What are the new Rules on the minimum income requirement to sponsor your spouse or partner to join you in the UK? 

Aldijana Hoad of Paragon Law explains:

 

 

The Home Office has published new guidance on the minimum income requirement following the Supreme Court judgement in the case of MM (Lebanon) & Others v SSHD [2017] UKSC 10.

The case of MM (Lebanon) considered the lawfulness of the minimum income requirement, brought into force on 9 July 2012, which requires a minimum income of £18,600 (or higher where dependent children are involved) for British citizens and settled persons to sponsor their non-EU national spouse. The Supreme Court found that the minimum income requirement was lawful, but that the Home Office’s rules needed to be amended to take proper account of best interests of children involved in such applications and other possible sources of income and support. The Home Office consequently amended the Immigration Rules (“the Rules”) in July 2017 and guidance has now been issued on how the Rules will be implemented. The new Rules apply to all decisions taken after 10 August 2017 regardless of the date of application.

The guidance reflects a two stage approach that will be taken by the Home Office.

Stage 1

First, the Home Office will consider whether the minimum income requirement of £18,600 is met through the following specified sources:

  • Income from salaried or non-salaried employment of the partner.
  • Non-employment income e.g. income from property rental or dividends from shares.
  • Cash savings of the applicant and/or partner above £16,000.
  • State, occupational or private pension of the applicant and/or partner.
  • Income from self-employment, and income as a director or employee of a specified limited company in the UK, of the partner (and/or the applicant if they are in the UK with permission to work).
  • Where applicant’s partner is in receipt of benefits such as Disability Living Allowance, Carer’s Allowance, Industrial Injuries Disablement Benefit, etc. the applicant is exempt from meeting the minimum income requirement but instead has to provide evidence of ‘adequate maintenance’.

If the minimum income requirement is met through the sources listed above, the applicant will be granted leave under the 5-year route to settlement. If it is not met, the Home Office will consider whether the requirement can be met through alternative sources of income but only in cases, where there is evidence of exceptional circumstances, which could result in unjustifiably harsh consequences for the applicant, their partner or a relevant child, if the application is refused. In such cases, the following alternative sources of income will be taken into account:

  • third party support.
  • prospective earnings from employment or self-employment of applicant and partner.
  • any other credible and reliable source of income available.

The new guidance contains detailed criteria on which the Home Office will rely to assess the genuineness, credibility and reliability of the above sources. Each case will be considered on its own merits, in the light of all the information and evidence provided by the applicant. If the minimum income requirement is met through alternative sources of income, the applicant will be granted leave under the 10-year route to settlement.

The Home Office defines “unjustifiably harsh consequences” as the ones which involve a hard outcome(s) for the applicant or their family which is not justified by the public interest, including maintaining effective immigration controls, preventing burdens on the tax payer, promoting integration, etc. It involves consideration of whether refusal would be proportionate, taking into account, all facts of the case and, as a primary consideration, the best interests of any relevant child.

In June 2017, the Home Office had around 5,000 applications on hold pending an amendment to the Rules. The Home Office will now be considering these applications and where there are exceptional circumstances and refusal could result in unjustifiably harsh consequences, the applicants will be contacted in writing and given 21 days to provide evidence of alternative sources of income. This evidence will be considered in addition to the evidence provided already.

Stage 2

Secondly, where an applicant does not meet the minimum income requirement and/or other requirements under the Rules, the Home Office will consider whether there are exceptional circumstances which would result in unjustifiably harsh consequences for the applicant, their partner or a relevant child if the application is refused. Where there are such circumstances, the applicant will be granted leave under the 10-year route to settlement.

If you require advice on whether you meet the minimum income requirement or have received a letter from the Home Office asking you to provide evidence of alternative sources of income within 21 days, please contact our offices on 0115 9644 123 or enquiries@paragonlaw.co.uk and we will be happy to assist you.

International Students

The UK Government has published a number of reports relating to international students and their impact on net migration.  The Home Secretary, Amber Rudd, has also commissioned the Migration Advisory Committee (MAC) to undertake a review of the impact of international students by September 2018.

The most significant finding in the Reports is that 97.4% of international students return home prior to their visas expiring (2016/17) and proves, contrary to the rhetoric by successive Home Secretaries and certain sections of the media, that international students do not overstay. Many will argue that the statistics collated from exit checks at airports confirms what Universities have said all along. The ONS report is available here.

My firm, Paragon Law, count 6 Universities amongst our client base on immigration law matters related to international students and overseas academics. I, like many Vice-Chancellors and business leaders, have put forward to the Government the positive contribution that international students make to the local and national economy. In terms of income, this has been valued to be in the region of £26 billion for the economy but more so our world class universities attract the brightest and the best from around the world. This enhances the experience and network for home students, helps to facilitate cross border research and builds bridges for future trade and investment into the UK. At a time when the UK is trying to negotiate trade deals around the world, the importance of international students returning home and becoming leaders in their field should not be underestimated.

Whilst this should be obvious to the Government it is nonetheless welcome that the Home Secretary has written to the MAC asking it to undertake an objective assessment of the impact of international students. It has been asked to consider both EU and non-EU students at all levels of education. The key areas of focus asked of the MAC are to evaluate the social and economic impact of international students and in particular:

  • The impact of tuition fees and spending by international students on the local and national economy and in the education sector;
  • The impact of international students on the labour market, housing, transport, other services and the role they play in contributing to local economic growth;
  • Breakdown of impact by type and level of course, and institution;
  • The impact of international students on the provision and quality of education provided to domestic students’.

The MAC will no doubt publish a consultation document inviting educational institutions, businesses and others interested to contribute to their findings. This will be a welcomed step and it is important that you contribute through written representations and present evidence of the positive, present and future contribution that international students make to the UK. The letter to the MAC can be viewed here

Paragon Law have assisted organisations with written representations to previous MAC consultations. Should you require our assistance please contact Thalej Vasishta on mailto:thalejv@paragonlaw.co.uk.

 

 

As negotiations with the EU have now properly commenced, one of the first priorities on both sides is to agree what will happen to EEA nationals living in the UK, and for British Citizens living abroad in other EU countries. The UK have now published a document ‘Safeguarding the Position of EU Citizens Living in the UK and UK Nationals Living in the EU’ which provides us with some long-awaited detail about what will happen to EEA nationals once the UK leaves the EU. This article summarises some of the key pieces of information disclosed in the publication for EEA nationals and their right to remain in the UK. I have also identified some key information that we do not yet know.

There will be changes
The document published confirms that as the UK wish to have the option of controlling migration from EU countries, there will be a new system which requires all EU nationals and their family members to apply for status documents proving their right to live in the UK.

The government’s proposals confirm:
“This will be a legal requirement but there is also an important practical reasons for this. The residence document will enable EU citizens (and their families) living in the UK to demonstrate to third parties (such as employers or providers of public services) that they have permission to continue to live and work legally in the UK. Following the UK’s exit from the EU, the Government may wish to introduce controls which limit the ability for EU citizens (and their families) who arrive in the UK after exit to live and work here…”
The document confirms the application procedure will be announced in more detail closer to the time, but that the application will be made ‘as streamlined and user-friendly as possible’. For example, the government will seek to minimise the burden of providing documentary evidence and access existing government data held such as income records.
Further, the government have confirmed that all EEA nationals will need to apply for this new form of status, even those who have previously been granted documents showing they have a right of permanent residence in the UK. However, they will aim to make the system ‘as streamlined as possible’ for those in this situation.

Who will qualify for Status Documents?
Currently, EEA nationals qualify for a right of permanent residence once they have lived in the UK as a ‘qualified’ person for a continuous period of 5 years. This has presented difficulties for many EEA nationals who may have had breaks in their ‘qualified status’. One common problem is that many EEA nationals were not aware that they were required to hold a private medical insurance policy or other insurance cover to be a ‘qualified’ person whilst they were a student.
This system is going to be replaced with new criteria for EEA nationals. The government have indicated that there will be two primary criteria to qualify:
1) That the applicant has been ‘resident’ in the UK for a set period of time (most likely to be 5 years); and
2) The applicant is not considered a threat to the UK on an assessment of their criminality and conduct.
Happily, the government have confirmed that they will no longer require evidence of holding insurance documents in order to be considered continuously resident. This will enable many EEA nationals to apply for ‘settled’ status under the new system who would not qualify for a permanent residence document under the current set of rules that apply to EEA nationals.
The published offer further confirms that, as long as an EEA national arrives before a particular ‘specified date’ then they will be given the opportunity to establish 5 years residence and qualify for settled status. We have not yet been told what the ‘specified date’ will be, but we know that it will fall between the 29th March 2017 and the date that the UK leaves the EU. This date is to be decided following negotiations with the rest of the EU.
The document also confirms that ‘family members’ of EEA nationals will also be able to apply for settled status following 5 years continuous residence.
If an Applicant will not have reached the 5 year point before the UK leaves the EU, they will be given a grace period within which to apply, and if necessary, can apply for a period of leave to remain after the UK leaves the EU to allow them to get up to the 5 year point and qualify for settled status at that point.

When do EEA nationals need to apply?
The documents says there is no need for EEA nationals to apply now for EEA documents, as their current rights will continue until the UK leaves the EU. However, the government will continue to process applications which are received. It is therefore only those EEA nationals who wish to apply to naturalise as British Citizens who will need to go through the process of applying for a document certifying permanent residence now.
The government have confirmed that there will be a ‘grace period’ for EEA nationals to make an application after the UK leaves the EEA. This is likely to be a period of 2 years. During this period of time EEA nationals will be ‘deemed’ to be granted leave to remain which means they will continue to be lawfully present in the UK. EEA nationals will need to make their application to regularise their position within this 2 year period to continue having a right to remain in the UK.
The grace period of 2 years is clearly a sensible measure given the impracticalities of the government having to process applications from approximately 3 million applicants simultaneously. The government have further confirmed that they will introduce the ability to apply under the new application procedure before the UK leaves the EU to enable EEA applicants who wish to apply at the earliest opportunity to make the application even before the UK leaves the EU.

What we do not know:
We have yet to be provided the following key information:
1) What the specified date is by which time EEA applicants will need to be in the UK to benefit from the proposals in the offer;

2) What new system of rules will apply to EEA nationals or their family members who arrive after the ‘specified date’;

3) What the fee for the new application procedure is – the document states this will be set at a ‘reasonable level’. The current fee for applications for indefinite leave to remain (which is the status that will be given to EEA nationals who qualify) is £2,297.00. This contrasts with the fee for making a permanent residence application under the EEA regulations of £65.00. Clearly the cost of making the application (given that there will be approximately 3 million people needing to apply) will be of considerable interest;

4) What documentary evidence of ‘residence’ will need to be provided as part of the new application procedures; and

5) Whether the UK will win on its negotiating position that it will be the UK domestic courts that are responsible for settling disputes over the rights of EEA nationals rather than the European Court of Justice.

Paragon Law have an experienced and established team of Immigration lawyers who specialise in providing advice to EEA nationals and their family members. We have also been regularly involved in providing training on the impact of Brexit to staff members at Universities and Employers. Please contact us if you require expert assistance in these areas.

In recent times, there have been many reports in the media about the possible implications of the outcome of the Brexit referendum and its potential impact on EEA nationals who are living in the UK. Uncertainty of the situation has caused many EEA nationals to scramble to make permanent residence applications before a potential “cut-off” date is announced. However, for those who may not yet have lived in the UK for long enough, or may have spent time in a UK prison, there is concern that they may be removable, potentially subject to deportation action, from the UK to their home countries, now that Article 50 has been triggered.

There are many uncertainties, including the rights of EEA nationals already present, and negotiations are about to take place between the Prime Minister, Theresa May, and the EU member states for a reciprocal agreement on the rights of free movement. The Cabinet Office on the 11th July 2016, indicated that EU nationals in the UK would continue to have the same rights as they held prior to the Brexit vote, by stating:

When we do leave the EU, we fully expect that the legal status of EU nationals living in the UK, and that of UK nationals in EU member states, will be properly protected. The government recognises and values the important contribution made by EU and other non-UK citizens who work, study and live in the UK.”

Of course, there will be EEA nationals living in the UK who do not fit within the criteria described by the Cabinet office, either because they have not secured work, or because they have concern over whether they meet the very strict criteria for immigration applications the Home Office has put in place.

Deportation is a word that has been widely publicized in the media and is a word that strikes fear into the hearts of those who may be seen to fit the criteria to invoke such action, but it is important to understand that enforcement action (such as being detained, and given a flight back to a person’s country of origin, and particularly deportation) will not be possible in many of these EEA cases.

When deportation can take place – EEA cases

Deportation mostly becomes applicable, but is not limited to, cases of criminality where EEA nationals are concerned. Deportation action not only removes a person from the UK but prevents a person from re-entering the UK for a minimum period of ten years under the current Immigration Rules. This is very different to an administrative removal, which simply seeks to expel a person who is not exercising the rights that they set out to gain entry for, or has abused those rights. Administrative removal can result in a re-entry ban of up to five years, but, again, this does not apply in all cases.

The Immigration (European Economic Area) Regulations 2016 set out examples of why a deportation order might be made against an EEA national, at regulations 23 which states:

“(5) If the Secretary of State considers that the exclusion of the EEA national or the family member of an EEA national is justified on the grounds of public policy, public security or public health in accordance with regulation 27 the Secretary of State may make an order prohibiting that person from entering the United Kingdom.”

Therefore, if removal is not taking place for any of the reasons described, then it is potentially arguable that the action being taken is not lawful.

Legislative protection from deportation

One of the EEA Regulations describes what factors need to be taken into account when deciding EEA deportation cases. These are that:

  1. the decision must comply with the principle of proportionality;
  2. the decision must be based exclusively on the personal conduct of the person concerned;
  3. the personal conduct of the person must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, taking into account past conduct of the person and that the threat does not need to be imminent;
  4. matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision;
  5. a person’s previous criminal convictions do not in themselves justify the decision;
  6. the decision may be taken on preventative grounds, even in the absence of a previous criminal conviction, provided the grounds are specific to the person.

It is important to be aware that it is not enough by itself that a crime has taken place and, in fact, if it can be shown that a person has been rehabilitated sufficiently by the prison and probation regimes in the UK, so that their future risk of re-offending is low, then the decision to deport them will not be proportionate.

In addition to the considerations that need to be taken before a decision to deport can be made, there are several levels of protection based on length of residence, which are shown later in the same set of Regulations. They are:

  1. If a person has accrued “permanent residence” (after 5 years of residence in the UK as a qualified person), then deportation action can only be taken on serious grounds of public policy and public security.
  2. If a person has accrued ten years residence in the UK as a qualified person then deportation action can only be taken on imperative grounds of public security.

These are very high thresholds to meet and may mean that deportation action cannot be taken at all.

The current situation

It seems from reports that have been carried out by various charitable organisations (Bail for Immigration Detainees (BID)) that the above criteria are not being properly examined by the Home Office before decisions are made in respect of EEA nationals.

A report compiled by the joint select committee report entitled “The human rights implications of Brexit 16 Dec 2016” sensibly concluded that “It is not realistic to imagine that the UK Government would be in a position to deport the large numbers of EU nationals currently in the United Kingdom. Under Article 8 of the ECHR, individuals are entitled for respect to their private and family life and home.” Therefore, those EEA nationals, who can demonstrate that they have strong family ties to the UK, in the form of partners or children, will not realistically, be easily removable. Those EEA nationals too, who have been living in the UK for a number of years, and can show that the centre of their lives is located here in the UK, either by work, or property, or simple length of residence, may also have good grounds to appeal against any decision made to deport them.

Shockingly though, it has been reported that the number of EU nationals detained in immigration centres has increased fivefold since the Conservatives came to power. In 2015, the last full year for which Home Office data is available, 3,699 EU citizens were detained under immigration powers, making up 11.4 per cent of all detainees. An investigation showed that, in many cases, no crime had been committed, with people detained for reasons such as losing their ID card or having a birthday party in a park. The detention of EU citizens has continued to rise rapidly, with 1,227 detained in the third quarter of 2016, making up 17 per cent of the total number recorded in that period.

Publically, the government want to be seen to be nurturing and protecting of EEA nationals present in the UK from what was, for all involved, a shock outcome of the Brexit referendum. As The Guardian reported on 1 December 2016 “a Home Office spokesperson said: “The home secretary has been clear that she wants to protect the status of EU nationals already living here, and the only circumstances in which that wouldn’t be possible is if British citizens’ rights in European member states were not protected in return.” Amber Rudd sent a letter asking the House Of Lords not to vote against the government on their Brexit Bill in which she said that there was no question of treating European citizens with “anything other than the utmost respect.” Looking at the above statistics, it is hard to see how this could be the case.

In such times of political and legal uncertainty, and before any possible changes to the law and policy guidance, is important to take positive and affirmative action in cases concerning any EEA national at an early stage to prevent what could be devastating consequences.

Now that Article 50 has been triggered, the Home Office is very quiet regarding possible changes of policy, especially in light of the election result. Negotiations with the EU seem to be key to whether the Prime Minister will seek to protect the rights those EEA nationals already present in the UK or tighten what is already a tightly controlled immigration policy. It is difficult to see what this means in the future in terms of administrative removals, but deportation appeals are likely to remain very complex cases.

Anyone who receives notification of potential deportation proceedings should always seek assistance from a specialist immigration advisor. For those EEA nationals receiving such decisions, this is especially important, as many of these decisions are not in accordance with either the law or current published policy.

Our dedicated team of immigration lawyers have experienced in preventing such cases from proceeding to deportation and welcome enquiries from all EEA countries. Anyone requiring should assistance should not hesitate to contact us via email enquiries@paragonlaw.co.uk or telephone 0115 9644123.

Safe Return Reviews—Compliance but not compassion

 

Immigration analysis: Deirdre Sheahan, associate, and Decla Palmer, trainee, both at Paragon Law look at the

new ‘safe return’ review policy ushered in by the UK government. They explain that while the new policy is

technically compliant with the 1951 Refugee Convention (the Convention), it nonetheless demonstrates that the

UK does not intend to offer more than the minimum required by international standards.

To read this article in full please see the link here: Safe return reviews

 

The guidance issued by HMRC in relation to bringing vehicles and pets from outside of the EU to the UK was updated on the 6th March 2017. This guidance is available here.

The guidance confirms that when a person relocates to the UK and brings with them a vehicle or pet, those goods will normally be subject to standard import duties and charges unless an application is made for relief from the normal duties on the form ‘Transfer of Residence’. Certain items (for example pet dogs and cats) may be eligible for relief from the normal duties and charges.

Due to the recent change in the regulations, the processing time for ‘transfers of residence’ are presently taking longer. Therefore, for those intending to transfer their pets or vehicles to the UK whilst travelling, we would strongly recommend that you submit your application for a ‘Transfer of Residence’ at the earliest opportunity.

Further guidance on the requirements involved in bringing pets to the UK can also be found here.

If you wish to discuss any aspect of these regulations please contact Mark Lilley-Tams at markl@paragonlaw.co.uk

President Trump signed a revised executive order on 06 March 2017 which temporarily suspends new entries of nationals to the US from Iran, Libya, Somalia, Sudan, Syria and Yemen.

 

There is a significant narrowing of the controversial executive order of 27 January which caused chaos at US airports and was challenged successfully in the courts. The previous order was blocked initially by a district court in Washington State and then an appellate panel of the 9th US Circuit Court of Appeals.

The new order revokes the earlier one and takes effect on 16 March. The key features of the new order are:

  1. It cuts refugee settlement this fiscal year to 50,000 from an earlier target of 110,000 and puts a stop to refugee admissions for 120 days. The new order also retreats from the attempt to prioritise applications from minority-religion refugees.
  2. The new order restricts nationals of Iran, Libya, Somalia, Sudan, Syria and Yemen from entering the US unless they had valid visas as of 27 January. The justification for this restriction is that new admissions from these countries would be “detrimental to the interest of the United States”.
  3. There is a departure from the previous order which included Iraq in the list of countries.
  4. There is a significant departure from the previous order which banned the entry of those who had valid visas, including permanent residence and suspended the resettlement of Syrian refugees. The new order allows nationals from the six countries to apply for case by case waivers and provides examples as to when waivers might be exercised e.g. where an individual has previously established significant contacts in the US or are seeking to visit immediate family members who are legally resident in the US.

Nationals from the six designated countries have already been undergoing greater scrutiny and vetting procedures compared to nationals of other countries. Nationals from Iran, Syria and Sudan face further scrutiny procedures since these countries have been designated state sponsors of terrorism by the US State Department.

Further, nationals from Iran, Sudan and Syria and recent travellers to all of these six countries are excluded from visa free travel under the Visa Waiver Program even if they hold citizenship of one of the 38 countries participating in the Visa Waiver Program.

The 27 January order was flawed on a number of counts and argued to be a breach of the US Constitution. The 9th Circuit Court also indicated that this order violated the First Amendment by discriminating against a particular religion. These matters will now become academic as the 06 March order revokes the previous one. The new order has tried to address the points of challenge in the previous order and the basis for a legal challenge has now been narrowed.

Trump’s administration continue to maintain that travel bans as set out in the new order are necessary and rely on the Immigration and Nationality Act 1952 and in particular section 212 (f) which allows the president to suspend entry of certain foreign nationals if he finds that their entry would be “detrimental to the interests of the United States”. Whilst this statuette has been used by previous presidents it is argued that it has never been used as broadly (and without a response to a specific event or threat) as Trump’s order. This therefore may be the starting point to any legal challenge.

 

 

 

spouse visa

The Supreme Court gives judgement on spouse visas and the financial requirements of £18,600

In July 2012, the Government made substantial changes to the Immigration Rules, which particularly impacted on those who were sponsoring family members coming to the UK. ‘Appendix FM’ of The Rules introduced a number of significant hurdles that family members needed to overcome. The Supreme Court in the case of R on the application of MM (Lebanon) and others v SSHD [2017] UKSC 10 has now considered whether the introduction of the ‘financial requirement’ for spouses is lawful.

 

What is the Financial Requirement under the July 2012 Rules?

Under the previous system of Immigration Rules, an Applicant for a spouse visa needed to satisfy a ‘maintenance’ requirement which showed that they would be adequately supported in the UK without having any ‘recourse to public funds’. When deciding whether an Applicant satisfied this criteria, the Home Office would assess whether the income available to them in the household, after taking into account housing costs, would exceed the amount that they would receive if they were on a UK benefit known as income support. This was a relatively low threshold. In addition, as well as being able to rely upon the income received by the UK spouse, it was possible to rely upon support that was promised to the couple by third parties (such as family members who promised to give the Applicant a certain sum every month) and prospective job offers in the UK that the Applicant had received.

Under the system introduced in July 2012, an Applicant was required to evidence a minimum income of £18,600. This minimum income would increase if there were also non-settled children in the family. The income requirement for a family with one such child was £22,400, with the income requirement raising a further £2,400 for each additional child.

Under the new Rules, other than in very limited circumstances, the Applicant can only rely upon the income that their UK based partner is earning to meet the requirement. This means that third party offers of support and any job offers that the Applicant has in the UK, cannot currently be taken into account.

The financial requirement also allows savings to be taken into account to meet the financial requirement, but only if those savings exceed £16,000. For an Applicant who wants to solely rely upon savings to meet the financial income requirement of £18,600, it is necessary to evidence savings of at least £62,500.

It estimated by some that 40% of British citizens would be unable to satisfy the current financial requirement.

What the Supreme Court was asked to decide

The Supreme Court was asked to reach a decision on three principle issues:

  1. Whether the principle of having a minimum income requirement was compatible with human rights law;
  2. Whether the treatment in the Rules and Guidance of children was lawful; and
  3. Whether the income requirement was lawful in preventing Applicants from relying on third party support and job offers in the UK to meet the requirement.

Principle of a minimum income requirement

In this part of the case, the Court found in favour of the Government. They found that having a minimum income requirement was, in principle, lawful, as part of the Government strategy of reducing net migration.

This finding does not mean that there will not be individual cases where a refusal of an application on financial requirement grounds will be a breach of that individual’s human rights, but it does mean that the principle of having such a Rule is not itself in breach of human rights law.

Treatment of Children

There is a requirement in UK law, including in the context of immigration, to treat the best interests of children being affected by decisions, as a ‘primary consideration’. The Government argued that it would be for Entry Clearance Officers to make decisions on individual cases to ensure that children’s best interests were protected.

However, the Court considered the Guidance that entry clearance officers needed to take into account when deciding cases and found that they set the threshold at which a child’s rights would be breached too high. They had no hesitation in finding that the Guidance was defective, and that new Guidance would need to be issued which was compatible with human rights caselaw, to ensure that the best interests of children were given primary consideration.

The Court further found that the Immigration Rules should also be amended to reflect the Government’s duty towards children. The Court did not describe how the Rules should be amended, but as they have been found to be unlawful, it will be necessary for the Government to make changes to the Rules to fully reflect that Entry Clearance Officers are properly taking into account the impact of children when deciding applications.

In practice, this means that if there are children who are being adversely impacted by a decision to refuse a spouse entry clearance to the UK, there is a strong legal argument that the Government’s reliance on the Immigration Rules in their current form is unlawful.

Treatment of Third Party Support and Job Offers

In this part of the case, the Government argued that for reasons of ‘practicality’ it was not appropriate to include offers of support from third parties or prospective job offers. They argued it was difficult to assess how credible such support or job offers were and there were ‘substantial risks and uncertainties’ attached to the calculation.

The Court however rejected the Government’s arguments. Whilst acknowledging that it may be difficult for an Applicant to prove that there is suitable support available from a third party or that a job offer would materialise in actual work upon the Applicant’s arrival, they found that it was overly prescriptive to prevent the Applicant from being able to rely upon other sources of funding even if they had good evidence available to them.

The Court therefore found that the current Guidance needed to be amended so that Applicants could rely upon support from a third party, or a job offer in the UK.

Applicants who may otherwise struggle to meet the financial requirement, can therefore now argue that they would meet the financial requirement with the support of a third party (such as a family member) or through the work income the Applicant would obtain upon arrival in the UK. This is a significant development for many families. If relying on other sources of funding however, Applicants will need to ensure that they provide comprehensive evidence of the potential source of funding and be prepared that the Home Office may not in the first instance accept that source of funding as credible.

Conclusion

Whilst the income requirement has remained in-tact, the Supreme Court’s decision will offer hope to many families who have been prevented from living together in the UK previously.

There are certain aspects of the financial requirement that the Supreme Court did not consider, such as the difficulties that the Rules impose for those who are self-employed in satisfying the financial requirement. These are matters that may well continue to face scrutiny by future courts and which may force the Government to make further amendments to the Rules to prevent families from being forced to live apart for very substantial periods of time.

 

For further information on the spouse visa rules please contact Mark Lilley-Tams at markl@paragonlaw.co.uk

From 6th April 2017, the Home Office will require some Tier 2 applicants to obtain criminal record checks. The roles that will be subject to this requirement are typically in healthcare, education or other sectors where applicants may work with vulnerable adults or children.

 

Superficially, this may appear a reasonable requirement. However, if an overseas applicant is applying to work in a role where a disclosure and barring check is necessary, then they already have to acquire a criminal record certificate from abroad. For example, any healthcare professional applying to work in the NHS already has to comply with these requirements in order to be appointed in the first place. This new measure appears to extend the requirement for a criminal record check to posts where one would not be required of a settled worker.

Even more surprisingly, the requirement also applies to adult dependants of the main applicant. Therefore, if a UK business wishes to recruit an Optometrist from outside the EEA, and that person wishes to live in the UK with their spouse, then the spouse must get a criminal record certificate.

Who does this apply to?

This requirement applies to a wide range of roles and is determined by an applicant’s SoC code. It will include, for example, Pharmacists and Optometrists (see below for the full list).

Adult dependants of the main applicant will also have to get a criminal record certificate.

What do applicants have to provide?

Applicants must provide a criminal record certificate from any country in which they have been resident for 12 months or more in the last 10 years, unless they were 17 or under at the time that they lived in that country. The 12 month period will be calculated consecutively or cumulatively. For example, if an applicant has lived in a country for two separate periods of 6 months, then they will need to get a certificate from that country.

If the certificate is not in English, then the applicant must also provide a translation.

The certificate must be no more than 6 months old at the time that the application is submitted and must also be within any validity period expressly stated on the certificate itself.

How do applicants get a criminal record certificate?

This will vary from country to country. The Home Office publish a guide of all countries with information about how to obtain a suitable certificate in each. The guide can be found here

https://www.gov.uk/government/publications/criminal-records-checks-for-overseas-applicants

If applicants are still unsure what they need to do, they should contact their embassy in the first instance.

Applicants should keep a record of all of the steps that they take to try and get a certificate.

How will this affect employers?

This is yet another administrative hurdle for both employees and employers to get over. The biggest concern is that this requirement may cause delay in getting new employees to the UK. Inevitably, different jurisdictions will have different time frames from dealing with requests. Some applicants may need to obtain certificates from more than one jurisdiction. Some applicants may not be able to get a certificate at all.

What steps should employers take to reduce the impact of this requirement?

If possible, employers should aim to submit those applications that they can before April 2017. The immigration skills charge is also due to come into force in April 2017, so there is a clear benefit to submitting applications before that date where this is feasible.

Employers should inform any new employee that they identify of this requirement as early as possible. UKVI suggest doing this at the point that a certificate of sponsorship is assigned, however it could also be done as soon as any advertising has finished, when the employer is applying for the restricted certificate of sponsorship.

This will be particularly important in countries where a certificate may be impossible to obtain. If the applicant cannot get a suitable certificate, then UKVI have indicated that they will expect employers to do what they can to obtain background checks, for example by taking up references.

What if we cannot get a criminal record certificate?

If an applicant simply cannot get a certificate, then they should write a clear list of all of the steps that they have taken to try and get one. They should also attach copies of any evidence that they have to illustrate this, for example an itemised telephone bill, proof of postage or email chains.

This should all be submitted along with the visa application. The embassy will consider the evidence, and also their knowledge of the current situation within the country in question. If they are persuaded that it was not ‘reasonably practicable’ for the applicant to obtain a certificate, then they will waive the requirement.

1181 – Health services and public health managers and directors

1184 – Social services managers and directors

2211 – Medical practitioners

2212 – Psychologists

2213 – Pharmacists

2214 – Ophthalmic opticians

2215 – Dental practitioners

2217 – Medical radiographers

2218 – Podiatrists

2219 – Health professionals not elsewhere classified.

2221 – Physiotherapists

2222 – Occupational therapists

2223 – Speech and language therapists

2229 – Therapy professionals not elsewhere classified

2231 – Nurses

2232 – Midwives

2312 – Further education teaching professionals

2314 – Secondary education teaching professionals

2315 – Primary and nursery education teaching professionals

2316 – Special needs education teaching professionals

2317 – Senior professionals of educational establishments

2318 – Education advisers and school inspectors

2319 – Teaching and other educational professionals not elsewhere classified

2442 – Social workers

2443 – Probation officers

2449 – Welfare professionals not elsewhere classified

 

For further information contact Thalej Vasishta at thalejv@paragonlaw.co.uk.

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 Changes to the Immigration Rules – Update for Employers

The important changes to the Immigration Rules which employers and sponsored workers need to be aware of and which came into effect on 24 November 2016 are as follows:-

 

Tier2 (General)

  • The minimum salary threshold for experienced workers has increased to £25,000. This will increase again in April 2017 to £30,000.
  • The threshold remains £20,800 for new entrants i.e. those under the age of 26 or international students switching from Tier 4 to Tier 2.
  • An exemption from this increase will apply for nurses, medical radiographers, paramedics and secondary school teachers (mathematics, physics, chemistry, computer science and Mandarin). The exemption will end in July 2019.
  • Those employed under a graduate training programme will be able to change occupation within the programme or at the end of the programme, without their sponsor needing to carry out a further Resident Labour Market Test or the need for them to make a new application.
  • Nurses will continue to remain on the Shortage Occupation List but employers will need to carry out a Resident Labour Market Test before proceeding to sponsor a nurse under the Tier 2 (General) visa.

 

Tier2 (Intra-Company Transfer)

  • The Skills Transfer sub-category has now been closed.
  • The minimum salary threshold for the Short Term sub-category has increased from £24,800 to £30,000.
  • The minimum salary threshold for the Graduate Trainees sub-category has been reduced from £24,800 to £23,000 and the number of trainees each employer may sponsor has increased from 5 to 20.

 

The changes that are likely to take place in April 2017

  • The exemption currently from having to pay the Immigration Health Surcharge to Tier 2 (ICT) Migrants and their dependents is likely to be removed.
  • The new Immigration Skills Charge will be introduced and will be set at £1,000 per year for a sponsored worker of a large businesses and £364 per year for SMEs and charities. Exemptions will be applied to PhD occupations, ICT Graduate Trainees sub-category and international students switching from Tier 4 to Tier 2 (General).

 

Other Autumn 2016 changes to be aware of

  • The Home Office have previously accepted applications submitted within 28 days of a persons immigration status expiring regardless of the reason for the overstay. This has now been reduced to 14 days and an out of time application will only be granted if there is a good reason beyond the applicants control for the overstay.
  • The Rules have been amended to enable a Tier 5 A-Rated sponsor to certify maintenance in respect of a Tier 5 migrant and their dependents.

 

Immigration Act 2016

Two important provisions were introduced on 12 July 2016:

1.A new offence of illegal working

  • The offence is committed when a migrant works in the UK when he knows or has ‘reasonable cause to believe’ that he is disqualified from working.
  • The offence carries a maximum term of imprisonment of up to 51 weeks or a fine, or both.
  • A confiscation order may also be made under the Proceeds of Crime Act 2002 to cease the earnings of the convicted illegal worker

 

2. An amended illegal employment offence for employers

  • The offence has been widened to not only include employers who ‘knowingly’ employ illegal workers but also employers who have ‘reasonable cause to believe’ that the employee is disqualified from employment by reason of their immigration status.
  • The maximum term of imprisonment has increased from 2 to 5 years.
  • Immigration officers have also been given the power to arrest without warrant any person who they have reasonable grounds of suspecting has committed or is attempting to commit the offence of employing a person illegally.
  • It should also be noted that on 1 December 2016 immigration officers will be given additional powers under The Act to close business premises for up to 48 hours if employers who have committed immigration offences and they will be able to apply to the court for a compliance order to impose special measures, including ongoing closure, on the employer to prevent illegal working.

3. Why you should be concerned?

  • The bar has been reduced from ‘knowingly’ employing someone who does not have the permission to do so if as an employer you could be found to have had ‘reasonable cause to believe’ that the employee did not have or had ceased to have the right to work in the UK.
  • It should also be noted that if an employee of the business who has responsibility on behalf the business of any aspect of the employment of an individual has reasonable cause or believe that the employee does not have the right to work then the business will be treated as having ‘reasonable cause to believe ’that fact.
  • The 2016 Act does not give a definition of ‘reasonable cause to believe’ and it will therefore appear that the law will be developed on a case by case basis. The threshold will certainly be higher than mere negligence as this is the function of the civil penalty regime though, the bar has been set lower than ‘knowingly’ employing someone who does not have the correct immigration status.
  • Those employers who hold a Tier 2 license who fall foul of this legislation are likely to have their license revoked and the immigration permission of all migrant employees sponsored under the license curtailed. The business is likely to be prevented from applying for another Tier 2 license for a period of up to 12 months.

4. What you should be doing?

  • It is recommended that you review your right to work checks to ensure that your system and procedures are robust in order for you to maintain the statutory excuse for all employees.
  • You should also review your procedures in relation to change of circumstances and new information received after the employment has commenced.
  • HR and line managers should be given training on the new changes and what circumstances may trigger having ‘reasonable cause to believe’ and the action to be taken.

 

Training

Paragon Law will be running a training course on the new and proposed changes to the Immigration Rules, preparing for UKVI visits (including the areas of focus by visiting officers), the changes under the Immigration Act 2016 and protecting your EU employees following the Brexit referendum. This one day course will take place in January 2017 and places will be limited. Therefore to register your interest or if you require specific training for your HR advisors please email me at thalejv@paragonlaw.co.uk.