having triggered Article 50, the UK Government will introduce changes to Law and Policy, but it will be some time until any changes are implemented. We will advise you on any upcoming changes once these have been introduced.

You are eligible to apply for a Permanent Residence Card once you have lived in the UK for over 5 years. You would need to show that you are a ‘qualified person’ during the 5 year period. You would be considered as a qualified person if you are, working, studying, self-employed or self-sufficient.

You would be required to provide documentary evidence to the Home Office to prove that you are a qualified person for the entire 5 years period. Any periods where you were a student or self-sufficient, you would also need to show that you had comprehensive sickness insurance. This is a mandatory requirement and your application would be refused if you fail to provide evidence of your comprehensive sickness cover.

Your immediate family and dependants are also able to apply for permanent residence at the same time as you subject to meeting all the requirements. Evidence would need to be provided of the relationship. If your family members or dependants wish to apply separately or without you, they would still need to show that you have been a qualified person for the 5 years period.

 

British Citizenship

 

Once you have been granted Permanent Residence in the UK, you may apply for British Citizenship. This is a separate application and a different process. If you have completed over 6 years in the UK already, you may apply for Citizenship immediately after obtaining Permanent Residence. If you have not yet completed 6 years, you will be required to wait one year after obtaining Permanent Residence.

In order to satisfy the requirements for British Citizenship, you will be required to show that you meet the residency requirements as well as the Knowledge of English Language and Life in the UK requirement.

Once you have been granted British Citizenship, you are then eligible to apply for a British Passport.

If you would like to know more or need our help, please contact our offices.

Government Turnaround on Immigration Appeal Fee Increases

The government have done a full turnaround on the fee increases introduced on the 10th October 2016 to First-tier Tribunal Appeal fees. All fees with immediate effect are to return to their previous rate.

The increase meant that the fee for an oral appeal increased from £140 to £800 and an appeal on the papers which had been £80 was £490.

Refunds are to be given automatically to those who paid the increased fees and it is expected that the Upper Tribunal Appeal fee increases will either not take place or the fee increase will be reduced.

New legislation will need to be prepared in order to bring the change into force officially but for now the Tribunal is using the Lord Chancellor’s discretionary power to remit the fees.

It is expected that when new legislation is provided that there may be some increases of a less drastic nature. However, for now the old fees apply again while the broader fee exemptions introduced will continue to apply meaning that more people may be eligible for fee exemptions.

English Language Requirement for Partners and Parents

The Government has introduced a new English language requirement to take effect from 1 May 2017 for applicants applying for further leave in the UK as a partner or parent, after completing 30 months here on a 5-year route to settlement under Appendix FM. A new English language requirement at level A2 of the Common European Framework of Reference for Languages is being introduced for non-EEA partners and parents.

The changes to the law will affect only those applicants wishing to extend their stay in the UK after 2.5 years and also those applying for settlement. All applicants whose leave is due to expire on or after 1 May 2017 must produce an A2 English language test certificate from an approved college. A list of approved college can be found at Appendix O of the Immigration Rules. Failure to produce a valid English language certificate or to provide a certificate from a college that is not approved will result in applications being refused by the Home Office.

For further information, please contact our offices.

Immigration and Asylum Tribunal Fees to Increase Significantly

The Government recently announced their intention to make major increases to Tribunal Fees to take effect as soon as possible.

Despite significant opposition to the increases when the new fees were circulated for consultation the Government has decided to press ahead with the fee increases. Therefore from Monday, 10th October 2016 fees at the First-tier and Upper Tribunals will be increasing as follows:

 

Appeal Type

Current Fee

New Fee

First-tier Tribunal (FTT)

Application for decision on papers

£80

£490

Application for oral hearing

£140

£800

Application to the FTT for permission to appeal to Upper Tribunal

Nil

£455

Upper Tribunal (UT)

  

Application to UT for permission to appeal to the UT

Nil

£350

Appeal Hearing

Nil

£510

 

There will be limited exemptions to the fees including those who received a Home Office fee waiver when making their initial application, those who qualify for legal aid or asylum support and those appealing against a decision to deprive citizenship. For the vast majority the full fee will be required and only in exceptional circumstances will a fee remission or reduction be granted by the Lord Chancellor. Where appeals are successful litigants can recover their Tribunal Fees.

Strict time limits will continue to apply and it is expected that in many cases this will deter litigants from appealing and make them more likely to pursue a fresh application rather than an appeal, even where the appeal stands a very good chance of success, particularly in the case of EU Migrants.

Although this is likely to reduce the workload of the Tribunals it is unimaginable that this will not have grave and very harmful consequences to the justice and fairness of the Immigration system in the UK.

BREXIT: What this means for Immigration

Britain has voted to leave to European Union by 52% to 48%. Following the announcement of these results, PM David Cameron has also resigned. The government will now trigger Article 50 of the Treaty of Lisbon to formally notifying their intention to withdraw which would commence the two year negotiating period for the UK to leave the EU. The terms of the exit will be negotiated between Britain’s 27 counterparts and each will have a veto over the conditions.

The law, policy and procedure are all expected to change. Parliament could simply change all EU laws to British statutes or alternatively opt for something more radical by re-regulating Britain. However, all EU law will remain binding until we have completed the two year negotiation period.

The government will have to address the concerns of British citizens living in other EU countries and similarly EU citizens living in Britain. People would need reassurance that the status of nationals of other EU countries living in the UK is unchanged. The leave campaign has previously confirmed that until negotiations are not complete those who are already in the UK would be allowed to stay. For the two years of negotiations, free movement of EU workers would still apply, so people could still come from elsewhere in the EU, but their immigration status after would be uncertain.

EU workers who are already in Britain could consider applying for Permanent Residency, however this application is made under EU law and therefore it is uncertain what status these visas would hold after Brexit. The alternative is to apply for British Citizenship which may be applicable to EU nationals already in the UK. There are a number of requirements including five years residence in the UK. Please contact our offices for more information.

Changes to Immigration Rules for Domestic Workers

The government has announced changes to the Immigration Rules in their Statement of Changes dated 11 March 2016. These changes are due to be implemented on 6 April 2016. Overseas Domestic Workers will be able to change employers under the new laws. The previous Rules state that Domestic Workers are only permitted to work with the employer for which they applied for entry clearance. This will allow more flexibility and ensure that those who are mistreated or abused have the option to change their employer. The changes apply to all applications submitted after the law has changed. All applications submitted prior to 5 April 2016 will be subject to the previous Immigration Rules.

Overseas Domestic Workers who have been victims of slavery or human trafficking may apply for extend their visa for up to 2 years in the United Kingdom.