Tag: Immigration Rules

“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.”

 

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.

Justice prevailed! How the Immigration Officer nearly ruined the Albanian family?

Attention! Obviously, genuine marriage may be still questioned by the Home Office and result in refusal of a residence card issuing – this is where you will need Sterling Law to protect your rights.

Sterling Law has received a request for legal assistance from a person of Albanian nationality. He entered the United Kingdom illegally back in 2011. Later, in 2017 he started to cohabit with his future wife – a woman of Romanian nationality, as a result, they got married in 2018. Our client applied for a residence card, based on the fact, that the Sponsor (his future wife) was an EEA national exercising treaty right in the UK. However, not only his application was refused, but he was also detained after the marriage interview. The main reason for refusal was the fact that there were a number of inconsistencies in their answers at the interview, such as:

– the date on which the Appellant proposed;

– who lived with them in their flat;

– what they did in spare time etc.

The Home Office misinterpreted the facts and claimed that body language of the parties at the interview “didn’t feel they were too invested in the relationship”. Also, the Home Office claimed that the couple was prepared for the interview by a solicitor.

Here is the question appears: is the Home Office qualified to assess whether a foreign national is genuinely in a relationship by assessing their body language?

In any event, it was concluded that there were reasonable grounds to suspect that the marriage was of convenience, even though the marriage right was granted.

Sterling Law put much effort into this case and the Appellant was released on bail and got married to his Sponsor. Seeking justice, the Appellant appealed on the grounds that the refusal breached his rights under EU Treaties. He managed to provide additional evidence, such as witness statements, bank statements, social network posts and common photographs. The Appellant endeavoured to prove that his genuine marriage was genuine. He also provided all the details as to how his wedding was planned, where the rings and wedding clothes were bought. One of the strongest evidence was that the Appellant’s spouse had recently visited Albania, where she stayed with her husband’s parents.

At the final hearing, the Judge was rather straightforward in his statements and expressed “serious concerns about the conclusion drawn by the Immigration Officer who conducted the marriage interview due to a lack of objectivity”. The Judge also admitted, “just how many men would be able to remember the precise date on which they proposed?”. As for the fact that the Appellant was prepared for the marriage interview by the solicitor, the Judge pointed out: “what does he expect a solicitor to say to people on this position and how was the interview allegedly planned?”. And finally, it was reasonably noted that “if this is a marriage of convenience the parties have gone too extraordinary lengths to cover their tracks in sending the Sponsor to Albania and bringing back photographic and documentary evidence of meeting Appellant’s family.” Taking into account that the burden of proof was on Respondent (according to case law Papajorgji Greece (2012) UKUT 38 (IAC)), the Respondent failed to satisfy the burden and establish reasonable grounds to suspect this marriage is one of convenience.

The Judge confirmed that the marriage was genuine and the appeal was allowed.

Sterling Law was glad to successfully assist its client of Albanian nationality to win all the stages of the process: firstly, to get the Appellant released on bail, secondly, to prove his marriage was genuine and finally to obtain a residence card.

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.

Changes to the Immigration Rules: Tier 2 (General) Visa

The Home Office announced on 15 June 2018, changes to the Immigration Rules will affect a number of categories including Tier 2 of the Points-Based System.

Changes are being made to exempt doctors and nurses from the Tier 2 (General) limit. This is in response to the particular shortages and pressures facing the NHS at the current time, and the fact that the limit has been oversubscribed in each month since December 2017.

The changes will mean that health sector employers will be able to sponsor doctors and nurses without requiring restricted Tier 2 certificates of sponsorship or putting pressure on the limit. This will free up places within the limit for other key roles which contribute to the UK economy and other public services. The changes will be kept under review.

In all other respects, the change preserves the existing arrangements. This means that all applications for nurses, and all applications for doctors not currently recognised on the Shortage Occupation List, will continue to be required to demonstrate that they have met the requirements of the Resident Labour Market Test.

Doctors currently recognised on the Shortage Occupation List will continue to be exempt from the RLMT.

The following additional changes are being made to Tier 2 Visa category:

  • Amendments are being made so that applications for Restricted Certificate of Sponsorship for Croatian nationals no longer count towards the Tier 2 limit. This is because Croatian nationals will no longer need to apply for work authorisation in this category, owing to the lifting of transitional controls on the work rights of Croatian nationals on the occasion of the fifth anniversary of Croatia’s accession to the EU.
  • From 14 June 2012, the skills threshold for jobs sponsored under Tier 2 (General) and Tier 2 (ICT) increased from Regulated Qualifications Framework (RQF) level 4 to RQF level 6. The transitional arrangements, for those previously in these routes to extend their stay, are no longer needed and are being closed. Provisions for these migrants to apply for indefinite leave to remain are being retained. The Government signalled in March 2016 that this closure would take place in July 2018, and set this out in the published guidance for Tier 2 sponsors.
  • A change is being made to expand the restriction on Tier 2 migrants holding more than 10% of shares in their sponsor so as also to restrict such ownership being held indirectly, such as via another corporate entity.
  • A change is being made to the evidential requirements for Tier 2 migrants applying for settlement, who have been absent from work on maternity, paternity, shared parental or adoption leave. These applicants are additionally required to provide evidence of the underlying adoption or birth that necessitated their leave. These changes bring the requirements in line with similar requirements elsewhere in the Immigration Rules.
  • References to Find a Job, the service replacing Universal Jobmatch, have been included for the Resident Labour Market Test.
  • Minor drafting corrections are being made to correct the Standard Occupational Classification (SOC) code used for midwives. These corrections have no impact on the way applications for midwives are considered.

These changes to the Immigration Rules will come into effect on 6 July 2018.

More information is available in the statement of changes.

For more details, please feel free contact our please contact our immigration lawyers on Tel. +44(0)20 7822 8535, Mobile / Viber: +447463382838, by e-mail: contact@sterling-law.co.uk or via our online appointment booking form.

New changes in the Tier 1 (Exceptional Talent) Visa Category

New changes to the Immigration Rules were prepared and laid by the Home Office before Parliament on 15 June 2018. These changes will come into effect on 6 July 2018.

In addition to the removal of doctors and nurses from the Tier 2 visa cap there are a number of changes to other UK’s visa routes, including Tier 1 (Exceptional Talent), Tier 1 (Investor) and Tier 1 (Entrepreneur).

Tier 1 (Exceptional Talent) Visa Changes

The Tier 1 (Exceptional Talent) category is for talented individuals in the fields of science, humanities, engineering, the arts and digital technology to work in the UK without the need to be sponsored for employment in a specific post. The applicants must be endorsed by a Designated Competent Body.

The following changes are being made to this category:

  • Opening up the exceptional talent visa to include leading fashion designers. The endorsement of arts applicants is being widened to include those in the fashion industry who are operating leading designer fashion businesses. These applicants will be assessed by the British Fashion Council operating within the endorsement remit of Arts Council England.
  • Tier 1 (Exceptional Talent) route has also been opened up to a wider pool of TV and film applicants, under the remit of ACE. This is due to the changes to the criteria and list of eligible awards for applicants in film and television.
  • 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 applicants holding a peer-reviewed research fellowship; and changes for digital technology applicants to reflect the rebranding of “Tech City UK” as “Tech Nation”.
  • Amendments are being made so that endorsements for Croatian nationals no longer count against the number of allocated endorsements available to each Designated Competent Body. This is because Croatian nationals will no longer need to apply for work authorisation in this category, owing to the lifting of transitional controls on the work rights of Croatian nationals on the occasion, this July, of the fifth anniversary of Croatia’s accession to the EU in July 2013.

More information is available in the statement of changes.

For more details, please feel free contact our please contact our immigration lawyers on Tel. +44(0)20 7822 8535, Mobile / Viber: +447463382838, by e-mail: contact@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.

Insurmountable obstacles rule featured in Appendix FM of Immigration Rules in cases concerning partner relationships

The application and interpretation of the “insurmountable obstacles” rule aims for a balance between the Article 8 rights and the legitimate aims of immigration control. The Rules therefore account for the cases where people apply for a leave to remain as partners and the following applies:

“(b) the applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British citizen, settled in the UK or in the UK with refugee leave or humanitarian protection, and there are insurmountable obstacles to family life with that partner continuing outside the UK.”

“Insurmountable obstacles” are defined as very serious difficulties, which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner. Therefore, the focus is on the difficulties to be faced by the couple in continuing their family life outside the UK.

Although this entails a high test, it does not mean literally insurmountable obstacles. In practice, interpretation of this rule is practical and realistic. In establishing insurmountable obstacles, the following factors may be taken into consideration, as per Jeunesse v Netherlands [2014] ECHR 1036:

  • Whether family life would be effectively ruptured;
  • Whether there are any ties in the Contracting State (and their extent);
  • Factors of immigration control (eg, history of immigration law breaches);
  • Public order

There are a few other considerations that can influence the application of insurmountable obstacles to a particular case.  

  • Firstly, it is important if the applicant’s stay in the UK is unlawful or precarious. This affects the weight attached to the public interest in removing the person from the UK. Accordingly, the weight of public interest is determined by the outcome of immigration control over the applicant.  This can be illustrated by two contrasting scenarios. If the applicant’s stay in the UK was unlawful and they would be deported as a foreign criminal, the public interest in their removal is elevated. By contrast, if it is certain that the applicant would be granted leave to enter the UK after being removed, the interest in such removal is diminished, as illustrated by the Chikwamba rule.
  • Secondly, a less stringent approach might be appropriate if the applicant and their partner were under a reasonable misapprehension of their ability to maintain a family life in the UK. In practice, this would apply, for example, in cases when someone is brought to the UK as a child and not informed of their immigration status.

Nevertheless, even though it is established that the test of insurmountable obstacles is high, the Agyarko case also notes that if the test is not met, but the refusal of the application would result in unjustifiably harsh consequences, the refusal will be disproportionate and a leave granted under “exceptional circumstances”. Therefore, despite a high threshold of the test, there are many factors that affect the decision of a court or tribunal when each individual case is being decided.