Since the massive changes in Immigration Rules introduced on 09 July 2012, the lawfulness of several of the Rules’ requirements relating to spouses and partners’ visas have been challenged.

In 2015 the Court of Appeal (Civil Division) analysed the lawfulness of the requirement that the sponsor of a foreign spouse should earn at least £18,600 in order to bring their partner to the UK in the case of SS (Congo) [2015] EWCA Civ 387.

The Court also revisited the case of MM (Lebanon) V SSHD [2013] EWHC 1900 (Admin), which looked at the legality of the Leave to Enter section of the Rules.

According to the Court of Appeal, in “near miss” cases, i.e. cases where the requirements of the Rules are almost met, the balancing exercise between public and individual interest might be a relevant consideration, which may tip the balance in favour of the applicant. However, this is not always the case. For example, future possible improvements in an applicant’s financial position should not require the Secretary of State to take into consideration that the requirements of the Rules will be met at some point in future.

The cases were appealed to the Supreme Court and finally, on 22 February 2017 the long-awaited judgement of the Supreme Court has been published.

The Supreme Court ruled that the minimum income requirement, set by the Home Office at £18,600 is lawful and proportionate. Therefore, it was concluded that the Immigration Rules are lawful in this respect. However, the Court found that the Rules failed to take into account that when children are involved, the best interest of the child should always be considered. Furthermore, the Court ruled that there should be more flexibility when considering alternative sources of funding available to the sponsor or applicant.

The Supreme Court ruling means that British or settled persons are still required to meet the minimum income requirement of £18,600 in order to apply for leave to enter or remain for their foreign spouses or partners. However, in cases where the Immigration Rules cannot be met, the Home Office and Immigration Judges at appeal stage should consider alternative sources of funding and take a flexible approach, compatible with Article 8 of the European Convention of Human Rights.

Whether the Home Office will implement changes to the Rules to reflect a more flexible approach remains to be seen. We may end up having to wait for Home Office decisions made after this newest Supreme Court ruling to see how cases are actually being decided in practice.

If you would like advice on how these changes may affect you please do not hesitate to contact us here at David Wyld & Co.

On 01 February 2017, the new EEA Regulations 2016 came into force, replacing their predecessor, the EEA Regulations 2006.

Although the changes are not dramatic, it appears that the Home Office is making the situation of EEA nationals less secure.

Most application forms have been updated, and the use of these forms is now mandatory. This means that if an EEA national wishes to submit an application for a registration certificate or a permanent residence card but does not use the correct form, the application will be rejected as invalid. This has been normal procedure for applications for leave to remain for non-EEA nationals, but until now European citizens could avoid the long and complex forms when applying.

At the time of writing, one of the few forms that have not been updated is the 85 page long EEA (PR) form, which is used to apply for permanent residence.

There are various categories of people who believe that they can reside in the UK simply because they are nationals of an EEA country. This is not always the case, and the new regulations stress the fact that EEA nationals who are not exercising Treaty rights (as workers or jobseekers, self-employed persons, students or self-sufficient persons) are here “illegally”. Furthermore, not many know that students and self-sufficient persons need to have comprehensive sickness insurance in place to prove that they are legally resident in the UK. Having sufficient maintenance funds or being enrolled at a course of study is not enough.

Until recently, most EEA nationals have not felt it necessary to obtain a certificate confirming the legality of their residence or their permanent residence in the UK. It is only when they eventually apply and the application is refused, do they learn that they did not meet all the requirements. Other applications are refused because incorrect, insufficient or irrelevant documents have been submitted.

Spouses of British citizens who have not been working may not have the right of residence or of permanent either, even if they have been living in the UK for many years. In the new Regulations, the Home Office underlines the fact that such residence is in breach of immigration laws. This puts many people in a less secure position, and may prejudice any future application for British citizenship.

EEA nationals and their family members who have resided in the UK for less than 5 years can apply for a certificate confirming the legality of their residence in the UK. After 5 years of legal residence they can apply for a certificate confirming they have acquired permanent residence status. The application can be submitted online or by post, accompanied by the relevant documents. If you have any questions about the process, we at David Wyld & Co can assist you.

On 3 November 2016 the government set out specific changes to the Immigration Rules within their ‘Statement of Changes to the Immigration Rules HC667’.

English Language Requirement

Many of the changes will come into force from 24 November 2016 and significant changes include, changes to the English language requirement for non-EEA partners and parents applying to extend their leave to remain as a partner or parent. Applicants will now be required to obtain level A2 of the Common European Framework of Reference for Languages, and this change is likely to affect those who are currently on 2.5-years visas due to expire on or after 1 May 2017.

Out-of-time applications

Another significant change is the end of the ‘28-day grace period’. Currently applicants unable to submit an application before their leave expires, can usually do so within 28 days of their leave expiring, without attracting a mandatory refusal. However, the rule changes mean that an out-of-time application sent on or after 24 November 2016 will be accepted only if the application is made within 14 days of the expiry of leave and “there is a good reason beyond the control of the applicant or their representative, given in or with the application, why an in time application could not be made.” 

Tier 2 Skilled Workers

The changes to the rules also brings into effect stage one of the government’s plans to tighten the rules in relation to Tier 2 workers, which stems from their announcement earlier this year in March 2016, following a review published by the independent Migration Advisory Committee (MAC) on 19 January 2016. These changes will be implemented in two stages, autumn 2016 and April 2017, and the first of these stages are set out in these November rule changes, including:

• Applicants and sponsors who are asked to provide further information to the Home Office in relation to the ‘genuineness assessment’, will have 10 days to do so instead of 28 days. 
• The salary threshold for experienced workers has been increased to £25,000 for the majority of new applicants (the salary threshold for new entrants has been held at £20,800). An exemption from this increase will apply to certain job roles until July 2019. 
• A change is being made to facilitate changes of occupation for applicants sponsored in graduate training programmes. This will allow a change of occupation within the programme or at the end of the programme, without the applicant’s sponsor needing to carry out a further Resident Labour Market Test or make a new application.

As mentioned most of these rules changes come into force from 24 November 2016, and if you would like to discuss the impact they might have, please do not hesitate to get in touch.

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From 10 October 2016, lodging an appeal against a decision of the Home Office has become over 500% more expensive.

After a consultation process which saw strong opposition against the move, the Ministry of Justice has nonetheless decided to increase tribunal fees stating that full costs of the running of the service should be recouped.

It is estimated that the new fees will generate a revenue of 34 million pounds a year, which will be utilised to run the immigration courts.

The increase has been strongly opposed by law firms, judges and not-for-profit organisations, on the basis that many immigrants will no longer be able to access the appeal process. Fee exemptions are limited to appellants on asylum support or in receipt of legal aid. Anyone else intending to challenge the Home Office’s decision to refuse their case will have to pay £800 to have an oral hearing or £490 to have their appeal decided on the papers. The previous fees were £140 and £80 respectively.

As before, if the appeal is successful, the fee will be refunded, however for many it will be difficult to raise the money in the first place, especially if more than one family member is appealing against an immigration decision, as each appellant must pay a separate fee.

Long delays in the listing of hearings have already discouraged immigrants from accessing the courts, especially in entry clearance cases, many preferring to submit a new application rather than wait for a year or more and being stuck abroad in the meantime. The fees hike will undoubtedly reduce the number of appeals further, thus denying access to justice to many immigrants who may have had their cases wrongly refused.

And this is not the end. A new proposal is under way, which could see the introduction of new fees of £455 and £350 for permission to appeal applications, and further fees in the region of £500 for hearings at the Upper Tribunal.

Please note that since publishing this post the Home Office has dropped the fee increase, effective from November 2016, and have agreed to refund appellants who were caught by the fee increase.

In the wake of Brexit, in addition to the increase in applications from EU nationals applying for Permanent Residence (‘PR’) cards, the Home Office have also seen an unprecedented increase in British citizenship applications from EU nationals. The dramatic increase began last year in the run up to this years’ EU Referendum.

In my experience, the EU nationals who have been living lawfully in the UK for many years, having established careers and families in the UK rarely felt the need to obtain British citizenship in order to stay. But this general feeling has changed as the uncertainty of Brexit loomed and the topic of immigration was kept high on the agenda.

Fast-forward to post-Brexit and the uncertainty around EU nationals remains. Changes to free movement are more likely to impact new EU national entrants, nevertheless, many long-established EU nationals already in the UK have considered applying for their PR card as proof of their permanent status, or applying for British citizenship.

With this said, if you are an EU national considering applying for British citizenship, you should be aware of the changes introduced on 12 November 2015 which may affect you, under the British Nationality (General) (Amendment No.3) Regulations 2015.

The change means two things. Firstly, that EU nationals and their family members applying for citizenship, must provide a PR card confirming their permanent status, when submitting their application for citizenship.

Secondly, the requirements for British citizenship states that an applicant must be free from immigration control for a period of at least 12 months. In practice, this means that the right to permanent residence should already exist for a year before the permanent card is actually issued. Therefore, this change to applying for citizenship has minimal effect on those who have held a PR card for 12 months or longer. This document can just be submitted with an application for British citizenship, together with evidence supporting that all of the other requirements have been met.

For those that have never applied for a permanent residence certificate or card, you may be unavoidably inconvenienced by this change in rules. Before you can apply for British citizenship, you will need to apply for a PR card. This involves paying a Home Office application fee of £65; completing the 85-page application form; and waiting up to 6-months before you receive confirmation of your permanent status. Only once you have been issued with your PR card can you apply for citizenship.

Both application processes can be convoluted, but the risk of applying for British citizenship without submitting a PR card and without being free from immigration controls for at least 12 months, can be costly. As of 1 August 2016 the Home Office no longer simply reject an application that fails to provide the required PR card, they now refuse the application and retain the non-refundable fees. If you are intending to make an application for permanent residence or British citizenship, or you are unsure of how the new rules will affect you, we would be happy to answer your questions and assist you with your application.

Brexit is finally upon us. Whether we like it or not, Britain is taking steps to untie itself from the European Union. On 28 August 2016, the new Prime Minister Theresa May had gathered her Cabinet ministers to discuss her exit plan and it appears that Article 50 -the official step to leave the EU- will be triggered within a year.

As many UK nationals voted ‘leave’ due to their concern about migration, it is clear that the free movement of EU citizens will be under close scrutiny during the exit negotiations. Therefore, we expect numerous changes in immigration laws, some of which are already happening.

In fact, on 30 August 2016, the Home Office updated their policy on processes and procedures to apply for EEA documentations, and introduced a new system to request applications to be expedited. In case of exceptional circumstances such as family emergencies or urgent travel required for medical treatment, an applicant can contact the Home Office directly or request their MP or a minister to make enquiries on their behalf. More changes are in the pipeline, and in this uncertain climate it is advisable for EU nationals who live in the UK to protect and preserve their position.

There are several steps that can be taken before new laws are implemented: EEA nationals who have been here for less than 5 years can apply for a registration certificate for themselves and a residence card for any non-EEA family member, to confirm they have the right to remain in the UK.

To do this, the EEA national has to prove that he or she is exercising rights of free movement as a worker, self-employed or self-sufficient person or as a student. There are specific requirements to be met by self-sufficient persons and students, and the procedure is not as straightforward as it might appear. There is a fee of £65 to pay to the Home Office for each applicant, and a decision should be received in a few weeks.

EEA nationals who have spent at least 5 years in the UK can apply for a permanent residence card, which confirms that they have acquired the right to reside in the UK with no time limits. A similar card can be requested by non-EEA family members who have been living with the EEA nationals for at least 5 years. The Home Office fee for this application is also £65 per applicant, and these applications should be decided within 6 months, although at present it is taking longer as many EEA nationals applied after Brexit.

Acquiring a permanent residence card is a pre-requisite to be eligible to apply for naturalisation as a British citizen. Becoming British would obviously ensure that any changes in immigration law would have no impact on the EEA national, and as the majority of EEA countries (but not all, so it is important to check) allow for dual citizenship, the applicant can retain their original nationality.

In some circumstances, children of EEA nationals can apply to be registered as British even if their parents do not yet qualify. Having a British child would strengthen the EEA national’s right to remain in the UK in the face of future changes.

There are other steps that can be taken and here at David Wyld we would be happy to answer your questions and assist you with your application.