Archive for the ‘Immigration’ Category

Partner Visa Update – March 2017

Wednesday, March 29th, 2017

In the previous article (Immigration November Update) we mentioned that the strict financial requirements set by the home office were subject to ongoing litigation. This has finally resulted in the Supreme Court giving their judgement on the matter on 22 February 2017.

In summary, the Court held that the current income threshold is lawful, but did admit that it will continue to cause “significant hardship” for thousands of couples. The Court went on to state that the manner in which the financial requirements were implemented unlawfully and fails to take into account the best interests of children.

Thus, there was an indication that the rules should be amended to take the above into account as well as to allow “alternative sources of funding” to be considered alongside salary.

In a way, this represented a victory to families with children and we understand that the home office are looking to revise their policy on this. As such, pending and newly submitted applications from abroad are being held in abeyance until there they come up with a revised set of policies.

Please speak to our Immigration specialist, Alvyn Kee, on 020 7998 7777 or email him at alvyn.kee@bloomsbury-law.com for more information.

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Tier 1 High Net Worth Investor Visa Information

Tuesday, February 28th, 2017

The Tier 1 (Investor) visa is designed for high net worth individuals who want to relocate themselves and their family to the UK. The citizenship is granted only to the individuals who can provide a significant investment to the UK economy. Only a few hundred of these visas are granted per year and very few immigration firms have a consistent track record in Investor visa applications, and Bloomsbury Law is one of these firms.

The Tier 1 (Investor) visa category applies to the main applicant and all immediate family members, including spouse and children under the age of 18.  Initially, investor visa is granted for three years and four months and can then be extended for another two years, by providing evidence that an investment of at least £2 million was made in the UK.  There is no requirement to demonstrate English language ability. Work, study and business activity is permitted. The length of time required to qualify for permanent residence depends on the amount of investment, as follows:

  • Investment of £2 million – eligibility for indefinite leave to remain after 5 years in the UK
  • Investment of £ 5 million – eligibility for indefinite leave to remain after 3 years in the UK
  • Investment of £ 10 million – eligibility for indefinite leave to remain after 2 years in the UK

 Rules and types of permitted investments

The rules on how the money must be invested are very strict. Evidence needs to be given of sufficient funds held in a bank account (onshore or offshore) for 3 months, prior to the Tier 1 visa being granted. The funds then need to be transferred to a custodian/wealth manager for investment in suitable strategies within 90 days, providing a statement of all transactions.

The funds can only be invested in:

  • UK gilts,
  • UK corporate bonds
  • Loan notes in UK trading companies; and
  • Shares in UK trading companies

Property investments and now cash are excluded.

Minimum age of main applicant – 18 years

The Immigration Rules now permit children aged 18 years to apply under the Tier 1 (Investor) category, provided that their parents support the application and confirm that they are happy with the care arrangements in place. Whilst in the UK with this type of leave, Tier 1 investor children are permitted to study for their A-levels at a private school and can then progress to university. This means that they can use this route to achieve indefinite leave to remain by the time they are 22 years old, assuming they meet the requirements including that regarding residence. This is a simpler route to settlement than that under the Tier 4 student category. Furthermore, subject to meeting the specific residence requirement (see below), such individuals could then potentially be British citizens by the time they are 24 years old.

Residence requirement that must be met in order to qualify for naturalization (British citizenship)

It is very important to note that the residence requirement for becoming a British citizen is very different to that which has to be met when applying for indefinite leave to remain (ie settlement).

Whilst a Tier 1 (investor) migrant can spend up to 180 days out of every 12 month period they live in the UK abroad without jeopardising their eligibility for settlement, when it comes to applying for British citizenship, they must not have spent more than 450 days out of the UK during the 5 year qualifying period, and no more than 90 days during the final 12 months of this.

If you require any further information, please get in contact with our immigration team. At Bloomsbury Law, we provide a bespoke service to advise you on all your immigration needs. For a tailor made service on all immigration matters, call our immigration solicitors at Bloomsbury Law on 0207 998 7777 or contact us via email.

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Immigration November Update

Friday, December 2nd, 2016

Non-EEA extended family members rules tribunal –appeal rights

In the case of Sala (EFMs: Right of Appeal : Albania) [2016] UKUT 411 (IAC) the Upper Tribunal has ruled that there is no statutory right of appeal against a decision by the Home Office to refuse a residence card to a person claiming to be an extended family member. This applies to unmarried partners, other family members and grandparents.

The above means that all current appeals by this category will now have to be rejected by the tribunal as invalid. No further such appeals should be lodged or attempted. Instead, those unhappy with decisions by the Home Office will need to pursue an application for judicial review. This could prove costly and time consuming.

Government goes back on immigration tribunal fee hike

In a surprising but very welcome development, the Government has reversed the substantial increase in fees for immigration appeals which took effect on 10 October 2016.

Fees will be charged at the current rates and those who have paid the higher fees in the last few weeks will have their payments refunded.

The fee increases were due to hit EU nationals and their family members very hard given the number of immigration appeals likely to be generated by the flood of permanent residence applications generated by Brexit.

The government have however suggested that there will still be some sort of increase but not on such a frightening scale.

Please speak to our Immigration specialist Alvyn Kee on 020 7998 7777 or email him at alvyn.kee@bloomsbury-law.com for more information.

Post-Brexit Immigration Update

Friday, September 30th, 2016

Following on from the UK’s decision to leave the European Union, what would be the implications from an EEA National’s perspective?

It should be pointed out that the referendum on 23 June 2016 has no immediate legal effect and all remains the same for the time being. Thus, EU citizens living with their families in the UK are free to enter and leave the UK.

At the moment, the UK have not activated Article 50 which initiates their departure from the EU and this will probably be a two year process as treaties are negotiated. No one is sure when this will happen.

What we do know is that the UK government has mentioned that they seek to properly protect the rights of EU nationals and their family.

Having said that, there is no clear indication as to what the UK government will offer in terms of rights and legal basis. Rest assured something will be offered. Ideally, the Norwegian model would suit EU nationals well as free movement laws would most likely be unaffected. There will be a period of transition.

The groups that may want to re assess their position are the ones who have not applied for any residence cards or possess sickness insurance. Non EU citizens who have previously benefited from the expanded EU case law like Zambrano or have retained rights of residence may also feel the need to worry given the UK government’s stance and resistance against them in the first instance.

It might be an idea for the above to apply for residence cards merely to confirm their status and further safeguard their legal position. Following in the same vein, it may also be useful for a person who is able to qualify for permanent residence to do so at once as there will most likely be transitional arrangements in place

It is advisable and prudent to obtain legal advice from a specialist immigration solicitor before making any proposed application.

Please speak to our Immigration specialist Alvyn Kee on 020 7998 7777 or email him at alvyn.kee@bloomsbury-law.com for more information.

Immigration Detention In The UK

Wednesday, March 2nd, 2016

What is bail? How do you get it?

Bail is a legal procedure available to any person who has been detained by the UKBA once they have been in the UK for seven days. It is an application to a court for release, usually under certain conditions. When a detainee makes an application for bail they are brought to an immigration court (the Asylum and Immigration Tribunal (AIT)) where an independent Immigration Judge makes a decision on whether detention should be maintained.

Many detainees who can’t find a lawyer end up representing themselves in AIT bail hearings. If bail is refused, the detainee has the right to apply for bail again after 28 days unless their circumstances have changed, in which case they can apply sooner. If bail is granted there will normally be certain conditions attached. For example, the individual and their sureties (if they have any) may have to offer an amount of money considered proportionate to their financial means, an amount that would be surrendered if the detainee absconded. The Immigration Judge also often requires the detainee to live at a particular address, and report to a UK Borders Agency office or a police station at regular intervals.
 

Who can be detained and under what powers?

Asylum seekers and migrants in the UK can be detained by immigration officers exercising powers conferred on the Secretary of State under a number of different Immigration Acts.

These powers have been developed via non-statutory documents such as the UK Border Agency Enforcement Instructions and Guidance 2. The Immigration Act 1971 provides the majority of the statutory powers of detention for those subject to immigration control 3, although these provisions have been amended and added to by subsequent legislation. The Home Office has recently extended the circumstances under which detention may be used to facilitate faster decision-making on some asylum claims. In other words, detention power can now be used for administrative purposes. Prior to this development detention policy was framed in terms of use as a last resort where failure to detain might have serious consequences.

There is no statutory limit to the length of immigration detention. The decision to detain is made by an individual immigration officer and is not automatically subject to independent review at any stage. Immigration detention is subject to fewer checks than detention within the criminal justice system. Legislation providing for automatic bail hearings was contained in Part III of the Immigration and Asylum Act 1999 but never implemented, and has since been repealed by the Nationality, Immigration and Asylum Act 2002. Many detainees have no legal representation and therefore cannot access elective bail procedures. This means that in many cases the Home Office is never required to justify its decision to deprive an individual of their liberty.

The Government states that immigration detention “would most usually be appropriate:

  • To effect removal;
  • Initially to establish a person’s identity or basis of claim; or
  • Where there is reason to believe that the person will fail to comply with any conditions attached to the grant of temporary admission or release” 4.

 
The current government position on immigration detention in the UK is that “detention is used sparingly and for the shortest period necessary”. However, in a number of cases, this does not often happen. Instructions to immigration officers to this effect carry no practical compulsion and have failed to prevent the Home Office from employing administrative detention for prolonged periods during the resolution of a case. It can be said that the use of detention is not restricted to those shortly to be removed.

The use of immigration detention is increasing and the government considers it to be central to asylum and immigration policy. The Five Year Strategy for asylum and immigration published by the Home Office on 7th February 20056 set out plans to “… move towards the point where it becomes the norm that those who fail can be detained”. On 19th May 2008 the Home Office announced plans for expansion of the immigration detention estate by up to sixty percent to enable the removal of more detainees and at a faster rate.

Immigration Removal Centers (IRCs) are mainly used to detain people who are awaiting decisions on their asylum claims or who are being forcibly removed from the UK following an unsuccessful asylum application. People may be detained when attending interviews with the Home Office or at a police station when they attend to comply with weekly or monthly reporting requirements. Others may be detained after they are discovered to be living or working in the UK without permission.
 

Please speak to our Immigration specialist Alvyn Kee on 020 7998 7777 or email him at alvyn.kee@bloomsbury-law.com for more information.

Refusals and Appeals in the UK

Thursday, December 17th, 2015

This article examines the UK appeal system and its procedures and attempts to simplify the process to the individual appealing. There are always times when the Home office chooses to refuse an application for reasons which may or may not be fair or reasonable.

The system of appeals in UK immigration law is very complex. Some refusals carry a right of appeal, others do not. A further complication is that even where it is stated in the refusal that there is no right of appeal, this does not mean that there is no right of appeal on the grounds of human rights or race discrimination. Some people who are refused have a right of appeal, but one that can only be exercised after they have left the UK, also known as an ‘out of country’ appeal.

Where an administration decision, and that includes not only a decision from the UK authorities such as the Border and Immigration Agency (BIA) of the Home Office but also a decision of a tribunal such as the AIT, does not carry a right of appeal, then a person can apply to have the fairness and propriety of the decision scrutinized by the UK High Court, by making an application for judicial review.
A successful appeal or review may be the end of the case, or the Home Office may try to appeal or challenge the decision further. In some cases, the result of a successful appeal or review is that the case goes back to the Border and Immigration Agency (BIA) or to the immigration judges of the AIT to be decided again.

The first thing to do when you receive a refusal is not to panic. This does not mean that you have to immediately leave the UK. You should immediately obtain legal advice about your rights to appeal from a solicitor.

Even if we did not deal with your original application you can still come to us for help on an application that has been refused or a case that has run into difficulties. If you have received a refusal, do not delay getting advice and help.

We can advise you on the possibility obtaining a review of a decision, or of appealing, on the prospects of success, the costs implications, and on your alternatives.

The appeal procedure is as follows:

1. Refusal of your application
2. 10 working days to appeal from the date you received the refusal notice. The date you receive the notice of decision by post is two days after the date on the notice
3. Appeal received by the court who will arrange the date of the hearing and any directions to the appellant and respondent

The hearing
You will be notified in writing of the date, time and place of your appeal hearing(s) with a guide to the hearing centre and directions where your appeal is to be heard. If you live outside the United Kingdom the hearing will take place in your absence.
In the hearing room with you will be:

  • The immigration judge or judges / non legal members (if any);
  • Your representative (if any);
  • The Home Office presenting officer;
  • An interpreter (if you have asked for one);
  • Witnesses (if any, when called);
  • Witnesses (when they are called, if any); and
  • Members of the public (if any).

 
The Immigration Judge, representative and Home Office Presenting Officer will refer to the documents you have provided in support of your appeal and those against your appeal. You may be asked questions to support the evidence you have provided. Your interpreter will translate the questions and answers and translate any other discussions if necessary. The setting is not as formal as the higher courts. The immigration Judge will inform you about the hearing and what the roles of each of the parties are so that you will understand the process.

Once all the submissions have been heard from both sides, the immigration judge will inform all parties about his role in making a decision. The immigration judge’s written decision is called a determination. Where there is an oral hearing, the determination should be sent to all parties within 10 days from hearing date although this may take longer; up to a month depending on the complexity of the case.

Further appeals to the higher courts in the UK and internationally, including judicial review in the UK courts and appeals to the European Court of Human Rights, may be necessary when your case can only succeed if you succeed in changing the existing law.

However difficult things look at the moment, to give yourself the best possible chance of sorting things out, contact us for realistic advice on your options, prospects of success and how we can represent you.

Remember, legal advice should always be sought before proceeding on any application. It pays to have your application approved the first time.

Please speak to our Immigration specialist Alvyn Kee on 020 7998 7777 or email him at alvyn.kee@bloomsbury-law.com for more information.

Partner Visas Are A Conundrum

Friday, October 30th, 2015

Partner Visa – the name itself seems to imply and gives images of couples being able to be together. Unfortunately, when one delves deeper into the main requirements, it leaves a somewhat a sour taste in the mouths of some couples as well as curbing their enthusiasm and expectation to be together.

The main deterrents if I can call them that are the English and salary requirements. In addition to this, the applicant’s income is not taken into account, as well as salary variances around the UK (London salaries are higher than the rest).

This has led to litigation and appeals against the Home Office as well as talented skilled British people leaving the UK to be with their spouses.

Now compare their plight and predicament to that of a person that has overstayed and then had a family with a British or settled person they met whilst in the UK. There seems to be a trend of the Home Office granting these people discretionary ‘leave to remain’ for an initial two and a half years. It is noted that there is no such unfair requirements of English and salary for the non over stayers who abide by the law and applied through entry clearance.

It does not provide a clear statement from the Home Office. Apply properly and risk being refused because of the strict requirements or just simply overstay and if you have a family, you will most likely be granted discretionary leave to remain.

We strongly advise applicants to take legal advice on applications because of the scrutiny given by the Home Office. There is a high refusal rate for applications submitted without legal advice.

It is advisable and prudent to obtain legal advice from a specialist immigration solicitor before making any proposed application.

Please speak to our Immigration specialist Alvyn Kee on 020 7998 7777 or email him at alvyn.kee@bloomsbury-law.com for more information.

Refused Naturalisation Due To Illegal Entry

Wednesday, September 2nd, 2015

Refused Naturalisation application based on illegal entry into the UK and good character

One of the common reasons provided by the Home Office for refusing a Naturalisation request is one of illegal entry into the UK which they relate to the good character requirement.

From experience, the Home Office will not delve into a full explanation of their refusal merely stating that the applicant was illegal from the date of entry to their regularisation of their immigration status. This leaves genuine applicants, especially recognised refugees, in a precarious and stressful situation.

It is accepted that a number of individuals who illegally enter the UK are seeking asylum and protection from the UK, although some will be recognised while others will be refused. The ones that are recognised as refugees will then need to wait a number of years to be settled and in most cases will also want to apply for a British passport as they do not possess any other form of identification or travel documents.

It is often the case that a caseworker has mis-understood and mis-applied the complicated naturalisation policies in place and proceeded to refuse an applicant’s application based on their illegal status without looking into detail the exact circumstances of their immigration history. One such example is a case where the applicant is a recognised refugee (recognised by the Home Office) and his/her application is refused based on their illegal entry without any further explanation. This leaves the applicant in a precarious and un resolved state as they are in effect stateless and imprisoned in the UK as they have no form of identity or travel documentation. The above does not make sense as the Home Office is punishing the applicant for something that they had no choice in. They were forced to flee their country to seek protection from the UK and it is common for them to be smuggled in by criminal gangs who take large amounts of their hard earned income and thereafter leave them without assistance once they entered the UK. Some are lucky in that they are assisted by charitable groups or friends to apply for asylum. Others are more unfortunate in that they are forced into illegal activities such as prostitution by unscrupulous gangs and if they are able to escape, they make their asylum application as soon as they do.

The point to make is that there could be a number of reasons as to the entry of a recognised refugee and when the Home Office updated its good character requirements; it never had the intention to negatively affect recognised refugees.

This was re-affirmed in writing by the Immigration Minister in a letter in March 2015 where he categorically stated and confirmed that the recent tightening of policy on granting British citizenship was not aimed at refugees. He state that there are circumstances where it would not be appropriately to refuse an application for British citizenship. He went on to provide an example where an individual enters clandestinely, but presents themselves to the authorities within a reasonable time period and has their asylum claim accepted, an application will not be refused solely on the grounds of the initial illegal entry.

The above is logical as well as just and fair and it is sincerely hoped that Home Office caseworkers are aware of this although given the inconsistent standards in decision making at the Home Office, it is never guaranteed.

It is advisable and prudent to obtain legal advice from a specialist immigration solicitor before making any proposed application.

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Please speak to our Immigration specialist Alvyn Kee on 020 7998 7777 or email him at alvyn.kee@bloomsbury-law.com for more information.

Wanting to do Business in the UK?

Wednesday, August 5th, 2015

The Tier 1 Entrepreneur category is designed to attract businessmen and women whose business proposals will result in economic benefit to the UK. It has seen changes implemented by the Home Office in the past few years. Initially, the requirements were stringent with business plans and financial projections as well as the experience of the applicant. Thereafter, the requirements were relaxed and applicants were only required to show that they had access to sufficient investments funds.

Unfortunately, the Home Office discovered that this route was being abused by applicants whose main intention was to merely extend their visa and were not serious about actually starting a business and contributing to the UK’s economy. As a result of this abuse, the Home Office made a decision to revert back to the previous more stringent requirements.

The current rules require any potential applicant to provide the following:
1. Access to £200,000 for investment purposes in a regulated institution and disposable for use in the UK
2. English language at a certain level
3. Maintenance in addition to the your investment sum

The above is a summary of the requirements. More importantly, the Home Office introduced a subjective requirement for the applicants to meet with in addition to meeting with the requisite points based requirements.

The Home Office is now able to scrutinise applications on merit and take into consideration a number of factors when trying to gauge the genuineness of applications. Factors that will take into consideration when assessing the credibility of the visa application are as follows:

• Education background of the applicant;
• Previous relevant business and entrepreneurial experience of the applicant;
• The viability of business plans submitted and evidence of market research;
• Continued access to the funds invested in the UK business by the applicant. The Applicant may be requested to demonstrate that the funds are either in the Applicant’s possession or have been accounted for in the business/investment or in the event the Applicant is obtaining third party funding be available from the third party named in the application;
• The viability and credibility of the source of the money relied upon to fund the application; and

Thus, careful planning is required for this type of application and many are exploring new and innovative ways to obtain this type of visa.

We strongly advise applicants to take legal advice on applications because of the scrutiny given by the Home Office. There is a high refusal rate for applications submitted without legal advice.

Please speak to our Immigration specialist Alvyn Kee on 020 7998 7777 or email him at alvyn.kee@bloomsbury-law.com for more information.

New Home Office Application Reconsideration Policy

Friday, June 19th, 2015

If your claim on human rights was refused before 6 April 2015, please note that there is a new Home Office policy on reconsideration of old human rights claims that were refused before the above date with no right of appeal.

This new policy is relevant to any human rights application made by an individual or family and the application was refused with no right of appeal because no removal decision was made. Under the new appeals regime introduced by the Immigration Act 2014 from 6 April 2014, no removal decision is needed for a right of appeal, only refusal of a human rights claim.

The policy states that decisions will be reconsidered where:
• the refused application for leave to remain included a dependent child under 18 who had been resident in the UK for three years or more at the time of application
• the applicant has a dependent child under the age of 18 who is a British citizen
• the applicant is being supported by the Home Office or has provided evidence
• of being supported by a local authority in accordance with a duty in legislation there are exceptional and compelling reasons to reconsider the decision at this time, or
• it is operationally expedient or appropriate to reconsider the decision

As long as one of the above criteria is satisfied, the decision will be reconsidered and either refused again or leave may be granted. Whether a subsequent refusal will give rise to a right of appeal is not clear and only time will tell as more cases arise from this new policy. Certainly, the Home Office policy seems to indicate that any refused claim would be certified and this in itself suggests there will be a right of appeal. The policy is also silent on whether the NHS surcharge will need to be paid.

If one does not meet any of the criteria, then the Home Office has suggested submitting a new application.

Any relevant party should be aware of the following stated in the policy:

A person in this situation (i.e. who made a human rights claim which was previously refused without a right of appeal but which would have attracted a right of appeal if it was made under the law as it applies from 6 April 2015) will not be subject to enforced removal without having received an appeal-able decision (subject to certification) subsequent to that refusal.’

However, where the criteria for a reconsideration on request are not met and the person does not make a further application or claim by the appropriate route, the timing of any reconsideration of a previous refusal will be at the discretion of the Secretary of State, taking into account factors such as the imminence of removal.

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It is advisable and prudent to obtain legal advice from a specialist immigration solicitor before making any proposed application. Please speak to our Immigration specialist Alvyn Kee on 020 7998 7777 or email him at alvyn.kee@bloomsbury-law.com for more information about Home Office applications.

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