Tag: Immigration

“The law extends but does not limit freedom.” Sterling Law wins the lawsuit against the UK Home Office

Prior to being disappointed because of having lost the case, we would advise to attentively check the grounds which the Home Office based its decision on.

The situation that will be presented below shows that even the Home Office can show low consideration of the specific case. An individual has referred to Sterling Law to provide legal representation in the case due to the refusal of her application for an EEA Residence Card as confirmation of her right to reside in the UK with her husband of British citizenship.

Our Client is a woman (further Appellant) who got married to a British citizen in 2013 in Afghanistan. By the date of the hearing, they were expecting the birth of their first child. In 2016 her husband was offered a good job in the Netherlands, so the family decided to relocate there permanently. He was the first who moved to start his new job and a few months later, the Appellant joined him. She applied for EEA Residence Card in the Netherlands as a confirmation of her right to stay with her husband as a family member. She has issued a Residence Card in the Netherlands. Everything seemed to be in order: well-paid job, new rental apartment, studying a new language, life was filled with new colors. The family could see a lot of bright prospects for their future in the new country. They did not have intentions to leave the  Netherlands. However, life often has its own plans. Sometime later, they got news that the Applicant’s husband’s mother has seriously got sick in the UK. Taking into account the cultural specifics of the Appellant’s husband’s nationality (he was Afghan), the son was obligated to take care of his senior parents, especially if they were unwell. The family had no other choice but to go back to the UK to take care of the husband’s mother. She had limited capability of moving around the house and was suffering from instant pain in her joints. The Appellant provided significant help to her husband’s mother, such as feeding, cooking, helping to go to bed, etc. Upon arrival to the UK, the Applicant applied for a UK Residence Card as a confirmation of a right to reside in the UK with her British husband. However, the Home Office refused in issuing the Residence Card based on her situation assessment, saying that the Appellant could not meet the requirements of British immigration law.

We would like to provide the grounds of the Home Office refusal:

The Home Office concluded that the Applicant’s relocation to the Netherlands was not genuine, and was done in order to “circumvent domestic immigration laws”. In other words, the Home Office claimed that the Appellant decision to move to the Netherlands was something like a staging show with the only aim – to circumvent British law and to eventually receive UK Residence card. Secondly, the Home Office claimed that it was solely the Applicant’s initiative to come back to the UK, not her husband’s intention.

Moreover, it was concluded that the Applicant did not show that the center of her and her husband’s life was transferred to the Netherlands, practically no integration into new society has been conducted. And the accommodation they rented was just on a temporary base.

Sterling Law was appointed to represent the Appellant in this case, where we initially pointed out on the Home Office low consideration of the case and the numerous obvious evidence provided by the Applicant.

The first and furthermost fact is that throughout the entire Decision Letter the Home Office repeatedly referred to the Applicant has lived in “Ireland” instead of the Netherlands. This could not be considered just a minor error, but an example of how poorly the application was considered by the Home Office.

Based on the provided tenancy agreement, it was clearly seen that the Appellant’s family were planning to stay in the Netherlands not temporarily, but for a long period of time, if not permanently.

Numerous medical check-ups of the Appellant’s mother-in-law showed that she was indeed unwell and needed constant everyday care. Thus, the initiative of their relocation back to the UK was fully belonged to the Appellant’s husband, as it was his mother who needed help and physical support.

Later, the court concluded that relocation to another country could not be just a staging show, as it has been done so much by the family to move the center of their life to the Netherlands: find a new job, rent an apartment, study a new language, integrate into society. No doubts, the appeal was allowed by the Court. The Applicant was granted the UK Residence card.

Sterling Law was more than satisfied that the justice was served. We highly recommend to read through the Home Office decisions attentively, there can be some minor errors which do not influence the actual decision, but at the same there can be mistakes that completely change the outcome of the case, and even worse if this outcome is refusal or rejection of your application, like in the case described above.

This case reaffirms the statement of the prominent English philosopher John Locke, who said that “the end of law is not to abolish or restrain, but to preserve and enlarge freedom.”

 

Domestic violence – Indefinite Leave to Remain

A VICTORY FOR OUR CLIENT IN THE FIRST-TIER TRIBUNAL

Our lawyers won the appeal regarding indefinite leave to remain in the UK on the human right grounds.
Our client, a national of the Russian Federation, has lived and worked in the UK as a consultant for more than 3 years. Throughout her leave she held a spouse visa under the Immigration Rules (part 8, Appendix FM) as she was married to a British Citizen who is settled and present in the UK. The client had a complicated relationship with her British spouse (former), she was persuaded by former husband to apply for the spouse visa rather than a working visa that was also an option at that time. Our client’s spouse had regular mood swings, behaved with the client aggressively from time to time, forced her to leave the matrimonial house against her will and even forced her to make an act that was against her religion. Also, the client’s husband threatened to inform the Home Office that their marriage is over if she did not follow his instructions. After these events, our client had mental problems, was in continuous grief, sadness, stress, and regret; could not work properly. In addition, she suffered financial abuse since she was forced to transfer money into the spouse’s account, most notoriously, former husband did not give access to that funds.
Our client made an application for indefinite leave to remain in the UK as a victim of domestic violence that was initially refused by the Home Office, and she had been divorced 5 months before the final hearing.
In the Appeal case, our team provided the successful representation of domestic violence. The appeal was allowed and the right for indefinite leave to remain as a victim of domestic violence was granted.

EU National’s Children and British Passports

Since the June 2016 referendum, when most British voted for Brexit, EU nationals became concerned about protecting the interests of their children and started to look for options of securing a UK passport. Let’s get into more details.

According to the general rule, children born in the UK automatically acquire a British passport. However, depending on the date the child was born different rules might apply.

For instance, those children who were born in the UK from October 2000 to April 2006 must prove that one of their parents held permanent residence or indefinite leave to remain/enter at the moment they were born. Only, in that case, they will be able to get a British passport. Permanent residence card or a letter from the UK Visas and Immigration are enough evidence to be provided to the British immigration authorities. However, most parts of EU nationals did not apply for such documentation, mostly because of the lack of immigration law knowledge, so their children losses the right to obtain a British passport automatically. Such a pity, but due to non-acquaintance the parents will have to apply on behalf of their children and register them as British citizens.

 

Those, who were born after April 2006 can obtain British passport if they can prove that their parents were exercising Treaty Rights by residing in the UK for at least of 5 years before the child was born. EU parents who have not completed 5 years residence in the UK prior to giving birth will withdraw their children’s right to become British at birth. Nevertheless, this category of children will have a right to register as British citizens following the terms and conditions of the British Nationality Act 1981. It should be noted, that such application is rather high-priced and would cost nearly GBP 1000.

We often get lots of questions from the clients in the cases, where one child (usually the eldest one) was born outside the UK and the youngest – in the UK. In that case, the younger child will have two options: either to be British at birth or to register through automatic entitlement, which was described in the previous paragraph.

Holding British citizenship, you can always come back to the UK to live, study or work. As parents are highly concerned about their children education, you can get a British education, which is undoubtedly one of the most efficient in the world. Sure enough, British passport is one of the most beneficial nowadays and can be counted as a great investment into your child’s life providing lots of advantages and opportunities for a better future.

BASIC GUIDANCE ON CHALLENGING HOME OFFICE CIVIL PENALTY NOTICE

Penalty Notice, two words but so much damage. Businesses suffer from lower reputation, fines are expensive, and the competitors are thriving. Failure to conduct the lawful immigration checks leads to the issue of the penalty notice. There are many real-life examples regarding this matter and even more regarding other cases.

So, What is a Civil Penalty Notice?

It is a Document issued by  the Home Office, informing the organisation that they employed a person who has no legal right to work in the UK. The Civil Penalty regime was created to ensure employers comply with the UK’s immigration laws and regulations. It is set to punish both, the illegal employees and the organisation that hired them. Many employers received civil penalty notices by unknowingly hiring illegal immigrants, meaning that they have failed to complete the correct Right To Work checks. If that occurs, fines can go up to 20,000£ per worker. This is a big fine that can even end some organisations. Employers who in fact knew that they were hiring an illegal immigrant face up to 5 yeas of imprisonment and an unlimited fine.

Grounds for challenging a Civil Penalty Notice

Each organisation has 28 days to respond to the penalty. It starts with an employer making a formal objection to the Home Office. If an employer has grounds for a challenge and evidence to support their case , the fine may be reduced or withdrawn at this stage. If this fails, an appeal can be made to the court.

The ‘Statutory Excuse’

An employer who can prove they carried out correct Right To Work checks on an employee named in the Civil Penalty Notice has a ‘Statutory Excuse’ and does not have to pay the fine.

That is why it is so important to complete the Right To Work checks and have a robust compliance system in place. If the employer has completed the checks and has evidence proving so , they may not be required to pay the penalty. Even further, the Immigration Enforcement will not publish businesses name, reducing the reputation damage.

Employers have to understand that Immigration Law is what everyone has to follow. Employers must ensure that Right To Work checks are complied with and the evidence is retained. Objecting to the notice and processes following that are worse then just simply following the Home Office requirements.

One year without a parent. How immigration policy destroys a child’s childhood

A controversial and interesting case has been recently represented by Sterling Law.
Apparently, according to the Home Office, the evidence of having a child is not strong enough to recognize marriage as genuine and issue a Residence Card for the applicant.

Sterling Law presented the rights of the Appellant, who is a Ukrainian citizen. The Appellant applied for a Residence Card the grounds of being a spouse of EEA national, exercising treaty rights. However, the application was refused based on the results of the marriage interview. The Appellant and her spouse of Lithuanian nationality were interviewed separately. After the interview, a few discrepancies were detected, namely:

1) The Appellant stated that her future husband proposed to her in summer 2014, when her husband mentioned the date of September 2015.
(How is it possible not to remember when you were proposed?)
2) Also, discrepancies were found in Appellant’s sister’s name.
(Is it possible to forget your wife’s sister’s name because you are nervous at the interview?)
3) The appellant was not able to name the amount of mortgage, that her husband took. (Seems like there is not much trust in this couple, right?)
4) And finally, the couple did not purchase the engagement ring and did not celebrate the wedding.
(Obviously, they did not need it as it looks like a marriage of convenience, doesn’t it?)

Having such discrepancies at the marriage interview, made the HO assume this couple is not in a genuine relationship.

The couple, however, has a common child, as well as numerous photographs, where all the family members (including relatives) were together. Both parents can be seen on the photos of different baby’s age and have undoubted evidence of cohabitation.

Is the fact of having a common child not strong enough to consider that the marriage is genuine? – this is the main issue that was raised in this case.

The fact, that the appellant and her EEA national husband have a child did not influence the Home Office decision. Based on the above-mentioned discrepancies, the Appellant of Ukrainian citizenship was refused in issuing a Residence Card. The marriage was deemed as the one for obtaining citizenship rights. Moreover, the burden of proof was put on the Appellant, which contradicted the case law.

The Appellant had to wait over a year for another hearing to present more evidence and proof of cohabitation.

Adult dependent relative

One of the strongest misconception related to immigration is to assume that only direct family members can apply for Family visa to the United Kingdom. Direct family members usually imply fiancé, spouse, child, parent. However, according to the UK Immigration regulations, a person can apply for Family visa if he is ‘an adult person coming to the UK to be cared for by a relative’. Care can be provided by such relatives as a parent, grandchild, brother, sister, son, daughter or others who are living in the UK.

Certainly, there is a number of requirements applied to the caregiver in the UK, namely:

  • to be living in the UK permanently;

  • to be a British citizen;

  • to be settled in the UK;

  • to have refugee status or humanitarian protection in the UK.

Adults who are eligible for this type of visa will have to prove to they are an essential need for long-term care due to a serious health condition, disability or advanced age. One of the most important requirements for the applicant is that he is not able to receive such treatment in his home country because it is not available or not affordable. However, one limitation for the applicant is applied – he cannot claim public funds for at least 5 years period. It means that the applicant will not be able to pretend to most benefits, tax credits or disability living allowance that are paid by the state. This is the Receiving party (British caregiver) who is taking responsibility for the applicant in all financial matters. To apply for Family visa as an adult dependent relative, the Applicant must be located outside the UK and the age must be 18 or over. If the paperwork was done correctly and the applicant was lucky enough to obtain a family visa as an adult dependent relative, his stay in the UK is considered as unlimited, as long as he joined British family living in the UK without a breach of continuity.

It should be noted that the application process is rather complex, which requires much attention and knowledge. The applicant will have to prepare not only his personal information consisted of at least 16 documents but also nearly the same amount of documents for his Receiving party not including proof of relationship with the British caregiver. The best way to cope with the paperwork is to ask an experienced lawyer for legal assistance. This way, the applicant will be ensured that all paperwork is completed correctly, which increases chances for a positive result in application consideration. Sterling Law highly recommends requesting legal assistance from qualified and licensed lawyers, who have long-term practice in immigration law and will be able to find the right solution in any unpredicted circumstances.

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.

New Immigration, Visa and Nationality Fees 2018-19

Legislation was laid in Parliament on 16 March 2018 which sets out a number of changes to immigration, visa and nationality fees.

These changes will come into effect on 6 April 2018.

Careful consideration is given to individual fees to help reduce the funding contribution from UK taxpayers, whilst continuing to provide and invest in a service that remains attractive to our customers and competitive with other countries.

The key changes are outlined below:

  • Increased 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%.
  • For the fourth year running, there will be no any changes to fees under the sponsorship system.
  • 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.

A full list of the new fees can be found on www.gov.uk

Inappropriate behaviour of Immigration Officers during enforcement visit supported by Upper Tribunal Judgement

Appeal against removal directions on the grounds of undergoing a sham marriage is dismissed after the Upper Tribunal judge finds the claims about inappropriate behaviour of Immigration Officers (IOs) during an enforcement visit unfounded.

The Appellant is an Egyptian national entered into a marriage with an EEA national whilst overstaying in the UK after his 6-month visitor visa expired. The Appellant had removal directions issued against him after an enforcement visit to the place he was temporarily residing at.

It was alleged by the Appellant that the IOs were behaving in a threatening manner and did not follow the procedure required by law, namely the Police and Criminal Evidence Act 1984 (PACE) requirement to give the Appellant a criminal caution.

The Respondent disputed the allegations about the inappropriate behaviour of the IOs and argued that PACE guidance did not apply in the present case because the situation concerned an administrative rather than criminal procedure.

Having reviewed the evidence available, the Judge found that the Appellant’s claims and criticisms of the IOs’ conduct to be unreliable, and supported the Respondent’s argument that PACE guidelines did not apply to the present case, thus ruling that the IOs did not breach PACE by failing to give the Appellant a criminal caution.

The distinction between criminal and civil proceedings was crucial to uphold to avoid the confusion between the two very different sets of rules.

The case, nevertheless, is very helpful at reminding us about the procedure the IO need to follow when making an enforcement visit. It notes that the Secretary of State made a Codes of Practice Direction in 2013, which states that:

  • A person, suspected of an offence, must be cautioned before any questions about an offence are put to them. There is no need to be cautioned, however, if questions refer to other necessary purposes, such as obtaining information by a statutory requirement.
  • The person must be told that they are not under arrest and informed about how they may obtain legal advice.
  • The caution must be in the following terms: “You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in Court. Anything you do say may be given in evidence.”
  • The caution should not be given when the questioning is intended to establish basic facts such as identity, however the purpose of questioning must be identified.
  • If a reasonable suspicion that the person in question is liable to be held in immigration detention arises out of known information, person’s actions or information discovered during the enquiry, and the person must be arrested, they must be given the administrative explanation or criminal caution.
  • The arrest must be necessary to progress the case
    • It is unlikely that arrest would be appropriate if the person’s immigration status is known and no progression on the case will be made by arresting them.
  • The person under arrest must be informed that:
    • They are under arrest and not free to leave;
    • The reason for the arrest;
    • Why it is necessary to arrest them.
  • Where IOs use criminal powers to make an arrest they must comply with PACE
    • To have a criminal power of arrest, IOs must have a genuine intention to prosecute the individual and have reasonable grounds to suspect that the person has committed or attempted to commit a criminal offence
  • Where IOs use administrative powers to make an arrest, they must notify the person of their detention and reasons for it as per Immigration Act 1971.

Prime Minister pledges to secure simple process to swap current EU Permanent Residence status for UK settled status

Today, on 19 October 2017, ahead of the EU Council meeting, Theresa May wrote directly to EU citizens in the UK. In her message, the Prime Minister pledged to make it as easy as possible for EU citizens to remain in the UK after Brexit. She insisted that the application process for settled status in the UK would be “streamlined” and the cost “as low as possible”. For any EU citizen who holds Permanent Residence status under the current EU regulations, there will be a simple process introduced to swap their current status for the UK settled status.

Full text of the Prime Minister’s message is quoted below.

“As I travel to Brussels today, I know that many people will be looking to us – the leaders of the 28 nations in the European Union – to demonstrate we are putting people first.

I have been clear throughout this process that citizens’ rights are my first priority. And I know my fellow leaders have the same objective: to safeguard the rights of EU nationals living in the UK and UK nationals living in the EU.

I want to give reassurance that this issue remains a priority, that we are united on the key principles, and that the focus over the weeks to come will be delivering an agreement that works for people here in the UK, and people in the EU.

When we started this process, some accused us of treating EU nationals as bargaining chips. Nothing could have been further from the truth. EU citizens who have made their lives in the UK have made a huge contribution to our country. And we want them and their families to stay. I couldn’t be clearer: EU citizens living lawfully in the UK today will be able to stay.

But this agreement will not only provide certainty about residence, but also healthcare, pensions and other benefits. It will mean that EU citizens who have paid into the UK system – and UK nationals into the system of an EU27 country – can benefit from what they’ve put in. It will enable families who have built their lives together in the EU and UK to stay together. And it will provide guarantees that the rights of those UK nationals currently living in the EU, and EU citizens currently living in the UK will not diverge over time.

What that leaves us with is a small number of important points to finalise.  That is to be expected at this point in negotiations. We are in touching distance of agreement.  I know both sides will consider each other’s proposals for finalising the agreement with an open mind. And with flexibility and creativity on both sides, I am confident that we can conclude discussions on citizens’ rights in the coming weeks.

I know there is real anxiety about how the agreement will be implemented. People are concerned that the process will be complicated and bureaucratic, and will put up hurdles that are difficult to overcome. I want to provide reassurance here too.

We are developing a streamlined digital process for those applying for settled status in the UK in the future. This process will be designed with users in mind, and we will engage with them every step of the way.  We will keep the cost as low as possible – no more than the cost of a UK passport. The criteria applied will be simple, transparent and strictly in accordance with the Withdrawal Agreement.  People applying will not have to account for every trip they have taken in and out of the UK and will no longer have to demonstrate Comprehensive Sickness Insurance as they currently have to under EU rules.

And importantly, for any EU citizen who holds Permanent Residence under the old scheme, there will be a simple process put in place to swap their current status for UK settled status.

To keep development of the system on track, the Government is also setting up a User Group that will include representatives of EU citizens in the UK, and digital, technical and legal experts. This group will meet regularly, ensuring the process is transparent and responds properly to users’ needs. And we recognise that British nationals living in the EU27 will be similarly concerned about potential changes to processes after the UK leaves the EU.  We have repeatedly flagged these issues during the negotiations. And we are keen to work closely with EU Member States to ensure their processes are equally streamlined.

We want people to stay and we want families to stay together. We hugely value the contributions that EU nationals make to the economic, social and cultural fabric of the UK. And I know that Member States value equally UK nationals living in their communities. I hope that these reassurances, alongside those made by both the UK and the European Commission last week, will provide further helpful certainty to the four million people who were understandably anxious about what Brexit would mean for their futures.”