Law Society Publishes Practice Note for Solicitors on Immigration and Asylum Appeal
The Law Society has published its practice note on immigration appeal which includes detailed advice on the following and it has been supported by the Council of Immigration Judges:
• best practice in the conduct of asylum appeals
• protection and human rights claims
• case management in the First-tier Immigration and Asylum Chamber
• preparation of evidence for hearings
• best practice in the appeal hearing
• onward appeals
• costs
• funding
Although, it is prepared for the benefit its members-Solicitors, it may be adopted by anyone who is in the business of representing immigration appellants, such as individuals who are not solicitors but supervised by them-caseworkers and paralegals. It is a very useful tool for lawyers representing applicants’ cases involving the followings appeals:
1. Refusal of a human rights or protection claim and revocation of protection status. These appeal rights are in Part 5 of the 2002 Act.
2. Refusal to issue an EEA family permit as well as certain other EEA decisions. These appeal rights are in Regulation 26 of the Immigration (European Economic Area) Regulations 2006.
3. Deprivation of citizenship. Section 40A of the British Nationality Act 1981 applies.
Anyone wants to have access to the document should register with the Law Society but it will assist you to possess a better understanding of the appeal procedure and any related case law.
You can click the link below to register and access the Practice Note. https://www.lawsociety.org.uk/support-services/advice/practice-notes/immigration-appeals/
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The Court of Appeal overturned the earlier decision of the Upper Tribunal which ended the right of appeal of extended family members of EEA Citizens
The Court of Appeal overturned the earlier decision of the Upper Tribunal which ended the right of appeal of extended family members of EEA Citizens.
Background: The Upper Tribunal ruled in the case of Sala (Sala (EFMs: Right of Appeal) [2016] UKUT 0411 (1AC)) that the extended family members of EEA nationals will not have appeal rights following refusal of their applications by the Home Office as the First Tier Tribunal inherently lacks jurisdiction to hear these appeals. However, a panel of three Court of Appeal Lord Justices have indicated in the case of Khan-v-SSHD-C9-2016-4413-23 that the Upper Tribunal was wrong to conclude that First Tier Tribunal lacks jurisdiction to hear the appeals of extended family members of EEA nationals in the case of Sala.
In the case of Khan, Lord Justice Irwin states “the issue in this case derives from an earlier case: was Sala wrongly decided? Is there jurisdiction for the First-tier Tribunal to hear an appeal from a refusal by the Secretary of State for the Home Department to exercise her discretion to grant a Residence Card to a person claiming to be an Extended Family Member? At the conclusion of the argument we indicated our view that Sala was wrongly decided. We now give our reasons”.
It is understood that many cases have been pending with the First Tier Tribunal for the decision of this appeal and therefore it is now time for the Tribunals to list the appeals for hearings. However, some commentators observe that these appeals have been pending with the Tribunals for more than a year to be listed for hearings. Therefore, considering the workload of the Tribunals, it may take even longer for the First Tier Tribunals to hear these pending appeals.
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Letter from the British Prime Minister for EU Citizens in the UK
The British Prime Minister has given some positive gestures for EU Citizens in respect of their residence in the UK after the Brexit. However, it will really help legal advisers, if the press releases give more information on how the Govt. is going to deal with individuals who have not completed 5 years in the UK in compliance with the relevant EEA Regulations. For example, disabled, pensioners, single parents, students, dependents who have now attained majority, victims of domestic violence, widowed, full-time carers, seasonal workers, people engaged in economic activity but fail to meet the primary threshold set by the rules and individuals have become unemployed for various valid reasons. I think these are the groups of individuals who are really worried about their future in the UK. click the link below to read the Prime Minister’s Letter.
https://jayvisva.co.uk/wp-content/uploads/2017/10/Email-from-the-Prime-Minister.pdf
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Important Spouse Visa Rules Changes from 10 August 2017
Following the Judgment of the Supreme Court in the case of MM (Lebanon) & Others v the Secretary for the Home Department [2017] UKSC 10, the Home Office had laid down the Statement of Changes in Immigration Rules (Memorandum) before the Parliament on 20th July 2017 in order to give effect to the Judgement and make minor technical changes to the Appendix FM and Appendix FM SE. These amendments will come into force from 10th August 2017.
Important changes from 10th August 2017 are:
- The Home Office must assess circumstances of particular applicant based on the evidence provided by the applicant with a view to grant visa/leave to remain to an Applicant, if they have not met the minimum earning threshold (£18600 for the Applicant; £22400 for the Applicant and one child and so on) as set out in the Appendix FM. The Home Office will consider whether the Applicant is destitute or whether it is in the best interest of the child to grant visa or leave to remain. Therefore, the Home Office must ask itself whether refusing the visa will result in a breach of Article 8 because it will lead to unjustifiably harsh consequences for the applicant, their partner or a child under the age of 18 years.
- .The Home Office will also have to look into the promises of third party financial assistance. This is similar to the provisions in Part 8 of the Immigration rules. However, the third party financial assistance should be ‘credible guarantee of sustainable financial support from a third party; credible prospective earnings from the sustainable employment or self-employment of the applicant or their partner; or any other credible and reliable source of income or funds available to the couple.’ It appears that prospective Applicants could be able to rely on their parents’ or other relatives’ promises of financial supports but these should be sustainable income. It appears that the bank statements and other evidence of guarantors’ income must be submitted with the Applications.
- If leave to enter or remain is granted outside immigration rules under Article 8 as a partner or parent this will be on a 10-year route to settlement (Indefinite Leave to Remain), with scope to apply later to enter the five-year route where they subsequently meet the relevant requirements.
- Some important technical changes also have been made particularly, some provisions to ensure that the partner of a person here with refugee leave or humanitarian protection cannot qualify for Indefinite Leave to Remain before that person has done so; and
- In exceptional circumstances, Applicants will be able to apply for welfare benefits but there should be exceptional circumstances and it will be decided by the Immigration Officer when they consider the applications so that they can place a note on the status or biometric documents.
The Home Office stated that it would publish a guidance, possibly to assist caseworkers and potential Applicants however, some observers comment that these changes are ‘devil is in the details’. Although it appears that these are straight forward amendments, lots of applications may still be refused for lack of evidence and will end up in the Immigration Tribunal, especially when the prospective lay Applicants submit the applications without proper legal advice from a competent immigration adviser. Therefore, again it may take more than a year to have a hearing date at the Tribunal to see whether they are able to join their family in the UK.
To read more please click the link below:
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UK Government’s proposals for the protection of EU Citizens’ rights in the UK
The Home Office is asking the Migration Advisory Committee to carry out a detailed assessment of the role of EU citizens in the UK, economy and society.
In an email received from the Home Office, it informs Jay Visva Solicitors that the MAC will examine the British labour market, the overall role of migration in the wider economy and how the UK’s immigration system should be aligned with a modern industrial strategy. However the Report will not deal with the EEA nationals and their dependants living UK at present. The email confirms three main points:
EU citizens with settled status will continue to be treated as if they were UK nationals for education, healthcare, benefits, pensions and social housing after we leave the EU.
No EU citizen currently in the UK lawfully will be asked to leave at the point we leave the EU. In fact we will allow up to two years for people to regularise their status.
The process to apply for settled status will be streamlined and user friendly, and will include those who already hold a permanent residence document under current free movement rules. We expect the system to be up and running in 2018.
It appears that the Home Office will continue to update professionals about the progress of this matter regularly so that we can advise the members of the community accordingly.
View copy of the email transcripts here.
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