Immigration Barristers' Blog

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The Upper Tribunal has recently given its determination in the case of MW (Nationality; Art 4 QD; duty to substantiate) Eritrea [2016] UKUT 00453 (IAC). In its determination the Upper Tribunal analyses on whom the duty lies to substantiate nationality, in relation to a case of disputed nationality.

In MST and Others (national service - risk categories) Eritrea (CG) [2016] UKUT 443 (IAC) (7 October 2016), the Upper Tribunal has issued updated country guidance on the situation in Eritrea. Whilst reconfirming parts of the country guidance given in MA (Draft evaders - illegal departures - risk) Eritrea CG [2007] UKAIT 00059 and MO (illegal exit - risk on return) Eritrea CG [2011] UKUT 190(IAC), the updated country guidance on Eritrea may be summarised as follows:

The Home Office is now offering a European passport return service for EEA and Swiss nationals applying online using the EEA(QP) or EEA(PR) application forms.

The Ministry of Justice has today increased some immigration and asylum appeal fees by up to 500%.  This is against the backdrop of a consultation in which 142 out of 147 respondents indicated that they were opposed to the proposal.  

The Home Office has published its list of civil penalties for the first quarter of 2016, with the fines imposed totalling more than £14 million. Elsewhere in the media, the relationship between certain employers and the Home Office when arresting those working illegally in the UK has been widely reported.

For those applying for entry clearance or leave to remain in the UK as a partner under Appendix FM of the Immigration Rules the applicant is required to satisfy a financial requirement. The minimum income threshold was set at £18,600 in July 2012 after the Government had considered advice from its Migration Advisory Committee (MAC).

On 28 July 2014, section 19 of the Immigration Act 2014 inserted section 117B into the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”), the aim of which was to expressly indicate to the Tribunals factors that Parliament considered are in the public interest.

One criterion which has caused some controversy is section 117B(5) of the 2002 Act which reads:

“(5) Little weight should be given to a private life established by a person at a time when the person’s immigration status is precarious.”

Posted by on in Students

Every year thousands of Students come to the UK to study. Prior to the closure of the Tier 1 (Post Study Work) category, fresh graduates had the option to remain in the UK for up to two years in order to work, complete study further, start a business and generally decide what they wanted to do in the long term, and if they wanted to do it in the UK.

The Immigration Act 2014 made it compulsory for private landlords to check the immigration status of all new adult tenants, sub-tenants and lodgers in order to assess whether they have a ‘Right to Rent’ in the UK. The Act also introduced civil penalties for landlords and letting agents for renting out property to individuals who are not qualified to rent property in the UK. The Immigration Act 2016 (“The Act”) builds on the foundations laid by the Immigration Act 2014 and gives further force to the ‘Right to Rent’ scheme.

The case of R (on the application of Kashif) v Secretary of State for the Home Department (JR jurisdiction: applicant in Scotland) IJR [2016] UKUT 00375 (IAC) raised a question of jurisdiction, namely whether a person who is in Scotland ought to be allowed to bring judicial review proceedings in relation to a decision taken by the Secretary of State in England and Wales.

The Court of Appeal Case, Siew Lian Lim v Entry Clearance Officer Manila [2015] EWCA Civ 1383, was heard on 28 July 2015 before Lord Justice Elias, Lord Justice McCombe and Lord Justice Ryder.  This appeal raised the question whether an adult relative, who has sufficient savings to meet her own needs but chooses instead to rely on financial support from a related EU citizen so that she will be able to pass on her assets to her children, can be regarded as a direct dependent relative in the ascending line within the meaning of Regulation 7(1)(c) of the Immigration (European and Economic Area) Regulations 2006.

The Upper Tribunal in Sala (EFMs: Right of Appeal) [2016] UKUT 411 (IAC) has ruled that there is no statutory right of appeal against a Home Office decision to deny an EEA Residence Card to the Extended Family Member (EFM) of an EEA national under regulation 17(4) of the Immigration (EEA) Regulations 2006. 

The Immigration Rules for Tier 1 (Entrepreneur) settlement can be found at paragraph 245EF. Under the Immigration Rules, Tier 1 (Entrepreneur) migrants can normally apply for settlement once they have spent five years continuously in the UK with leave as a Tier 1 (Entrepreneur). However, if certain additional conditions are met, Tier 1 (Entrepreneur) visa holders may be eligible to apply for accelerated ILR after a continuous period of 3 years.

Posted by on in Deportation

In NA (Pakistan) v SSHD [2016] EWCA Civ 662, the Court of Appeal corrected the obvious drafting error in section 117C(3) of the Nationality, Immigration and Asylum Act 2002 (as amended by the Immigration Act 2014), and ruled that foreign criminal ‘medium offenders’ (those with sentences of between one and four years’ imprisonment) have the same fall back protection as ‘serious offenders’ (those sentenced to four years or more) when seeking to resist deportation by reliance on Article 8 of the European Convention on Human Rights. The same words that appear in s117C(6) and para 398 of the 2014 Immigration Rules need to be read into section 117C(3) so as properly to reflect Parliament’s true meaning that where medium offenders do not fall within a private or family life exception, they can still resist deportation where there are “very compelling circumstances over and above” those exceptions.

One of the main requirements to be satisfied as part of an initial application for entry clearance or leave to remain as a Tier 1 Entrepreneur is to demonstrate that the applicant has the required level of funds to invest in a new or existing business in the UK.

Posted by on in Uncategorized

As with any immigration matter, when making a nationality application or claim it is of course necessary to provide relevant evidence to corroborate and support the application or claim being made. Whilst the evidence that may be required will inevitably vary from case to case, the following provides some general guidance that may assist.

The Upper Tribunal has once again looked at the Rules relating to the Entrepreneur category, in a determination which focusses on the availability of funds to invest in a UK business, specifically, where the funding is provided by a Venture Capital Firm.

The Home Office Modernised Guidance on direct family members of EEA nationals (of 29 September 2015) provides guidance for decision makers who are assessing whether a marriage between an EEA citizen and a third country national is genuine or one of convenience. A party to a marriage of convenience is not a ‘family member’ for the purposes of the EEA regulations.

The Brexit referendum vote announced on 24 June 2016 came as a shock to many, but has no immediate impact on the rights of EU nationals and their family members in the UK.

Figures released by the Office for National Statistics on 25 August 2016 reveal that the number of Tier 1 (Investor) and Tier 1 (Entrepreneur) visas granted in the second quarter of 2016 remained broadly stable when compared with the number granted in both the previous quarter and the same quarter in 2015. However, overall the refusal rate for both Tier 1 (Investor) and Tier 1 (Entrepreneur) visa applications has increased.

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