Month: March 2018

Cohabitation is not required to get residence card after divorce with EEA national

Successful appeal confirms that cohabitation is not required under Immigration (EEA) Regulations 2006 to succeed in the application for a residence card after a divorce with an EEA national.

The case arose out of a refusal of the Secretary of State (Respondent) to issue a Residence Card to a national of Belarus (Appellant) based on a retained right following a divorce with an EEA national as per Regulation 10(5) of the Immigration (EEA) Regulations 2006 (Regulations).

The crucial issue in the proceedings was the interpretation of the relevant provision. It was material to determine whether cohabitation for 12 months was required or mere presence of both people in the UK sufficed.

Shortly after entering the UK, the Appellant’s relationship with her former spouse broke down and they stopped living together, which is why the Respondent argued that the Appellant did not meet the Regulations’ requirements. At the time of divorce, they had both spent 17 months in the UK.

The Judge has found the Appellant’s argument more convincing, namely that the Regulations do not require cohabitation, but mere presence in the same country for 12 months. The argument was supported by case law, including Diatta v Land Berlin 1985, where it was stated that, for the purposes of the Regulations, marriage does not mean matrimonial cohabitation.

Accordingly, the appeal was allowed because the Respondent has misinterpreted the Regulations.

Immigration Law

UK Government to Review Investor Visas issued to Russian nationals in 2008-2015

On Tuesday, 27 March  2018, the Prime Minister Theresa May confirmed to the members of parliament that the UK government was conducting a review of visas issued to the foreign investors.

According to The Times, Mrs May announced that the investor visa programme under which more than 700 Russian investors came to Britain between 2008 and 2015 is under review. The Prime Minister noted that the Home Office has been examining whether the Tier 1 Investor route was being used properly or whether there were any loopholes.

Until the end of 2014 the applicants for Tier 1 Investor visas had to demonstrate a minimum of £1 million to invest in the UK, then this threshold was increased to £2 million.

The Prime Minister was urged to start a review of 706 Tier 1 Investor visas issued to the Russian citizens  and their respective source of income indicated in the application documents.

Retrospective Investor Visas Review

This unprecedented retrospective review was announced at the liaison committee of the House of Commons and will affect all the investors and will not specifically be focused on the Russian citizens.

It is expected that the applications for the extension of the Tier 1 Investor visas and indefinite leave to remain (settlement) will be scrutinised by the Home Office. The risk of revocation of the current visas also exists, so any inspections and actions from the Home Office will require immediate response from the visa holders to avoid negative consequences for them and their family members.

Legal Assistance

For expert advice and assistance in relation to your particular case and relevant immigration law requirements, please contact our immigration lawyers on +44(0)20 7822 8535, by e-mail: info@sterling-law.co.uk or via our online appointment booking form.

Case summary: Humanitarian Protection of a Filipino National in the UK

Sterling & Law Associates LLP represented a Filipino National who feared of returning to the Philippines. The applicant was married in the Philippines and was able to divorce her husband under the UK jurisdiction. The applicant later married her partner in the UK.

Divorce is illegal in the Philippines and a divorce of a Filipino national in another country is not recognised in the Philippines and are still considered as married under Philippine Law. The only way a marriage is dissolved is through annulment, which requires evidence of psychological incapacity at the time of marriage as a ground for a successful nullity.

The applicant suffered physical, mental and emotional abuse from her first husband after they got married and received continuous death threats. The applicant’s first husband is ready to file bigamy against the applicant on her return to the country.

Bigamy is an offence where a person enters into another marriage whilst already married to another person. The divorce in the UK of the Filipino national is not recognised in the Philippines, and therefore the applicant faces charges and up to 6 – 12 years imprisonment.

Article 3 of the European Convention on Human Rights prohibits torture and no one shall be subject to torture, of to inhuman or degrading treatment. The life of the applicant of being imprisoned on the basis of her second marriage will remain at risk. The problems of the prison condition in the Philippines continues to raise issues in relation to prohibiting torture, inhuman or degrading treatment.

The applicant was granted humanitarian protection as a person at risk of serious harm on return to her country.

Immigration Assistance

For expert advice and assistance in relation to your particular immigration case, please contact our Tagalog speaking immigration lawyer Nollienne Alparaque on Tel. +44(0)20 7822 8535, Mobile/Viber: 074 6338 2838, by e-mail: nollienne@sterling-law.co.uk or via our online appointment booking form.

UK Visa Fees

Changes to the Immigration Rules: HC895, 15 March 2018

The Secretary of State initiated certain changes to the Immigration Rules with the purpose to: (i) Ensure that an asylum claim can be deemed inadmissible, and not be substantively considered by the UK, if, another EU Member State has already granted the claimant international protection; (ii) make changes and clarifications to the Immigration Rules relating to family life; and (iii) make the annual update to the list of Permit Free Festivals.

The below specific changes to the Immigration Rules shall take effect on 6 April 2018.

Changes relating to asylum claims

The change to Part 11 is being made to provide that an asylum claim will be deemed inadmissible, and will not be substantively considered by the UK, if another EU Member State has granted either refugee status or subsidiary protection (known collectively as international protection). This change is in line with both the UK’s established policy on safe third countries, and the EU’s objective in reducing the
secondary movements of those granted international protection.

Article 25(2)(a) of Council Directive 2005/85/EC on minimum standards on procedures in Member States for granting and withdrawing refugee status (“the Procedures Directive”) permits a Member State to apply the principle of inadmissibility to asylum claims in certain circumstances.

The rule change is made further to the Procedures Directive, in line with the stated aim of the European Union to limit secondary movements of applicants for international protection.

The UK has operated a safe third country policy for many years. Broadly, this means the identification of circumstances in which an individual has arrived in the UK and sought international protection, but where there is an alternative country that would be regarded as capable of granting sufficient protection. This policy is a key element of the UK’s asylum policy and allows the UK to prevent misuse of the asylum system.

Changes relating to family life

To clarify, in Appendix FM, that those on a 5-year route to settlement must meet all eligibility requirements, including the immigration status, financial and English language requirements, at every application stage including where indefinite leave to remain is sought after five years, in order to be granted leave under these Rules.

Changes relating to visitors

Appendix 5 to Appendix V comprises a list of events that are Permit Free Festivals. Permit Free Festivals are events that are assessed as contributing to the cultural heritage of the UK and at which performers can, exceptionally, be paid for their participation as visitors.

Visitors cannot normally receive payment from a UK source for any permitted activities they undertake here. The list has been updated for 2018/19.

Immigration Assistance

For expert advice and assistance in relation to your particular immigration case, please contact our immigration lawyers on Tel. +44(0)20 7822 8535, Mobile/Viber: 074 6338 2838, by e-mail: contact@sterling-law.co.uk or via our online appointment booking form.

Brexit negotiation update for EU citizens

An official update has been circulated by the Home Office as Brexit negotiations continue. This is the latest information on the status of EU citizens in the UK.

During the week of 19-23 March 2018, the UK and the EU have reached an agreement on what happens during the period immediately after Brexit, known as the implementation period. This is important as it will give citizens and businesses on both sides time to adjust before a new relationship with the EU is agreed.

So, what has been agreed so far and how will you be affected?

Brexit: EU citizens currently in the UK

The agreement on citizens’ rights reached in December has now been formalised into a draft Treaty text, meaning it is in the right form to be written into law.

The agreement means that if you are an EU citizen living in the UK before the UK leaves the EU on 29 March 2019 you will be able to continue to live and work in the UK. Your rights to healthcare, work arrangements and access to benefits will continue. Also, your existing close family members will be able to join you in future in the same way that they can now. You can read more here: Status of EU citizens in the UK: what you need to know.

From this week, EU citizens in the UK have been seeing digital adverts encouraging you to ‘stay informed’. The activity is part of an ongoing effort by the Government to build awareness about the agreement to protect EU citizens’ rights ahead of the roll-out of the settlement scheme.

Settlement scheme

If you are an EU citizen or family member already living in the UK, a user-friendly scheme to enable you to secure your settled status here will open later this year. But there is no rush – you will have up until 30 June 2021 to make your application.

The UK government will provide more information on the scheme and how to apply in the coming months.

Implementation period

The agreement we reached with the EU this week extends the citizens’ rights protections above to include EU citizens and their family members arriving in the UK during the implementation period (from 30 March 2019 to 31 December 2020). This ensures that those planning to come to the UK after March next year know what the arrangements will be. During this time, new arrivals will need to register through a new Home Office registration scheme after three months in the UK.

More information is available at UK leaving the EU: what you need to know.

Genuine dependency under EEA Regulations proved despite alternative sources of income

Another successful appeal in a genuine dependency case under the EEA Regulations

The successful appeal concerned a challenge to the refusal of the Entry Clearance Officer (Respondent) to issue an EEA family permit to a parent of a spouse of an EEA national (Appellant).

The main reason for the refusal was that the Home Office was not satisfied that the applicant shown genuine dependency on his sponsor.

The Appellant has provided an abundance of evidence to prove his genuine dependency. He had spent two years in the UK on a visitor visa, residing with his family and subsequently became financially dependent on them after retiring. However, in 2016 he voluntarily left the UK. A year later, the Appellant suffered from a stroke in Ukraine.

Given the considerable medical expenses, the Appellant became even more financially dependent on his family in the UK, especially provided that his only source of income, excluding the support from the family, was minimal state pension in Ukraine.

Judge did not find any issue of credibility, finding that the Appellant does fulfil the requirements of genuine dependency as a direct family member of an EEA national. It was noted that a holistic examination of the circumstances of the case was required by the decision in Reyes 2013 UKUT 315.

Accordingly, the Appellant’s stroke and need of emotional, social, physical and financial support were taken into account, and genuine dependency found, notwithstanding state pension and ownership of a home in Ukraine.

 

Immigration Assistance

For expert advice and assistance in relation to your particular immigration case, please contact our immigration lawyers on Tel. +44(0)20 7822 8535, Mobile/Viber: 074 6338 2838, by e-mail: contact@sterling-law.co.uk or via our online appointment booking form.

Successful appeal against refusal to issue Residence Card to Spouse of EEA national

The case resolved around a refusal by the Secretary of State (Respondent) to issue an EEA Residence Card to a Georgian national (Appellant) who is a spouse of an EEA national.

The reason for the refusal was that the Respondent was not satisfied that the relevant EEA national exercised Treaty rights.

The Home Office argued that there were discrepancies in evidence of work, relying on the case of Begum Pakistan [2011] UKUT 275. However, the Judge did not accept the Home Office’s argument, finding that the evidence provided was sufficient, and that the witness statements were credible, including the ones describing the EEA national’s employment circumstances and history in the UK.

As a result, the Appellant’s spouse was determined to be a worker for the purposes of the EEA Regulations, and the Appellant has successfully discharged the burden of proof.

Accordingly, the appeal was allowed.

Appeal allowed on grounds of private and family life despite deception in previous immigration application

An Uzbekistan national (Appellant) was refused a leave to remain in the UK when she could not demonstrate that she meets English language requirements, and subsequently refused a right to remain in the UK on the basis of her family life in the UK for the use of deception in her previous immigration application through using a proxy speaker during the English language test.

However, the refusal by the Secretary of State (Respondent) was successfully challenged and appeal was allowed on the human rights grounds.

The Appellant used deception when undertaking English language test for her student visa application and its extension.

The main question for the Judge was whether it is in the public interest to allow someone who has used deception in order to extend her leave to remain in the UK under Article 8.

The Judge has noted that it was important to consider the history of proceedings: an appeal to the refusal was initially allowed but reconsidered by the Respondent and the decision reversed. Furthermore, the issue of deception had been considered by the First Tier Tribunal and the Upper Tribunal in previous proceedings.

The Appellant formed a family life in the UK with her husband, in the belief that the issue of deception had been determined in the previous proceedings. This, together with the interference in the family life of the Appellant’s husband, were the material reasons to allow the appeal.

However, the Judge noted that he would not normally allow the appeal on these facts, had it not been for the history of the proceedings and insurmountable obstacles the Appellant’s husband would face if they had to move to Uzbekistan. 

Refusals & Appeals: Immigration Assistance

For expert advice and assistance in relation to your particular case, refusals and relevant immigration law requirements, please contact our immigration lawyers on Tel. +44(0)20 7822 8535, Mobile/Viber: 074 6338 2838, by e-mail: contact@sterling-law.co.uk or via our online appointment booking form.

Leaving the EU – Impact on Human Rights: Conference Summary Report

Sterling & Law Associates LLP were delighted to attend and participate in a high-level conference “Leaving the EU – Impact on Human Rights” organised by New Europeans[1], together with the European Association for the Defence of Human Rights (AEDH)[2], Britain in Europe[3] and Brunel University Knowing Our Rights project[4], and held in London on 16 March 2018 at Europe House

The event was organised to discuss the potential impact that Brexit would have on a number of our individuals’ rights and examine areas of human rights under threat for EU citizens and UK citizens.

The conference shed some light on key contentious areas such as workers’ rights, data protection, and family life among others. These are increasingly important topics to discuss as we move nearer and nearer towards the exit date of UK from the EU, especially when those in charge fail to provide specific indications into the details of these niche areas.

Brexit implications for human rights

There is a great fear that Brexit will lead to the regression of many of our rights. In the current state, a number of our fundamental rights derive from the European Convention on Human Rights (ECHR) and the European rules, regulations and directives. The Withdrawal Bill that proposes to implement Brexit could seek to remove several of those rights. For instance, in terms of employment law, the EU sits at the heart of workers’ rights[5] having brought about greater health and safety regulations that reduced the number of work days loss to absences and sick days, bringing about equal pay for equal value work and ensuring our right to parental leave. The Withdrawal Bill could possibly see the removal of these rights.

Data Protection Concerns

When it comes to data protection[6], the General Data Protection Regulation[7] (GDPR) proposed by the EU that comes into force on 25 May 2018, which has been implemented in the UK through the Data Protection Act, could lose all strength and meaning following Brexit. From an immigration perspective, the Data Protection Act includes an exception to the regulation for ‘effective immigration enforcement’. This means that if an individual is suspected of breaching immigration controls, the Home Office and other governmental agencies would be able to obtain and use personal data, that had been collected for purposes unrelated to immigration, to make a decision in regard to an individuals’ immigration status. This exemption could also mean that the Home Office would not be obliged to respond to Subject Access Requests (SARs) from people who wish to know what data has been held in relation to their previous immigration applications or situations at border controls. This is distressing because SARs are often used by legal practitioners to acquire necessary information to advise their clients on their specific circumstances, particularly when their clients do not have a clear record of their previous situations. Brexit could mean that the UK could get away with including such a wide-ranging exception into the legislation.

Photo by New Europeans

 

Family and private life

The conference also delved deeper into the impact that Brexit would have on our family and private life[8]. Research and analysis is currently being carried out into the effects on different categories of families. In the UK, 12% of all children born in the UK have at least one parent that is from the EU. After the referendum, there has been a sharp increase in the number of EU citizens in the UK applying for permanent residence applications and citizenship applications. However, while it might give you some peace of mind before the exit, the permanent residence card or document certifying permanent residence will not be considered valid after Brexit. EU citizens in the UK and their family members will have to reapply for a ‘settled’ status in the UK. However, as the exact details and processes are yet to have been announced, the rights of the EU citizens in the UK and those of UK citizens abroad in other EU countries have not been guaranteed. Brexit is seeking to remove EU citizens’ and their families’ free movement and automatic rights within the UK and create an entirely new system that has yet to be executed.

These alarming possibilities after Brexit gives rise to the question, as brought up by a participant at the conference, of whether the stripping of our access to these rights given to us through the EU would amount to an infringement of our human rights in itself.

Despite what has been mentioned in this article, no one knows for certain what is going to happen to our human rights after Brexit, let alone anything else relating to the UK, EU and Brexit, but it is important to keep updated on the news to ensure that we are all prepared for the big change coming our way.

Throughout the entire conference, it has been evident that Brexit has and will bring about an unjustifiable amount of uncertainty into our lives. This uncertainty underlines the discussion with ifs, doubts and questions that cannot be answered with a simple response. It is clear that the complexity of the matter, namely what effect Brexit will have on our fundamental human rights, cannot be easily resolved. However, what we can take away from this event is that there are several organisations and individuals that are currently fighting to ensure that our intrinsic human rights are not infringed.

It is our goal at Sterling & Law Associates LLP to help individuals and families to navigate this complex area of law and to keep EU nationals updated on any changes that may affect their life.

References:

[1] New Europeans is a civil rights organisation that campaigns for freedom of movement, non-discrimination and the principle of solidarity in Europe. This is done by giving a platform to European and non-EU citizens a voice in local communities to join and take part in the Europe-wide debate regarding the challenges that we are currently faced with.

[2] AEDH is a European network of over 30 individual and organisation members to defend and promote human rights in the EU.

[3] Britain in Europe is a think tank based at Brunel University London that brings together academics, legal practitioners, and human rights NGOs across Britain and Europe to conduct research and influence public policy.

[4] The project aims to provide analysis and insight into understanding the impact and application of the European Convention on Human Rights in the UK.

[5] This topic was discussed by Hannah Reed from the Trades Union Congress (TUC).

[6] This topic was discussed by Gracie Bradley from Liberty, a UK human rights and civil liberties campaign group.

[7] The GDPR was proposed to unify data protection rules for individuals within the EU. It seeks to protect personal data that is stored on computers or filing systems for example by ensuring that organisations that hold your personal information need to notify you if they share it and be transparent about how they process and use that personal information. The reason why this regulation is seen to be a move forward in this area is that there are real risks that can arise from non-compliance such as fines of up to 2% – 4% of the company’s global turnover.

[8] This topic was discussed by Dr. Nando Sigona from the Institute for Research into Superdiversity at the University of Birmingham.

UK Visa Fees

UK Visa Fees from 6 April 2018

A number of changes to the UK visa fees will come into effect from 6 April 2018.

The key changes to the Home Office fees are outlined below:

  • Increased UK visa fees on growth routes (work, study and visit) by 4%.
  • Increased fees on most non-growth routes (nationality, settlement, family) and most associated premium services by 4%.
  • The fee for the overseas optional ‘Priority Visa’ service for entry clearance will increase by 15%.

The government has not made any changes to fees under the sponsorship system. UK visa fees for entry clearance to enter the Channel Islands and Isle of Man will rise in line with fee changes seen in the rest of the UK.

UK visa fees for all applications made from outside and within the UK

TYPE OF APPLICATION

FEE, GBP 

Outside / Inside UK before 6 April 2018

FEE, GBP

Outside / Inside UK after 6 April 2018

Tier 1 Investor £1,561 £1,623
Tier 1 Entrepreneur £982 / £1,228 £1,021 / £1,277
Tier 1 Graduate Entrepreneur £349 / £474 £363 / £493
Tier 2 – 3 years £587 / £677 £610 / £704
Tier 2 – 5 years £1,174 / £1,354 £1,220 / £1,408
Sponsorship License Application  £536 £536
Tier 4 £335 / £457 £348 / £475
Tier 5 £235 £244
Family Settlement (Spouse Visa) £1,464 / NA £1,523 / NA
FLR (FP, O, M, S) NA / £993 NA / £1,033
MN-1 (Registration child – British Citizenship) £973 £1,012
AN (Naturalisation – British Citizenship) £1,282 £1,330
Indefinite Leave to Remain (Settlement) £1,464 / £2,297 £1,523 / £2,389
Other dependant relative £3,250 / NA £3,250 / NA
Visit visa – short up to 6 months £89 / NA £93 / NA
Visit visa – long up to 2 years £337 / NA £350 / NA
Visit visa – long up to 5 years £612 / NA £636 / NA
Visit visa – long up to 10 years

£767 / NA

 £798 / NA
EEA Applications (all forms)

free / £65

free / £65

A full list of the new UK Immigration, Visa and Nationality Fees can be found on www.gov.uk

Other relevant changes and updates

NHS Immigration Health Surcharge will increase to £400 a year in 2018

New Fees 2018: British Passport Applications

Deadline for employers (Tier 2 sponsors) – 5 April 2018

New Online Application System launched for Tier 2 migrants and PBS dependants

Changes to the Immigration Rules 2018

Immigration Assistance

For expert advice and assistance in relation to your particular case, applicable fees and relevant immigration law requirements, please contact our immigration lawyers on Tel. +44(0)20 7822 8535, Mobile/Viber: 074 6338 2838, by e-mail: contact@sterling-law.co.uk or via our online appointment booking form.