ICS Legal Services

August 3rd, 2011

We provides a range of services from immigration advice to complex case. Below are few of the services are discussed.Our success is measured by the way we deliver our services to our clients ensuring prompt, acurate, honest and practical solutions.

Application Checking Service

Our unique Application Checking Service allows you to get your application checked by an Immigration Advisor and ensure that the application is valid before you submit it to the Home Office. This service is targeted to all clients, who have a basic understanding of the application process but require assistance with some aspects of the application, or even assurity that the relevant information has been included.

The service includes:

  • An appointment at our office with all your documents including the application forms. It is critical that your Immigration Advisor ensures that the application is valid, as there is no right of appeal for invalid application.
  • Completion of any other possible associated application forms or even just checking the application form you have completed is the correct one.
  • Paying close attention to the Immigration Law specific to your application particularly paying attention to the Immigration Rules and Policies, we will ensure that all the requirements are met and only the relevant documents have been supplied, bearing in mind that any un-necessary documents could delay an application or can even confuse case workers.
  • Editing your cover letter and adding any required information.

After the consultation, your legal advisor can be contacted at any time for any further clarifications.

Initial Applications/Entry Clearance/UK Visas/Further Leave to Remain/Settlement
We offer our best value for money service to our clients. It is a complete service package for all initial applications or those looking for extensions or switches to a different category.

Our advisors will provide you with the right advice for your application; we will further confirm eligibility for you with your chosen applicaion.

This service includes the following:

    • Entire consultancy (this will check your eligibility to apply, inform you on how we propose to present your case to the Secretary State of Home Department (SSHD) and discuss options where required).
    • Administration services.
    • Completion of the relevant application forms (each section will be cross referenced with the documents supplied to ensure the validity of the application. There are important sections and document requirements to ensure the application is valid (not meeting the requirement may lead to refusal without appeal if you fail to respond within the prescribed time under The Immigration Regulation 2003 S1, No 1712).
    • Sponsor letter where required. We will discuss the requirements and responsibilities of the sponsors.
    • A policy document from us where we outline how you met the Immigration Rules HC395 enabled by the Immigration Act 1971 (cross referencing all the documents supplied, how you meet the rules and any instructions that we need to inform the SSHD when they analyse your case).
    • Collecting all the necessary evidence from your self (we will cross reference your documents, create additional documents to ensure that the SSHD can understand where we have derived the information from and for what reasons particular documents are supplied and also exclude any un-necessary documents which can lead to a delay in your application and can confuse the SSHD).
    • Collectively going through the documents created with the client to ensure they are happy with the application and after approval this would be ready for submission.

Case Management – complex cases

This section provides details of how we can support you in making further representations to the Home Office. Our Immigration Advisors are equipped with the skills and knowledge to tackle your case and provide the correct solution to your problems.  We are able to carry out Administrative Reviews on all PBS applications. At this level, ICS Legal can undertake more complex applications in selective categories which includes applications outside the Immigration Rules and applications under Home Office concessionary or discretionary policies. British Nationality and Citizenship is another area where we can undertake some complex cases.

Our Immigration Advisors have detailed knowledge of Immigration and Nationality law, including:

  1. Grounds for applications.
  2. UKBA practice in the consideration of cases.
  3. UKBA concessionary policies.
  4. Grounds for lodging appeals including human rights grounds.
  5. British Nationality.
  6. Administrative reviews on all point based applications.
  7. Procedures for human rights applications, e.g. One-Stop Notices.

Where an application has been submitted and you require further representations to be made to the Home Office, ICS Legal can carry this out. We have an upto date working knowledge of relevant case laws and precedents and can access and use them effectively when making representations on behalf of the clients.

We have detailed knowledge of the types of evidence needed to support applications outside the Immigration Rules and how to obtain them, and also the relative weight to be attached to different types of evidence.

Just as importantly our knowledge of the European Convention on Human Rights (ECHR), the Human Rights Act 1998 (HRA) and other relevant law allow us to present a case to the Home Office where we feel there is an argument in this point of law and use relevant case laws to support our arguments.

We have a clear understanding and knowledge of immigration and nationality law and have procedures in place to ensure that we submit a successful case to the Home Office.

A list of all services are:

  1. Applications to the UKBA, including human rights applications and concessionary or discretionary applications.
  2. Case Resolution/Legacy Cases and Active Review.
  3. Applications for Humanitarian Protection.
  4. Representing clients in correspondence with the UKBA and at UKBA interviews.
  5. Representations to the UKBA in support of cases.
  6. Drafting client statements.
  7. Submitting One-Stop Notices.
  8. Lodging appeals (only in exceptional circumstances where immediate referral is not possible).
  9. Family reunion applications.
  10. Representations regarding ongoing immigration casework to MPs.
  11. Instructing a barrister or advocate for advice and to draft appropriate grounds of appeal (where permitted by the Bar Council).
  12. Applications to register or naturalise as a British Citizen through residency and marriage to a British Citizen.
  13. Certificates of entitlement to right of abode.
  14. Applying for British Passport through entitlement.
  15. Complex cases on British Nationality.

Sponsor Licence

The points-based sponsor application process has been designed to be straightforward and transparent, however it is important that the correct documents and the correct HR system is in place. The Home Office also conducts audits on you as an employer/educational institution when you make an application for a sponsor licence. We are able to provide support and guidance throughout this process.

Reassuringly we are listed on the Home Office website Click here whereby we have demonstrated a good understanding of the sponsorship arrangements and have provided the Home Office with evidence about the types of checks and services we will make when working with clients. We are able to provide prospective sponsors with a document which assesses their readiness to make a sponsorship application.

The points-based system only covers migrants from outside the European Economic Area (EEA) and Switzerland. If you want to employ or teach an EEA or Swiss national, you should be able to do this without needing the Home Offices permission. There are some restrictions on nationals of countries that have recently joined the EEA. The section for European citizens provides more information on the rights of all EEA and Swiss nationals.

Under the new system, migrants will need to pass a points-based assessment before they are given permission to enter or remain in the United Kingdom. The system consists of five tiers. Each tier has different point requirements.

The number of points the migrant needs and the way the points are awarded will depend on the tier they are applying under. Points will be awarded to reflect the migrant’s ability, experience, age and when appropriate the level of need within the sector the migrant will be working.

Migrants applying under any tier except tier 1 will need to be sponsored in order for their application to be successful. If a United Kingdom organisation wishes to recruit a migrant under tiers 2, 4, 5 or Temporary Workers, they will have to apply to the Home Office for a sponsor licence. Under tiers 2, 5 and Temporary Workers, the sponsor will need to be a United Kingdom based employer. Under tier 4, the sponsor will need to be a United Kingdom based educational institution. Migrants wishing to come to the United Kingdom under Tier 5 sub section Youth Mobility do not require a United Kingdom based employer.

The point-based system consists of five tiers. These are:

  1. Tier 1 – Highly skilled workers, for example scientists and entrepreneurs;
  2. Tier 2 – Skilled workers with a job offer, for example teachers and nurses;
  3. Tier 3 – Low skilled workers filling specific temporary labour shortages, for example construction workers for a particular project;
  4. Tier 4 – Students including child students;
  5. Tier 5 – Youth mobility and temporary workers for example musicians coming to play in a concert.

Posted in EU Immigration Law, Overstaying in UK, Spousal/Partnter Visas, Student Visas, UK Immigration Legislation, UK Visas | No Comments »

Government‟s proposals for the reform of family migration.

August 3rd, 2011

1.1 It focuses on preventing and tackling abuse, promoting integration and reducing burdens on the taxpayer. It seeks to deliver better migration, which is fair to applicants, local communities and the taxpayer.
1.2 There has been a slight decrease in net family migration of non-European Union nationals since 2006, but family migration still accounted for approximately 17 per cent of all non-EU immigration in the year to September 2010.1
1.3 The paper concentrates on the „family route‟: those non-European Economic Area (EEA)2 nationals entering, remaining in or settling in the UK on the basis of a relationship with a British citizen or a person settled in the UK. This includes fiancé(e)s, proposed civil partners, spouses, civil partners, or unmarried or same-sex partners, dependent children and adult and elderly dependent relatives.
1.4 But the paper also looks more widely at all forms of family migration, including the family members of those working or studying in the UK under the points-based system (where earlier consultations have already announced some changes for dependants), refugee family reunion, and family visitors.
1.5 Key statistics include:3
o In 2010, family migration with a route to settlement in the UK was 114,700.4 This includes the „family route‟ (48,900).5 It also includes the dependants of skilled workers under Tier 1 and Tier 2 of the points-based system and equivalents (45,200), dependants joining or accompanying non-points-based system and pre-points-based system migrants (15,400),6 300 dependants of domestic workers in private households, and 4,900 people granted a family reunion visa to join a refugee in the UK.
o In 2010, family migration without a route to settlement in the UK was 33,000.7 This includes the dependants of Tier 4 (students) of the points-based system (31,800) and Tier 5 and other temporary workers.
o In 2010, 350,300 family visit visas were granted for the purpose of visiting family in the UK.

Rt Hon Theresa May MP, Home Secretary and minister for women and equalities said;

This government is determined to bring immigration back to sustainable levels and to bring a sense of fairness back to our immigration system.
We have already capped the number of economic migrants coming to the UK from outside the European Economic Area. We have announced plans to reform student visas and to clamp down on bogus colleges. We also recently launched a consultation aimed at breaking the link between temporary migration and permanent settlement. As a result of our policies we anticipate net migration will be in the tens of thousands in future.
But we have been clear that we will take action across all the routes of entry to the UK, so we must also take action on the family migration route. In the year to September 2010 family migration accounted for around 17 per cent of non-EU immigration to the UK. That is around 53,000 people.
Of course, those with a legitimate right to come here must still be able to do so. But we need to crack down on abuse of the family route and to tighten up the system.
The key themes to our approach are stopping abuse, promoting integration and reducing the burden on the taxpayer.
Families are the bedrock of society. Family migration must be based on a real and continuing relationship, not a marriage of convenience or a marriage that is forced or is a sham. It is obvious that British citizens and those settled here should be able to marry or enter into a civil partnership with whomever they choose. But if they want to establish their family life in the UK, rather than overseas, then their spouse or partner must have a genuine attachment to the UK, be able to speak English, and integrate into our society, and they must not be a burden on the taxpayer. Families should be able to manage their own lives. If a British citizen or a person settled here cannot support their foreign spouse or partner, then they cannot expect the taxpayer to do it for them.

Posted in UK Immigration Legislation | No Comments »

Exceptionally talented migrants- new Tier 1 Visa scheme

July 27th, 2011

On 29 July 2011, UK Government has announced a new Tier 1 (Exceptional talent) scheme in which it will encourage the brightest candidates in the fields of science, humanities, engineering and the arts to migrate to the UK

This category will open on 9 August 2011 which will assist to both who have already been recognised and also to those with the potential to be recognised as leaders in their respective fields. In the first year operation, the number of places has been limited to 1000. Among which 500 places will be available between the 9 August and 30 November and a further 500 places available from the 1 December to 31 March 2012.

Tier 1 (Exceptional talent) will be manage by world well-known proficient bodies’, which will advise the UK Border Agency on these ‘exceptionally talented’ migrants to ensure that they are the brightest and best in their field:

  • the Royal Society, a fellowship of the world’s most eminent scientists, will be able to nominate up to 300 places;
  • Arts Council England, the national development agency for the arts, will also be able to nominate up to 300 places;
  • the Royal Academy of Engineering, Britain’s national academy for engineering, will have up to 200 places to nominate; and
  • the British Academy, the national academy for the humanities and social sciences will be able to nominate up to 200 places.

Immigration Minister Damian Green said:

‘The UK is a global leader in science, humanities and engineering and we are a cultural centre for the arts: we will continue to welcome those who have the most to offer and contribute to our society and economy.

‘Our new exceptional talent route, available for up to 1,000 applicants, will ensure that we continue to attract the brightest into the UK and keep the UK a global leader.

‘This comes at a time of major reform of the immigration system to bring net migration back down to the tens of thousands, tackle abuses and make sure that the immigration system meets the needs of the country.’

Posted in EU Immigration Law, Overstaying in UK, UK Immigration Legislation, UK Visas | No Comments »

UK Spouse Visas

August 18th, 2010

There are various types of visa applications for the purpose of settlement in the United Kingdom. One such application is the Spouse Visa. The Spouse visa allows a person who is in a relationship with another, who is settled in the United Kingdom or is applying to settle in the UK, permission to enter or remain in the UK with a view to settlement as his/ her Husband, wife, civil partner or unmarried/ same-sex partner.

What does ‘present and settled mean?

‘Present and settled’ means that the sponsor is either:

• settled in the UK and, at the same time that an application under the Immigration Rules is made, is physically present in the UK; or,
• is coming to the UK with or to join the applicant and intends to make the UK their home with the applicant if the application is successful.

‘Settled’ is defined in Paragraph 6 of Immigration rules HC395 and means “free from any restriction on the period for which he / she may remain in the UK, and ordinarily resident in the UK”.

In order to fully understand the position within the immigration rules, let us look at some basic definitions.

What is a Spouse? – A spouse is defined as the husband / wife of the sponsor and the sponsor is defined as the person to whom the applicant is married. The rules that govern Spouse Visas can be found in Paragraphs 277 – 289 of the Immigration rules HC395.

It is is very important to comply with the age requirement when applying for the Spouse visa. The main restriction is covered by Paragraph 277 which states that; “Nothing in these Rules shall be construed as permitting a person to be granted entry clearance, leave to enter, leave to remain or variation of leave as a spouse or civil partner of another if either the applicant or the sponsor will be aged under 21 (or aged under 18 if either party is a serving member of HM Forces) on the date of arrival in the United Kingdom or (as the case may be) on the date on which the leave to remain or variation of leave would be granted.”-

Quite simply, this means that an application by a spouse should be refused if:

• The applicant will be aged under 21 on the date of arrival in the UK; or
• The applicant’s spouse will be aged under 21 on the date of arrival in the UK.

This is a very stringent rule where very little if at all no discretion is given except in cases where the applicant is within a couple of months of their 21st birthday, and the other party is 21 or over, the ECO has discretion to issue entry clearance but valid only from when the person under 21 has reached their 21st birthday.

LEAVE TO ENTER – Paragraph 281 Applications

If you are making your application from outside the UK, so the immigrant spouse or partner is abroad, then they must obtain entry clearance, regardless of whether they are a Visa or a Non-visa national. and subject to Immigration control. They will need to apply for Entry clearance as a Spouse at the nearest British Embassy post in their country of residence. This does not mean that you have to apply from your Home Country or necessarily, the country of which you are a citizen. You can apply from any country as long as you are classified to be a “resident” there.

For example, Alex is on holiday for 2 weeks in Spain. He wishes to settle with Maria, his wife who is a British Citizen and lives in the UK. Can Alex apply for a Spouse visa in Spain? The answer is “NO” as Alex does not have residency rights in Spain. He is merely there on a short visit for the purpose of a holiday.

When applying for permission to come to the UK in this category, the following requirements alongside the age requirement must be met. These requirements can mainly be found in Paragraphs 281 of the Immigration Rules HC395

Your husband, wife or civil partner must be at least 21 years old (or 18 years old if you or they are a serving member of HM Forces), and must be:

• currently living and settled in the UK; or
• returning to the UK with you to live here permanently.

You must show that:

• You are legally married to each other or have registered a civil partnership. (In this case, having a valid marriage certificate or a properly certified copy issued by the authorities in the country where the marriage ceremony took place would be good supporting evidence. A marriage ceremony that is legally recognised by the authorities of the country in which the ceremony took place will usually be legally recognised in the UK)

• You are going to live together permanently as husband and wife, or as civil partners;
• You have met each other;
• You can support yourselves and any dependants without help from public funds. (This is one of the main requirements, often dubbed, the “maintenance” requirement. Although there is no actual figure stated in the rules to say how much is considered as sufficient, it will usually be assessed by looking at the income and expenditure of the sponsor. The most important question the UKBA will be asking is after the expenditure is subtracted from the income, is the total amount left sufficient to support the parties involved. If the answer is “NO”, the likelihood is that this requirement will not be fulfilled which may result in the application being refused. Sponsors who are currently on social security benefits should be particularly aware as although, they are entitled to apply; the likelihood is that although the spouse is not themselves applying for the benefits, the amount of benefits may increase due to their joining the particular household. If this is likely, the application may also fall short of meeting the maintenance requirement. If the family as a whole do not have funds equal to or in excess of the funds a family their size would receive from welfare benefits, then the ECO/IO is likely to refuse.

This is a matter of fact and may require the help of a Welfare Rights specialist. In general, it is very hard for a sponsor on benefits to show adequate support for new arrivals, without seeking help from a third party. Broadly speaking, where the financial and housing scenario is not clear, the ECO/IO is likely to refuse and leave it to an Immigration Judge to decide.

Maintenance and accommodation can be provided by a third person, that is to say, not directly by the applicants themselves (for example, relatives or in-laws). Usually this will only be acceptable if it is to be short term, for example, whilst a spouse or civil partner is looking for a job. (Despite the wording of the Immigration Rules, the Home Office accepts that accommodation can be shared with other members of a family provided that at least part of the accommodation is for the exclusive use of the sponsor and his dependents, and subject to housing regulations on overcrowding) and if the settled person has more than one husband or wife, only one husband or wife will be allowed to join them here in this category.

LEAVE TO REMAIN – (‘In-Country’) – Paragraph 284 Application

Applications for leave to remain are also known as ‘In-Country’ applications. They are covered by Paragraph 284 of the Immigration rules. This is the Rule for switching from another category to a Spouse visa category. It is not the Rule for extending leave for those who have entered under Paragraph 281. However, the following are excluded from applying and are expected to apply from abroad:

• those admitted for a period of six months or less (e.g. Visitors)
• those admitted for more than six months, but who have not yet spent 6 months in the UK
• those who have remained in breach of the Immigration Rules relating to their status
• those who have married in the UK after a decision has been made to deport the applicant
• those who have married in the UK after there has been a recommendation for deportation
• Those who have been given notice that a recommendation is under consideration following conviction for an offence.

Paragraph 284 is written with the presumption that the applicant has entered as a fiancé, or in a non-settlement category but has since married in the UK. Please be aware that in cases, where a Spouse visa has been refused, the applicants have full rights of appeal.

In-Country Procedures

If you plan to get married or register your civil partnership in the United Kingdom and you are subject to immigration control while in the United Kingdom, you may need to apply for a Certificate of Approval. The rules on certificate of approval do not apply to you if you:

• are a British citizen; or
• are a national of a country in the European Economic Area (EEA); or
• are the family member of an EEA national and have right of residence in the United Kingdom but are not yourself an EEA national; or
• have in your passport a certificate of entitlement giving you right of abode in the United Kingdom; or
• Are not subject to immigration control.
• If you are coming to the United Kingdom from overseas to get married or register your civil partnership, before you can give a registrar notice to marry or register your civil partnership you must have in your passport:
• fiancé(e) entry clearance; or
• proposed civil partner entry clearance; or
• marriage visitor entry clearance; or
• civil partnership visitor entry clearance.
• If you are already in the United Kingdom, before giving a registrar notice to marry or register your civil partnership you will need to:
• have settled status in the United Kingdom; or
• obtain a certificate of approval.

Successful Applications

If an application was made under Para 281(i)(a), leave will be granted for an initial two-year period; this is called “the probationary period “on condition that the spouse or civil partner does not have ‘recourse to public funds’. The spouse or civil partner will be free to work and should apply to the UK Border agency for indefinite leave to remain not earlier than 28 days before their leave is due to expire.
If an application was made under 281(i)(b), (that is, where the applicant has been married or in a civil partnership and living outside the UK for at least four years with a person who has right of abode or indefinite leave), then the applicant will be granted indefinite leave to enter, and will therefore have no conditions attached to the leave.

For applications under Paragraph 281, the form VAF4a is used which can be downloaded from the UK visas website. Following an application under Paragraph 284 (Leave to Remain). An extension of stay as a spouse will be granted for a period of two years in the first instance (see Paragraph 285). In order for the application to be valid, it must be made before the expiry of the applicant’s existing limited leave.

Indefinite Leave to Remain

After the 2 year probationary period, the Applicant will be entitled to apply for Indefinite Leave to Remain which is covered in Paragraphs 287-289 of the Immigration Rules, HC 395. The application must be made before the two years expire – preferably a month prior to expiry.

An application for indefinite leave on the basis of marriage is made to the Home Office on form SET(M).

Anyone applying for naturalisation as a British citizen or for indefinite leave to remain needs to show that they know about life in the UK.
Knowledge can be demonstrated by taking the Life in the UK Test (the Britishness Test) or by studying combined English for Speakers of Other Languages (ESOL) and citizenship classes. The test consists of 24 questions based on the information contained in the handbook “Life in the United Kingdom: A Journey to Citizenship”.

New English language testing for partners

In June 2010 the government announced plans to introduce compulsory English language tests for all non-European migrants applying to come to the UK to join or marry their settled partner. The UK Border Agency has announced that these plans will be implemented from 29 November 2010. From this date, any migrant who wants to enter or remain in the UK as the partner of a British citizen or a person settled here will need to show that they can speak and understand English, by taking an English language test with one of their approved test providers.

The new rules will apply to anyone applying as the husband, wife, civil partner, unmarried partner, same-sex partner, fiancé (e) or proposed civil partner of a British citizen or a person settled in the UK. They will be compulsory for people applying from within the UK as well as visa applicants from overseas. The Home Office is due to publish more information, including a list of approved test providers, before the change is introduced.

Paragraph 287(b), HC 395 gives provisions for Bereaved spouses and under paragraph 289A, it is possible to apply for indefinite leave to remain if the marriage breaks down during the two-year probationary period due to domestic violence, provided certain evidence can be supplied. The above cases are however rare and it may be advisable to seek advice from a specialist when making applications under these provisions.

In conclusion, If your marriage, civil partnership or other relationship permanently breaks down while your partner still has only limited permission to enter or remain in the United Kingdom (that is, during the two-year probationary period before he/she can apply to live here permanently), you should tell the UK Border as soon as possible to avoid braking the Immigration Rules as this may affect future Leave to Remain in the UK applications.

Disclaimer: This article only provides general information on immigration law. It is not intended to replace the advice or services of a Solicitor. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. The writer will not accept any liability for any claims or inconvenience as a result of use of this information.

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Posted in Spousal/Partnter Visas | 1 Comment »

Fiancé visas

August 18th, 2010

Fiancé visas are granted for the purpose of Entry Clearance for an applicant who is seeking leave to enter the United Kingdom for marriage or civil partnership ceremonies with a person who is present and settled in the United Kingdom or who is on the same occasion being admitted for settlement in the United Kingdom.

What is a Fiancé? For the purposes of the immigration rules, covered by Para 289 AA- 295 of the Immigration rules HC395, a fiancé is describes as:

A person who wishes to enter the United Kingdom (UK) with a view to marriage to a sponsor who is either: already present and settled in the UK; or will be admitted for settlement in the UK when arriving there, and intends permanent settlement in the UK.

What is a Sponsor? For the purposes of the Immigration rules, a ‘sponsor’ refers to the person whom the applicant is intending to marry.

When making an application for a fiancé visa, it is important to note that the age requirement set out under Para 289AA must be adhered to. This rule provides that an application by a fiancé (e) should be refused if:

•The applicant will be aged under 21 on the date of arrival in the UK;
•Or the applicant’s fiancé (e) is aged under 21.

In cases where the applicant is within a couple of months of their 21st birthday, and the other party is 21 or over, the ECO has discretion to issue entry clearance but valid only from when the person under 21 has reached their 21st birthday.

The rules require that there must be adequate maintenance and accommodation without recourse to public funds available for the applicant until the date of the marriage or civil partnership and after the marriage, there must be adequate accommodation for the parties and any dependents without recourse to public funds in accommodation which they own or occupy exclusively.

Although there is no objection to the British Citizen or settled sponsor receiving any public funds to which they are entitled to make in their own right; if the sponsor is in receipt of public funds, this may negatively affect the outcome of the application. The sponsor being reliant on public funds does not mean that they will be unable to support the applicant, although it may be assumed by the Entry Clearance officer on making a decision that a person who is heavily dependent on the state because they don’t have sufficient means of their own will find it difficult to support another person for any length of time. The important factor to consider is whether there will be a need for the sponsor to claim additional public funds to support the applicant if leave to enter is granted.

Unfortunately, there is no specified minimum figure stated in the immigration rules to represent what is classed as “sufficient maintenance”; however, in 2006, the UK Asylum and Immigration Tribunal (UKAIT) in UKAIT 00065 KA and Others (Pakistan), strongly suggested that it would not be appropriate to have immigrant families existing on resources that were less than the Income Support level for a British family of that size. Therefore, if it is more than likely that the total amount that the applicant and sponsor will have to live on will be below what the income support level would be for a British family of that size, then it may be appropriate to refuse the application on maintenance and accommodation grounds.

If the dependents of the main applicant are going to accompany him / her to the United Kingdom, resources must be available for the whole family unit to be maintained.

Maintenance may be provided by either:

•The applicant with their own funds or with funds available to them; or
•The sponsor; or
•A combination of the applicant and sponsor funds.

The evidence required for the applicant’s and or sponsor’s funds are listed below along with the likely criteria’s for the ECO to consider when making a decision on the fulfillment of the maintenance requirement. These are:

•Statements covering at least 3 months.
•Are there regular transactions?
•Are the funds immediately available?

(Large deposits with no evidence of normal transactions will be carefully examined to make sure this is not a deposit made solely to fulfill this requirement and is not actually available to the applicant).

The extent of the evidence required will depend on the circumstances of the case, with some applicants required to produce more detailed evidence of funds available. Where there is doubt that the funds will be at the disposal of the applicant, the ECO may ask the sponsor for a written undertaking by filling out a Sponsorship undertaking Form, which is Form SUO7/01.  In assessing what is considered adequate accommodation, the ECO will be looking for the accommodation to comply with the following requirements
•it is (or will be) owned or legally occupied for the exclusive use of the couple (see definition in section below); and
•it is capable of accommodating the couple, and any children, without overcrowding as defined in the Housing Act 1985
The Housing Act 1985 and rules on overcrowding in residential housing will be relied upon in this instance.

Under the Housing Act, the number of people sleeping in accommodation 22must not exceed the following:

Number of Rooms Maximum Number of People Allowed

1 2
2 3
3 5
4 7.5
5 10

Each additional room in excess of 5 An additional 2 people

If, for some reason, the wedding does not take place during the period of the fiancé (e) leave, it is possible to apply for an extension in this category (under Paragraph 293), with the extra requirements that:

•good cause is shown why the marriage did not take place within the initial period of fiancé(e) leave
•there is satisfactory evidence that the marriage will take place at the earliest date. (An extension is only likely to be granted once)
Upon a successful application for a Fiancé visa, the applicant will initially be admitted to the United Kingdom for 6 months. There is a prohibition from taking employment until after a marriage and the proper entry clearance has been granted which has no restrictions on employment.

For those who plan on settling in the UK after the marriage, the VAF4a form is to be used to apply for the Fiancé Visa.

If the application is refused, there is a full right of appeal.

Disclaimer: This article only provides general information on immigration law. It is not intended to replace the advice or services of a Solicitor. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. The writer will not accept any liability for any claims or inconvenience as a result of use of this information.

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Posted in UK Visas | No Comments »

Restricted Courses

July 2nd, 2010

Changes to the Immigration Rules came into effect on the 7th April 2010 which affect the way that student visas in the UK are managed. The new “Tier 4” system has replaced the old-style student visa system and which educational providers can provide.

 The Immigration Rules now encompass changes from the Tier 4 review, including the rules governing the new Highly Trusted sponsor licence. Only sponsors who hold a Highly Trusted sponsor licence can now offer the following courses, known as ‘restricted courses’, to Tier 4 (General) students:

• courses at National Qualifications Framework (NQF) level 3 or equivalent; and

• courses below degree level that include a work placement (other than foundation degrees, which can still be offered with a work placement by any Tier 4 (General) sponsor).

Education providers who hold a standard Tier 4 sponsor licence can only offer courses at or above NQF level 4 or equivalent. And they cannot offer courses that include work placements unless those courses are degree-level courses or foundation degrees. (A foundation degree is a programme of study which leads to a qualification awarded at a minimum of level 5 on the revised National Qualifications Framework by an English higher education institution with degree-awarding powers, or awarded on a directly equivalent basis in the devolved administrations. In Scotland, a Higher National Diploma at Level 8 on the Scottish Credit and Qualifications Framework is equivalent to a foundation degree.)

If a student is studying a restricted course at an institution that does not hold a Highly Trusted sponsor licence, they can continue to study at that institution until they complete their course of study or their permission to stay under Tier 4 expires, whichever is sooner. If a student wants to extend their stay to complete their studies on an affected course, they must do so at an institution that holds a Highly Trusted sponsor licence.

Disclaimer: This article only provides general information on immigration law. It is not intended to replace the advice or services of a Solicitor. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. The writer will not accept any liability for any claims or inconvenience as a result of use of this information.

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Posted in UK Visas | 1 Comment »

EU Working, Studying and Residency Rights

June 28th, 2010

As a citizen of the European Union, you have the right to live, work and study in any EU/EEA Member States. However, the law surrounding this area is not as straight-forward as it seems as there are sometimes limitations, depending on what you plan to do in another Member State:

Conditions depend on your status

There can be a number of conditions placed on the right to live in another EU/EEA State.

As a student, an unemployed or retired person in an EU country in which you have never worked, then you must have sufficient financial resources and comprehensive health insurance so as to not take recourse to public funds.

These conditions do not apply if you retire in a country where you worked previously.

Note also that if you are unemployed, you have the right to live in another EU country for a ‘reasonable period’ of time in order to look for a job.

No matter how long you have to look for a job, however, you cannot be asked to leave the country if you can prove that you are still seriously looking for a job and that you have a real chance of finding one.

Moreover, following the enlargement of the EU in 2004 and 2007, workers from some of the new member states may face restrictions on access to the labour markets of the older member states;

Family

Members of your family, whatever their nationality, may take advantage of their right to live in another EU / EFTA country as an EU national. Their rights are ‘parasitic’ however, on the EU citizens right.

  • If you are not a student, your family is defined as your spouse, children under 21 (or dependent on you), as well as your parents and your spouse’s parents, if they are also dependent on you.
  • If you are a student, the right of residence is limited to your spouse and dependent children.

 

If your actions constitute a serious threat to public order, security, or health, your right to reside in another country may be restricted. If an EU country takes any decision in relation to your residence on these grounds, you must be told the reasons for the decision. You must also be given sufficient time to prepare a defence and submit an appeal.

‘Five Year’ Rule

After living for 5 years continuously in an EU country, EU citizens and their family members acquire a permanent right of residence, which will then no longer be subject to any conditions.

Voting Rights

Every EU citizen has the right to vote and stand as a candidate in elections in the country where he or she has a right of residence..

Educational Rights

As EU citizens, you and your children are entitled to study in any EU country under the same conditions as nationals of that country.

Students under 18

Children have the right to be placed in a class with their own age group at the equivalent level to their class in your country of origin – regardless of their language level. As an EU national migrating to another EU country for work, your children are entitled under EU law to receive free language tuition in your new home country to help them integrate into their new school environment.

Adult students

To study in another EU country for a period of less than three months (if you want to take a language course, for example), all you need is a valid identity card or passport from an EU country.

If you want to study in another EU country for more than three months, you must:

  • be enrolled at an approved educational establishment;
  • be covered by comprehensive health insurance;
  • have sufficient financial resources to support yourself and your family

There may also be a requirement to register with your local police.

Enforcing EU Rights

For more information on EU residence and workers rights, please refer to the Citizenship Directive 2004/38:

http://ec.europa.eu/justice_home/fsj/citizenship/movement/fsj_citizenship_movement_en.htm

Disclaimer: This article only provides general information on immigration law. It is not intended to replace the advice or services of a Solicitor. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. The writer will not accept any liability for any claims or inconvenience as a result of use of this information.

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Posted in EU Immigration Law | 4 Comments »

New English Language requirement for Spouse/Partner Visa Applications

June 25th, 2010

The Home Secretary, Theresa May, has outlined proposals that will affect all non-EEA spousal/partner visa applications through the introduction of a compulsory English language requirement test.

Theresa May said, ‘I believe being able to speak English should be a pre-requisite for anyone who wants to settle here. The new English requirement for spouses will help promote integration, remove cultural barriers and protect public services.

‘It is a privilege to come to the UK and that is why I am committed to raising the bar for migrants and ensuring that those who benefit from being in Britain contribute to our society.

‘This is only the first step. We are currently reviewing English language requirements across the visa system with a view to tightening the rules further in the future.

‘Today’s announcement is one of a wide range of measures the new government is taking to ensure that immigration is properly controlled for the benefit of the UK, alongside a limit on work visas and an effective system for regulating the students who come here.’

Anyone wanting to seek entry to the UK as a spouse/partner will need to show capability of basic English at A1 level. This is currently the same level required for skilled workers under the Skilled Tier of the Points Based System. Migrants will need to demonstrate that they are capable of maintaining a standard of English used for every day life in the UK.

This English-language requirement will be coupled with the current requirements such as demonstrating that the relationship is genuine and that you can support yourselves financially to come under a “partner” visa.

The following categories will be affected based on your relationship to a British citizen or someone settled in the UK:

  • Husband or wife
  • Civil Partner
  • Unmarried Partner
  • Same-sex Partner
  • Fiancé/e

More stringent English language requirements will result in a reduction in the number of people who will be eligible for entry on a spouse or partner visa. which will help the new UK Government to reduce immigration to the UK. This is part of the Coalition Government’s policy to cut immigration into the UK.

Isabella Sankey, of Liberty (a party organisation on human rights in the UK) said: “While a good command of English is clearly beneficial for someone settling in the UK with their partner or spouse, making this a prerequisite to entering the country is disgraceful.

“What happens to the happily married British citizen with a non English-speaking spouse who returns from abroad to care for elderly parents?

“Surely a common-sense approach would acknowledge how much easier it is to learn English once in the UK.”

For more information please visit the Home Office website:

http://www.homeoffice.gov.uk/media-centre/press-releases/migrants-learn-english

Disclaimer: This article only provides general information on immigration law. It is not intended to replace the advice or services of a Solicitor. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. The writer will not accept any liability for any claims or inconvenience as a result of use of this information.

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Posted in Spousal/Partnter Visas, UK Immigration Legislation | 13 Comments »

Points Based System helps Overstayers

June 25th, 2010

AA (paras 131A-I: switching) Nigeria [2009] UKAIT 00055.

For the first time in November last year, the Upper Tribunal has confirmed that there is no requirement for a person to have existing leave under the Immigration Rules at the time of application under the Points Based System does not need. Despite the fact this has been the case for a while, this is the first such confirmation to have been made by the Tribunal. The case is as follows:

The Appellant, a Nigerian national, applied for leave to remain in the UK as a Work Permit holder. She had previously been on a student visa in the UK, however she was not a student at the time she applied for leave as a Work Permit holder, as she obtained leave outside the rules. However, the question was whether her having obtained leave outside the rules would affect her switching to the Work Permit category under the Immigration Rules.

The Tribunal found: “The rule contains no requirement as to existing leave.”

The Tribunal also said: “For the avoidance of doubt we should add that, although that is the characteristic of the rule, an applicant who has no leave at the time of the application will have no right of appeal if the application is refused.”

In effect, although the Tribunal accepts there is no requirement for existing leave, if the application were to be refused then the right of appeal would not be available – which would otherwise be available for those who do already have existing leave. This also shows that someone with leave outside the Immigration Rules (such as Discretionary Leave) should be able to switch to any of the categories under the Points Based System.
This is an important decision for overstayers (who have no existing leave), as it means in effect, they may also now be able to apply under the Points Based System, as no existing leave is required at the time of application.

Problems for Overstayers

Following the introduction of Paragraph 320, the Immigration Rules have changed so that Entry Clearance Officer’s in British Embassies can now refuse a person entry to the UK, even if they to return to their home country and re-apply for a visa to enter the UK under the basis that they have previously breached UK Immigration laws if the entrant has:

• overstayed for more than 28 days (or for any period if, after overstaying, he went home at public expense);
• breached a condition attached to his leave,
• entered the UK illegally; or
• used deception in a (previous) entry clearance such as false documents, leave to enter or remain application (whether successful or not).

Where the above conditions are met, applications must be refused for the following periods from the date the applicant left the UK:

• 1 year if they left the UK voluntarily, and not at public expense;
• 5 years if they left the UK voluntarily, at public expense (e.g. received an Assisted Voluntary Return);
• 10 years if they were removed or deported from the UK.
But port removals are only subject to a 1 year ban if the person has fully complied with the terms and conditions placed upon them by the refusing port.

There are however some exceptions. Applications made by the following persons are not liable to be refused under paragraph 320(7B)if they are applying in the following categories:

• Spouse, civil partner, unmarried or same-sex partner
• Fiance(e), or proposed civil partner
• Parent, grandparent or other dependant relative
• Spouse, civil partner, or unmarried or same-sex partner of a refugee or person with humanitarian protection
• Those applying to exercise rights of access to a child
• They were under the age of 18 at the time of the most recent breach of the UK’s immigration laws.
• The applicant has been accepted by UKBA as a victim of trafficking
• The applicant was in the UK illegally on or after 17 March 2008 (date of announcement) and left the UK voluntarily before 1 October 2008.

However, it is also possible for an Entry Clearance Office to refuse applications where the applicant has, “contrived in a significant way to frustrate the intentions of the immigration rules”.
There are a number of different situations where this can apply, for example where the applicant has:

• Been an illegal entrant
• Overstayed their leave entitlement
• Breached a condition attached to his leave

• Used deception in a previous entry clearance, leave to enter or remain application, but only where there are aggravating circumstances.

Aggravating factors include:

• Absconding
• Not complying with reporting restrictions
• Using an assumed identity or multiple identities to obtain asylum benefits, state benefits, tax credits goods or services, receiving NHS care to which not entitled
• A sham marriage
• Harbouring an immigration offender
• Facilitating/people smuggling.

This list is not exhaustive however and all cases should be considered on their individual circumstances such as their family life in the UK and the level of responsibility for the breach in the case of children.

Disclaimer: This article only provides general information on immigration law. It is not intended to replace the advice or services of a Solicitor. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. The writer will not accept any liability for any claims or inconvenience as a result of use of this information

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Posted in Overstaying in UK | 11 Comments »

Borders, Citizenship & Immigration Act 2009

June 25th, 2010

Having come into effect in July 2009, the Borders, Citizenship and Immigration Act 2009 originates from a larger Home Office project that aimed to radically simplify immigration law. The government has long acknowledged that the legal framework governing immigration law has become overly complex and is difficult for immigration officials as well as migrants themselves to understand.

In a 2008, the Home Office green paper, “The Path to Citizenship: Next steps in reforming the immigration system” indicated as a starting point that migrants could “earn” their citizenship and that only those who demonstrated their dedication to the UK “should be allowed to complete their journey to citizenship”. There has been much debate about whether this kind of system is either fair or needed.

So in what ways has the Act looked at protecting the rights of migrants? Or has it simply made it more difficult for migrants to settle in the UK?

The main aspects that have changed in the Act are as follows:

Naturalisation – the general rule is that those who are resident in the UK need to have a certain residential status for eight years (up from six years) before being eligible for naturalisation, and those seeking to naturalise on the basis of marriage will now take five years (up from three). In order to qualify as time spent towards naturalisation, the period of time spent in the UK has to be spent while resident on a certain type of visa or entitlement. The type of visas or entitlements would count towards the qualifying period for naturalization will be determined by secondary legislation.

Probationary Citizenship – This new temporary leave to remain will form part of the new route to citizenship and will constitute an additional period for which migrants are denied access to services and welfare. Whilst it will last for at least 12 months, the length of the probationary citizenship will, to some extent, depend on each individual applicant.

Activity Conditions - whereby undertaking an “activity condition” eg. voluntary services, can reduce the length of the naturalisation process by up to two years.

Welfare of Children -  Imposes a duty on the secretary of state to safeguard and promote the welfare of children in the United Kingdom.

Judicial Review – Allows fresh claim judicial review applications to be transferred from the High Court to the upper tribunal.

Children born to British Mothers – Rectifies some irregularities in the awarding of British citizenship and remedies a discriminatory practice that allowed citizenship to pass to children born abroad to British fathers before 1961 but not to children born to British mothers.

Children born to Members of the Armed Forces - Grants automatic British nationality to a child born in the UK where at least one parent is a foreign or commonwealth member of the British armed forces.

Studies – Allows conditions restricting studies to be imposed on those given limited leave to enter or remain in the UK.

Fingerprinting – Allows for fingerprints to be taken from foreign criminals liable to automatic deportation under the scheme created in the UK Borders Act 2007.

Main Criticisms of the Act

Naturalisation- The Act makes the process of attaining British citizenship longer and more difficult. Under the new system, only citizens and permanent residents would have full access to benefits, including social housing. Under the rules of the Act, anyone wishing to apply for citizenship would have to live in the UK for a minimum of five years and also spend an additional year proving they deserve citizenship

Ways of proving this include:

  • working legally and supporting yourself
  • paying taxes
  • giving back to the community through volunteer work
  • learning to speak English

Breaking the law, even with minor crimes, would lengthen the application process. This will obviously affect an individual’s application, and for those who are overstayers, will lengthen their time as overstayers in the UK which could be detrimental to any future applications. The Act also provides that anyone sent to prison for a serious crime could face deportation.

Under Section 39 of the Act, temporary admission given to refugee claimants pending determination of their claims (which can take years) do not count towards the qualifying period for naturalisation. It has been suggested that the UK would be in breach of the 1951 Refugees Convention to which the UK is a party.

Article 34 of the Convention states that parties to the Convention shall “so far as possible facilitate the assimilation and naturalization of refugees. They shall in particular make every effort to expedite naturalization proceedings”.

Article 7 provides that except where the Convention provides for more favourable treatment a state “shall accord to refugees the same treatment as is accorded to aliens generally”. The purpose of article 7 is to ensure that refugees receive the benefit of all laws and policies which normally apply to non-nationals, and simply put refugees cannot be excluded from any rights which the UK ordinarily grants to other foreigners.

It is therefore essential that any period spent by a refugee awaiting determination of his or her status count towards the qualifying period, to ensure refugees are not treated less favourably than other migrants that have a different visa status. Until this is set out on the face of the Bill it is impossible for Parliament to know whether the legislation breaches the Refugee Convention, or indeed article 8 (right to private and family life) together with article 14 (non-discrimination) of the HRA.

Judicial Review- certain judicial review cases relating to “fresh claims” to be transferred to the Upper Tribunal. Fresh claims are defined in rule 353 of the immigration rules and are claims which are significantly different from the material that has previously been considered. In order for a claim to be ‘significantly different’, it must not have been previously considered and it must create a realistic prospect of success. The Administrative Court would have discretion to decide whether a particular judicial review application was exclusively a “fresh claims” case.

Liberty Human Rights believes that by providing for judicial review cases relating to fresh claims to be transferred to the Upper Tribunal before assessing the performance and capacity of the newly established Tribunal is dangerously premature. Immigration applications can be highly complex and contentious.

More frequently than in other areas, decisions regarding immigration and asylum applications engage fundamental rights. Often engaged is the absolute right against torture, inhuman and degrading treatment. As such judicial review by a High Court judge can operate as an essential safeguard of fundamental rights and should not be removed without serious consideration of the unintended consequences that may flow. The Court of Appeal will not be prevented from rectifying an error of law in a decision by the Upper Tribunal.

Welfare of Children – In relation to the treatment of children, The Children’s Society described the bill as a “missed opportunity” because the government refused to alter its policy on the detention of asylum seekers. However, the charity welcomed the clause placing a duty on the UK Border Agency and private contractors to promote the welfare of children. This ensures that children seeking asylum have the same level of protection as children who are British citizens, in line with section 11 of the Children’s Act. This is a much more positive outcome from the Act in favour of migrants.

In weighing up the positive and negative effects of the Act it, it seems as if there are more restrictive provisions than before than there are provisions to promote migrants rights. The change in the naturalization process has a counter-productive effect for over-stayers and asylum seekers alike.

Although the doors have been opened to aid children born to British mothers and members of the armed forces, the sizeable class that these provisions help is perhaps limited compared to a provision that would help over-stayers or asylum seekers. However, considering the number of changes in the immigration laws over the last decade and with the new government coming into power, perhaps these changes may not be to stay for long.

Disclaimer: This article only provides general information on immigration law. It is not intended to replace the advice or services of a Solicitor. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. The writer will not accept any liability for any claims or inconvenience as a result of use of this information.

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Posted in UK Immigration Legislation | 21 Comments »

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