UK Immigration Law Blog - Waltons News

Indefinite Leave to Remain (ILR): Which UK Visas Lead to Settlement?

Fri, 12 Jul 2024 08:50:59 GMT

This post explains which visas are routes to settlement in the UK, the length of time you need to spend on each visa before you qualify for settlement, and whether you can combine this with time spent on other visas. (Please note, this post focuses on the rules for main applicants, rather than dependants. It does not cover settled status under the EU Settlement Scheme .)

What Is ‘Settlement’?

As explained in our earlier post, Indefinite Leave to Remain ILR: A Complete Guide , settlement, or indefinite leave to remain (ILR), is an immigration status that allows the person who holds it to live and work in the UK for an unlimited time, without any need to apply for a visa extension.

Note that, ILR can, however, lapse or be revoked in certain circumstances – for instance, ILR lapses if you leave the UK for a continuous period of 2 years (or 5 years if you have settled status under the EU Settlement Scheme). If your ILR lapses, you may consider making an application as a returning resident .

How Long Do I Need to Stay in the UK to Qualify for ILR?

Settlement Based on 10 Years’ Continuous Lawful Residence

There are different ways to get ILR in the UK. If you have lived in the UK lawfully for 10 years or more, you may qualify for indefinite leave to remain based on 10 years’ continuous residence , under Appendix Long Residence. (See our post, Big Changes to the 10 Year Long Residence ILR Rules , on recent changes to the meaning of ‘continuous’ residence in long residence applications.) Unless an exemption applies, you would also need to meet an English language requirement and pass the Life in the UK test.

UK Visas Offering Routes to Settlement

If you have been living in the UK on certain types of visa, you may be able to get ILR more quickly than this. These visas provide ‘routes to settlement’. Only certain UK visas put you on a route to settlement, and the length of time you need to be in the UK before you can apply for ILR varies depending on the type of visa you are on. When considering the length of time spent in the UK, you will need to check whether you meet any continuous residence requirements for the relevant route – you are recommended to seek legal advice, particularly if you have any significant absences from the UK. In each case, you will also need to check the additional requirements for being granted Indefinite Leave to Remain on the relevant route, for example, related to English language requirements, and passing the Life in the UK test. It is best to seek legal advice early to ensure you are able to plan ahead. If you are unable to meet the requirements for settlement, you may be able to extend your leave instead.

Even when you are on a route to settlement in the UK, you will usually need to apply to extend your visa at least once before you will have spent enough time in the UK to apply for ILR. For instance, a partner visa where all the requirements of the Immigration Rules are met puts you on a five year route to settlement. However, a first application for entry as a partner gets you a visa valid for 33 months, after which you would need to apply to extend your permission for a further 30 months. After spending 60 months (5 years) in the UK as a partner, you can then apply for settlement.

You may see the term ‘settlement visa’ being used. The websites for the UK’s visa application centres (operated by VFS Global and TLS contact) use ‘settlement visa’ as the name for some visas for those joining family members in the UK. However, these are not the only types of visa that lead to ILR. Certain visas that grant ILR immediately might also be called ‘settlement visas’. Examples are the bereaved partner visa or the visa for victims of domestic violence or abuse who meet certain criteria.

In some cases, but not all, you can combine time spent on different visas in order to qualify for ILR.

Check the list below to see whether your visa gives you a route to settlement, and whether time spent on this visa can be combined with time spent on other visas:

Spouse/civil partner/unmarried partner visa (5 year route)

If you have a spouse / civil partner / unmarried partner visa and are on the five year route, you can apply for settlement in the UK once you have been in the UK for 60 months continuously with leave on this route. You should check the letter granting your leave to see whether you are on the five year route to settlement. Time spent in the UK with leave as a fiancé or proposed civil partner does not count towards the 60 months;
You cannot combine time spent on any other visa to reach the 60 months, and your leave as a partner has to have been based on your relationship with the same person throughout the period.

Spouse/civil partner/unmarried partner visa (10 year route)

You can apply for settlement after 10 years in the UK under Appendix Settlement Family Life;
You can combine time spent on this route with time spent in the UK as a family member under routes set out at paragraph SETF 3.1 of Appendix Settlement Family Life ;
You can also combine time spent on this route with time spent on any other route to settlement, as long as you did not enter the UK illegally and you have had permission as a partner (if applying as a partner) or parent (if applying as a parent) under Appendix FM for at least one year;
You may also be eligible under the general 10 years’ continuous residence route under Appendix Long Residence discussed above, although this route involves stricter suitability requirements (e.g. criteria relating to criminal convictions).

Parent of a Child Visa

You can apply for settlement after 60 continuous months in the UK on a parent of a child visa , (unless the relevant child’s leave is pre-settled status under Appendix EU);
You cannot combine this with time spent on any other visa.

Adult Dependent Relative Visa

Adult Dependent Relatives are usually granted settlement straight away, as long as the Sponsor is settled and they meet the suitability and eligibility requirements of Appendix Adult Dependent Relative of the Immigration Rules;
Sometimes, an Adult Dependent Relative will be granted leave for 2.5 years and will then be able to apply for settlement after 10 years, for example, if their Sponsor only has temporary permission to stay in the UK.

UK Ancestry Visa

You can apply for settlement after spending 5 years in the UK with permission on a UK Ancestry visa continuously;
You cannot combine time spent on this visa with time spent on other routes.

Skilled Worker Visa

You can apply for settlement after spending a continuous period of 5 years on a skilled worker visa ;
You can combine this with time spent on the following visas: Global Talent, Innovator Founder, T2 Minister of Religion, International Sportsperson, Representative of an Overseas Business , Tier 1 Migrant (other than as a Tier 1 (Graduate Entrepreneur) Migrant) or Scale-up;
If you applied for a skilled worker visa between 24 January 2020 and 30 June 2021, whilst you were in the UK with leave to remain (on any other route), you can also include the time you spent waiting on the outcome of your skilled worker application (as long as you had a certificate of sponsorship from a licensed sponsor on the date of application and the application was later granted).

Scale-up Visa

You can apply for settlement after spending a continuous period of 5 years on a Scale-up visa ;

You can combine time spent on this visa with time spent on the following visas: Skilled Worker, Global Talent, Innovator, T2 Minister of Religion, International Sportsperson, Representative of an Overseas Business, as a Tier 1 Migrant, other than Tier 1 (Graduate Entrepreneur).

International Sportsperson Visa

The International Sportsperson Visa leads to settlement after 5 years’ continuous residence in the UK;
You can combine this with time spent on the following visas: Skilled Worker, Global Talent, Innovator Founder, T2 Minister of Religion, Representative of an Overseas Business; Tier 1 Migrant (other than Tier 1 (Graduate Entrepreneur)Migrant and Scale-up;
If you applied for an international sportsperson visa between 24 January 2020 and 30 June 2021, whilst you were in the UK with leave to remain (on any other route), you can also include the time you spent waiting on the outcome of your international sportsperson application (as long as you had a certificate of sponsorship from a licensed sponsor on the date of application and the application was granted).

Minister of Religion Visa

The T2 Minister of Religion Visa also leads to settlement after 5 years’ continuous residence in the UK;
You can combine time spent on a T2 Minister of Religion visa with time spent on the following visas: International Sportsperson, Skilled Worker, Tier 1 (other than Tier 1 (Graduate Entrepreneur), Sole Representative of an Overseas Business, Innovator Founder; Global Talent and Scale-up.

Sole Representative of an Overseas Business

The Sole Representative of an Overseas Business visa can lead to settlement after 5 years’ continuous residence;
If you are on the Sole Representative of an Overseas Business visa at the time you apply for settlement, you cannot combine this with time spent on other visas in order to meet the five year requirement (but you can use time spent on this visa to meet the five year requirement for other routes, as set out above).

Global Talent

If you hold a Global Talent visa , the required period of continuous residence is 3 years if any of the following apply:
You were endorsed by the Royal Society, British Academy, Royal Academy of Engineering or UKRI;
You were endorsed under the exceptional talent criteria by Arts Council England or Tech Nation;
You were granted your initial application using a prize listed in Appendix Global Talent: Prestigious Prizes (e.g. an Academy Award, a Nobel Prize).
The required period of continuous residence in order to apply for settlement is 5 years if:
You were endorsed under the exceptional promise criteria by Arts Council England or Tech Nation.
The continuous period can include a combination of time spent on any of the following routes: Innovator Founder, Skilled Worker; T2 Minister of Religion, International Sportsperson, Tier 1 Migrant (other than Tier 1 (Graduate Entrepreneur), Scale-up, Representative of an Overseas Business.

Innovator Founder

The Innovator Founder visa leads to settlement after 3 years’ continuous residence;
You cannot use time spent on other visas to count towards these three years (but can use time on the Innovator Founder visa to count towards five years’ continuous residence on some other work visas, as set out above).

Tier 1 Entrepreneur

If you hold a Tier 1 Entrepreneur visa, you can make an application for settlement until 05 April 2025 ;
You can apply for settlement after 3 years’ continuous residence if you have:
Established a new UK business with an income from business activity of at least £5 million during a 3 year period in which you had leave as a Tier 1 Entrepreneur; or
You have taken over or invested in an existing UK business and this resulted in a net increase in income from business activity of £5 million during a 3 year period in which you had leave as a Tier 1 Entrepreneur; or
You have created at least 10 full-time jobs in the UK;
In all other cases, the relevant period of continuous residence is 5 years;
If you are on a Tier 1 Entrepreneur visa at the time of your application for settlement, you cannot rely on time spent on other routes to meet the relevant period of residence.

Hong Kong BN(O) Status Holder Visa

Holders of the Hong Kong BN(O) visa can apply for settlement after 5 years’ continuous residence in the UK;
The 5-year period can include time spent on any visa that is a route to settlement (any of the above visas), as long as the most recent grant of leave was on the Hong Kong BN(O) route.

Visas That Do Not Offer Routes to Settlement But Can Can Count Towards ILR Based on 10 Years’ Continuous Lawful Residence)

The following visas are not routes to settlement in the UK. However, you can count time spent on these routes in an application for ILR based on 10 years’ continuous lawful residence in the UK:

Intra-Company Transfer visa ;
High Potential Individual visa ;
Youth Mobility Scheme visa ;
Student visa (with the exception of short-term study visas for English language courses, which do not count towards 10 years’ continuous residence, as set out below) ;
Graduate visa ;
Start-up visa ;
Global Business Mobility visas ( Senior or Specialist Worker visa ; Graduate Trainee visa ; UK Expansion worker visa ; UK Secondment Worker visa ; UK Service Supplier visa )
Temporary Work – Creative Worker visa ;
Temporary Work – Charity Worker visa ;
Temporary Work – Religious Worker visa ;
Temporary Work – International Agreement visa ;
Temporary Work – Government Authorised Exchange visa ;
Overseas Domestic Worker visa .

Visas That Are Not Routes to Settlement And Cannot Count Towards ILR Based on 10 Years’ Continuous Lawful Residence

Seasonal Worker visa

The Seasonal Worker visa is not a route to settlement in the UK and time spent on this visa does not count towards ILR based on 10 years continuous lawful residence under Appendix Long Residence.

Visit Visa

A visit visa is not a route to settlement and you cannot count time spent in the UK as a visitor towards the 10 years’ continuous lawful residence under the general Appendix Long Residence route. When in the UK as a visitor, you must not live in the UK for extended periods through frequent or successive visits, or make the UK your main home.

Short-term study visa

The short-term study visa for English language courses of between 6 and 11 months is not a route to settlement and does not count towards ILR based on 10 years’ continuous lawful residence under Appendix Long Residence.

How Our Immigration Legal Advisers Can Help

This post has outlined the UK visas that are routes to settlement in the UK, and the situations in which you can combine time spent in the UK on different visas in order to qualify for ILR. It is recommended that you seek legal advice before making an application for ILR.

For expert advice and assistance in relation to a UK visa application or immigration appeal, contact our immigration legal advisers on 0161 529 7779 or complete the online enquiry form below.

New Guidance Clarifies Long Residence ILR 548-Day Absence Rule

Thu, 11 Jul 2024 14:19:21 GMT

Until 11 April 2024, 10 Year Long Residence Indefinite Leave to Remain applications required absences from the UK of no more than 18 months (548 days) in total, and 6 months (184 days) at one time.

On 11 April 2024, as discussed in my earlier post, the UK Home Office made Big Changes to the 10 Year Long Residence ILR Rules .

Since 11 April 2024, there has been confusion and many hoped that the 548 day limit had been abolished. The confusion was largely caused by a lack of clarity in the caseworker Guidance published on 11th April 2024 that said that there was “no 548 day limit”. Immigration lawyers have been working hard to understand and interpret these rules and petitioned the Home Office for clarity.

On 9 July 2024, the Home Office provided clarification. However, unfortunately for some applicants, the much anticipated changes to the Home Office Guidance are not favourable. Newly published Guidance confirms that 548 days lives on as a maximum total number of days for any part of a long residence ILR ten year period prior to 11 April 2024.

Here, I examine permitted absences in a 10 year Long Residence ILR application and the recently updated Home Office Guidance in detail.

To discuss your 10 Year Long Residence ILR application with one of our immigration barristers, contact our Long Residence Settlement legal advisers on 0161 529 7779 or complete our enquiry form below.

The Relevant Immigration Rules – Appendix Long Residence and Appendix Continuous Residence

Since 11 April 2024, Appendix Long Residence sets out:

Continuous residence requirement for settlement on the Long Residence route

LR 12.1. The applicant must have met the continuous residence requirement set out in Appendix Continuous Residence for the entirety of the qualifying period.

Appendix Continuous Residence sets out the following relevant provisions:

CR 2.1. To meet the continuous residence requirement the applicant must not have been outside the UK for more than 180 days in any 12-month period (unless CR 2.2., CR 2.2A, CR 3.1. or CR 3.2 applies, subject to CR 2.3.).

This provision itself is overall more generous than the previous ILR provisions, as the 548 total number of days over ten years could be far lower than 180 days in a rolling 12 month period. However, as CR2.1 is not the whole story, the important transitional provision is:

CR 2.2A. Where the application is under Appendix Long Residence, for any qualifying period before 11 April 2024, the applicant must not have been outside the UK for more than 184 days at any one time, and must not have spent a total of more than 548 days outside the UK during that qualifying period, subject to CR 2.3.

This preserves the 184 day rule for pre-11 April 2024 residence.

Applicants for settlement based on a ten year period for just under the next decade, will of course include periods of residence prior to 11 April 2024. Whether or not this is subject to the 548 day requirement was previously made unclear for applicants because of the (now replaced) caseworker Guidance.

The Source of the Confusion: The Former Home Office Long Residence and Continuous Residence Caseworker Guidance

The (now replaced) Long Residence Caseworker Guidance, version 11 April 2024 set out:

These transitional arrangements preserve the position that continuous residence will be broken if an applicant has been absent from the UK for more than 184 days at any one time or for more than a total of 548 days overall, where that absence started before 11 April 2024.

This means that:

any single absences started before 11 April 2024 must be no longer than 184 days
a 10-year period completed before 11 April 2024 must not have total absences of more than 548 days – for 10-year periods which extend beyond 11 April 2024, there is no 548-day limit
from 11 April 2024 the applicant must not have been outside the UK for more than 180 days in any 12-month period

The (now replaced) Continuous Residence Caseworker Guidance, dated 12 April 2024 set out various examples of how 548 days did not apply:

Example 2

An applicant’s 10-year qualifying period would be completed on 30 April 2024. The applicant had been absent from the UK for 40 days in 2022 and 11 days between 10 April 2024 and 21 April 2024.

As the absences started before 11 April 2024, any single absences started before 11 April 2024 must be no longer than 184 days.

As the 10-year period extend[s] beyond 11 April, there is no 548-day limit.

Example 3

An applicant’s 10-year qualifying period will be completed on 30 April 2026. The applicant had been absent from the UK for 40 days in 2023. The applicant is also planning to leave the UK between March and July in 2025 for 180 days.

As the absences in 2023 started before 11 April 2024, they must be no longer than 184 days.

Any absence that started after 11 April 2024 must be less than 180 days in any 12 calendar months.

As the 10-year period extends beyond 11 April, there is no 548-day limit

This led to many applications being submitted, and the Home Office simply not deciding them – preferring to delay consideration while policy changes were considered. This will likely lead to strong legitimate expectation arguments for applications submitted prior to the publication of the new Guidance. However, this is no longer an option as the Guidance has been amended.

The Clarified Position: The Current Home Office Long Residence and Continuous Residence Caseworker Guidance

However, this week, new versions of both sets of Guidance were published.

The Long Residence Guidance ( version 21.0, published for Home Office staff on 08 July 2024 / updated 09 July 2024 ) sets out:

Appendix Continuous Residence (at paragraph CR 2.2A) recognises that its provisions are different from the previous long residence rules at paragraph 276A and makes transitional arrangements specifically for long residence applicants. These transitional arrangements preserve the position that continuous residence will be broken if an applicant has been absent from the UK for more than 184 days at any one time or for more than a total of 548 days overall, where that absence started before 11 April 2024

The Continuous Residence Guidance ( version 5.0, published for Home Office staff on 08 July 2024 / updated 09 July 2024 ) sets out:

Absences from the UK

Continuous residence is broken in specified circumstances such as when an applicant:

is absent for more than 180 days in any 12-month period without permitted reasons
is applying under Appendix Long Residence and was absent for a period of more than 6 months (184 days) at any one time where the absence started before 11 April 2024, or spent a total of 18 months (548 days) outside the UK in any part of their qualifying period before 11 April 2024 – for any part of the qualifying period on or after 11 April 2024 the applicant must not have been outside the UK for more than 180 days in any 12-month period (see Calculating the length of absences )

In relation to transitional arrangements:

Appendix Long Residence: transitional arrangements for applicants where the absence started before 11 April 2024

These transitional arrangements preserve the position that continuous residence will be broken if an applicant has been absent from the UK for more than 184 days at any one time where the absences started before 11 April 2024, or for more than a total of 548 days overall in any part of their qualifying period before 11 April 2024.This means that:

any single absences started before 11 April 2024 must be no longer than 184 days
any part of a 10-year qualifying period before 11 April 2024 must not have total absences of more than 548 days
from 11 April 2024 the applicant must not have been outside the UK for more than 180 days in any 12-month period (see Calculating the length of absences )

The Guidance overall is far clearer, which is normally a good thing, albeit not for (typically) student applicants with high levels of absence due to school / university holidays.

The ‘examples’ have been updated in line with the corrected approach:

Example 2 – Appendix Long Residence (qualifying period started before 11 April 2024 and was completed on or after 11 April 2024)

An applicant under Appendix Long Residence:

completed a 10-year qualifying period on 20 January 2025
had a total of 5 absences from the UK during the 10-year qualifying period:
absence 1 – 1 July 2015 until 28 November 2015
absence 2 – 1 January 2017 until 31 May 2017
absence 3 – 1 October 2018 until 28 February 2019
absence 4 – 1 April 2024 until 1 July 2024
absence 5 – 1 August 2024 until 20 January 2025

As the qualifying period included time both prior to 11 April 2024, and on or after 11 April 2024, these 2 periods are considered individually in accordance with the relevant rules for that period, to assess whether continuous residence is broken.

Prior to 11 April 2024, and during their 10-year qualifying period, the applicant had 3 completed absences (so they left and returned to the UK prior to 11 April 2024).

These 3 absences:

did not exceed the applicable individual absence limit of 184 days
did not exceed the total absences limit of 18 months (548 days)

Continuous residence was therefore not broken in the 3 absences which completed prior to 11 April 2024.

The applicant had 2 further absences during their 10-year qualifying period; an absence from 1 April 2024 until 1 July 2024, and an absence from 1 August 2024 until 20 January 2025.

The absence from 1 April 2024 until 1 July 2024:

did not exceed the individual absence limit of 184 days (which is the applicable limit for any absence that started prior to 11 April 2024)
did not exceed the total absences limit of 18 months (548 days), which applies to periods prior to 11 April. The total absences included for the purpose of calculating the 548 day limit are:
the period of absence from 1 April 2024 until 10 April 2024
the 3 absences which were completed prior to 11 April 2024 The absence from 1 August 2024 to 20 January 2025:
did not exceed the applicable individual absence limit of 180 days in any 12- month rolling period (which applies to absences that commenced on or after 11 April 2024) – the earliest 12-month rolling period is from 1 August 2024, as this was the beginning of the first absence to start on or after 11 April 2024 – see Calculating the length of absences

Continuous residence is therefore not broken throughout the qualifying period.

Impact of the Changes to the 548-Day Rule for Long Residence ILR Applications

This means that for any periods relied upon in a long residence application falling before 11 April 2024, absences of 548 days in total and absence of 184 days in one go both break continuity. This continues the stricter approach of the old Rules in relation to long residence ILR applications when compared with other routes to settlement, which have the rule that absences should not exceed 180 days in any rolling 12 month period.

The short lived possibility of submitting an application and making arguments in relation to legitimate expectation has ended for applications not yet submitted.

Therefore, if Applicants have absences in excess of 548 days prior to 11 April 2024, the options are as before: either wait until these absences are not within the ten year period, or provide evidence of an exception applying under CR2.3, which sets out reasons for which periods spent outside the UK would not count towards periods of absence:

(a) the applicant was assisting with a national or international humanitarian or environmental crisis overseas, providing if on a sponsored route their sponsor agreed to the absence for that purpose; or

(b) travel disruption due to natural disaster, military conflict or pandemic; or

(c) compelling and compassionate personal circumstances, such as the life-threatening illness of the applicant, or life-threatening illness or death of a close family member; or

(d) research activity undertaken by a Skilled Worker which was approved by their sponsor and where the applicant was sponsored for a job in one of the following SOC 2020 occupation codes:

• 2111 Chemical scientists

• 2112 Biological scientists

• 2113 Biochemists and biomedical scientists

• 2114 Physical scientists

• 2115 Social and humanities scientists

• 2119 Natural and social science professionals not elsewhere classified

• 2161 Research and development (R&D) managers

• 2162 Other researchers, unspecified discipline

• 2311 Higher education teaching professionals; or

(e) research activity undertaken by a person on the Global Talent route who was endorsed by:

(i) The Royal Society; or

(ii) The British Academy; or

(iii) The Royal Academy of Engineering; or

(iv) UKRI; or

(f) research activity undertaken by a person on the Global Talent route who qualified on the basis of a prize listed in table 6 of Appendix Global Talent: Prestigious Prizes; or

(g) for an applicant under Appendix Settlement Family Life, absences for work, study or supporting family overseas, so long as the family have throughout the period of absence maintained a family life in the UK and the UK remained their place of permanent residence; or

(h) where the applicant’s partner is absent from the UK on Crown service as:

(i) a regular member of HM Armed Forces (the Royal Navy, the Royal Marines, the Army (including the Brigade of Gurkhas) and the Royal Air Force); or

(ii) an employee of the UK Government, a Northern Ireland department, the Scottish Administration or the Welsh Government; or

(iii) a permanent member of the British Council, and the applicant accompanies them overseas.

10 Years Long Residence ILR Application Immigration Legal advisers

For expert advice and assistance in relation to an ILR application based on 10 years continuous and lawful long residence , contact our immigration legal advisers in Manchester on 0161 529 7779 or via the enquiry form below.

UK Adoption Visa Guide: Bringing a Child to the UK for Adoption

Mon, 08 Jul 2024 12:48:13 GMT

The UK’s immigration landscape saw a significant update this year with the introduction of Appendix Adoption , replacing the relevant provisions within Part 8 of the Immigration Rules. Appendix Adoption streamlines the process for bringing children to the UK for adoption, offering several distinct routes tailored to different scenarios. This post focuses exclusively on the application process for children coming to the UK to be adopted under UK law. Here, we break down the essential requirements, from suitability and validity to financial and accommodation criteria, ensuring adoptive parents are well-prepared to navigate this complex yet rewarding journey.

Other routes to bring a child to the UK under Appendix Adoption are Hague Convention Adoption, Recognised Adoption Overseas and De Facto Adoption. These adoption routes are outside the scope of this post.

To discuss your application to bring a child to the UK for adoption, contact our specialist UK Adoption Visa immigration barristers on 0203 617 9173 or complete our enquiry form below.

When Is a UK Visa Application for Adoption Appropriate?

A child would make an entry clearance application to the UK in order to be adopted under UK law if the child lives in a country whose adoptions are not recognised in the UK. An applicant may also qualify for temporary admission whilst an adoption is being finalised.

It may also be the case that the adoptive parents will still have to go through the intercountry adoption process prior to the adoption in the UK, in the same way as those adopting from a recognised country do.

Suitability and Validity Requirements for Child Adoption From Overseas

There are specific suitability requirements for a UK visa application for adoption under UK law. These are set out at Part 9 of the Immigration Rules. There are also validity requirements which should be met.

Dependent Child Requirements

Where a child lives in a country whose adoptions are not recognised in the UK, and so an application for a UK Adoption Visa is necessary, the child applicant must meet the requirements for a dependent child as set out at Appendix Children, which are as follows:

Age; and
Independent life requirement; and
Care requirement.

These are set out in further detail in our previous post: Appendix Children: Requirements for Dependent Child Immigration Routes.

Adoption Requirements

There are several requirements regarding the adoption set out in Appendix Adoption. These are that the applicant must:

(a) be coming to the UK for adoption by an adoptive parent(s), in accordance with the laws relating to adoption in the UK; and

(b) demonstrate that the adoption is not one of convenience arranged to facilitate the applicant’s admission to the UK; and

(c) demonstrate they will have the same rights and obligations as any other child of the adoptive parent(s)’s family; and

(d) be being adopted due to the inability of the applicant’s birth parent(s) or current carer(s) (or those looking after the applicant immediately before they were physically transferred to the care of their adoptive parent(s)) to care for the applicant and there has been a genuine transfer of parental responsibility to the adoptive parent(s).

Certificate of Eligibility in Support of UK Adoption Visa

On top of the above, it will also be necessary to provide a letter from the relevant Central Authority in the UK confirming the issue of a Certificate of Eligibility in support of the entry clearance application if the adoption engages the requirements in:

Section 83 of the Adoption and Children Act 2002; or
Articles 58ZA and 58ZB of the Adoption (Northern Ireland) order 1987; or
Section 58 of Adoption and Children (Scotland) Act 2007.

It is possible to email the relevant Central Authority to check the issue of a Certificate of Eligibility:

England – ica.darlington@educaton.gov.uk
Wales – PlantSynDerbynGofal@llyw.cymru – for Hague Convention adoptions only, otherwise contact ICA Darlington
Scotland – intercountryadoption@gov.scot
Northern Ireland – intercountry.adoption@health-ni.gov.uk

Adoptive Parent(s) Immigration Status Requirements

The applicant must be accompanying or joining an adoptive parent(s) and one of the following must apply:

(a) both adoptive parents are either British Citizens, or have settled status, or live in the UK and have a right to stay without restriction; or

(b) one adoptive parent is a British citizen, or has settled status, or lives in the UK and has a right to stay without restriction and they have sole responsibility for the applicant’s upbringing; or

(c) one adoptive parent is a British citizen, or has settled status, or lives in the UK and has a right to stay without restriction and the other parent has, or is seeking (and is granted), entry clearance or permission to stay on a route to settlement; or

(d) one adoptive parent has, or is seeking (and is granted), permission to come to the UK on a route to settlement and has sole responsibility for the child’s upbringing; or

(e) one adoptive parent is a British Citizen, or has settled status, or lives in the UK and has a right to stay without restriction and the decision maker is satisfied there are serious and compelling reasons to grant the applicant entry clearance; or

(f) one adoptive parent has, or is seeking (and is granted), permission to come to the UK on a route to settlement and the decision maker is satisfied there are serious and compelling reasons to grant the applicant entry clearance.

Financial Requirement for a UK Adoption Visa

The applicant will need to show that they will be adequately maintained in the UK by the adoptive parent(s), without access to public funds, unless the child’s adoptive parent(s) has or is being granted permission to enter or stay on a route to settlement, in which case they must meet the financial requirement as a dependent under that route. Further information on this is contained within the Home Office’s Adequate maintenance and accommodation: caseworker guidance.

The adoptive parent(s) must provide evidence of income or cash savings sufficient to show that they can meet the financial requirement and the following:

(a) evidence from income (other than self-employment) or savings must cover the 6-month period immediately before the date of application; or

(b) where the sponsor is receiving maternity, paternity, adoption or sick pay, their income from salaried employment can be shown for either the 6 months immediately before the date of application or the start date of the maternity, paternity, adoption or sick leave; or

(c) where the income is from self-employment it must be shown for the last full financial year before the date of application, with additional evidence of ongoing self-employment as in paragraphs 7 or 9 (as relevant) of Appendix FM-SE; or

(d) where there is non-employment income it must be shown to have been received in the 12 months before the date of application except where specified in paragraph 10 of Appendix FM-SE; or

(e) where property has been sold and the money received has been converted into cash savings the requirements in paragraph 11A(d) of Appendix FM-SE must be met.

The applicant must also meet the financial requirement as set out in Appendix FM-SE.

UK Adoption Visa Accommodation Requirement

In order to bring a child to the UK for adoption in circumstances where the child lives in a country whose adoptions are not recognised in the UK, there is a requirement that the applicant’s accommodation in the UK must not be overcrowded or contravene public health regulations. Further information on this is contained within the above-mentioned guidance.

Tuberculosis Requirement

If Appendix Tuberculosis applies, a valid medical certificate must also be provided. Further information on TB tests can be found in our post: TB Test Requirement for UK Visa Applicants Explained .

Article 8 ECHR Considerations

In the event that an applicant for an Adoption Visa under UK law meets the ‘Requirements for Adoption’ as set out above but does not meet the suitability or other eligibility requirements (subject to the applicable grounds for refusal), the decision maker should consider whether a refusal would breach Article 8 of the Human Rights Convention. This would be the case if a refusal of the Adoption Visa would result in unjustifiably harsh consequences for the applicant or their adoptive family.

The relevant guidance sets out examples of factors which may constitute unjustifiably harsh consequences:

The best interests of any child in the UK affected by the decision.

The nature of the family relationships involved

The likely impact on the applicant or other family members if the application is refused

Whether there are any factors which might increase the public interest in refusal, for example where the applicant has failed to meet the suitability requirements because of deception or issues around their character or conduct

Cumulative factors should be considered:

Cumulative factors weighing in favour of the applicant should be balanced against cumulative factors weighing in the public interest in deciding whether refusal would be unjustifiably harsh for the applicant or their family

All relevant factors raised by the applicant should be considered and balanced alongside public interest considerations.

Period of Grant and Settlement For Coming to the UK for Adoption

If the UK Adoption Visa application is successful, permission under Appendix Adoption should be granted for 24 months in order to enable the adoption to be completed.

The applicant would then need to apply for settlement under paragraph 198 in Part 8 of the Immigration Rules or for settlement on the route that their adoptive parent is on.

Contact Our Immigration Legal Advisers

For expert advice and assistance in relation to Appendix Adoption or an application to bring a child to the UK for adoption, contact our immigration legal advisers in Manchester on 0161 529 7779 or via the enquiry form below.

New Caseworker Guidance: Coronavirus Extension Concession and Exceptional Assurance Concession

Fri, 05 Jul 2024 10:40:37 GMT

On 9 April 2024, the Home Office published new guidance for caseworkers handling immigration applications impacted by the Coronavirus Extension Concession (CEC) and Exceptional Assurance (EA) Concession. This guidance provides detailed instructions on how to evaluate applications for entry clearance, permission to stay, or settlement for individuals who benefitted from these concessions during the Covid-19 pandemic. It also clarifies how to account for periods where applicants had pending requests for exceptional assurance in settlement applications. This inaugural edition of the guidance aims to assist those whose immigration status was affected during the pandemic, specifically those who were unable to leave the UK due to travel restrictions or self-isolation requirements.

The guidance delineates two key periods during the pandemic: the Coronavirus Extension Concession (24 January 2020 to 31 July 2020, with a grace period until 31 August 2020) and the Exceptional Assurance Concession (1 September 2020 to 28 February 2023). By providing clarity on the application of these concessions, the guidance ensures that individuals are not penalised for overstaying due to circumstances beyond their control, thereby maintaining their eligibility for future immigration benefits.

In this post, we look at the specific provisions of the Coronavirus Extension Concession and the Exceptional Assurance Concession, illustrating their practical application through examples and examining how these policies impact subsequent settlement applications.

Coronavirus Extension Concession (CEC) and Exceptional Assurance Concession: Caseworker Guidance

The Coronavirus Extension Concession (CEC) and Exceptional Assurance Concession: Caseworker Guidance, published on 9 April 2024, guides caseworkers on how to consider applications for entry clearance, permission to stay or settlement following a grant of the Coronavirus Extension Concession (CEC) or the Exceptional Assurance (EA) Concession. Additionally, it tells caseworkers how to consider the time period where an applicant had a pending request for exceptional assurance in settlement applications. This is the first published version of the guidance.

The guidance provides further clarity to those who were affected during the pandemic. This is relevant to those individuals whose immigration status expired, or was due to expire, during the Covid-19 period and who found themselves in a position where they could not leave the UK.

The guidance acknowledges two phases of the policy during the Covid-19 pandemic:

The Coronavirus Extension Concession period – 24 January 2020 to 31 July 2020 (with a grace period until 31 August 2020); and
The Exceptional Assurance Concession period (including short term assurance) – 1 September 2020 to 28 February 2023.

Coronavirus Extension Concession Period With Grace Period

The Covid-19 pandemic was unprecedented and led to much confusion and concern for those who were already in the UK and planning to leave or for those planning to travel to the UK. Individuals were understandably concerned at becoming overstayers; the implications and the hostile environment that come with it. Policies were therefore implemented on an emergency basis.

There are differences between the two identified periods. The Coronavirus Extension Concession automatically extended the permission of individuals who were in the UK which would have expired between 4 January 2020 to 31 July 2020. The Home Secretary, relying on the Immigration Act 1971 , has a residual discretion to extend leave outside of the Immigration Rules in certain exceptional circumstances. This concession therefore operated outside of the Immigration Rules.

The Concession recognised that as a result of the Covid-19 global travel restrictions and/or self isolation, some people who had permission were unable to leave when their permission expired. The Concession recognised that individuals would otherwise have become overstayers in unprecedented circumstances beyond their control.

The Concession ended on 31 July 2020. There followed a grace period between 1 August to 31 August 2020 This period was designed to allow individuals time to make their arrangements to leave the UK. It was clear that individuals enjoyed the same conditions of their previous leave during the relevant period and were not subject to the usual sanctions of overstayers.

The guidance reads:

“If their previous conditions allowed them to work, study or rent accommodation they could continue to do so during this grace period, ahead of leaving the UK.”

Paragraph 39E of the Immigration Rules was amended in October 2020 in order that any overstaying between 24 January 2020 to 31 August 2020 be disregarded:

39E. This paragraph applies where:

(1) the application was made within 14 days of the applicant’s leave expiring and the Secretary of State considers that there was a good reason beyond the control of the applicant or their representative, provided in or with the application, why the application could not be made in-time; or

(2) the application was made:

(a) following the refusal or rejection of a previous application for leave which was made in-time; and

(b) within 14 days of:

(i) the refusal or rejection of the previous application for leave; or

(ii) the expiry of any leave extended by section 3C of the Immigration Act 1971; or

(iii) the expiry of the time-limit for making an in-time application for administrative review or appeal in relation to the previous application (where applicable); or

(iv) any such administrative review or appeal being concluded, withdrawn, abandoned or lapsing; or

(3) the period of overstaying was between 24 January and 31 August 2020; or

(4) where the applicant has, or had, permission on the Hong Kong BN(O) route, and the period of overstaying was between 1 July 2020 and 31 January 2021; or

(5) the period of overstaying:

(a) is between 1 September 2020 and 28 February 2023; and

(b) is covered by an exceptional assurance.

39F. For the purpose of paragraph 39E(5), “exceptional assurance” means a written notice given to a person by the Home Office stating that they would not be considered an overstayer for the period specified in the notice.

The casework guidance reads:

“This means people who overstayed during this period would not be penalised for overstaying when the situation was out of their control due to Covid-19, and no immigration enforcement action would be undertaken for these individuals in relation to this overstaying. In accordance with Appendix Continuous Residence, periods covered by 39E do not break a person’s continuous residence.”

Time spent in the UK during this grace period is lawful for the purposes of subsequent settlement applications, where an applicant’s leave expired immediately before, or during, the grace period, and does not break continuous residence. This is also reflected in Appendix Continuous Residence.

The guidance gives three examples of circumstances where this would apply, including the following:

“A student’s permission expired on 31 March 2020, but they were unable to leave the UK on or before that date due to a combination of needing to self-isolate due to COVID illness, and global travel restrictions. The student left the UK on 25 August 2020, during the grace period. The student’s visa/permission is considered to have been extended under the Coronavirus Extension Concession up to 31 July 2020. The time they spent in the UK during the grace period between 1 August 2020 to 25 August 2020 counts as lawful presence and counts toward the qualifying period in any subsequent applications for settlement.”

Exceptional Assurance Concession

Exceptional assurance was introduced on 1 September 2020 as a further way of dealing with travel disruption caused by the pandemic. It followed the Coronavirus Extension Concession and the grace period which had by then come to an end.

The guidance summarises exceptional assurance:

“Exceptional assurance offered individuals a short-term protection against any adverse action or consequences after their permission had expired, where they were unable to leave the UK due to COVID-19.”

An individual would request exceptional assurance by emailing the Home Office Coronavirus Immigration Team (CIT). It is important to note that exceptional assurance did not grant any form of immigration permission to individuals, it just resulted in protection from adverse consequences – current or future. If an individual was self-isolating as required, or there were travel restrictions in place an individual would be granted exceptional assurance for a period of ten weeks. If there were no travel restrictions or other reasons, the individual would be given a short-term period of assurance referred to as a short-term assurance, for a period of two weeks. The applicant received a letter confirming the specified date they could remain in the UK until. This allowed the applicant time to make arrangements and leave the UK.

Those granted exceptional or short-term assurance were informed they could apply for permission to stay or leave the UK before the expiry of their assurance. It was possible for an individual to apply and be granted multiple consecutive exceptional assurances, between September 2020 and February 2023, until such a time that they were able to leave the UK.

Paragraph 39E(5) of the Immigration Rules was amended so that overstaying during periods where the person held an exceptional assurance or short-term assurance will be disregarded and will not break continuous residence.

The guidance provides two examples of how this is applied.

Relying on Exceptional Assurance or Short-term Assurance as a Qualifying Period

In contrast to the earlier position, it is important to note that an applicant cannot rely on any periods with exceptional assurance or short-term assurance to count towards the qualifying period for settlement on any route.

Further, exceptional assurance and permission extended by section 3C are distinct and different concepts. Section 3C is found in the Immigration Act 1971 and extends current permission where an in-time application is made, and the current permission expires without the application being decided.

Helpfully, the guidance confirms that “the time between an applicant’s request for exceptional assurance being submitted and it being granted should be considered as if the applicant held exceptional assurance from the date of request.”

Overstaying

If an individual has overstayed after the expiry of their exceptional assurance they will be considered in accordance with the guidance, Applications from overstayers, published on for Home Office staff on 05 August 2019 .

Contact our Immigration Legal Advisers

For expert advice and assistance regarding an application for settlement, contact our immigration legal advisers on 0161b529 7779 or complete our enquiry form below.

How to Check Your UK Visa Application Status

Thu, 04 Jul 2024 13:08:48 GMT

If you’ve applied for a UK visa, waiting for a decision can be a stressful experience, particularly if you have a travel deadline or other important plans. Fortunately, the UK visa application process allows applicants to track the progress of their UK visa application and check their UK visa application status.

In this post, we’ll walk you through the various ways you can check your UK visa application status, so that you can stay informed and up-to-date throughout the UK visa application process.

We also provide some useful additional information for anyone who is looking to track the status of a UK visa application, including Home Office service standards for deciding a UK visa application, how to find out current UK visa processing times, the factors that can delay a decision on a UK visa application, how to speed up a decision on a UK visa application and how to chase a delayed decision on a UK visa application.

The Importance of Checking Your UK Visa Application Status

Checking your UK visa application status is an important step in the application process. It allows you to stay informed and can give you an idea of how much longer you may have to wait for a decision. By checking your UK visa application status regularly, you can ensure that your application is moving through the process as expected and that there are no issues or delays.

Additionally, tracking your UK visa application status can help you identify any errors or omissions in your application and allow you to correct them before it’s too late. For example, if you notice that your application has been pending for longer than the average processing time , you may want to contact UKVI to enquire about the status of your application and ensure that there are no issues that need to be addressed.

By checking your UK visa application status, you can plan ahead and make any necessary arrangements. For example, if you receive a notification that your application has been approved, you can start making travel plans or booking accommodation. Alternatively, if you receive a notification that your UK visa application has been refused, you may need to consider reapplying or seeking legal advice regarding an immigration appeal , administrative review or judicial review .

Therefore, it is highly recommended that you regularly check your UK visa application status to stay informed and ensure a smooth UK visa application process.

What Information Do You Need to Check Your UK Visa Application Status?

To check your UK visa application status, you will need certain information about your application. Here are the key pieces of information that you may need:

Personal and contact details: You may need to provide your first name, last name, nationality, date of birth and the email address used on your application form. These details may be used to verify your identity and ensure that you are authorised to access the status of your application.

Passport number: You may need to provide the passport number that you used when you applied for your UK visa. This is another way to verify your identity and ensure that you are authorised to access the status of your application.

Type of visa applied for: As part of the process to track the progress on your immigration application, you may need to confirm the category of UK visa or immigration route that you applied for.

Date of application or biometrics: You may need to provide the date of your visa or immigration application, as well as the date when you provided your biometric information.

Place of application: If you wish to check the status of a UK visa application that was submitted overseas, you may need to provide the location of the visa application centre.

GWF reference number: This is a 9 digit (GWFxxxxxxxxx) unique reference number that may have been assigned to your application when you submitted it. You may need to enter this number in order to check your application status.

Application reference number: Depending on the type of visa you applied for, you may also have been given a 16 digit (xxxx-xxxx-xxxx-xxxx) unique application reference number. If you have been given an application reference number, you may need to enter it when you track your UK visa application status.

Immigration Health Surcharge reference number (if applicable): If you paid the Immigration Health Surcharge then you may be asked to provide your IHS number when tracking the decision on your UK visa application.

It’s important to ensure that you have all of the necessary information and documents at hand before attempting to check your UK visa application status. This will help you avoid any unnecessary delays or complications, and ensure that you are able to access the information you need as quickly and easily as possible.

How to Check the Status of Your UK Visa Application Outside the UK

1. Using the VFS Global website

Step-by-step instructions for checking your UK visa application status on the VFS Global website:

You can track the progress of your out-of-country UK visa application on the VFS Global website:

Go to the VFS Global website: Start by visiting the VFS Global website at https://www.vfsglobal.co.uk/ in your web browser.
Select your VAC location: Select the location of the visa application centre where you provided your biometric information.
Click on ‘Track your application’: At the top of the page for your VFS Global visa application centre, you may see a section called ‘Track your application’. If so, click on this section to begin the process of tracking your application status (If you cannot see a section called ‘Track your application’ then proceed to ‘3. Using the UKVI website’ below.).
Click on ‘Track your visa application status online’: You will see ‘track your visa application status online’ highlighted in orange. Click on this to be taken to a login page.
Enter your reference number: The reference number may be your GWF number or your VAC reference number, depending on the type of visa you applied for. Enter the number in the appropriate field.
Enter your last name: You will also need to enter your last name in the appropriate field.
Click ‘Submit’: Once you have entered all of the required information, confirm that you are not a robot and click the ‘Submit’ button to view your application status.
View your application status: You should now be able to view the status of your UK visa application. The status may indicate that your application is being processed, or that a decision has been made. If a decision has been made, you may also be able to view the details of the decision, such as whether your application has been approved or refused.

If you have any questions or concerns about your UK visa application status, you can contact VFS Global customer service for assistance. Their contact details can be found on the ‘Contact us’ page of the VFS Global website.

2. Using the TLScontact website

Step-by-step instructions for checking your UK visa application status on the TLScontact website:

You can track the progress of your out-of-country UK visa application on the TLScontact website:

Open your confirmation email from UK Visas and Immigration: Start by locating the confirmation email that you received from UK Visas and Immigration when you set up your visa application form.
Sign into your application: Next, click on the link in the email and sign into your application on the GOV.UK website by entering your password and clicking ‘Sign in’.
Navigate to the TLScontact website: Once signed in, click on ‘Provide Documents and Biometrics’ and then on ‘Continue’. You will now be redirected to your account on the TLScontact website.
Select ‘Track’: Select ‘Track’ to view the status of your application in real-time.
View your application status: You should now be able to view the status of your UK visa application. The status should indicate whether biometric enrolment has been completed, whether your application has been transferred to and received by the decision-making centre (DMC), whether the decided application has been transferred to and received by the visa application centre (VAC) and whether you have picked your passport up from the VAC.

If you have any questions or concerns about your UK visa application status, you can contact TLScontact support by clicking on the ‘Contact us’ page on the TLScontact website.

3. Using the UKVI website

Step-by-step instructions for checking the status of your UK visa application on the UKVI website:

You can track the progress of your out-of-country UK visa application on the UKVI website. Please note that this is a paid-for service. Queries about the progress of a UK visa application cost £2.74. This cost includes an initial email enquiry plus any follow-up emails that you send relating to the same enquiry:

Go to the UKVI website: Start by visiting the UKVI website at https://ukvi.mysecurepay.co.uk/Home in your web browser.
Click on ‘Start’: You will see ‘Start’ highlighted in green. Click on this to be taken to the next page.
Click on ‘General Enquiry’: You will see ‘General Enquiry’ highlighted in green. Click on this to be taken to an online form.
Complete the online form: Complete all the fields on the online form. In the ‘Enquiry’ box you should make clear that you are enquiring about the status of your application. If the standard processing time has been exceeded then you should mention this.
Click on ‘Continue’: You should now be able to proceed to enter your payment details and confirm.
Click on ‘Submit’: If you do not select ‘Submit’ then your enquiry will not be completed and you will not be charged. You should receive a reply to your query within 5 days, except on Fridays, Saturdays, Sundays and UK public holidays.

4. Contacting UKVI by telephone

Instructions for checking the status of your UK visa application with UKVI by telephone:

You can track the progress of your out-of-country UK visa application by calling UKVI on +44 (0)300 790 6268 and selecting option 1.

The telephone line is open 24 hours a day, Monday to Friday.

Calls cost 69 pence per minute on top of your standard network charges.

If you cannot contact UK 0300 numbers, then use +44 (0)203 875 4669.

How to Track the Status of Your UK Visa Application Inside the UK

1. Using the UKVCAS website

Unfortunately, UKVCAS does not provide any application status updates on its website.

If you have any questions or concerns about the application status of an in-country immigration application, you should contact UK Visas and Immigration (UKVI) instead (proceed to ‘4. Contacting UKVI by telephone’ below).

2. Contacting UKVCAS by telephone

It is also not possible to telephone UKVCAS to check the progress of an immigration application.

3. Using the UKVI website

Unfortunately, UKVI does not provide any application status updates on its website (proceed to ‘4. Contacting UKVI by telephone’ below).

4. Contacting UKVI by telephone

Instructions for checking the status of your in-country UK immigration application with UKVI by telephone:

You can track the progress of your in-country immigration application by calling the UKVI contact centre on 0300 790 6268 and selecting option 2.

The telephone line is open 9am to 4:45pm on Monday to Thursday (excluding bank holidays) and 9am to 4:30pm on Friday (excluding bank holidays).

Frequently Asked Questions About Checking UK Visa Application Status

Does UKVI have standard processing times for UK visa applications?

UK Visas and Immigration (UKVI) has published service standards for waiting times for decisions on visa and immigration applications. If you want to track the status of a UK visa application then it is useful to refer to these.

If a UK visa application includes all relevant information and supporting documents (and the Home Office does not need to request further evidence or explanation) then the following waiting time customer service standards should apply:

Non-settlement visa applications submitted outside the UK: 90% to be decided within 3 weeks; 98% within 6 weeks and 100% within 12 weeks of the application date (where 1 week is 5 working days);
Settlement visa applications submitted outside the UK: 98.5% of settlement applications to be decided within 12 weeks of the application date and 100% within 24 weeks of the application date (where 1 week is 5 working days);
Applications for leave to remain submitted within the UK, including as spouses, workers and students: 8 weeks to be decided;
Applications for indefinite leave to remain (ILR) submitted within the UK: 6 months to be decided;
Applications for no time limit (NTL) submitted within the UK: 6 months to be decided;
Organisations seeking to sponsor a worker: 8 weeks;
Organisations updating their sponsor licence details: 18 weeks.

These service standards are the visa processing times that UKVI aims to deliver on for the processing of straightforward, complete applications, based on its customer charter . Actual UK visa processing times can vary considerably. However, if the service standard has been exceeded then this is a factor that can be raised as part of any attempt to chase a delayed decision .

What Are the Current Home Office UK Visa Processing Times?

Aside from its customer service standards for visa processing, the Home Office also publishes up-to-date information on current processing times for visa and immigration applications submitted both within the UK and outside the UK.

Up-to-date information on current UK Visa processing times for all the main immigration routes can be found in our post:

UK Visa Processing & Decision Waiting Times

If you wish to track the status of your UK visa application then, in addition to referring to the customer service standard, it may be helpful to refer to these published current processing times in order to ascertain approximately how long it should take for your pending UK visa application to be decided.

What Factors Can Delay UK Visa Processing Times?

When you check the status of your UK visa application you should be aware that there are a number of factors which can delay UK visa processing times and cause the customer service standard and/or the current processing time to be exceeded, including:

The complexity of the case, for example if it involves an assessment of Article 8 ECHR rights or derivative rights of EEA extended family members;
Concerns regarding suitability requirements such as criminality;
Consideration of any adverse immigration history;
Any concerns regarding the authenticity of documents;
The volume of documents provided;
Whether further investigations are required or an interview scheduled;
The capacity of caseworkers; and
The time of the year.

If you are looking to check your UK visa application status then it is worth keeping in mind that there is no published service standard for waiting times for more complex applications and UKVI has a wide margin of appreciation with regard to the timing of their decisions.

How Can I Get a Faster Decision on a UK Visa Application?

UK Visas & Immigration offers a ‘priority service’ and a ‘super priority service’ for applicants who, for an additional fee, wish to receive a faster decision on their UK visa application. Selecting one of these premium services at the point of application will ensure that an application is placed at the front of the queue at every stage of the decision-making process.

In our comprehensive guide to UK Visa Premium and Priority Services, we look at the Priority Service and Super Priority Service in detail, covering everything from processing times, to current availability, costs and whether an application is likely to be suitable for an expedited decision:

A Guide to UK Visa Premium and Priority Services

How Can I Chase a Delayed UK Visa Application?

It is deeply frustrating when the Home Office takes longer than stated on its website to process a visa or immigration application. If the processing of your UK visa application has been delayed then, as well as tracking the progress on your UK visa application, you may wish to consider taking additional steps to chase a decision on your UK visa application.

We explain how to chase a delayed UK Visa or immigration decision in 6 steps in our post:

How to Chase a Delayed UK Visa Application

Conclusion

In conclusion, checking your UK visa application status is a crucial step in the application process, as it will allow you to stay informed and up-to-date on the progress of your application.

Whether you use the VFS Global website, the TLScontact website, the UKVI website or the UKVI telephone enquiry lines, it’s important to ensure that you have all the necessary information to hand before checking your status.

Remember to be patient, as processing times can vary depending on the type of visa you have applied for and the nature of your application.

By following the steps outlined in this post, you’ll be able to check your UK visa application status with ease and plan your next steps accordingly. Good luck with your application!

Contact Our Immigration Legal Advisers

For expert advice and assistance in relation to a UK visa application or immigration appeal, contact our immigration legal advisers on 0161 529 7779 or complete the online enquiry form below.

How to Chase a Delayed UK Visa Application

Wed, 03 Jul 2024 14:31:27 GMT

We regularly receive telephone calls and emails from people experiencing delays by the Home Office processing their visa and immigration applications.

It is deeply frustrating when the Home Office takes longer than stated on its website to process a visa or immigration application, especially when there are already significant delays in processing times due to the war in Ukraine.

Delays in Home Office processing times for UK visa and immigration applications can ruin travel plans, prolong uncertainty, and cause hardship by preventing applicants from working in the UK or spending time with loved ones.

This article sets out some of the common causes of delays and the ways in which you can chase the Home Office for a fast-track decision if you are experiencing delays in the processing of your UK visa or immigration application.

Is My UK Visa Application Definitely Delayed?

The Home Office publishes estimated waiting times for decisions on applications submitted inside and outside the UK on its website. It also publishes its Service Standards online. For an up-to-date summary of current UK visa processing and decision-waiting times please visit our post: UK Visa Processing & Decision Waiting Times .

Processing times have recently been affected by COVID-19 and the war in Ukraine. For example, partner visa applications from outside the UK, which usually take 12 weeks to process, are currently taking up to 24 weeks to process from the date of biometric enrolment at a visa application centre.

Our recent post sets out the processing times of standard service applications for different kinds of applications.

The Home Office website indicates that, for applications made from inside the UK, the “waiting time starts once you’ve submitted your application online and ends when you get a letter or an email with a decision.” The exception is Graduate Immigration Route applications, where the waiting time starts when you attend your appointment at a service centre or you submit your documents using the ID Check app.

For applications made from outside the UK, the waiting time starts when you “attend your appointment and provide your fingerprints and a photograph (biometric information) at a visa application centre” or you “verify your identity using the UK Immigration: ID Check app. This will depend on the visa you apply for and you’ll be advised if you can use this.” The waiting time ends “when you get an email containing the decision on your application.”

Before submitting an immigration application, you should factor in additional time for the Home Office to issue and send you a BRP if this applies to your application. This is usually within 10 working days of the decision.

Why Has There Been a Delay in Processing My UK Visa or Immigration Application?

If you have not heard back from the Home Office and the published waiting time has elapsed, you should investigate the possible causes for the delay.

The Home Office website indicates that in order for applications to be processed within the service standards, applicants should ensure:

your application is made before your current visa expires
your application is completed accurately
you include any required photographs
you provide evidence of funds to maintain yourself if required on the application form and guidance
you enrol your biometric information and respond to any requests for further information by the dates we ask you
when you attend your appointment at our commercial partner or Service and Support Centre, you submit the required documents with your application
if your application is made on a paper form
it is signed and dated and made on the correct form, submitting the required documents
you have included the payment and any cheque is signed and dated for the full fee

The Home Office’s guidance indicates that straightforward applications that meet these requirements should be handled within the standard processing time.

In the event of a problem with your application or the application being particularly complex, the Home Office “will write to explain why it will not be decided within the normal standard. We will write within the normal processing time for the 8 week standard and within 12 weeks for the 6 month standard. The letter will explain what will happen next.”

Possible reasons why your case might take longer than the standard processing time to decide are that:

The Home Office wishes to interview you about your application;
The Home Office needs further information from you;
The Home Office is conducting external checks relating to your application (for example, with other government departments);
The Home Office is processing a higher than usual volume of applications (e.g., just before seasonal holidays or sporting fixtures);

The Home Office’s Service Standards only apply to ‘complete’ applications: “If your application is incomplete at the time you complete your appointment the caseworker will consider whether the case should be excluded from the service standard.”

How to Chase a Delayed UK Visa or Immigration Decision in 6 Steps

Step 1: Contact UK Visas and Immigration for Assistance

If you are experiencing delays in processing your application and have not been contacted by the Home Office, the next step is to contact UK Visas and Immigration and ask for an update on the progress of your application.

UK Visas and Immigration should be able to advise you on why there has been a delay in processing your application and if there are any steps you should take to expedite the application.

It is advisable to keep a record of all calls and emails you have made to the Home Office regarding your application, including who you spoke to, when the call was made, and what information was given. The Home Office may provide you with ‘ticket’ numbers in email correspondence, which you should hold onto. You will need a record of these steps being taken in order to take further action to chase your immigration decision.

In calls and correspondence with the Home Office, you should refer to your Home Office reference number(s) and/or visa application number(s). These numbers can be found in correspondence with the Home Office and your downloaded application form(s). You should also mention when your application was submitted, when your biometrics were enrolled, and the published processing time on the Home Office website at the date of submission. You should also explain how the delay is impacting you and your family, for example, if it is affecting an employment offer or is separating you from loved ones.

It is advisable to ask for the matter to be escalated or fast-tracked as a matter of priority, and for the Home Office to refund you for the priority or super-priority service fee if you paid for this.

Step 2: Complain About UK Visas and Immigration

If contacting the Home Office does not avail you, the next step is to submit a complaint to UK Visas and Immigration using their online form . It is alternatively possible to write a letter to the complaints allocation hub or to email complaints@homeoffice.gov.uk .

When using UKVI’s internal complaint procedure, you will need to provide the following information:

your contact details – it is important you include your address and phone number as we may contact you to resolve your complaint by phone or to request further information
the names of the applicant/original complainant if you’re completing this on behalf of someone else – we must have written authority to disclose information about another person’s case
full details of the matter you’re complaining about, including times, dates and locations
the names or identifying numbers of any staff you’ve dealt with
details of any witnesses to the incident, if appropriate
details of any reimbursement issues including papers and receipts to support your claim
your Home Office reference details, and any other references that will help us to investigate your complaint, for example refund reference, appeal reference, UAN (unique application number), IHS reference and any payment references.
if your complaint is in relation to our contact centre we will need to know the date you called, the number you dialled and the number you called us from

The Home Office website warns that it can take up to 20 days to receive a response to a complaint about waiting for a decision on an immigration application. Where a complaint suggests serious professional misconduct, it can take up to 12 weeks – UKVI should write to you to explain this.

You should include all details of previous communications with the Home Office, your reference numbers, your full name, your date of birth and all other relevant information in your complaint.

The complaints procedure for UK Visas and Immigration is set out on the government website . It indicates that complaints should be made “no later than 3 months after the date of the incident unless there are exceptional circumstances.”

The UKVI website states that it will “only respond to enquiries that are considered as complaints.” UKVI will “not respond to progress enquiries if you used our online complaints form.”

Step 3: Contact Your Local MP

If you have still not heard from the Home Office from the above steps, many of our clients have successfully asked their MPs to intervene on their behalf . The Parliament website indicates that you should contact your MP “[i]f you feel you have been treated unfairly by a Government office or agency”.

Writing a letter to your MP at the House of Commons, London SW1A OAA or emailing them using the Directory of MPs is the easiest way as you can ensure that you provide them with all of the information to your complaint, including details of the steps you have taken above.

Step 4: Complain to the Parliamentary and Health Service Ombudsman

If your MP’s letter to the Home Office is unsuccessful, you may wish to ask your MP to refer your complaint to the Parliamentary and Health Service Ombudsman . This service is free, but it can only be done if you have already utilised UKVI’s complaints procedure as set out above: “As we are the final stage for unresolved complaints, we usually expect you to complain to the organisation you are unhappy with first. This is so that it has the chance to look into your concerns and, where needed, put things right for you.” You must have made a formal complaint to the Home Office and waited 20 days before your MP can contact the Ombudsman for you.

As a matter of law, the Ombudsman may only investigate complaints about UK government departments if an MP refers the complaint to them. You may complete the complaint form on their behalf and ask your MP to sign and send it.

Step 5: Pre-Action Protocol Letter

If you have completed all of the above steps, you may consider seeking advice about taking legal action against the Home Office. As a matter of law, you are only able to take legal action against the Home Office as a last resort.

The first legal step is filing a pre-action protocol letter (PAP) on the Home Office.

Our immigration barristers will be able to advise you on whether there are merits in following the PAP process. You would need to show that the Home Office has unreasonably failed to act in relation to the exercise of its public function resulting in disadvantage such as losing a job or harm to your health. This is only likely to be appropriate where there have been delays resulting in significant harm to you, for example, loss of a job offer or being unable to spend time with sick family members. It would be important to have evidence of the steps you have already taken to obtain a decision, including evidence of prior communications with the Home Office.

If the Home Office does not respond within 14 days of receiving the PAP, you will be able to lodge a judicial review with the High Court.

Step 6: Judicial Review

Judicial review is a matter of last resort. It is a costly, complex and time-consuming process that involves challenging the Home Office’s delay before a judge. Before commencing JR proceedings, it is advisable to obtain legal advice on the merits of doing so.

Will the Home Office Compensate Me for the Delay in Deciding My Application?

Please note, pursuing the Home Office for compensation is not something we are able to assist with. The following information is provided for information only.

Following a complaint that seeks financial redress, the Home Office sometimes makes ex-gratia payments where “the customer has suffered actual financial loss or non-financial loss that is sufficiently compelling to warrant financial redress.” UKVI only makes ex-gratia payments to customers “as a redress for maladministration.”

Maladministration is “lack of care, judgement or honesty in the management of something”. Examples include the Home Office losing/defacing/invalidating documents or taking incorrect action such as endorsing a passport with the wrong conditions.

The Home Office guidance is clear that delays are not generally classed as maladministration: “Delays that have occurred due to operational constraints and limited resources, i.e. where a backlog of cases have occurred, are not classed as maladministration by Immigration Enforcement, Border Force or UK Visas & Immigration directorates.”

The guidance states that only in “exceptional circumstances” will financial redress be appropriate:

“Forms of redress such as an apology or remedial action may be called for when the complaint is about delay. Financial redress would only be appropriate in exceptional circumstances where the delay has also had a financial impact. Examples can include failure to take action on repeated requests from applicants regarding the return of a passport which then leads to financial loss, or a decision being made on an application and failing to serve that decision which then leads to financial losses, such as loss of access to benefits or being unable to take up a proven offer of employment or employment being terminated. Whether a delay should be considered as “reasonable” will be dependent on the circumstances and decision makers will take a case by case approach.”

Home Office maladministration cases should be pursued through the Ombudsman (see steps above).

Following certain judicial review proceedings, it is possible for courts to award damages in cases where the Home Office has been negligent in performing its common law duty of care causing the appellant loss for which they should be compensated in damages. This has been found to be the case where an applicant experienced a delay of several years in receiving his BRP. However, any financial remedy will be compensatory in nature and there is no guarantee that the cost of legal representation will be covered.

Contact our Immigration Legal Advisers

For expert advice and assistance in relation to a UK visa application or immigration appeal, contact our immigration legal advisers on 0161 529 7779 or complete our enquiry form below.

How to Withdraw a UK Immigration Application

Tue, 02 Jul 2024 10:28:31 GMT

There are various reasons why you may need to withdraw an immigration application . Perhaps an emergency has arisen prompting a change of plans? Or maybe you noticed that you made a mistake filling out the form? Conversely, you may wish to ensure that you do not inadvertently withdraw an application which you want to be considered, for example by requesting the return of a passport for travel. In this post we will be discussing the rules and guidance around withdrawing an immigration application.

When can I withdraw my immigration application?

The Immigration Rules state that an applicant may ask to withdraw their immigration application at any time before a decision is made on the application.

If the request to withdraw the application is accepted, the date of withdrawal is the date on which the request was received by the Home Office. The withdrawal cannot be stopped once it’s been received by UK Visas and Immigration.

If you are in the UK you must make a valid application before your leave expires. If you have to withdraw your application, remember to reapply before this date to avoid becoming an overstayer.

You may also be able to vary your application. To do so you must submit a further valid application, this will be treated as a valid application and only the most recent application will be considered.

If you were told to attend a biometric enrolment appointment, the appointment at which you give your fingerprints and photo, but you have not yet attended the appointment you will usually be able to get a refund for your application fee.

If you have already attended a biometric enrolment appointment, your application fees will not usually be refunded.

If you used the smartphone app, you can get a refund if:

You did not select “confirm and upload” in the app- either uploading your evidence or confirming that there is no evidence to upload.
You withdrew the application before the deadline to upload your evidence.

After UK Visas and Immigration confirms your application has been withdrawn it may take up to 28 days for you to get your refund, so remember to check your bank account.

What is the process for withdrawing an immigration application?

The process for withdrawing your application depends on several factors:

Whether you are applying from inside or outside the UK;
Whether you have already attended your biometric enrolment appointment;
Whether you used the smartphone app.

If you have not yet attended a biometric enrolment appointment and you are applying from within the UK, fill in this online form .

If you have not yet attended a biometric enrolment appointment and you are applying from outside the UK, sign in to your account using your unique link and go to ‘Section 6: further actions’. There you will find an option to cancel your application.

If you have already attended a biometric enrolment appointment and you are applying from within the UK, fill in this online form .

If you have already attended a biometric enrolment appointment and you are applying from outside the UK, you will need to contact UK Visas and Immigration.

If you used the smartphone app, whether inside or outside the UK, sign in to your account where you will find an option to ‘Withdraw this application’.

What is the difference between a withdrawn application and a void application?

A void application is different to a withdrawn application. A void application is where it would not be possible to grant the applicant the permission for which they applied. For example, an application is void if the applicant dies before the decision is made, if someone who is exempt from immigration control makes an application, or if someone with indefinite leave to remain makes an application for limited leave to remain.

Can the Home Office refuse my request to withdraw my application?

Yes, the Immigration Rules do not require the Home Office to agree to requests to withdraw applications. The Home Office may decide instead to decide the application.

Home Office guidance states that the most common reason why they may refuse to accept a withdrawal request is where there is a suspicion regarding deception. For example, they may refuse to accept a withdrawal request if they suspect that the application has knowingly submitted fraudulent documents.

Can I travel while my immigration application is being processed?

This is the common way in which an applicant can inadvertently get their application withdrawn.

The Immigration Rules state that where an application for permission to stay made from within the UK is being processed and the applicant travels outside of the common travel area the application will be treated as withdrawn on the date the applicant left the common travel area.

Therefore, it is important to check the processing times before you make an application and plan your travel around them. If you urgently need to travel you can check whether priority services are available for your immigration application.

If you have made an application from outside the UK, you may purchase the passport passback service and travel to the UK while your application is being processed. However, you may have issues crossing the border.

For example, if you make an application on a route which leads to settlement, the Border Officer may not be satisfied that you are a genuine visitor. This is because a genuine visitor intends to leave the UK at the end of their visit, an intention which is at odds with your application. To avoid any issues you may want to carry your return ticket with you and be ready to explain the situation.

What if I am an asylum seeker? Do the same rules apply?

The rules regarding when an asylum application is withdrawn are very different.

If you want to explicitly withdraw your application you can submit a valid withdrawal form or simply contact the Home Office explicitly confirming in writing that you wish to withdraw the asylum claim.

However, the Home Office will also treat your asylum application as implicitly withdrawn if:

You fail to maintain contact, or provide up to date contact details;
You leave the UK without authorisation at any time prior to the conclusion of your application for asylum;
You fail to complete an asylum questionnaire when requested to do so;
You fail to attend any reporting events and you are unable to demonstrate within a reasonable time that failure to do so was due to circumstances beyond your control;
You fail to attend a personal interview and you are unable to demonstrate within a reasonable time that failure to do so was due to circumstances beyond your control.

What if I need to travel while my asylum claim is pending?

If you need to travel while your asylum application is pending you will need to ask the Home Office for authorisation.

You must include the purpose of the travel and the duration of travel outside of the UK. Home Office guidance states that requests will be accepted “in the most exceptional circumstances” such as “serious illness or death of a close family member or access to medical treatment abroad as it is unavailable in the UK”.

If you request your passport back and travel without authorisation your asylum application will be treated as implicitly withdrawn.

What if my asylum application has been wrongly withdrawn?

Home Office guidance states that explicit withdrawals of asylum applications will only be cancelled if:

You or your legal representative provide evidence that you lacked the mental capacity to understand the decision to explicitly withdraw the claim;
You send a request to cancel the withdrawal within 60 days of the date on which the withdrawal was administered on Home Office systems.

The guidance goes on to give a non-exhaustive list of situations where an implicit withdrawal of an asylum application will be cancelled and the asylum claim will be reinstated:

Where you were being cared for in hospital and so missed correspondence sent to your home address;
Where you were not issued a warning or sent the relevant paperwork confirming that your claim would be withdrawn if you failed to maintain contact with the Home Office;
Where you were bailed to no fixed abode and were not informed that you must update the Home Office with your residential and correspondence address to progress your claim;
Where you did not receive the relevant paperwork as it was sent to the incorrect address due to a Home Office administrative or IT error;
Where you were unable to access your correspondence due to domestic violence. The Home Office has a presumption that victims of domestic violence should be believed and will not ask you for corroborating evidence at this stage.

It has been reported that high numbers of asylum applications have been implicitly withdrawn after a recent change in the Immigration Rules , so if you believe that your asylum application has been wrongly withdrawn make sure to contact the Home Office to maintain your lawful immigration status.

Contact Our Immigration Legal Advisers

If you believe that your immigration application has been wrongly withdrawn or if you are seeking to withdraw your application, contact our immigration legal advisers in Manchester on 0161 529 7779 or via the enquiry form below.

How to Apply for a British Passport From Outside The UK: Step-by-Step Application Guide

Mon, 01 Jul 2024 10:19:31 GMT

Welcome to our comprehensive guide on applying for your first British passport from outside the UK. Obtaining your British passport will solidify your status as a citizen of the United Kingdom, as well as bestowing you benefits associated with a British passport, as was explored in our previous blog . In this article we will steer you through each essential step of the British passport application process. From understanding eligibility criteria to gathering required documents, confirming your identity, and managing processing times and fees, we’ll ensure that you have all the necessary information to navigate the British passport application process with confidence.

We have discussed in our previous post here the steps to follow after a British Citizenship application has been granted. There are different ways to acquire British Citizenship and these can be by Naturalisation , Registration or Automatic Acquisition .

Who Can Apply for a First British Passport Outside the UK?

You can apply for a first British passport from outside the UK if you:

Have never had a British passport before; or
Were included as a child on someone else’s passport; or
Are renewing a passport that is handwritten; or
Have become a British national by naturalisation or registration.

Please also see our previous post: “ How to Apply for a British Passport: Step-by-Step Application Guide ” for further information on eligibility in general for a British passport, potential reasons for refusals, and First British Passport Applications for a Child (excluding the fees).

Ways to Apply for a British Passport From Overseas

There are different ways to apply for a British passport from outside the UK. You can apply online, or, alternatively, you can use a paper application form, which is called the OS application form. For some countries you may have to apply in person.

Documents Required When Applying for a British Passport Abroad

The documentation you will require will depend on your individual circumstances. Our immigration barristers can advise you on which documents would be applicable in your circumstances. Below is a summary of the general documents that may be required, but expert advice should always be sought.

Born before 01/01/83 (if applicable)

Your birth/adoption certificate (if applicable)

Born on or after 01/01/83 (if applicable)

Your ‘full’ birth certificate or adoption certificate that shows your parent’s details (the ‘short’ version which is issued for free by the registrar is not acceptable) (if applicable)

If you have naturalised or registered as a British citizen (if applicable)

Your certificate of naturalisation or registration and the passport that you used to come into the UK and any foreign passport you hold or are included on.

2 recent identical photographs

You must ensure these meet the photo guidelines .

A full colour copy of any other uncancelled passports relating to you

Change of name documents (if applicable)

You should provide 3 documents as evidence of your name in current use dated within the last year, and at least one of the following for each change of name that has taken place. A list of examples can be found at Table D of the “Guidance Applying for a passport from outside the UK: supporting documents (group 3) (accessible)” .

If you are going back to your maiden or unmarried name, you also need to provide all of the following:

A signed statement saying that you now use your maiden name for all purposes.
Your birth certificate and either:
A decree absolute showing both names or;
A marriage certificate showing both names.

Identity documents

You must provide a minimum of 3 documents as evidence of name and address and/or residency. A full list of examples can be found at Table A of the “ Guidance Applying for a passport from outside the UK: supporting documents (group 3) (accessible)” .

How Victims of Domestic Violence Can Apply For ILE From Abroad

Fri, 28 Jun 2024 12:53:13 GMT

As addressed in part 1 of this three part series, the collaboration, campaigning and strategic litigation brought by a coalition of actors supporting victims of domestic violence, led to the landmark ruling of AM v SSHD [2022] EWHC 2591 (Admin) , which found that the previous Immigration Rules relating to victims of domestic violence were unlawful as they discriminated against victims outside of the UK.

Following this High Court decision, as part of recent changes to the Immigration Rules , the Home Office introduced Appendix Victim of Domestic Abuse (‘Appendix VDA’) and updated the associated guidance , which came into effect on 31 January 2024. This new appendix enables victims of domestic abuse who have been abandoned overseas to apply for settlement from outside the UK.

This three-part series provides an overview of the different applications for leave that can be made as a victim of domestic violence. The first article considered the updated requirements for victims of domestic violence to apply for leave from within the UK. This second article will address victims of domestic violence applying for indefinite leave to enter from outside the UK. The final article will consider the position for EU, other EEA and Swiss citizens and family members, pursuant to Appendix EU .

Overview of Requirements for Indefinite Leave to Enter as a Victim of Domestic Violence From Outside the UK

In order to apply for indefinite leave to enter the UK from outside the UK pursuant to Appendix VDA, an applicant must meet the following requirements:

Validity requirements;
Suitability requirements; and,
Eligibility and Relationship requirements.

These will be addressed in turn below.

Validity Requirements for Entry Clearance as a Victim of Domestic Violence From Outside the UK

In order to make a valid application from outside the UK under Appendix VDA, an application for entry clearance must be made using the correct online application form.

A child of a victim of domestic abuse can also apply for leave under this appendix as will be addressed in a future article. Each applicant requires their own application, including children who are applying at the same time as their parent, although they do not need to complete the sections on the form regarding the abuse if completed by their parent on their own form.

The validity requirements are similar to those for other applications: the application fee must be paid, unless a fee-waiver has been granted, biometrics should be provided and a copy of the applicant’s passport or other identity document which establishes their identity and nationality should be provided, unless excused or an exception applies.

An application that does not meet these requirements may be rejected as invalid. Please note that discretion can be exercised to treat an application as valid even if an applicant has not provided a passport or other document.

Suitability Requirements for Entry Clearance as a Victim of Domestic Violence From Outside the UK

The applicant must not fall for refusal under Part 9: grounds for refusal .

The Home Office guidance specifies that due to the importance of safeguarding vulnerable victims, the suitability guidance on each of the grounds of refusal that may apply should be considered. Only issues that have arisen since a last grant of permission should be considered. Where an applicant does not fall for refusal under criminality grounds, criminal convictions related to domestic abuse experienced must not be considered in an assessment of whether an applicant’s presence is not conducive to the public good.

Particular regard should be had to where the possible grounds for refusal directly relate to, or are connected to domestic abuse. Discretionary grounds may not be applied where an applicant’s ability to meet the requirement is impacted by the domestic abuse they experienced.

Paragraph 9.8.4.(a) of Part 9, states that a person will be treated as having previously breached immigration laws, if when at least 18 years old, they overstayed their permission, breached a condition attached to their leave in the UK and further leave was not granted, were/are an illegal entrant and/or used deception in relation to an application. Please note that paragraph 9.8.4.(a) does not apply to applications made under Appendix VDA. This is because passport and immigration documents may be controlled by the abuser and the victim may be unaware of their status.

Eligibility and Relationship Requirements for Entry Clearance as a Victim of Domestic Abuse From Outside the UK

Eligibility Requirements

Where the applicant is outside the UK, they must apply for and obtain entry clearance on the Victim of Domestic Abuse route before they arrive in the UK. They must provide a valid tuberculosis test certificate if Appendix Tuberculosis (TB) applies.

The applicant must have, or have last been granted permission as either:

A partner under Appendix FM of a person who is a British citizen, settled in the UK or with settled or pre-settled status under the EU Settlement Scheme;
A partner under Appendix EU with limited leave to enter as a family member, as a joining family member or as a family member with a retained right of residence;
A partner under Appendix FM, Part 11 of Appendix Family Reunion (Protection) of a person with permissions as a refugee;
A partner of a person present and settled in the UK under paragraph 285 or 295E of Part 8;
A victim of domestic abuse under Appendix FM;
A partner under Appendix Armed Forces or Part 7 of a British citizen or relevant member of HM Forces;
Leave outside the rules granted under the Migrant Victims of Domestic Abuse concession and before that were last granted permission as above.

Partner includes spouses, civil partners and unmarried partners but not fiancé(e)s nor proposed civil partners.

An applicant does not need to have valid permission in the UK, if they previously had permission as specified above, prior to the relationship breaking down as a result of domestic abuse. Preventing a victim of domestic abuse from applying for leave may be part of abusive behaviour experienced by a victim.

Following AM v SSHD , this route has been updated to enable victims of domestic abuse who have been abandoned overseas to apply for settlement outside of the UK. Therefore, a person applying from outside the UK must have been abandoned or stranded. The guidance recognises that such victims are more likely to be vulnerable and face additional barriers to applying with potentially limited access to support services and assistance, as addressed in more detail below.

In certain circumstances, an applicant may be granted settlement outside the rules, even though their most recent leave was not as specified above, for example where an applicant is a victim of transnational marriage abandonment and they made an application for entry clearance before the introduction of this route and so were granted a different form of leave such as a visitor visa, leave outside the rules or permission as a parent.

Individuals who have not held leave as above may alternatively be able to apply under Appendix EU or make an application on the basis of their family and private life under Article 8 of the European Convention on Human Rights or for leave outside the rules .

Relationship Requirements

The relationship between the applicant and their partner must have broken down permanently as a result of domestic abuse which they have been subjected to by their partner or by a directly related family member, such as in-laws or stepfamily members, or alternatively, if the abuser is a partner or family member who is abusing another family member in the same household.

Domestic abuse is defined in the Domestic Abuse Act 2021 . It involves any single incident or pattern of conduct where someone’s behaviour towards another is abusive, and where the people involved are aged 16 or over and are, or have been, personally connected to each other. Abuse can be:

Psychological;
Physical;
Sexual;
Financial;
Emotional;
Violence;
Threatening;
Controlling;
Coercive behaviour.

Transnational marriage abandonment is a type of domestic abuse which involves controlling and coercive behaviour. It is where a person is abandoned or stranded abroad by their partner or family member(s), usually without financial resources. It may involve children who are either abandoned with or separated from the abandoned person.

The objective of transnational marriage abandonment is usually to prevent the victim’s return to the UK to punish them or exert greater control over them, including by preventing them from exercising their residence rights, matrimonial rights, right to report a crime, child care and custody rights etc.

The perpetrator will often mislead the victim about the intention of the travel and their travel documents will usually be removed from their possession. The perpetrator often contacts the Home Office to cancel the victim’s leave or delays the victim’s return to the UK so that their leave expires. These factors are included in the non-exhaustive list of indicative features of cases of transnational marriage abandonment in the Home Office’s guidance.

Where an applicant is a victim of transnational marriage abandonment, the breakdown of the relationship due to domestic abuse will be assessed to a reasonable degree of likelihood. This is a lower standard of proof than the balance of probabilities, which is the usual standard for applications, including for applications made on this route from inside the UK.

This lower standard is applied to take into account the applicant’s future life, their safety being at risk and the fact that they may not be able to obtain and produce evidence in the same way as in-country applicants due to the circumstances of their departure from the UK. Delays in applying should not affect the credibility of a person’s account due to the complexity of a victim of transnational marriage abandonment’s circumstances. Decisions to return to a home country must not be assumed as voluntary.

The person deciding the application must find that, taking the information provided in the application form and other evidence provided in the round, the applicant’s account is reasonably likely. Where the abandonment marks the end of the relationship, the relationship breakdown requirement will be met.

Please note that the guidance states that medical or independent evidence may not be necessary where the account of the abuse is reasonably detailed, consistent and plausible. However, such evidence would strengthen an application. The evidence required in domestic violence applications was previously addressed in this article and addressed more recently in this updating article . There are no specified evidence requirements therefore an applicant may wish to seek advice regarding the evidence to include in an application.

Form, Fees and Time Frames

The current fee for an application on this route is £2,885, unless a fee-waiver applies. Please note that these fees regularly change. There would be no Immigration Health Surcharge . The current processing time for such applications is 6 months. Please note that processing times can change and applications can be decided in more or less time.

Decision on Application for Entry Clearance as a Victim of Domestic Abuse

Where the requirements detailed above are met and the application is successful, the applicant will be granted indefinite leave to enter in the UK.

The refusal of an application made pursuant to Appendix VDA can be challenged by administrative review .

Contact Our Immigration Legal Advisers

For expert advice and assistance in relation to applying for leave as a victim of domestic violence or any other UK immigration applications, contact our immigration legal advisers in Manchester on 0161 529 7779 or complete our enquiry form below.

High Court: Failure to Provide Proof of Section 3C Status Unlawful

Wed, 26 Jun 2024 10:28:22 GMT

In a judgment handed down on 07 June 2024, the High Court in R (on the application of Refugee and Migrant Forum of Essex and London and Cecilia Adjei) v Secretary of State for the Home Department, [2024] EWHC 1374 (Admin) ruled that the Home Secretary’s failure to provide documentary proof of their lawful presence in the UK to thousands of migrants covered by section 3C of the Immigration Act 1971 was unlawful. This article will set out the background to the challenge, why the Claimants succeeded, and what significance the judgment holds as the Home Office prepares to transition all migrants in the UK to a system of digital only proof of status.

Background

Section 3C of the Immigration Act 1971 protects the position of migrants in the UK who have made a valid application to extend their stay (known as a variation application) before the expiry date of their current permission but whose application is not decided by the Home Office before that date. While the applicant waits to receive a decision, their existing permission (with all attached conditions, e.g. regarding study or work) is extended by virtue of section 3C, which can also continue their permission after a refusal in the period in which an appeal or administrative review could be brought /requested or is in fact pending.

At issue in this judicial review (brought by the charity RAMFEL, the Refugee and Migrant Forum of Essex and London, and Cecilia Adjei, a Ghanaian national who had previously relied on s 3C leave) was the Home Office’s failure to provide individuals with documentary proof of their lawful presence in the UK during periods in which their leave is extended by section 3C. Any physical proof of status they may have held (such as a Biometric Residence Permit) will show the expiry date of their original permission. While a portion of migrants in the UK are covered by ‘eVisas’, which they can continue to rely on during periods in which their permission is extended by virtue of s 3C (and the Home Office is in the process of transitioning all migrants to such digital-only proof of status), many are not.

Those unable to prove their status in the UK may be caught by the government’s ‘hostile environment’ policies (now officially referred to as the ‘compliant environment’), which impose obligations on employers, landlords, the National Health Service, and others to verify the immigration status of those they come in contact with.

If a person whose leave has been extended by section 3C is unable to prove their immigration status, they face the risk of wrongful exclusion from many essential services and facilities, including accommodation, employment, and free healthcare. The number of individuals potentially affected by this issue is significant. In response to a Freedom of Information request submitted by RAMFEL, the Home Office confirmed that in 2019, 370,015 people were on 3C leave.

The Challenge

There is no express legislative provision which would require the Home Secretary to issue proof of status to those in the 3C cohort. However, the Claimants contended that the Home Office policy was unlawful on four grounds:

The Home Office’s position frustrated the statutory purpose of section 3C and the compliant environment (following the line of cases beginning with Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997)
Additionally or alternatively, the Home Office’s approach was irrational (in the sense of the decision in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 KB 223)
The Home Office failed to comply with the public sector equality duty in section 149 Equality Act 2010
The Home Office failed to comply with his obligations under s 55 Borders, Citizenship and Immigration Act 2009.

The High Court (Mr Justice Cavanagh) agreed with the Claimants on the second and fourth grounds of challenge and found the failure to provide digital proof of status to the 3C cohort (the possibility of issuing physical documents was disregarded as being impractical) unlawful on that basis.

The Padfield and Wednesbury Grounds

Cavanagh J considered the first two grounds and concluded that the challenge was best understood as going to the (Wednesbury) reasonableness of the Home Office’s position, rather than being based on the principle in Padfield. The Padfield line of cases always concerned a power or discretion expressly conferred by statute, often as part of a specific, statutorily defined scheme. By contrast, in the present case, the parties came to agree that the power to issue the documentation in question was not expressly provided for by statute but impliedly derived from the Home Secretary’s powers under the 1971 Act. As such, the Padfield analysis – considering the statutory source of the power or discretion to assess whether public authority’s exercise/non-exercise frustrates the purpose of the statute – could not be carried out. In any case, the applicable principles in either type of challenge had ‘similarities and echoes of each other’.

The judge recalled that it was well-established that claimants mounting a rationality challenge faced a ‘high hurdle’ and listed aspects of the instant case which should give the court additional pause before interfering with the Home Secretary’s decision: the ‘respect’ to be afforded to his decision-making in the field of immigration and the complexity of the area, the nature of the power or discretion in question, and the fact that the claimants were looking to impose on the Home Office a duty to take positive action.

However, the judge found that the claimants had overcome this (heightened) hurdle, for three main reasons. Firstly, the evidence made clear that a ‘substantial number’ of those on 3C leave suffered serious adverse consequences from their inability to provide immediate documentary proof of their right to be in the UK.

Secondly, the court found that it was the clear purpose of section 3C, the broader immigration system, and the compliant environment policy that those lawfully in the UK should be able to prove the lawfulness of their presence, and the entitlements (access to employment, accommodation etc) linked to their status. The failure to provide such proof frustrated this purpose.

Thirdly, ‘and perhaps most significant[ly]’, there were no countervailing considerations. At least as far as digital proof was concerned, the Home Secretary could not point to any disadvantages which would result from making it available. Doing so would not run counter to government policy, nor was this a case in which the harsh consequences of a policy for affected individuals were justified by the need to establish bright-line rules. In short, no reasonable Home Secretary could have come to the decision under challenge.

The Public Sector Equality Duty

The third ground of challenge related to the public sector equality duty (PSED), enshrined in s 149 of the Equality Act 2010. This statutory duty requires all public authorities to have ‘due regard’, in the exercise of their functions, to the need to eliminate discrimination, further equality of opportunity, and foster good relations between communities.

The Secretary of State, having initially suggested that the duty was not engaged at all, accepted that it was in play at hearing, and argued it had been discharged through two equality impact assessments (EIAs) prepared by the department – an ‘overarching’ assessment of the ‘compliant environment’, from November 2022, and an EIA concerning the implications of introducing digital-only proof of status, dated October 2021. The court’s analysis focused on the compliant environment EIA.

The Judge made clear that he found the issue of compliance with the PSED to be complex. While the compliant environment EIA was ‘impressive, thorough and detailed, it also, for the most part, assumed that it would be clear whether a migrant was in the UK lawfully or unlawfully, thereby glossing over the position of those on 3C leave – who are lawfully present, but may struggle to prove it.

Ultimately, he concluded that the Home Secretary had done just enough to discharge the duty, as a portion of the EIA described the risk of ‘unintended consequences’ of the compliant environment for those lawfully in the UK, and the need for the Home Office to put in place ‘safeguards’ to mitigate those consequences. Even though this part of the EIA went into ‘very little detail’, and even though the Home Secretary had initially argued that the PSED was not engaged at all, the Home Secretary had met his obligations under the 2010 Act.

In coming to this conclusion, the judge reminded himself that the PSED was about process, not outcome, and that it was in the first instance for the Home Secretary to decide what the PSED required, particularly in light of the ‘enormously complex’ nature of the SSHD’s functions in relation to immigration.

The Section 55 Duty

The final ground of challenge was based on the Home Secretary’s duty under s 55 of the Borders, Citizenship and Immigration Act 2009 to have regard to the need to promote and safeguard the welfare of children in the United Kingdom in the exercise of his immigration, nationality and asylum functions. Once again, the Home Secretary initially resisted the applicability of duty before conceding it was in play.

The court found a breach of the s 55 duty – the Home Secretary had previously taken the position that it did not apply at all, the failure to provide proof of status to migrants on s 3C leave could indeed have an adverse impact on children (whether as applicants in their own right or as dependants of adults on 3C leave), and the Home Secretary had not considered the matter.

This finding could not be avoided by pointing to (as the Home Secretary had attempted) the statutory guidance on section 55 produced by the Home Office, which was addressed to officials and contractors making decisions in individual cases, whereas the breach here related to a more general exercise of the SSHD’s functions in relation to immigration.

Conclusion

Finally, the judge considered whether he should exercise his discretion and decline to grant the claimants the declaration they had sought (in addition to other remedies), in light of the fact that the Home Office is already moving towards a digital-only system of proving immigration status anyway. The judge found no reasons why he ought to refuse to grant declaratory relief, noting that the Home Secretary’s intentions may change, or the planned timescale ‘slip’.

Whatever form the relief ultimately takes, it is notable that the Home Secretary has been found to have acted unlawfully in respect of an issue which, as the judge recorded, had been repeatedly brought to the government’s attention over the years.

Furthermore, while the transition to digital-only proof of status may render the outcome of this litigation of mainly historic interest, the upcoming change comes with its own risks. In a recent open letter , the Immigration Law Practitioners Association (ILPA) and others warn that the absence of a transitional phase after the Home Office’s self-imposed deadline of 31 December 2024 could produce a cliff edge which may ‘result in a second scandal, akin to Windrush, insofar as people will be unable to prove and enforce their ability to enter the UK, as well as live, work, and rent in it.’ They further highlight the risk of technical errors or glitches, and the limited public awareness of the upcoming changes, as matters of concern.

After over a decade of the hostile/compliant environment, the ‘unintended consequences’ for those who struggle to prove their immigration status in the UK remain a matter of real concern.

Contact Our Immigration Legal Advisers in Manchester

For expert advice and assistance with a UK immigration application or appeal, contact our immigration legal advisers in Manchester on 0161 529 7779 or via our enquiry form below.

The Role of Finances in UK Visit Visa Applications

Tue, 25 Jun 2024 14:04:24 GMT

Our clients often ask how much bank balance is required for a UK visitor visa or what financial evidence is needed for a visitor visa . While there are no financial requirements or mandatory evidence for a visitor visa application, Home Office decision makers often cite financial circumstances in refusal decisions. This post aims to demystify the role of finances in visitor visa applications.

How Do Finances Relate to the Requirements of a UK Visitor Visa?

A key requirement of the visitor visa is the “genuine visitor requirement”. To satisfy the decision maker that you are a genuine visitor you must convince the decision maker that you:

Will leave the UK at the end of your visit;
Will not live in the UK for extended periods through frequent or successive visits or make the UK your main home;
Are genuinely seeking entry for the purpose that is permitted under the visitor visa route;
Will not undertake in any prohibited activities, such as working in the UK;
Must have sufficient funds to cover all reasonable costs in relation to their visit without working or accessing public funds, including the costs of their return journey, costs relating to their dependents and any planned activities.

Looking at this list, you may assume that the decision maker will look at your financial circumstances to assess the last point: whether you have sufficient funds to cover the cost of the trip.

However, the decision makers take a broader approach. For example, you may provide evidence that you have enough money to cover the trip, but the cost of the trip is disproportionately high in comparison to your income. The decision maker may infer from this that you do not intend to return to your country at the end of your visit, but that you intend to work and to stay in the UK for a longer period.

What Will Home Office Decision Makers Consider When Looking at My Finances?

The caseworker guidance sets out the factors decision makers must take into account when making a decision about your visitor visa application, such as:

Your financial circumstances as well as your family, social and economic background;
You personal and economic ties to your country of residence;
Whether, on the balance of probabilities, the information and the reasons for the visit or for extending your stay are credible and correspond to your personal, family, social and economic background.

As you can see, the focus is on your ties to your country of residence. The Home Office’s logic is that the fewer ties you have, the less likely you are to return to your country after your visit. The caseworker guidance gives the following example of a situation where an application would likely be refused: “the applicant has few or no family and economic ties to their country of residence, and has several family members in the UK – for example a person with most of their family in the UK and no job or studies in their own country may be considered to have few links to their home country”.

Financial evidence such as bank statements, payslips, or a letter from your employer confirming your employment help build a picture of your life and obligations outside of the UK. This in turn will help satisfy the decision maker that you are more likely than not to return to your country of residence after your visit to the UK.

What if I Don’t Currently Have Any Income?

This doesn’t mean that you won’t be granted a visitor visa. People have all sorts of links to their country of residence other than finances. For example, you may be studying, you may have family and dependants, or other community links such as religious groups.

What Sort of Documents Should I Include in Support of My Visit Visa Application?

As a start you may choose to include a letter from your employer confirming that your absence from work is authorised and that you are expected back at work after the end of your visit. You may also attach a copy of your employment contract, your payslips, and bank statements showing your salary going into your account.

Remember the decision makers want a snapshot of your financial circumstances at the time of the application. Therefore, it is a good idea to include your most recent payslip, bank statement and so forth. Bank statements or letters issued more than one year before the date of application are described as “less useful” in Home Office caseworker guidance.

How Much Detail Should I Put Into Explaining My Financial Circumstances?

Unfortunately, visitor visa applications are very laborious and time consuming. Decision makers often seize upon minor irregularities or omissions and make unhelpful inferences about the applicants’ circumstances or credibility.

It is helpful to provide a cover letter putting your financial evidence in context. Before providing your bank statements, go through them line by line and check for any unusual deposits. Be prepared to explain these in a cover letter so that the decision maker has a clear overview of your finances. If any of these documents are unavailable, for example your country of residence is primarily a cash economy, explain this in your cover letter.

Decision makers will look at the cost of your visit in the context of your regular income. If the visit is very expensive relative to your income this may raise eyebrows. In your cover letter provide your calculations for the cost of your trip, as well as calculations for your regular income and outgoings. If the visit is pricey, explain how you are financing it, for example you may be dipping into your savings, you may be receiving support from a third party, or perhaps you have received a gift.

If any of your previous visitor visa applications have been refused, it is a good idea to respond to the reasons for refusal in your current application. Explain any change in circumstances or signpost any new evidence which was not provided in previous applications.

Preparing a visit visa application properly can be a complex and time consuming process. If you could like professional assistance, contact our immigration barristers for expert advice and legal representation.

What if a Third Party Is Helping Me Fund My Trip?

Some visitors do not cover the costs of their visit by themselves but are provided with financial help or accommodation by third parties.

The third party supporting your visit must be:

A family member, friend or other person with whom you have a genuine personal or professional relationship;
If they are in the UK, they must not be in breach of immigration law.

The decision makers will make the following checks and ask the following questions about your relationship to the third party:

Whether they have failed to support visitors in the past;
Where and how you met the third party;
How often and by what method you communicate.
Whether the third party has enough funds to adequately support themselves and any dependants, including you the applicant.

Therefore, the third party will need to provide a letter of support, confirming that they intend to support you during your visit, as well as financial evidence showing that they are capable of providing the support.

Is It Useful to Get a Letter of Support From a Local MP?

The Home Office guidance states that a letter of support from an MP “cannot be considered as a guarantee that the visitor will comply with the terms of their permission” and warns decision makers not to “actively seek out such an undertaking or accept an offer to provide one”.

The decision makers are instructed to consider a letter of support from an MP along with the other evidence but it does not hold any particular weight.

Contact our Immigration Legal Advisers

Our immigration barristers are experienced in assisting individuals from across the globe to secure visit visas to visit the UK.

For expert advice in relation to your UK visa application or immigration appeal , contact our immigration legal advisers on 0161 529 7779 or complete our enquiry form below.

How is “Discretion” Exercised in UK Immigration Law?

Mon, 24 Jun 2024 08:59:40 GMT

Discretion is a word that crops up frequently in immigration law: applicants and practitioners will note its appearance in everything from Home Office decision-letters and policy documents to judgments of the Tribunals and the Senior Courts . Generally, it is used in its ordinary sense to mean the freedom to make a choice in a particular situation. In many circumstances, Home Office decision-makers will have a discretion as to the course of action they take – meaning they should take into account all the relevant facts of the case before making their own decision. This stands in contrast to other situations, where the law dictates that they must follow a particular course of action, or come to a particular decision.

In this post we will consider a variety of situations where discretion is to be exercised, and what the law says about how it must be exercised.

Discretion in the Immigration Rules and Home Office guidance

The Immigration Rules contain a number of provisions that require the Home Office caseworker assessing an immigration application to exercise discretion.

One example is paragraph 9.7.1., which states, “An application for entry clearance, permission to enter or permission to stay may be refused where, in relation to the application, or in order to obtain documents from the Secretary of State or a third party provided in support of the application: (a) false representations are made, or false documents or false information submitted (whether or not relevant to the application, and whether or not to the applicant’s knowledge); or (b) relevant facts are not disclosed.”

The use of the term “may be refused” indicates that the caseworker must exercise their discretion in deciding whether to refuse the application on this basis.

Contrast this with paragraph 9.7.2., which states, “An application for entry clearance, permission to enter or permission to stay must be refused where the decision maker can prove that it is more likely than not the applicant used deception in the application.” Here, the phrase “must” indicates that this is a mandatory ground for refusal.

Similar language is seen throughout the Rules, and more widely in Home Office policy documents. For example, Part 3 of the Home Office’s guidance for organisations sponsoring migrant workers sets out various grounds under which the Home Office may revoke a sponsor licence. Annex C1 is titled “circumstances in which we will revoke your licence” – these are mandatory grounds for revocation. Annex C2 is titled, “circumstances in which we will normally revoke your licence”, and Annex C3 is titled, “circumstances in which we may revoke your licence” – both of these will require the exercise of discretion.

Exercising discretion outside of the Immigration Rules

The Immigration Act 1971 confers on the Secretary of State (and, in effect , the officials acting on his behalf) wide powers to grant, refuse, vary or cancel leave to enter or remain in the UK. Generally, these powers are exercised in accordance with the Immigration Rules. However, as the Supreme Court has confirmed , “It is still open to the Secretary of State in her discretion to grant leave to enter or remain to an alien whose application does not meet the requirements of the Immigration Rules.”

Accordingly, even if a requirement of the Immigration Rules is framed in mandatory terms (e.g. the applicant “must” meet a certain requirement), it is still open to the caseworker to consider whether, on the facts of the case, to exercise discretion to waive the requirement and grant leave nonetheless. If the applicant is seeking to enter or remain in the UK under an existing immigration route (e.g. as a Skilled Worker, or as a partner), the caseworker may still choose to grant them leave under that route. Alternatively, if the Applicant is seeking to enter or remain for a purpose not covered by the Rules, the caseworker may grant them Leave Outside the Immigration Rules (“LOTR”) or Discretionary Leave (note that this latter category is a technical term, and does not refer to all leave granted on a discretionary basis).

A decision to exercise discretion in such instances can be made if considered appropriate on the particular facts of the case – generally, where the circumstances present sufficiently compelling or compassionate reasons for granting leave. Factors that might influence a decision include the Secretary of State’s public law duty to act in a procedurally fair manner; its public sector equalities duties; its duty under section 55 of the Borders, Citizenship and Immigration Act 2009 to take into account the need to promote the best interests of children; and its duty under section 6 of the Human Rights Act 1998 to act in a manner compliant with Convention rights.

It should be stressed that this discretion to waive a requirement of the Rules (or to grant LOTR) is not likely to be exercised regularly or lightly. An argument that discretion should be exercised to grant an application because a requirement of the Immigration Rules was almost but not quite met (a “near miss”) is unlikely to cut the mustard, as the Court of Appeal has affirmed .

Immigration Concessions

As well as exercising discretion on a case-by-case basis, the Home Office also from time to time introduces “concessions”. These are policies that effectively relax the requirements of the Immigration Rules in relation to a whole class of applicants: for example victims of domestic abuse , dependants of Hong Kong British Nationals (overseas) visa holders where the main applicant has died during the application process, or (previously) people who were unable to leave the UK during the COVID-19 pandemic .

When there is a concession in place, the caseworker will technically be exercising the Secretary of State’s discretion to grant leave outside of the Immigration Rules. However, this does not mean that they are truly exercising discretion in practice. A concession is a statement of Home Office policy, so must be applied fairly and consistently – and must be followed unless there is good reason not to do so . Indeed, as the Supreme Court has made clear , in some circumstances a concession may be of equivalent legal status to the Immigration Rules themselves: “If a concessionary policy statement says that the applicable rule will always be relaxed in specified circumstances, it may be difficult to avoid the conclusion that the statement is itself a rule “as to the practice to be followed” within the meaning of section 3(2) [of the Immigration Act 1971] which should be laid before Parliament.”

Contact our Immigration Legal Advisers

In circumstances where you are asking Home Office decision-makers to exercise discretion in your favour, it is essential that your arguments are put across as persuasively as possible, with detailed evidence to back up every relevant detail in your case. For expert advice and assistance in relation to immigration applications and appeals, contact our Immigration legal advisers on 0161 529 7779 or complete our enquiry form below.

Innovator Founder Visa: Business Endorsement Requirements Explained

Thu, 20 Jun 2024 09:46:06 GMT

The Innovator Founder Visa route is for entrepreneurs who are looking to establish a business in the UK. To be eligible, your business idea must be innovative, viable and scalable and you have an endorsement letter from an approved UK endorsing body or legacy endorsing body.

This post will explore the business requirements when preparing an Innovator Founder Visa application. For further guidance in relation to making an Innovator Founder Visa application, see our previous article, Innovator Founder Visa Route Application Guide where we answered a number of frequently asked questions.

An Overview of the Innovator Founder Visa Rout

Similar to the previous Start-up and Innovator visas, Innovator Founder applicants must be issued with an endorsement letter from an endorsing body listed on the Home Office website. The letter must confirm that your business meets either the same business or new business criteria. You will also need to show that you are a genuine Innovator Founder applicant.

You must meet the English language requirements at CEFR level B2 in all four components of reading, writing, speaking and listening. If you are applying for entry clearance or have been in the UK for less than 12 months, you will need to have held at least £1,270 for a 28 day period prior to the date of application.

General Requirement for Innovator Founder Visa Endorsement

When applying for an Innovator Founder Visa, you must submit an endorsement letter from one of the endorsing bodies mentioned in our article. The letter must contain specific details, such as their name, reference number, date of issue and your personal details.

The letter from the endorsing body will need to confirm that:

You are a fit and proper person to receive endorsement under the Innovator Founder route;
The endorsing body has no concerns over the source of any funds you have invested into your business;
The endorsing body has no reason to believe that you or your business may be the beneficiary of illicit or unexplained wealth.

Endorsement Criteria for the New Business

Business plan requirement

To apply for an Innovator Founder Visa endorsement, you must have a business plan and show that you have generated or significantly contributed to the business ideas. The endorsing body will expect to see how you demonstrate your day to day role in carrying out the business plan. You must confirm that you will have at least two contact point meetings with the endorsing body at regular intervals during your period of permission.

You can be the sole founder of the founding team or an instrumental member of the founding team.

Innovative, viable and scalable business requirement

Your business idea should meet the following criteria:

Innovation

This involves having an original business plan that meets new or existing market needs and/or creates a competitive advantage.

What this means: The endorsing body will take into account what is innovative about your business idea and how it is unique if it is a new idea. If there are other existing products, how is your business idea different or better than what is already known. They may also want to know the target market and how the users of this market will benefit from your service or product.

Other relevant information: who are your competitors in the UK and the status of your product or service, for example, whether your product has been launched.

Viability

Your business plan must be realistic and achievable based on the resources available to you. You must also have or be actively developing the necessary skills, knowledge, experience and market awareness to run the business successfully.

What this means: The endorsing body may consider whether your business idea will have a good chance of success in the UK. It is likely that they will want to know how your qualifications, work experience and skills can contribute to the success of the business.

Other relevant information: It may be useful to show the market research undertaken and the amount of investment funds available for starting the business.

Scalability

You must provide evidence of structured planning and there is a potential for job creation and growth into national and international markets.

What this means: Whether there is a potential for the project to grow into national and international markets and create jobs for the team in the UK.

Other relevant information: You may want to provide any plans for building a UK based team and how you plan to expand your business.

In our article, Innovator Founder Visa Endorsement Guidance , we explored the criteria for endorsement and the next steps after endorsement.

Endorsement from Legacy Endorsing Bodies

These are endorsing bodies who were previously approved by the Home Office. To meet the new business criteria, an endorsement letter will only be accepted and points awarded if:

the letter was issued before 13 April 2023 for use in the Innovator route; or
your previous permission was under the Start-up route and the endorsing body for your previous permission is the same endorsing body supporting your current application.

Endorsement Criteria for the Same Business

To be eligible for the same business criteria:

you must have or have had permission as an Innovator Founder or on the Start-up or Tier 1 (Graduate Entrepreneur) route;
your business must have been previously assessed by an endorsing body or legacy endorsing body while you had permission on the Innovator Founder or Start-up or Tier 1 (Graduate Entrepreneur) route;
if you have or have had permission as an Innovator Founder, you must demonstrate that you have attended at least two contact points meetings with your endorsing body at regular intervals or regular checkpoint assessments with your legacy endorsing body and confirm that you will have at least two contact point meetings with the endorsing body at regular intervals during your period of permission;
Your business is active, trading and sustainable and you have made significant progress against the business plan;
Your business is registered with Companies House and you are listed as a director;
You are active in the day-to-day management and development of your business;

Endorsement from Legacy Endorsing Bodies

An endorsement letter from a legacy endorsing body will only be accepted if you have or in the 12 months immediately before the date of application, had permission as an Innovator Founder or permission under the Start-up route and it is the same legacy endorsing body supporting your current application and your previous permission.

Further explanation relating to endorsement from a legacy endorsing body for the same business is set out in our previous article, Switching from a Start-up Visa to an Innovator Founder Visa .

Contact our Immigration Legal Advisers

For expert advice regarding an Innovator Founder Visa application, contact our immigration legal advisers on 0161 529 7779 or complete our enquiry form below.

How to Apply for a Parent of a Child Student Visa

Wed, 19 Jun 2024 10:17:36 GMT

If your child is between the age of 4 and 11, and is applying for (or currently holds) a Child Student Visa , you may be eligible to apply for the Parent of a Child Student Visa . This visa allows one parent to accompany their child or children to the UK while they undertake studies at an independent fee-paying school.

This comprehensive guide looks at the eligibility requirements for a Parent of a Child Student Visa in detail, alongside the process of applying for the visa.

Can Both Parents Apply for a Parent of a Child Student Visa?

The key limitation of this route is that while one parent can apply, the Child Student’s other parent must not be in the UK or seeking to come to the UK. The other parent is, nevertheless, able to use the Visit Visa route to enter the UK, allowing them to visit the Child Student or help them settle into life abroad. The key point is that the child’s other parent should not be attempting to relocate to the UK.

Accordingly, where there are multiple Child Student ’s from a single family, only one parent is permitted to act as their carer. It is not possible for one parent to act as carer for one Child Student while the other parent acts as the carer for another Child Student .

In some circumstances, the Home Office may allow a parent outside the UK to swap places with the relevant carer living in the UK, subject to the submission of a fresh application. This ordinarily results in the cancellation of the other parent’s visa.

The Home Office Guidance does confirm that in some exceptional circumstances, one parent can make an application for a Parent of a Child Student Visa if the other parent is in the UK under a different immigration route. This might, for instance, encompass circumstances of divorce or estrangement, provided that the applying parent has sole responsibility for the Child Student.

Child Student Requirements

As set out above, the applicant’s child must hold, or be in the process of applying for, a Child Student visa. The parent must be over 18 and the Child Student must be between the ages of 4 and 11. Accordingly, the application will be refused if by the date of decision on an application the Child Student has turned age 12.

Crucially, the relationship between the parent and child must be supported by evidence, or else the application will be refused.

Care and Financial Requirements

Those applying for a parent of a child visa must demonstrate that they have sufficient funds to maintain and accommodate themselves, the Child Student (s), and any other dependents. The applicant can rely on funds held in their name or by a partner living outside the UK, subject to meeting additional requirements.

The level of funds that the applicant must show will depend on both who will be supported, and when the application is made. The Home Office Guidance confirms that different financial requirements apply in circumstances where:

The parent has lived in the UK for 12 months or more;
The parent is applying at the same time as their child; and,
The parent is applying at a different time to their child.

If you are concerned as to how you will meet the financial requirements, and what evidence must be provided, you may wish to contact one of our specialist immigration barristers.

It is also important to note that in addition to meeting the financial requirements set out above, applicants must also be able to maintain their main home outside the UK.

How to Apply for a Parent of a Child Student Visa

A parent can apply while their child holds leave as a Child Student or when submitting the Child Student ’s application. Before applying, the parent should check whether they are required to provide a valid TB certificate with their application, in accordance with Appendix Tuberculosis (TB) .

Applications should be made online using the relevant application form. If applying from outside the UK, the correct form is “Parent of a Child Student ”. For those who currently have valid leave to remain in the UK and intend to switch, the correct form is “Application to extend stay in the UK: FLR(IR)” . It is important to note that you cannot apply for permission to stay in the UK on this route if you were most recently granted permission as a Visitor , Short-term Student or outside of the Immigration Rules .

Applicants must pay the specified application fee, which is currently set at £637.00.

The applicant will also need to pay the Immigration Health Surcharge (IHS) for each year of their stay. The IHS is currently set at £1,035 per year for adults and is paid upfront when submitting the application form.

If granted, the visa will be valid either until the Child Student ’s visa expires or until the Child Student ’s 12th birthday, whichever is sooner.

Can You Work or Study in the UK with a Parent of a Child Student Visa?

There are several prohibited activities for those holding a Parent of a Child Student Visa. These restrictions state that they are not permitted to work or study in the UK. Accordingly, applicant’s cannot access public funds or benefits, or benefit from a UK State Pension.

The Parent of a Child Student Visa does not provide an opportunity for applicants to settle in the UK. Thus, the applicant’s main home should continue to be abroad during their time in the UK. It is not possible to switch to a different type of UK visa while holding a Parent of a Child Student Visa.

For further information on the permitted and restricted activities for those who have obtained a Parent of a Child Student Visa, please see this post .

Can You Extend a Parent of a Child Student Visa?

It is possible to extend a Parent of a Child Student Visa from within the UK until the relevant Child Student child turns 12. Applicants who have lived in the UK for 12 months or more will meet the financial requirement automatically when making an extension application.

Contact Our Immigration Legal Advisers

For expert advice and assistance in obtaining a Parent of a Child Student Visa, contact our immigration legal advisers in Manchester on 0161 529 7779 or via the enquiry form below.

Sponsor Licence Refusals: Causes and Solutions

Fri, 16 Feb 2024 10:23:36 GMT

When embarking on the journey of making a Sponsor Licence Application , the sponsoring company must understand the route(s) in which they wish to sponsor overseas nationals and the duties that come with being a sponsor. In this comprehensive guide, we delve into the nuances of Sponsor Licence Refusals , providing insights and tips for those navigating the sponsor licence application process. We explore the reasons why sponsor licence applications are commonly refused, and provide strategic advice to empower businesses with the knowledge needed to navigate the Sponsor Licence application process successfully.

Is the Sponsor Licence Application Refused or Rejected?

When deciding a sponsor licence application, the Home Office may either reject the sponsor licence application as invalid, refuse the application or grant the application with an A rating (or provisional rating for the UK Expansion Worker route).

Invalid application

As we discussed in our post, Employer’s Guide to Appendix A Sponsor Licence Documents , most organisations are required to provide a list of documents in support of their sponsor licence application. For example, if your company is a Start-up , you must show that your company has a current, corporate bank account with a bank registered by the Financial Conduct Authority and Prudential Regulation Authority in the UK.

An example of an invalid application would include paying the incorrect application fee. If you pay the incorrect application fee, the Home Office will reject your sponsor licence application and refund the application fee. For more information on the sponsorship costs for the Skilled Worker route, please refer to our earlier post.

Once the issues have been identified and rectified, you can submit another sponsor licence application.

Application refused

An application for a sponsor licence may be refused on various grounds, such as:

Unspent convictions for a relevant offence by the key personnel, owner, director or any person involved in the day-to-day running of the business;
Employment is not genuine;
No necessary human resources systems is in place to meet your sponsor duties;
Providing false documents or false information with the application;
No operating or trading presence in the UK;

If your sponsor licence application is refused, you may only be able to apply after the cooling-off period has elapsed.

Sponsor licence applications can be challenging and you should seek legal advice to ensure that your business has the correct documentation. Read about some of our sponsor licence success stories.

When Can I Make Another Sponsor Licence Application?

If your application for a sponsor licence is refused, there is no right of appeal against the refusal. You may be able to request the Home Office to review the decision when the refusal is due to a caseworker error. The request must be sent within 14 calendar days from the date of the refusal letter.

As set out in our post, Cooling-Off Periods in Sponsor Licence Applications , you will need to wait until the cooling-off period has elapsed before making an application. The length of the cooling-off period will depend on the reasons for which it is imposed. For example, if your application has been refused due to your application being sent by a representative, there is no cooling-off period and you can apply again at any time. However, if your previous sponsor licence application was revoked, you would need to wait for 12 months from the date of the notice informing you that the licence has been revoked. In certain circumstances, the cooling-off period can be up to 5 years for numerous civil penalties and charges issued.

Tips for Preparing a Successful Sponsor Licence Application

We discussed the sponsor licence application criteria in our post, How Are Sponsor Licence Applications Assessed where we focused on the key areas including sponsor duties and key personnel. If your sponsor licence application has been refused, you will have to address the issues raised in the refusal letter and ensure that you meet the eligibility and suitability criteria.

Sponsor Licence Eligibility Criteria

As set out above, your business must provide a list of supporting documents to demonstrate that your company is genuine and has been operating in the UK and meets the eligibility criteria. If you are applying for a UK Expansion Worker Sponsor Licence , you will need to show that your business has a UK ‘footprint’ but not already actively trading in the UK.

Sponsor Licence Suitability Criteria

In order to meet the suitability criteria, the Home Office will look at your HR systems and how you will meet your sponsor duties . These duties include reporting any changes in the worker’s circumstances no later than 10 working days after the relevant change, keeping documents required in Appendix D , employing workers who are qualified to do the job, not employing illegal workers and not engaging in behaviour that is not conducive to the public good.

The Home Office will also check that you have suitable key personnel to carry out the sponsor duties and access the Sponsorship Management System to manage the sponsor licence. The Home Office may carry out background checks on them to see whether there are any unspent criminal convictions or outstanding civil penalties.

It is vital that the role actually exists and does not contain job descriptions that have been exaggerated to meet the requirements. The Home Office guidance defines a genuine vacancy as:

‘A genuine vacancy is one which:

requires the jobholder to perform the specific duties and responsibilities for the job and meets all of the requirements of the relevant route
does not include dissimilar and/or predominantly lower-skilled duties
is appropriate to the business in light of its business model, business plan and scale’

Do take note that there are specific salary and skill level requirements for the Skilled Worker , Scale-up and Global Business Mobility routes.

Compliance Visits

Before making a decision on your sponsor licence application, the Home Office may conduct an inspection to see whether you have a robust HR system to meet your sponsor duties and the information you provided in your application are accurate.

We explained in our blog, How An Immigration Audit Can Safeguard Your Sponsor Licence , that an immigration audit is a mock exercise of checking your human resource system, policies and documents to ensure that you are ready for a Home Office compliance visit and how our immigration barristers can help in conducting an immigration audit of your business. This is a good practice to get your business ready especially if your previous sponsor licence application was refused.

Contact Our Immigration Legal Advisers

For expert advice and assistance in relation to a Sponsor Licence application, contact our business immigration legal advisers in Manchester on 0161 529 7779 or via the enquiry form below.

How to Switch from Sole Representative to Skilled Worker

Thu, 15 Feb 2024 09:45:56 GMT

On 11 April 2022, the Sole Representative category closed to new applicants. Those who already held permission have been able to extend and settle.

A Climate of Harsh Decision-Making

It has become increasingly clear to practitioners that just because a Sole Representative met the requirements in a previous application, and little has changed, does not mean that their extension or settlement application is secure. While in some decisions we have merely seen the Rules being applied more stringently, in other cases there have been unexpected and new interpretations of the Rules.

We have had success in challenging some of these decisions through Administrative Reviews and Judicial Reviews . However, the Judicial Review process comes with costs risks and there is no right of appeal against refusals in this category. Even successful extension and settlement applications can take months longer than expected to decide, with numerous detailed requests for further information and evidence from decision-makers.

We have also seen increased inflexibility demonstrated by decision-makers. Generally, reasons provided for a company’s lack of trading or shareholding issues, even where impacted by the Covid-19 pandemic, are not accepted. Companies that do not have ample evidence to show that each requirement is met, should take advice as to whether continuing in this route is the best option.

Alternative Immigration Options for Businesses

In many cases, UK branches and subsidiaries of overseas companies can apply for Skilled Worker sponsor licences , so that they can switch their sole representatives into the Skilled Worker category. In short, applying for a sponsor licence is a three stage process:

Stage one: The UK company will need to apply for a Sponsor Licence;
Stage two: Once the licence is granted, the UK company will have to assign the proposed applicant a Certificate of Sponsorship;
Stage three: They will then be able to apply for permission to stay in the UK as a Skilled Worker.

Things to note for switching Sole Representatives in particular, are as as follows:

Consider timing: It is necessary to begin this process well in advance of the expiry of a Sole Representative’s permission. Sponsor licence applications can take 1-2 months to prepare. After submission of the application, the published processing time is 8 weeks (although a 10 day priority service is usually available for an additional £500). With the upcoming increases to the Skilled Worker general salary threshold , these decision-making times may stretch as a glut of businesses apply, trying to avoid the hike. The licence needs to be granted before the Skilled Worker application can be made. Ideally, a business would leave 6 months or more before the Sole Representative’s current permission expires for this process to unfold, although at a push it can be done in 3-4 months.
Consider mandatory documentation: Where the UK branch or subsidiary was incorporated less than 18 months before the licence application is made, it is mandatory to have a UK business bank account, with a bank which is both FCA and PRA regulated. The process of opening this account can occasionally take longer than expected, delaying the licence application.
Consider the business structure: If the UK branch or subsidiary is still a one-person operation, this will need to change before a licence application can be made. Companies will need a UK-based British or settled employee or office holder (e.g. a director) in order to take on the Key Personnel roles on the licence. The Key Personnel will need to oversee the company’s compliance with UK employment, company and immigration law, communicate with the Home Office, and manage the licence on a day-to-day basis including reporting changes in circumstances and other essential information. They also cannot be related to the proposed Skilled Worker.
Consider the business’ viability: Where the UK entity is not yet trading, it will be necessary to provide clear evidence of its viability, including that it can afford the proposed Skilled Worker’s salary. This may include evidence of available investment funds, evidence of upcoming contracts or invoices, a business plan and similar. The particular evidence necessary is very specific to the business in question.
Consider salary levels: It may be that the Sole Representatives salary will need to be increased when they switch. There is no minimum salary for a Sole Representative. Skilled Workers on the other hand must meet a complex salary requirement, and levels are due to increase significantly in some circumstances, from April 2024.
Consider the route to settlement: Time spent in the UK as a Sole Representative counts towards the continuous residence requirement when applying to settle as a Skilled Worker. This means that if you have already spent 4 years as a Sole Representative, you will only have to be a Skilled Worker for 1 more year before you can apply to settle (if all other settlement requirements are met).

The extent of the climate of harsh decision-making for Sole Representatives is significant enough that it can be advisable to switch categories rather than risk an extension or settlement application. Our barristers have built up extensive experience both in challenging refusals for Sole Representatives and switching them into the Skilled Worker route. We are happy to advise in detail in a consultation.

Contact our Business Immigration Legal Advisers

For expert advice and assistance with Representative of Overseas Business applications , Skilled Worker applications, Sponsor Licences or compliance issues contact our business immigration legal advisers on 0161 529 7779 or complete our enquiry form below.

Common Mistakes and Errors in UK Visa Applications

Wed, 14 Feb 2024 07:31:21 GMT

When submitting a UK visa application through UKVI, any information provided ought to be true, accurate and complete according to the applicant’s knowledge. However, as the process is oftentimes complex and lengthy, it is not uncommon for applicants to make mistakes while preparing their visa applications. Where a mistake has come to an applicant’s attention, they should consider whether remedial steps should be taken in order to prevent further issues from arising.

The Home Office caseworker guidance on false representations recognises the potential for an applicant to make mistakes in their visa application. Nevertheless, the consequences of submitting an application containing incorrect information can be very severe if there is a finding of false representations, deception, false documents or nondisclosure of relevant facts.

This blog post is the first part of our guide to visa application mistakes. In this post, we discuss common application mistakes and consider what falls within the parameters of an ‘innocent mistake’. In the next post in this series, we will discuss the potential consequences of submitting an application containing mistakes, and what corrective steps can be taken after discovering them.

Common UK Visa Application Mistakes

It is possible to make mistakes in the representations and information submitted in a UK visa application. For this purpose, the Rules encompass statements and details provided either orally or in writing, whether they are provided by the applicant or a third party. This could, for example, include the answers provided in a visa application form, oral answers provided in an immigration interview, or any further submissions provided in an immigration application.

An applicant might also mistakenly fail to disclose relevant facts. Examples of nondisclosure that may adversely affect a UK visa application may include:

Failure to disclose the existence of a family member, where relevant;
Failure to disclose a criminal conviction;
Failure to disclose previous travel to the UK;
Failure to disclose presence of family members in the UK; or
Failure to disclose a visa refusal.

It is equally possible to submit incorrect or irrelevant documents by mistake. Depending on the circumstances, this could have anything from a very minor impact to quite a severe impact on an application. This will be discussed in more detail within Part 2 of this series.

What is Considered an ‘Innocent Mistake’?

The Home Office guidance, Suitability: false representations, deception, false documents, nondisclosure of relevant facts Version 4.0, as published on 14 November 2023, distinguishes between false representations and innocent mistakes. It is important to understand what differentiates the two, as a finding of ‘false representations’ can have serious consequences on a pending application, any future applications, and even on an applicant’s current immigration status in the UK.

Relevant Factors in Determining if a Mistake is ‘Innocent’

If there is reason to suspect a false representation has been made in a visa application, decision makers are required to first consider whether an innocent mistake has, or could have, been made. The guidance states that decision makers must not refuse a visa on grounds of false representations where there may have been an innocent mistake. In considering whether an innocent mistake has been made, the following factors should always be considered:

How easy would it be to make an innocent mistake?
How likely is it that the applicant was unaware the information has been provided?
how likely is it the applicant, or the person providing the information, etc, is aware that the information is incorrect)?
Does the false information benefit the applicant?
Is it contradicted by other answers on the application form, or by any information in any documents provided with the current or a previous application?
Does any endorsement or stamp in the passport or ID document contradict any answer given?
has a new passport been presented, and if so why?
Has this ‘innocent mistake’ also been made on a previous application?

Examples of ‘Innocent Mistakes’

The guidance provides further examples of mistakes that should not prompt a refusal on grounds of false representations. These mistakes normally involve minor, but immaterial inaccuracies. For example, while applicants should of course strive to avoid typographical errors in visa applications, a misspelt name or incorrect postcode should not be cause for a decision maker to refuse an application.

The exception is where a mistake prompts the decision maker to believe that the requirements for a visa are not met in full. The following example is provided in the guidance:

“…if the applicant has said they have an income of £40,000, but has provided evidence only for £4,000, you may take the view that the higher figure was an innocent mistake but may still refuse the application on eligibility grounds if on the evidence provided the required income under the rules is not met.”

Thus, the severity of the mistake made is an important factor in determining the outcome of a case. Even where a mistake results in an application being refused, it is still possible for a decision maker to consider it an innocent mistake rather than a false representation.

Distinguishing an ‘Innocent Mistake’ From a ‘False Representation’

In AA (Nigeria) [2009] EWCA Civ 773 , the Court concluded that “dishonesty or deception is needed” in order to refuse an application on the grounds of false representations under paragraph 9.7.2. Therefore, an innocent mistake – that is, a mistake with no element of dishonesty or deception – should not prompt a mandatory refusal on the grounds of false representations. The court stated:

“…a false representation stated in all innocence may be simply a matter of mistake, or an error short of dishonesty. It does not necessarily tell a lie about itself. In such a case there is little reason for a requirement of mandatory refusal, although a power, even a presumption, of discretionary refusal would be understandable.”

This decision aligns with the longstanding legal principle that carelessness, negligence or innocent mistakes are not equal to dishonesty, as per Royal Brunei Airlines v Tan [1995] UKPC 4 .

However, as highlighted in the judgment of AA (Nigeria) , representations that do not give rise to mandatory grounds for refusal can still give rise to a discretionary power of refusal. This is reflected in paragraph 9.7.1. of the Immigration Rules, which applies to false representations whether or not they are in the applicant’s knowledge. Please see an article for an in depth discussion of false representations and the distinction between paragraph 9.7.1. and paragraph 9.7.2. of the Rules.

What’s Next?

Part 2 of this series will discuss the possible consequences of submitting a UK visa application containing mistakes. This may include a finding of deception, a wrongful refusal of an application, or a grant of permission on an erroneous basis. Part 2 will then discuss the relevant actions an applicant should take if they have submitted an application containing false information.

Contact our Immigration Legal Advisers

For expert advice in relation to a UK visa application or an immigration appeal , contact our immigration legal advisers on 0161 529 7779 or complete our enquiry form below.

Timeline of Recent and Forthcoming UK Immigration Rule Changes in 2024

Thu, 08 Feb 2024 16:01:38 GMT

As we step into the second month of 2024, the United Kingdom’s immigration landscape has already undergone significant transformations this year, fuelled by the government’s overarching goal of reducing net migration. These immigration changes not only reflect the priorities of the present government, but also hold profound implications for individuals, businesses, and families.

In this post, we present a timeline of the key amendments that have been made to the UK’s Immigration Rules so far this year. Additionally, we aim to assist readers in understanding the scheduled implementation dates for upcoming changes to the UK Immigration system in the early months of 2024.

For those who prefer a quick summary, the key dates and relevant changes to the Immigration Rules to be aware of are follows:

1 January 2024: UK Student Visa rules amended to prevent most international students from being accompanied or joined by a dependent whilst studying in the UK;
31 January 2024: Permitted activities for Visitors expanded, right to work conditions for Visitors amended to allow remote working, Permitted Paid Engagement Visitor route merged into the Standard Visitor route and new Appendix Bereaved Partner, Appendix Victim of Domestic Abuse and Appendix Statelessness introduced;
1 February 2024: Electronic travel authorisation (ETA) application process opened for nationals of Bahrain, Kuwait, Oman, the United Arab Emirates, Saudi Arabia and Jordan;
6 February 2024: Immigration Health Surcharge (IHS) will increase by 66%;
13 February 2024: Fines for illegal working will triple under a new Civil Penalty regime;
11 March 2024: Care workers (SOC code 6145) and senior care workers (SOC code 6146) will not be permitted to bring dependents to the UK and care homes in England will be required to be regulated by the Care Quality Commission (CQC) in order to sponsor migrants under the Health and Care Worker visa route;
14 March 2024: A new Statement of Changes to the Immigration Rules will be laid before Parliament which will replace the existing Shortage Occupation List (SOL) with a new Immigration Salary List;
4 April 2024: The minimum salary threshold for a Skilled Worker visa will rise from £26,200 to £38,700 per annum;
6 April 2024: The requirement to renew Sponsor Licences will be removed;
11 April 2024: The minimum income requirement for partners applying under Appendix FM will be increased from £18,600 to £29,000.

1 January 2024: Changes to the UK Student Visa Rules For Dependants

On 1 January 2024, the UK Student Visa rules were amended to prevent most international students from being accompanied or joined by a dependent whilst studying in the UK.

The new student dependent rules apply to students who applied after 3pm on 17 July 2023 for a course of study commencing on or after 1 January 2024. Under the new rules, a student who commences their studies on or after 1 January 2024 may only bring dependents to the UK if they are either a full-time student on a PhD or doctorate degree or a research-based higher degree course that lasts 9 months or longer, or they are a government-sponsored student studying a course that lasts for more than 6 months.

In practice, this means that students studying a non-research based Master’s degree can no longer sponsor their dependents under the Student Visa route. As for undergraduate students, only Bachelor students who are on a government-sponsored programme, of at least 6 months, are now able to bring their dependents to the UK.

Related post: Changes to the UK Student Visa Rules For Dependants From 1st January 2024

31 January 2024: Changes to the UK Visit Visa Rules

Three key changes were made to the UK’s Visit Visa rules at the end of January 2024.

On 31 January 2024, the range of permitted activities for Visitors was expanded, with the aim of making it easier for Visitors to do business in the UK. Notably, the prohibition on Business Visitors working directly with clients for intra-corporate activities was removed (although client-facing activity must be incidental to the visitor’s employment abroad and should not amount to the offshoring of a project or service to their overseas employer) and scientists, researchers, and academics can now engage in research activities beyond independent research for individual purposes.

Historically, Visitors to the UK have not been permitted to work in the UK or, with few exceptions, receive payment from a UK source for any activities undertaken in the UK. Whilst this basic principle remains, on 31 January 2024 the right to work conditions for Visitors were amended to allow Visitors to the UK to work remotely while in the UK. There is an important caveat however – the main purpose of the visit to the UK must be to undertake a permitted activity, rather than specifically to work remotely from the UK. In other words, remote working must not be the primary purpose of the visit.

Finally, on 31 January 2024 the Permitted Paid Engagement Visitor route was merged into the Standard Visitor route. This means that all visitors can now undertake permitted paid engagements without the need for a special visa. It’s crucial to note, however, that individuals intending to participate in a PPE must have arranged their activity before travelling to the UK. Additionally, the activity must be completed within 30 days of entry to the UK, even though the Visitor’s visa will be valid for 6 months.

31 January 2024: Introduction of new Appendix Bereaved Partner, Appendix Victim of Domestic Abuse and Appendix Statelessness

On 31 January 2024, the newly introduced Appendix Bereaved Partner took the place of existing provisions for bereaved partners and their dependent children found in Part 8, Appendix FM, and Appendix Armed Forces of the Immigration Rules. Of note, Appendix Bereaved Partner includes provisions for dependent children of Bereaved Partners, recognising the interconnected nature of family units affected by bereavement.

On the same day, Appendix Victim of Domestic Abuse replaced existing provisions for Victims of Domestic Abuse and their dependent children in Part 8, Appendix FM and Appendix Armed Forces of the Immigration Rules. Appendix Victim of Domestic Abuse allows victims of domestic abuse and their dependents to apply for entry clearance from outside the UK. This is particularly crucial for individuals who have been abandoned overseas as part of the domestic abuse they have endured.

Also on 31 January 2024, Appendix Statelessness replaced existing provisions for Stateless Persons in Part 14 of the Immigration Rules.

1 February 2024: Changes to the Electronic Travel Authorisation (ETA) scheme

Electronic Travel Authorisation (ETA) is a new requirement for passengers visiting or transiting through the UK who do not currently need a visa for short stays or who do not already have any other UK immigration status.

Qatari nationals have needed to apply for a UK Electronic Travel Authorisation since 25 October 2023.

On 1 February 2024, the electronic travel authorisation (ETA) application process opened for the remaining nationals of the Gulf states (Bahrain, Kuwait, Oman, the United Arab Emirates and Saudi Arabia) and Jordan. Nationals of these countries will be required to hold a UK ETA in order to visit or transit the UK from 22 February 2024.

Electronic Travel Authorisation will become mandatory for all other non-visa nationals before the end of 2024.

6 February 2024: Increase in the Immigration Health Surcharge (IHS)

The Immigration Health Surcharge is an upfront cost paid alongside the submission of (most) visa applications so that the individual is entitled to have full access to the National Health Service (NHS) whilst in the UK. There is no limit to how often one can access the NHS. Additionally, there is no option to opt out of the Immigration Health Surcharge even if an applicant believes that they will not use the NHS or would prefer to pay for private health care.

On 6 February 2024, the Immigration Health Surcharge is increasing for students, student dependants, those applying for entry clearance or leave to remain under the Youth Mobility Scheme, and applications made by children under the age of 18 from £470 per year to £776 per year.

For all other relevant immigration categories for entry clearance or leave to remain in respect of persons aged 18 years or over at the date of application the Immigration Health Surcharge is increasing from £624 per year to £1,035 per year.

For details of persons who are not affected by the Immigration Health Surcharge (IHS) increase on 6 February 2024, please refer to our related post below.

13 February 2024: Increase in Fines for Illegal Working

A new civil penalty regime will come into force on 13 February 2024.

Currently, the civil penalty for employing an illegal worker is a maximum of £15,000 per illegal worker, where this is the employer’s first offence. If the employer is a repeat offender, the maximum fine increases to £20,000 per illegal worker.

The new civil penalty regime will increase the fine for employing an illegal worker to a maximum of £45,000 per illegal worker, for a first time offender. Repeat offenders will be subject to a maximum fine of £60,000 per illegal worker.

11 March 2024: Changes to Health and Care Worker Visa Rules For Dependants

The Health and Care Worker Visa is open to qualified doctors, nurses and other health and adult social care professionals who wish to undertake an eligible job with the NHS, an NHS supplier or in adult social care.

Currently, all Health and Care Workers may be joined or accompanied by a dependent partner over the age of 18 and/or a dependent child under the age of 18.

However, from 11 March 2024, care workers (SOC code 6145) and senior care workers (SOC code 6146) will not be permitted to bring dependents to the UK.

Care workers and senior care workers already in the Health and Care Worker route will be able to remain with their dependants, including extending, changing employer (within the above SOC codes) and settlement.

Where a care worker or senior care worker is in the route before the Immigration Rules change, but has not yet brought dependents, they will still be allowed to bring dependents during their sponsorship on the route.

Additionally, from 11 March 2024, care homes in England will be required to be regulated by the Care Quality Commission (CQC) in order to sponsor migrants under the Health and Care Worker visa route.

Care providers who were sponsoring workers in exclusively non-regulated activities (and therefore were not required to be registered with the CQC) before the rules change will be able to continue to sponsor these workers, including for extensions to their visa on those terms, but not hire new ones.

These changes to the Health and Care Worker route will be brought in on 11 March 2024 via a Statement of Changes to the Immigration Rules that will be laid before Parliament on 19 February 2024.

14 March 2024: Introduction of a New Immigration Salary List

On 14 March 2024, a new Statement of Changes to the Immigration Rules will be laid before Parliament which will replace the existing Shortage Occupation List (SOL) with a new Immigration Salary List.

The new Immigration Salary List will remove the 20% going rate discount to the minimum salary for shortage occupation roles.

This follows a recommendation from the Migration Advisory Committee (MAC), which will now advise the government on which occupations should be temporarily added to the new list.

Employers should anticipate a reduction in the number of occupations on the list, potentially impacting recruitment strategies in specific industries.

Related post: How the New Immigration Policies Affect Britons and Businesses

4 April 2024: Increase in Skilled Worker Minimum Salary Threshold

On 4 April 2024, the minimum salary threshold for a Skilled Worker visa will rise from £26,200 to £38,700 per annum and individual occupation ‘going rate’ thresholds will rise in line with the median full-time wage for equivalent jobs in 2023.

Those already on the Skilled Worker visa route before the Immigration Rules change will not be subject to the new threshold when they change employment, extend their stay or settle in the UK. The Home Office will, however, expect their pay to progress at the same rate as resident workers when they next make an application to change employment, extend their stay, or settle.

Those coming on the Health and Care Visa route will be exempt from the £38,700 salary threshold applicable to Skilled Workers, as will education workers in national pay-scale occupations.

These changes to the Skilled Worker route will be brought in on 4 April 2024 via a Statement of Changes to the Immigration Rules that will be laid before Parliament on 14 March 2024.

6 April 2024: Sponsor Licence Renewals Abolished

The Home Office has recently announced that from 6 April 2024, the requirement to renew Sponsor Licences will be removed.

At present, Sponsor Licences are valid for four years. If licence holders wish to keep their licence beyond the four years, they must make a paid renewal application .

From 6 April 2024, Sponsor Licence holders will no longer need to make a renewal application or pay a renewal fee. Instead, the expiry date of all sponsor licences will automatically be extended to expire in 10 years’ time.

This removal of the renewal requirement is being applied to all sponsor licences that are due to expire on or after 6 April 2024, and not only to new licences obtained after this date. The extension of the expiry date will be automatic and Sponsors will not be required to take any action.

11 April 2024: Increase in Minimum Income Requirement for Family Visas

On 11 April 2024, the minimum income requirement for partners applying under Appendix FM will increase from £18,600 to £29,000.

This change to the minimum income requirement for partners applying under Appendix FM will be brought in via a Statement of Changes to the Immigration Rules that will be laid before Parliament on 14 March 2024.

Individuals who are already on the five-year partner route before the minimum income requirement is increased on 11 April 2024 and who wish to apply to extend their stay or settle in the UK will continue to be assessed against the £18,600 income requirement and will not be required to meet the increased threshold of £29,000.

Similarly, individuals who apply for a partner visa on the five-year partner route before the minimum income threshold is raised from £18,600 on 11 April 2024, will have their applications assessed against the current £18,600 income requirement and will not be required to meet the increased threshold of £29,000

Contact our Immigration Legal Advisers

For expert advice and assistance in relation to a UK visa application or immigration appeal, contact our immigration barristers on 0161 529 7779 or complete our enquiry form below.

Grounds for Refusal of a UK Immigration Application (Part 2)

Mon, 29 Jan 2024 10:27:43 GMT

In Part 1 of this two-part series on grounds for refusal of a UK immigration application, we looked at refusals on non-conducive grounds, criminality grounds and for breach of immigration laws. In Part 2 will examine immigration refusal decisions based on exclusion, deportation orders or travel ban grounds, false representations grounds, involvement in sham marriage/civil partnership grounds and exclusion from asylum or humanitarian protection grounds.

Which Immigration Applications Does Part 9 Apply To?

As set out in Part 1 of this two-part series, Part 9 of the Immigration Rules applies to the vast majority of immigration applications. However, there are several types of applications which it does not apply to, so it is worth checking prior to the consideration of Part 9. Section 1 of Part 9 states that Part 9 does not apply to immigration applications made under:

Appendix EU
Appendix EU (Family Permit)
Appendix S2 Healthcare Visitor
Appendix Service Providers from Switzerland
Appendix Settlement Protection
Appendix Electronic Travel Authorisation

It also only applies in part to some applications, including those made under:

Appendix FM
Appendix Private Life
Appendix Armed Forces
Part 11 (Asylum)
Appendix Settlement Family Life
Appendix Adult Dependent Relative

Refusals on Exclusion, Deportation Order or Travel Ban Grounds

Under paragraph 9.2.1 of Part 9 of the Immigration Rules:

An application for entry clearance, permission to enter or permission to stay must be refused where:

(a) the Secretary of State has personally directed that the applicant be excluded from the UK; or

(b) the applicant is the subject of an exclusion order; or

The Home Office sets out a number of grounds for exclusion, including:

National security
Criminality
International crimes (war crimes, crimes against humanity or genocide)
Corruption
Extremism
Unacceptable behaviour
In limited circumstances, sham marriage.

9.2.1 (a) and (b) are mandatory grounds for refusal. This remains the case as long as the exclusion decision is still in force. An exclusion decision or order remains in place indefinitely, until it is revoked.

Where an applicant is subject to a deportation order, it is possible to request as part of an entry clearance application that the deportation order be revoked, and the request for revocation should be considered prior to the entry clearance application.

Deception and False Representations Grounds

The burden is on the Home Office to establish that it is more likely than not that deception was used in respect of the current application and, if established, this is a mandatory ground for refusal.

Deception is defined in the guidance as a deliberate intention to deceive. Alongside the visa refusal, a finding of deception attracts a 10-year re-entry ban to the UK. Therefore, if you have been wrongly accused of deception you may seek to challenge the decision .

There is a further discretionary ground for refusal of an application if in relation to the application, or in order to obtain documents from the Secretary of State or a third party provided in support of the application:

false representations are made, or false documents or false information submitted (whether or not relevant to the application, and whether or not to the applicant’s knowledge); or
relevant facts are not disclosed.

This discretionary ground therefore also includes documents issued by a third party, for example an Acceptance of Studies document issued for a Student visa , and this ground can be engaged even when the applicant is unaware that the document is false. It further relates to the omission of information and as such it is good practice to disclose all relevant information asked for on the application form.

Involvement in Sham Marriage/Civil Partnership Grounds

Paragraph 9.6.1 of Part 9 of the Immigration Rules states:

An application for entry clearance, permission to enter or permission to stay may be refused where the decision maker is satisfied that it is more likely than not that the applicant is, or has been, involved in a sham marriage or sham civil partnership.

This is a discretionary ground for refusal.

Sections 24 and 24A of the Immigration and Asylum Act 1999 set out that a sham marriage is one in which:

one or both of the parties is not a relevant national (this means a British citizen, EEA national or Swiss national)
either or both of the parties enter into the marriage or civil partnership for the purpose of circumventing UK immigration controls
there is no genuine relationship between the parties

The Home Office may conduct a marriage investigation to establish whether the relationship is a sham. This will include an assessment of the genuineness of a relationship and any potential/actual advantage that the relationship would create by circumventing UK immigration controls.

This will be decided on a case-by-case basis but guidance is given about potential circumstances which might give rise to the finding of a sham marriage:

in relation to UK marriage preliminaries (the marriage referral and investigation scheme) where the Home Office chooses to investigate prior to the marriage or civil partnership.
following intelligence or other Immigration Enforcement (IE) encounters that raise reasonable suspicions that a relationship may be a sham
criminal investigations into sham marriages and related offences:
following applications for permission to enter or remain in the UK based on spousal relationships
following applications for a marriage visitor visa UK to enter to UK for marriage tourism

Exclusion from Asylum or Humanitarian Protection Grounds

An application for entry clearance, permission to enter or permission to stay may be refused on suitability grounds where the applicant is, or would be, excluded from protection.

Exclusion from protection means that the applicant has previously made a protection claim in the UK and any of the following apply:

a decision has been made that the person is excluded from being a Refugee under paragraph 339AA of Part 11 of the Immigration Rules
a decision has been made that the person is excluded from humanitarian protection under paragraph 339D of Part 11 of the Immigration Rules
a decision has been made that the person’s humanitarian protection is revoked on the grounds of exclusion under paragraph 339GB of Part 11 of the Immigration Rules
a decision has been made that the person is a danger to the security or having been convicted by a final judgement of a particularly serious crime, the person is a danger to the community of the UK under paragraph 339AC of Part 11 of the Immigration Rules

The above can also apply when the applicant has not yet made a protection claim, but would be excluded from protection if they were to make one.

Where this ground applies, it is likely that other suitability grounds will also apply, such as non-conducive grounds or criminality grounds).

Contact Our Immigration Legal Advisers

For expert advice and assistance with the application of Part 9 Grounds for Refusal or any UK visa application or immigration appeal, contact our Immigration legal advisers on 0161 529 7779 or complete our enquiry form below.

Choosing the Right UK Partner Visa: Marriage Visit, Spouse, Unmarried Partner, or Fiancé?

Thu, 25 Jan 2024 10:23:17 GMT

Given the government’s intention to increase the minimum income threshold for family visas in “Spring 2024” , many people are looking to make a visa application before these changes come into effect. If you are considering applying for a visa so that you can stay in the UK with your British or settled partner, the differences between the marriage visit visa , fiancé , unmarried partner and spouse applications may be confusing. This post outlines the differences between these applications, to give you a better idea about which option may be right for you.

If You Want to Marry In the UK but Do Not Intend to Live In the UK

Marriage Visit Visa

If you are currently living outside the UK and do not plan to settle in the UK, but you want to visit the UK and have your legal wedding ceremony or form a civil partnership here, you will need to apply for a marriage visit visa . This means you will need to meet all the normal rules for visitors to the UK. In particular, you must intend to leave the UK at the end of your visit. As a visitor, you must not live in the UK for extended periods through making frequent and successive UK visits. You will also need to meet the additional eligibility requirements for visitors coming to the UK for the purpose of marriage or civil partnership. These are that you must be aged 18 or over at the date of application and you must intend to give notice of a marriage or civil partnership in the UK, or intend to marry or form a civil partnership in the UK, which is not a sham.

If you come to the UK on a marriage visit visa, you will not be able to switch to one of the other partner visas during your visit to the UK. You can read more about the difference between a marriage visit visa and a fiancé visa.

It currently costs £115 to apply for a marriage visit visa .

If You Intend to Live In the UK: Applying as a Partner Under Appendix FM

The spouse / civil partner , unmarried partner and fiancé options are all routes for settling in the UK. All three visa options are partner applications under Appendix FM of the Immigration Rules. If you do not meet the requirements of any of these routes, potential exceptions are indicated at the end of this post.

What Immigration Status Is Needed to Sponsor a Partner Under Appendix FM?

To sponsor a partner under Appendix FM, it is necessary to be either:

A British citizen;
Someone with indefinite leave to remain/settled status;
An EEA national with pre-settled status under Appendix EU who was in the UK by 31 December 2020;
Someone in the UK with protection status;
Someone in the UK with limited leave as a worker or business person granted under Appendix ECAA Extension of Stay or under the provisions of the relevant 1973 Immigration Rules (or Decision 1/80) that underpinned the European Community Association Agreement (ECAA) with Turkey prior to 1 January 2021.

Can I Apply as a Parent Instead?

You cannot apply as a parent if you are eligible to apply as the partner of the child’s other parent.

Different Ways to Meet the Definition of ‘Partner’ Under Appendix FM

The spouse/civil partner, unmarried partner and fiancé options are all different ways to meet the definition of ‘partner’ under Appendix FM. Depending on the visa you are applying for, you will need to show some different evidence to prove that you meet the relevant definition. Additionally, the fiancé visa is valid for a different time period and this route involves additional costs, set out below.

At the time of writing, the same online application form applies for partner applications under Appendix FM regardless of whether you are applying as a spouse, unmarried partner or fiancé. There is one online form for applications made from inside the UK, and a different one for applications made from outside the UK.

Applying as Spouses or Civil Partners

If you are currently in a valid marriage or civil partnership (with a partner whose immigration status means they can sponsor someone under Appendix FM as set out above) and want to live permanently in the UK, the relevant partner visa would be a spouse visa .

This also means that, if you are currently unmarried, an option could be that you enter a valid marriage and then apply to enter the UK as a spouse. The spouse/civil partner route does not require showing two years’ cohabitation.

If you are currently outside the UK and applying for a spouse visa to enter the UK, the visa would be valid for 33 months initially. If you are applying from inside the UK, the visa will be valid for 30 months. You can then apply to extend a spouse visa for a further 30 months. If you meet all the requirements for leave to remain as a partner under Appendix FM without relying on one of the human rights exceptions mentioned below, after a continuous period of 60 months with leave as a spouse or civil partner, you would be eligible to apply for settlement.

The current Home Office fee for making an application as a partner from outside the UK is £1,846. If you are currently in the UK on a visa that allows you to switch to the partner route (it is generally not possible to apply from inside the UK if you are in the UK as a visitor or without leave) then the Home Office Application fee is currently £1,048. You can check the fees. You would also need to pay the Immigration Health Surcharge. The Immigration Health Surcharge is set to increase significantly this year; the change was debated on 10 January 2024 and will come into effect on 6 February 2024 .

Applying as Unmarried Partners

An unmarried partner is defined under Appendix FM as ‘a person who has been living together with the applicant in a relationship akin to a marriage or civil partnership for at least two years prior to the date of application’.

The two-year period of cohabitation does not need to be the two years immediately preceding the date of application, as long as the relationship continues to be genuine and subsisting at the date of application.

As with the spouse/civil partner route, an unmarried partner visa is initially valid for 33 months if you are applying from outside the UK, and for 30 months if you are applying from inside the UK. After 60 months with leave as a partner, unless you are relying on an exception in order to meet the requirements, you will be eligible to apply for settlement in the UK.

The Home Office fees for an unmarried partner visa are the same as those for a spouse/civil partner visa set out above. You would also need to pay the Immigration Health Surcharge.

Applying as Fiancés or Proposed Civil Partners

If you are currently outside the UK and want to come to the UK to get married or form a civil partnership and live permanently in the UK, then you should apply for the fiancé visa .

The fiancé route does not require showing two years’ cohabitation. You cannot apply for leave to remain as a fiancé from inside the UK.

A grant of entry clearance as a fiancé is for a period of six months only and you are expected to marry/form a civil partnership in the UK within this time. You would then need to make an application to stay in the UK as a spouse/civil partner.

This means the fiancé route is more expensive than the unmarried partner or spouse visa routes. The initial application for a fiancé visa currently costs £1,846. This visa is valid for six months. You do not pay the Immigration Health Surcharge at this point. Once you have entered the UK and married/formed a civil partnership, you can apply for leave to remain as a spouse/civil partner. This leave would be valid for 30 months. This application for leave as a spouse/civil partner costs £1,048 (as you would be applying from inside the UK). In this application you would also pay the Immigration Health Surcharge. You would then be able to apply to extend the visa for a further 30 months, again paying the application fee and Immigration Health Surcharge. Unless you are relying on a human rights exception to meet the requirements of Appendix FM (outlined below), you would be eligible to apply for settlement after a continuous period of at least 60 months with leave as a partner – this 60 months does not include time spent in the UK with leave to remain as a fiancé or proposed civil partner.

Additional Requirements

For all of these options, you will need to prove that you are in a genuine and subsisting relationship with your partner, and that you meet certain other requirements, for example regarding your intention to live together in the UK.

You will also need to meet the financial requirements. The financial threshold for a couple without children is currently £18,600 per year; as per the Government’s most recent announcement regarding increasing the minimum income threshold, this will increase to £29,000 in Spring 2024. An exception to this minimum threshold applies if your partner is receiving certain benefits, including disability living allowance, carer’s allowance and personal independence payments. You can read more about navigating the new partner and family visa financial requirements.

In addition, you will need to show that you will have adequate accommodation in the UK that will not be overcrowded, and show that you meet the English language requirement.

Exceptions

If any of the requirements for entry clearance or leave to remain as a partner discussed in this post are not met, it may be possible to make an argument that an application should be granted based on the risk of breaching the applicant’s or another family member’s rights under article 8 of the European Convention on Human Rights.

See our earlier blog post on the exception under paragraph EX.1 of Appendix FM, for cases where the immigration status, financial, accommodation or English language requirements are not met but there are insurmountable obstacles to family life with a partner or settled child continuing outside the UK;
See also our earlier blog post on the general exception under paragraph GEN.3.2 of the Immigration rules for cases where there are exceptional circumstances that mean a refusal would involve breaching Article 8 ECHR because the refusal would have unjustifiably harsh consequences for the applicant or another family member;
It may also be possible to make an application outside of the Immigration rules. These applications have a high threshold and individuals considering this route should seek legal advice.

Contact our Immigration Legal Advisers

We recommend seeking legal advice before making any partner application. It is particularly important to do this if you believe you do not clearly meet the requirements of Appendix FM of the Immigration rules.

For expert advice in relation to a UK visa application or immigration appeal, contact our immigration legal advisers on 0161 529 7779 or complete our enquiry form below

IHS Fee Set to Increase 66% on 6 February 2024

Tue, 23 Jan 2024 09:05:22 GMT

On 13 October 2023, the UK Government announced a substantial 66% increase in the Immigration Health Surcharge (IHS). A delegated legislation committee of the House of Commons approved the Immigration (Health Charge) (Amendment) Order 2023 on 16th January 2024. The increase in the Immigration Health Surcharge (IHS) will now take effect from 6th February 2024. In this post, we’ll delve into the core aspects of the Immigration Health Surcharge, its purpose, and the reasons behind the upcoming increase. We’ll explore who is affected by the Immigration Health Surcharge rise, and provide insights into the government’s motives for this significant uplift to the IHS.

What Is the Immigration Health Surcharge (IHS)?

The Immigration Health Surcharge, or IHS, was first introduced on 6 April 2015 to ensure migrants contribute to the cost of healthcare provided by the NHS.

The Immigration Health Surcharge is an upfront cost paid alongside the submission of (most) visa applications so that the individual is entitled to have full access to the National Health Service (NHS) whilst in the UK. There is no limit to how much one can access the NHS. Additionally, there is no option to opt out of the Immigration Health Surcharge even if you believe you will not use the NHS or would prefer to pay for private health care.

The Immigration Health Surcharge is normally applicable to individuals applying for permission to enter the UK for six months or more, or for individuals making visa applications from within the UK for any length of time (with the exception of applications for indefinite leave to remain or for applications to naturalise as a British citizen).

The IHS is charged per year and covers the duration of any visa application applied for.

When Do I Pay the Immigration Health Surcharge?

The Immigration Health Surcharge is applicable when making the online visa application. When you are submitting the online visa application you will be redirected to the appropriate Immigration Health Surcharge payment page. The payable fee will be calculated in accordance with the visa for which you are applying for and will amount to the duration of that visa. Please note that this fee is sometimes rounded up and may therefore be higher than expected.

Additionally, there is no control on the currency exchange rate used. As outlined in the Home Office Exchange Rate Policy, the exchange is normally 4% above the Oanda live bid rates. After the Immigration Health Surcharge is successfully paid you will be redirected back to the online form to pay the application fee. Additionally, you will be sent a confirmation email which includes the IHS reference number.

When Is the IHS Increasing?

Originally set to take effect from 16 January 2024, a delegated legislation committee of the House of Commons approved the Immigration (Health Charge) (Amendment) Order 2023 on 16th January 2024. The increase in the Immigration Health Surcharge (IHS) will now take effect from 6th February 2024. Applicants who wish to avoid the increased IHS fee should apply before 6 February 2024.

Why Is the Immigration Health Surcharge Increasing?

The Immigration Health Surcharge has increased in line with the 2019 manifesto commitment as outlined in the the equality impact assessment , which states that:

“The increase continues to deliver the 2019 manifesto commitment to ensure that the Health Charge reflects the full cost to the NHS of treating Health Charge payers. The increases to the Health Charge will ensure that the full cost of providing NHS services for those who pay the Health Charges are covered.”

Previously, the Government stated the increase was to be used to fund public sector pay increases. However, this has since been dropped after legality issues were raised, as explored in our previous post.

What Is the IHS Increasing to and Who Is Affected by This Increase?

The details of the Immigration Health Surcharge increase have been confirmed in the Immigration (Health Charge) (Amendment) Order 2023 . The Order needs to be approved by both Houses of Parliament and ratified.

The Immigration Health Surcharge is increasing for students, student dependants, those applying for entry clearance or leave to remain under the Youth Mobility Scheme, and applications made by children under the age of 18 from £470 a year to £776 a year.

Please note, we have previously highlighted in a post that some application fees increased on 04 October 2023.

Who Is Not Affected by the Immigration Health Surcharge (IHS) Increase?

There is no IHS for Health and Care workers , visitors , those applying under the EU Settlement Scheme , or for those applying for entry clearance as a Fiance under Appendix FM. Likewise, there is no Immigration Health Surcharge for those claiming asylum or applying for entry clearance or permission to stay under the Ukraine Scheme. Additionally, there is no requirement to pay the IHS for those applying for indefinite leave to remain or for British Citizenship .

A full list for those who are not affected by the Immigration Health Surcharge increase can be found in our previous post.

Additionally, people who cannot afford to pay the IHS can request a fee waiver if they have credibly demonstrated that they cannot afford the fee. For more guidance on eligibility please see our post below.

Fee Waivers for UK Immigration Applications: Part 1
Fee Waivers for UK Immigration Applications: Part 2
Affordability Fee Waivers: Citizenship Registration for Under-18’s

What Happens if I Do Not Pay the Immigration Health Surcharge?

As stated under paragraph 34(4) of the Immigration Rules, a failure to pay the IHS will result in an invalid application and your application will not be processed. If applying from inside the UK, your application will be rejected within 10 working days, and if applying from outside the UK, your application will be rejected within 7 working days.

Can I Get the Immigration Health Surcharge Refunded?

If you withdraw your application or your application is refused you can apply for a refund of the Immigration Health Surcharge. To find out more on Immigration Health Surcharge refunds please see our guide.

Contact Our Immigration Legal Advisers

For expert advice and assistance in relation to a visa or immigration application, contact our immigration legal advisers on 0161 529 7779 or complete our enquiry form below.

UK Visa Application Fees 2024

Fri, 19 Jan 2024 16:55:37 GMT

If you’re in the process of applying for a UK visa from outside the country, seeking an extension of your stay or aiming for indefinite leave to remain, it’s important to note that a Home Office visa application fee is a mandatory part of the application process.

The specific amount of the visa application fee will vary based on factors such as the type of visa or immigration application you’re pursuing, whether the application is made from within or outside the UK, and whether you opt for a Home Office premium service for application submission.

It’s crucial for each applicant to pay the applicable fee for their visa or immigration application in full, following the prescribed application procedure. The UK visa application fee to be paid will be determined by the fee in effect on the date of your application.

In 2024, the United Kingdom’s visa landscape is evolving, and with it, so are the costs involved. Whether you’re planning a short-term visit, a long-term study programme, to join family or pursue employment in the UK, understanding the latest visa application fees is crucial for effective planning. In this comprehensive guide, we’ll walk you through the latest UK visa application fees in force in 2024, shedding light on the various categories and recent changes.

Recent Changes to UK Visa Application Fees

The cost of applying for most, but not all, UK visas increased on 4 October 2023. This increase applied to both applications for entry clearance submitted from outside the UK and applications for leave to remain submitted from within the UK. Settlement and citizenship applications were also impacted.

The application fee for the majority of UK visa applications increased by 15%, with the cost of applying for a family visa (spouse, civil partner, fiance, proposed civil partner, unmarried partner), indefinite leave to remain and naturalisation as a British citizen increasing by 20% and the cost of applying for a student visa increasing by 35%:

Visit visa (6 months) – up by 15% from £100 to £115
Skilled Worker visa – up by 15% from £625 to £719
Innovator Founder visa – up by 15% from £1,036 to £1,191
High Potential Individual visa – up by 15% from £715 to £822
UK Expansion Worker visa – up by 15% from £259 to £298
Global Talent visa – up by 15% from £623 to £716
Scale-up visa – up by 15% from £715 to £822
Student visa – up by 35% from £363 to £490
Graduate visa – up by 15% from £715 to £822
Spouse visa – up by 20% from £1,538 to £1,846
Indefinite leave to remain – up by 20% from £2,404 to £2,885
Naturalisation as a British citizen – up by 20% from £1,250 to £1,500

The cost of applying for a settlement visa from overseas via the Priority Visa Service dropped by 13% from £573 to £500, but the cost of applying for a non-settlement visa from overseas via the Priority Visa Service increased by 100% from £250 to £500.

However, not all UK visa application fees increased.

For example, the cost of applying for a private medical treatment visa for a period of more than 6 months remained the same at £200, whilst the cost of applying for a 5 year Hong Kong BN(O) visa remained at £250.

Employers applying for a sponsor licence also avoided a fee increase, with the Home Office fee for both a worker sponsor licence application and a temporary worker sponsor licence application remaining at £536 for a small sponsor and £1,476 for a large sponsor.

That said, it was not all good news for employers, as the cost of allocating a certificate of sponsorship increased by between 19% and 20%.

UK Visa & Immigration Application Fees 2024

The tables below set out the UK visa application fees for all visa and immigration applications submitted in 2024. The tables include application fees for the following immigration categories:

Short Stay Visit Visas
Partner & Family Visas
Long Term Work Visas
Short Term Work Visas
Business Visas
Business Mobility Visas
Global Talent Visas
Student & Graduate Visas
Hong Kong BN(O) Visas
British Citizenship

The majority of UK visa applicants will also be required to pay the Immigration Health Surcharge (IHS) on top of their UK visa application fee. For information on the Immigration Health Surcharge and who needs to pay it, please see our previous post . Applicants should note, however, that the UK Government has announced proposals to increase the Immigration Health Surcharge .

Some, but not all, employers who recruit foreign workers may also be required to pay an Immigration Skills Charge .

To discuss your UK visa application with one of our immigration legal advisers contact our immigration lawyers on 0161 529 7779 or complete the enquiry form below.

UK Work Visa Application Fees 2024

Work Visa Applications Submitted Outside the UK

Innovator founder – main applicant and dependants.

£1,191

Endorsement fee under Innovator Founder route (payable to endorsing body) excluding VAT

£1,000

Start-up – main applicant and dependants

£435

Approval letter from a competent body in respect of an initial application for Global Talent

£524

Global Talent – main applicant – where Approval Letter is required

£192

Global Talent – main applicant – where Approval Letter is not required

£716

Global Talent – dependants only

£716

Tier 1 (Exceptional Talent) – dependants only

£716

Tier 1 (Entrepreneur) – dependants only

£1,191

Tier 1 (Investor) – main applicant and dependants

£1,884

Skilled worker, where a certificate of sponsorship has been issued for three years or less – main applicant and dependants

£719

Skilled Worker, where a certificate of sponsorship has been issued for over three years – main applicant and dependants

£1,420

Skilled Worker – shortage occupation where a certificate of sponsorship has been issued for three years or less – main applicant and dependants

£551

Skilled Worker, shortage occupation where a certificate of sponsorship has been issued for over three years – main applicant and dependants

£1,084

Skilled Worker – Health and Care Visa – where a certificate of sponsorship has been issued for three years or less – main applicant and dependants

£284

Skilled Worker – Health and Care Visa – where a certificate of sponsorship has been issued for over three years – main applicant and dependants

£551

Skilled Worker – Shortage Occupation – Health and Care Visa – where a certificate of sponsorship has been issued for three years or less – main applicant and dependants

£284

Skilled Worker – Shortage Occupation – Health and Care Visa – where a certificate of sponsorship has been issued for over three years – main applicant and dependants

£551

T2 Minister of Religion – main applicant and dependants

£719

International Sportsperson where a certificate of sponsorship has been issued for 12 months or less – main applicant and dependants

£298

International Sportsperson where a certificate of sponsorship has been issued for over 12 months – main applicant and dependants

£719

Temporary Work – Seasonal Worker, Religious Worker, Charity Worker, Creative Worker, International Agreement, Government Authorised Exchange and Youth Mobility Scheme – main applicant and dependants

£298

Representative of an overseas business – main applicant and dependants

£719

Global Business Mobility - Senior or Specialist Worker – up to 3 years – main applicant and dependants

£719

Global Business Mobility – Senior or Specialist Worker – more than 3 years -main applicant and dependants

£1,420

Global Business Mobility - Graduate Trainee – main applicant and dependants

£298

Global Business Mobility - Service Supplier – main applicant and dependants

£298

Global Business Mobility - UK Expansion Worker – main applicant and dependants

£298

Global Business Mobility - Secondment Worker – main applicant and dependants

£298

Scale – main applicant and dependants

£822

High Potential Individual – main applicant and dependants

£822

Work Visa Applications Submitted Inside the UK

Innovator Founder – main applicant and dependants

£1,486

Endorsement fee under Innovator Founder route (payable to endorsing body) excluding VAT

£1,000

Start-up – main applicant and dependants

£584

Approval letter from a competent body in respect of an initial application for Global Talent

£524

Global Talent – main applicant – where Approval Letter is required

£192

Global Talent – main applicant – where Approval Letter is not required

£716

Global Talent – dependants only

£716

Graduate Route – main applicant and dependants

£822

Tier 1 (Exceptional Talent) – dependants only

£716

Tier 1 (Entrepreneur) – main applicant and dependants

£1,486

Tier 1 (Investor) – main applicant and dependants

£1,884

Skilled Worker , where a certificate of sponsorship has been issued for three years or less – main applicant and dependants

£827

Skilled Worker, where a certificate of sponsorship has been issued for over three years – main applicant and dependants

£1,500

Skilled Worker, shortage occupation where a certificate of sponsorship has been issued for three years or less – main applicant and dependants

£551

Skilled Worker, shortage occupation where a certificate of sponsorship has been issued for over three years – main applicant and dependants

£1,084

Skilled Worker – Health and Care Visa – where a certificate of sponsorship has been issued for three years or less – main applicant and dependants

£284

Skilled Worker – Health and Care Visa – where a certificate of sponsorship has been issued for over three years – main applicant and dependants

£551

Skilled Worker – Shortage Occupation – Health and Care Visa – where a certificate of sponsorship has been issued for three years or less – main applicant and dependants

£284

Skilled Worker – Shortage Occupation – Health and Care Visa – where a certificate of sponsorship has been issued for over three years – main applicant and dependants

£551

T2 Minister of Religion – main applicant and dependants

£827

International Sportsperson where a certificate of sponsorship has been issued for 12 months or less – main applicant and dependants

£298

International Sportsperson where a certificate of sponsorship has been issued for over 12 months – main applicant and dependants

£827

Temporary Worker – Seasonal Worker, Religious Worker, Charity Worker, Creative Worker, International Agreement Worker, Government Authorised Exchange Worker – main applicant and dependants

£298

Representative of an overseas business – main applicant and dependants

£827

Global Business Mobility – Senior or Specialist Worker – up to 3 years – main applicant and dependants

£827

Global Business Mobility – Senior or Specialist Worker – more than 3 years -main applicant and dependants

£1,500

Global Business Mobility – Graduate Trainee – main applicant and dependants

£298

Global Business Mobility – Service Supplier – main applicant and dependants

£298

Global Business Mobility – UK Expansion Worker – main applicant and dependants

£298

Global Business Mobility – Secondment Worker – main applicant and dependants

£298

Scale-up – main applicant and dependants

£822

High Potential Individual – main applicant and dependants

£822

Sponsorship Application Fees 2024

Sponsorship Applications

Premium Sponsor Service (12 months) Worker sponsor and Temporary worker sponsor – large sponsors

£25,000

Premium Sponsor Service (12 months) Worker sponsor and Temporary worker sponsor – small sponsors

£8,000

Premium Sponsor Service (12 months) Student sponsors

£8,000

The expedited processing of a sponsorship management request made by a Worker sponsor or Temporary worker sponsor

£200

Priority service for expedited processing of sponsor licence applications

£500

Worker sponsor licence (large sponsor)

£1,476

Worker sponsor licence (small sponsor)

£536

Student sponsor licence

£536

Temporary Worker sponsor licence

£536

Worker and Temporary Worker sponsor licence (large sponsor)

£1,476

Worker and Student sponsor licence (large sponsor)

£1,476

Worker, Temporary Worker and Student sponsor licence (large sponsor)

£1,476

Temporary Worker and Student sponsor licence

£536

Worker sponsor licence (large sponsor), where sponsor currently holds a Temporary Worker and/or Student Sponsor Licence

£940

Endorsement fee for a Scale-up sponsor licence under the Endorsing Body Pathway (payable to the endorsing body) excluding VAT

£1,500

Student sponsor basic compliance assessment

£536

Sponsor action plan

£1,476

Certificate of Sponsorship (CoS) for Skilled Worker, T2 Minister of Religion, Intra-company Transfer (until 10 April 2022), Intra-company Transfer Graduate Trainee (until 10 April 2022), Global Business Mobility – Senior or Specialist Worker (from 11 April 2022)

£239

Certificate of Sponsorship (CoS) for Temporary Work route – including Global Business Mobility- Graduate Trainee, UK Expansion Worker, Service Supplier and Secondment Worker route, and Scale-up route

£25

Certificate of Sponsorship (CoS) for International Sportsperson route – over 12 Months

£239

Certificate of Sponsorship (CoS) for International Sportsperson route – for 12 months or less

£25

Confirmation of Acceptance for Study (CAS) for student, child student

£25

Other UK Visa and Application Fees 2024

Other Visa and Applications Submitted Outside the UK

Visit visa – short up to 6 months

£115

Visit visa – long up to 2 years

£400

Visit visa – long up to 5 years

£771

Visit visa – long up to 10 years

£963

Visiting academic – more than 6 months but no more than 12 months

£200

Private medical treatment visa – more than 6 months but not more than 11 months

£200

Transit visa – (direct airside transit)

£35

Transit visit visa (landside transit)

£64

Visa for the purpose of joining a ship or aircraft as a member of the crew of that ship or aircraft

£64

Electronic Visa Waiver

£30

Single-entry visa to replace a Biometric Residence Permit (BRP)

£154

Certificate of Entitlement Nationality Right of Abode (outside the UK)

£388

Transfer of Conditions (Vignette Transfer) application made overseas

£154

Other visa

£637

Hong Kong British National (Overseas) for 30 months – main applicant and dependants

£180

Hong Kong British National (Overseas) for 5 years – main applicant and dependants

£250

Route to Settlement

£1,846

Route to Settlement – other dependant relative

£3,250

Route to Settlement – refugee dependant relative

£404

Indefinite leave to enter the UK as the dependant of a member of the armed forces under Appendix Armed Forces to the Immigration Rules.

£2,885

Indefinite leave to enter the UK as a foreign or Commonwealth citizen discharged from HM Forces under paragraph 13 of Appendix Armed Forces to the immigration rules.

£2,885

Call out/ out of hours fee (per hour/part hour) – service of consular officers

£142

Receiving, preparing and forwarding documents – consular functions

£141

Administrative review

£80

Other Applications Submitted Inside the UK

Visitor Extension – main applicant and dependants

£1,000

Leave to enter for persons in the UK who are liable to immigration detention

£1,258

Leave to remain – Other

£1,048

Hong Kong British National (In-country) for 30 months – main applicant and dependants

£180

Hong Kong British National (In-country) for 5 years – main applicant and dependants

£250

Processing an application which is subsequently rejected as invalid

£25

Indefinite leave to remain – main applicants and dependants

£2,885

Replacement Biometric Residence Card (issued under the EU Settlement Scheme) which has been lost, stolen, damaged or destroyed

£19

Replacement Biometric Residence Permit which has been lost, stolen, damaged or destroyed

£19

Travel Document – Certificate of travel – adult

£280

Travel Document – Certificate of travel – child

£141

Travel Document – Convention travel document – adult

£82

Travel Document – Convention travel document – child

£53

Administrative Review

£80

Life in the UK test

£50

UK Study Visa Application Fees 2024

Study Visa Applications Submitted Outside the UK

Student – main applicant and dependants

£490

Child Student

£490

Short term student studying English language for more than 6 months but not more than 11 months

£200

Study Visa Applications Submitted Inside the UK

Student – main applicant and dependants

£490

Child Student

£490

British Citizenship Application Fees 2024

Nationality Applications

Naturalisation

£1,500

Naturalisation British overseas territory citizens

£1,000

Nationality registration as a British citizen – adult

£1,351

Nationality registration as a British citizen – child

£1,214

The arrangement of a citizenship ceremony (including the administration of a citizenship oath and pledge at the ceremony).

£80

The administration of a citizenship oath, or oath and pledge where the oath, or oath and pledge, are not administered at a citizenship ceremony or by a justice of the peace.

£5

Nationality registration – British overseas territory citizen, British overseas citizens, British Subjects, British protected persons – adult

£901

Nationality registration – British overseas territory citizen, British overseas citizens, British Subjects, British protected persons – child

£810

Renunciation of nationality

£372

Certificate of Entitlement Nationality Right of Abode (In the UK)

£372

Nationality review

£372

Status Letter (Nationality)

£250

Non-acquisition Letter (Nationality)

£250

Nationality correction to certificate

£250

Nationality – supply of a certified copy of a notice, certificate, order or declaration

£250

Nationality reissued Certificate

£250

Optional Premium Visa and Immigration Services 2024

Optional Premium Services Outside the UK

Priority Visa service – Settlement

£500

Priority Visa service – Non-Settlement

£500

Super Priority Visa service

£1,000

User Pays Visa Application service

£76.50

The provision of an immigration officer to provide any premium service relating to entry into or transit through the United Kingdom (per hour per officer)

£77.40

International Contact Centre – Email Service (per query)

£2.74

International Contact Centre – Telephone Helpline (per minute)

£0.69

Optional Premium Services Inside the UK

Super Priority service

£1,000

Expedited processing – Priority service

£500

On-Demand service (Mobile Biometric Enrolment) (per hour per representative of the contractor providing the service)

£650

The provision of an immigration officer to deliver any premium service, to a Government Department, relating to entry into or transit through the United Kingdom

£57.33

The provision of an immigration officer to deliver any premium service, relating to entry into or transit through the United Kingdom (per hour per officer)

£77.40

Premium status checks and advice – Administrative Officer (per minute)

£0.80

Premium status checks, advice or training – Executive Officer (inside office hours) (per minute)

£0.88

Premium status checks, advice or training – Executive Officer (outside office hours) (per minute)

£1.10

Premium status checks, advice or training – Higher Executive Officer (inside office hours) (per minute)

£0.97

Premium status checks, advice or training – Higher Executive Officer (outside office hours) (per minute)

£1.23

Premium Services at the UK Border

Registered Traveller (Adult) – Yearly Subscription (per year)

£50

Registered Traveller (Child) – Yearly Subscription (per year)

£24

Registered Traveller – Registration of New Documents

£20

Fast Track – Heathrow terminals 2, 3 and 4

£5.20

Fast Track – Other ports of entry

£3.00

Contact our Immigration Legal Advisers

For expert advice and assistance in relation to any UK visa or immigration application, or immigration appeal, contact our specialist immigration legal advisers in Manchester on 0161 529 7779 or complete the enquiry form below.

Registering a UK Born Child as a British Citizen After 10 Years

Wed, 17 Jan 2024 10:26:11 GMT

If you do not qualify for British citizenship automatically, you may be eligible to apply for Registration as a British citizen , either by way of an entitlement or on a discretionary basis. In this article we explore entitlement to registration as a British citizen for those born in the UK on or after 1 January 1983 and who have spent the first 10 years of their life in the UK.

What Are the Requirements for Registration as a British Citizen?

Section 1(4) of the British Nationality Act 1981 :

A person born in the United Kingdom after commencement who is not a British citizen by virtue of subsection (1) or (2) shall be entitled, on an application for his registration as a British citizen made at any time after he has attained the age of ten years, to be registered as such a citizen if, as regards each of the first ten years of that person’s life, the number of days on which he was absent from the United Kingdom in that year does not exceed 90.

Therefore, adult or minors are entitled to registration under s.1(4) of the BNA 1981 if they:

were born in the UK;
they were not a British citizen at birth as at the time of birth;
they are aged 10 years or over on the date of the application;
they have lived in the UK for the first 10 years of their life and have not been outside of the UK for more than 90 days in each of the first 10 years; and
the Secretary of State is satisfied they are of good character.

Registration under this provision gives British citizenship otherwise than by descent.

What If I Have Been Absent for Longer Than 90 Days?

Section 1(7) British Nationality Act 1981 allows for discretion to grant an application where there are longer absences than 90 days.

The Registration as a British citizen: children Version 14.0, guidance to caseworkers published 10 August 2023 ‘the guidance’ reads as follows:

You should normally waive excess absences if:

the number of days absent from the UK in any one of the years does not exceed 180 days and the total number of days over the 10 year period does not exceed 990 days
the number of days absent exceeds 180 or 990 respectively but was due to circumstances beyond the family’s control, such as a serious illness

You must not waive excess absences over 180 days in a single year or 990 days in the 10 year period where:

the only reason was that the applicant was unaware of the requirements, without there being any special circumstances
the parents’ absences with the child were entirely voluntary

What Evidence Should I Provide To Register a Child Born in the UK as a British Citizen After 10 Years?

You will need to include a birth certificate to demonstrate place of birth and age and evidence of residence during the relevant 10-year period.

The guidance reads as follows:

The evidence of residence will differ for the different periods of a child’s life. Documents from the following list can establish residence

aged up to 5 years:

o passport or travel document

o medical records

o vaccination records

o doctors’ letters

o personal child health record (red book)

o letters from child’s nursery

aged 5 to 10 years:

o letters from child’s school confirming attendance

o passport or travel document for the full 10 year period to confirm absences during the period

This is of course a non-exhaustive list and there will be a variety of sources of evidence to consider. The evidence available and required will vary depending on the facts of the individual case. You may like to seek advice in this regard.

How Is Good Character Applied to a Child Applicant?

The British Nationality Act 1981 does not define good character. The relevant caseworking guidance sets out factors that should be considered but does not provide an exhaustive list.

The guidance deals with the application of the requirement to young persons. The caseworker should “take account of any mitigation relevant to the child’s particular circumstances”.

When assessing criminal convictions “guidelines for adults will normally apply to a child who has been convicted of a criminal offence, the lesser sentence handed down to them may mean they are less likely to meet the higher thresholds’. The caseworker will consider any “subsequent mitigation …. not taken into account at the time of sentencing.”

A caseworker “may exercise discretion where a child’s criminality would result in a lifetime refusal of any citizenship application.”

There are of course many considerations relating to good character. It is important to note the guidance sets out a discretion in relation to children regarding immigration breaches:

When assessing a child’s good character, it will normally be appropriate to disregard immigration breaches if it is accepted this was outside of their control.For example, where a parent applied for the child to come to the UK as their dependant but failed to apply for an extension of leave when the child’s temporary leave expired, the child should not be penalised.

Parent(s) Applying At Same Time – Impact

It is possible for a parent applying for citizenship to include a child on the application. The child applicant may be entitled to register even if the parent’s application is refused.

Who Should I Ask To Be My Referees?

An application will require two referees .

For child applicants at least one of the referees must be a person who has dealt with the child in a professional role, such as a teacher, doctor, health visitor or social worker.

The Nationality Policy: general information – all British nationals Version 4.0, published for Home Office staff on 10 May 2023 reads as follows:

Where a child cannot provide a referee who has dealt with them in a professional capacity and has provided documents to show that they have attempted to do so, you can accept 2 referees who meet the criteria for referees on adult applications.

Do I Need Parental Consent?

The guidance recognises that the applicant has an entitlement to be registered as a British citizen if the requirements in section 1(4) are met. The guidance does recognise it is ‘good practice’ to obtain consent and the consent form for parents is generated as part of the application submission process. If consent is not obtained it is not a reason for refusal.

Is an Oath and Pledge Required?

Unlike adults, when children successfully obtain citizenship there is no legal requirement for them to attend a ceremony and take the oath and pledge.

However, if they are part of a successful family application, they will receive an invitation along with their parents to attend the ceremony and receive their certificate of registration, and if they wish, take the oath and pledge.

The oath and pledge will need to be taken if the section 1(4) application is made as an adult, or the application is made by a child who becomes an adult by the time the application is decided.

Refused or Successful – Next Steps

You may wish to speak to our barristers in the event an application for registration as a British citizen has been refused. You will need to consider the reasons for the refusal and the merits of making a request for reconsideration of the decision.

There is not a statutory right of appeal against the refusal of a citizenship (registration or naturalisation application). The only judicial remedy is that of judicial review.

Our earlier article addressed what steps to take when an application is successful.

Contact our Immigration Legal Advisers

For expert advice in relation to Registration as a British Citizen , contact our immigration legal advisers in Manchester on 0161 529 7779 or complete our enquiry form.

Adult Dependent Relative Visa: Proving Unavailability of Care

Tue, 16 Jan 2024 11:32:51 GMT

In Adult Dependent Relative visa applications, an Applicant must demonstrate that the level of care they require for their specific conditions is unavailable or unaffordable in the country where they are living (ADR 5.2). Whilst the evidence demonstrating a need for long-term personal care to perform everyday tasks might be more immediately obvious – namely medical expert reports – proving the unavailability of care can pose a challenge. Unlike the financial requirements, which must meet the strict rules under Appendix FM-SE, there is no specified evidence required to demonstrate unavailability of care. It is worth noting that there used to be specified evidence requirements for evidence of long-term personal care needs under paragraph 35 Appendix FM-SE, which you might see referred to in our previous blogs, but have now been deleted. In this post, we delve into the different types of evidence that may help satisfy the Entry Clearance Officer (‘ECO’) that the required level of care is unavailable.

Appendix Adult Dependent Relative: ADR 5.1 and 5.2

ADR 5.1. The applicant, or if the applicant is applying as a parent or grandparent, the applicant’s partner, must as a result of age, illness or disability require long term personal care to perform everyday tasks.

ADR 5.2. Where the application is for entry clearance, the applicant, or if the applicant is applying as a parent or grandparent, the applicant’s partner, must be unable to obtain the required level of care in the country where they are living, even with the financial help of the sponsor because either:

(a) the care is not available and there is no person in that country who can reasonably provide it: or

(b) the care is not affordable.

The Home Office Guidance, ‘Family Policy: Adult Dependent Relatives’ Version 5.0 (07 August 2023) elaborates on the meaning of ‘required level of care’ on pages 12 and 13 as follows:

“The “required level of care” is a matter to be objectively assessed, with reference to the specific needs of the applicant. The level of long-term personal care must be what is required by the individual applicant to perform everyday tasks, in light of their physical needs and any emotional or psychological needs, in each case as established by evidence provided by a doctor or other health professional.

In considering whether the care is available in the country in which the applicant is living, the ECO will consider both what care is available, and whether it is realistically accessible to the applicant. As to the latter, consideration should be given both to the geographical location and the cost of such care.

“The ECO should consider whether there is anyone in the country where the applicant is living who can reasonably provide the required level of care. This might be a close family member: son, daughter, brother, sister, parent, grandchild, grandparent; a wider family member, friend or neighbour; or another person who can reasonably provide the care required, e.g. a home-help, housekeeper, nurse, carer or care or nursing home.

[…]

The provision of the care in the applicant’s home country must be reasonable both from the perspective of the provider of the care and the perspective of the applicant.

The ECO should bear in mind any relevant cultural factors, such as in countries where women are unlikely to be able to provide support in some circumstances.”

The ECO makes a broad evaluative assessment: as such, they will look at whether a combination of care arrangements (e.g. a domestic carer, a family member and neighbour combined) may provide adequate care. Adopting a thorough approach by using evidence from multiple sources is always encouraged, to strengthen the chances of an application succeeding.

Lack of available family care

The ECO will have to consider whether there is anyone living in the Applicant’s country who can reasonably provide this level of care instead of their family members in the UK. The Guidance suggests this could be, on the one hand, ‘a close family member: son, daughter, brother, sister, parent, grandchild, grandparent, a wider family member, friend or neighbour.’ Examples of evidence of why this is not possible will show that the family members either live too far away, or that they have their own care responsibilities, for children or other relatives, or health conditions which mean taking care of the Applicant is not reasonably feasible. This is not an exhaustive list as each application is decided on a case by case basis. This can be expressed in a variety of ways:

1. Witness statements: The Sponsor and their immediate family can explain their attempts to seek help from their family members in the country. They can also detail if anyone lives in close proximity to the Applicant and/or the existing caring responsibilities these friends and relatives have.

2. Letters of support: Family members and friends living in the country can explain the Applicant’s conditions and care needs, and why they personally cannot meet these needs due to where they are living or their own caring responsibilities.

3. Interactions with family members over text messages or calls: Screenshots of messages or calls to family members can directly demonstrate that, despite a Sponsor’s best attempts, they have been unable to persuade family members and friends to care for the Applicant.

4. Other documentary evidence: Documents proving a change of circumstances, for example, that relatives or friends previously living near the Applicant have now moved to another country, can offer cogent evidence of unavailability of care.

Our immigration barristers can advise on appropriate evidence from family members and friends, whether written or documentary, depending on the specific facts of your case.

Lack of available care homes or domestic help

In the alternative, the ECO will consider whether ‘another person who can reasonably provide the care required, e.g. a home-help, housekeeper, nurse, carer or care or nursing home.’ Here, a combination of enquiries by the Sponsor and their family into the care options in the country where the Applicant is living and expert opinions should help paint a clear picture of why the required level of care cannot reasonably be provided. It is worth remembering that the Guidance states the ECO must assess this ‘reasonableness’ standard from both the Applicant’s and care provider’s perspective. In BritCits v The Secretary of State for the Home Department [2017] EWCA Civ 368, the Court of Appeal stated at [59]:

“the focus is on whether the care required by the ADR applicant can be “reasonably” provided and to “the required level” in their home country…. the provision of care in the home country must be reasonable both from the perspective of the provider and the perspective of the applicant, and the standard of such care must be what is required for that particular applicant. It is possible that insufficient attention has been paid in the past to these considerations, which focus on what care is both necessary and reasonable for the applicant to receive in their home country. Those considerations include issues as to the accessibility and geographical location of the provision of care and the standard of care. They are capable of embracing emotional and psychological requirements verified by expert medical evidence. What is reasonable is, of course, to be objectively assessed.”

A variety of evidence may be relied on to ensure ADR 5.3 is met. Again, this list is not exhaustive as each case will turn on its individual facts. This evidence should be referred to in any witness statements by the Sponsor and their immediate family and legal submissions written in support of the application:

1. Enquiries into care homes/domestic carers: Evidence of emails, letters, text messages and calls to care homes in the vicinity of where the Applicant is living can help show why the care that exists is unaffordable or inadequate for the Applicant’s needs. The enquiries should be as extensive as possible, looking at care homes and domestic care options. The more information that can be provided about these options, the stronger the application will be.

2. Medico-legal reports: Expert medical opinions will be a relevant consideration in the broader evaluative assessment of why the existing care options are inadequate for the Applicant. For example, a doctor’s report may state that the Applicant needs round-the-clock care, to explain why domestic helpers for a few hours a day will not suffice, or that they suffer from mental health conditions, which the existing infrastructure in that country cannot properly take care of. A report from the doctor in the country where the Applicant is living can give an opinion on the existing geriatric care infrastructure in that country. Even if an assessment is conducted remotely by a UK-based psychiatrist, for example, they can still offer a view on why the Applicant’s emotional or psychological needs mean they cannot be reasonably cared for by anyone other than family members who they trust.

3. Country expert reports: These independently researched reports can help demonstrate that the care in the country where they are living is unavailable or inadequate. The expert will undertake their own research using objective evidence sources and their own expertise to reach conclusions on the questions asked in the letter of instruction. They can be particularly valuable in demonstrating cultural limitations, such as stigma surrounding mental health or biases against a particular social group which the Applicant could be exposed to in that country. Although not decisive, these reports can be highly persuasive in the context of an appeal.

4. Objective evidence: News articles, scholarly papers, or country guidance reports by NGOs, international organisations, the Home Office or other governments may also support the Applicant’s claim that the required level of care is unavailable or unaffordable. These should come from reliable sources, be dated in the last few years to ensure their relevance and be pertinent to the facts of the Applicant’s case. It is a matter of judgement how many pieces of evidence one decides to include; another option would be to include selected extracts, which can be referred to in witness statements and legal submissions.

Contact our Immigration Legal Advisers

Our team of immigration legal advisers can assist you to identify and instruct a medical professional or country expert, by writing a letter of instructions outlining the issues they should address in their report, and help you collate objective evidence from other sources. For more guidance on the other requirements, read our Guide to Adult Dependent Relative Visas.

For expert advice and assistance in relation to an Adult Dependent Relative Visa application or appeal, contact our immigration legal advisers on 0161 529 7779 or complete our enquiry form below.

Cooling-Off Periods in Sponsor Licence Applications

Mon, 15 Jan 2024 11:20:08 GMT

UK-based companies that hold a sponsor licence can sponsor foreign employees to live and work in the UK under the Skilled Worker or Global Business Mobility immigration routes. In its published guidance, however, the Home Office makes clear that the ability to sponsor migrant workers is “a privilege, not a right”. A company is only permitted to hold a sponsor licence if the Home Office is satisfied that it is complying, or will comply, with the many duties and responsibilities that come with having one.

When applying for a sponsor licence , therefore, it is imperative that a company demonstrates that it is capable of complying with its sponsor duties, and if the application is granted, will indeed do so. This is doubly important if the company has previously had an application for a sponsor licence refused, and still more so if it previously held a licence but had it revoked. In these scenarios, the Home Office will look at any fresh application with a particularly watchful eye, and there are additional considerations that the company will need to bear in mind, including the possibility of a cooling-off period.

What Is a Sponsor Licence Cooling-off Period?

Companies are not necessarily free to apply for a sponsor licence at any time. In certain circumstances, they may be subject to a “cooling-off period” – a window of time during which they will not be able to make a successful application. Applying during a cooling-off period will lead to an automatic refusal, with no opportunity for discretion.

A cooling-off period may be imposed in the following circumstances:

A previous application for a sponsor licence has been refused
A sponsor licence that was held previously has been revoked (or surrendered whilst compliance action was taking place with the intention of avoiding revocation)
You have been issued with a civil penalty from a specified list
You have been convicted of a criminal offence from a specified list

Who Does a Cooling-off Period Apply To?

It is important to note that a cooling-off period does not just apply to the company, individual or legal entity that was the subject of the refusal, revocation, civil penalty or conviction. Rather, it can apply to a wide range of people connected with the business, including any:

Owner
Director
Key Personnel or proposed Key Personnel (i.e. any Authorising Officer, Key Contact, Level 1 User)
Person involved in the day-to-day running of the business

It is therefore very important to check that no person who is linked to the business in any of those ways is subject to a cooling-off period. If they are, this would lead to the licence application being refused.

How Long Is a Sponsor Licence Application Cooling-off Period?

The length of a cooling-off period depends on the reasons for which it is imposed.

If you previously had a sponsor licence application refused, there will be no cooling-off period if:

your application was sent by a representative;
you did not provide documents or information we requested by a specific deadline for reasons outside your control; or
you applied to be licensed on the Scaleup route and your application was refused solely because you do not meet the definition of a ‘qualifying Scale-up sponsor’

If you previously had a sponsor licence refused and none of the above apply, you will be subject to a cooling-off period of 6 months.

Where you have previously held a sponsor licence that has been revoked (or you surrendered it whilst compliance action was taking place to avoid revocation), you will ordinarily be subject to a cooling-off period of 12 months. A 12 month cooling-off period also applies when you have been issued with a civil penalty for employing an illegal worker, or more than one civil penalty for letting residential premises to an adult without a right to rent. Any civil penalties will need to be paid off in full before a fresh application can be made.

More numerous civil penalties and charges can lead to a cooling-off period of up to 5 years. Factors that will determine the length of the cooling-off period include the number of penalties imposed, the number of illegal workers/disqualified adults involved, the amount of the penalties, the extent of cooperation with the Home Office or relevant authorities, and the speed with which any fines were paid, or the extent of compliance with any agreement to pay fines in instalments. Again, any civil penalties will need to be paid off in full before a fresh application can be made.

Penalties or charges for carrying clandestine entrants, carrying passengers without proper documents, or bringing passengers to the UK in breach of an authority to carry scheme will lead to an automatic 5 year cooling-off period.

Where more than one of the circumstances above is applicable, the longest of the relevant cooling-off periods will apply.

Submitting a New Sponsor Licence Application

If you are satisfied that your business is not subject to a cooling-off period, or any relevant cooling-off period has expired, you can at that stage make a fresh sponsor licence application .

Of course, the fact you are permitted to apply is no guarantee that your application will be successful. On the contrary, an application will need to be particularly thorough in showing that the requirements for sponsorship are met.

A key part of this will be to show that the reasons for the previous refusal or revocation no longer apply. If, for example, the Home Office was not satisfied that your business had suitable HR systems in place to monitor the activities of migrant workers, you would need to demonstrate the specific changes you had implemented to address this. There is a strong possibility that the Home Office will conduct a compliance visit as part of the application process.

The worst case scenario is that the fresh application is also refused, and the business is subject to a further cooling-off period. However, so long as you submit a detailed and careful application that demonstrates that the requirements for a sponsor licence are met, this can be avoided.

Contact our Immigration Legal Advisers

A sponsor licence revocation or refusal can be seriously damaging to a business in the short or long term, and very often submitting a fresh application as soon as possible will be a matter of urgency. However, it is important to take every precaution to ensure that the new application has the greatest possible chances of success. For expert advice and assistance in relation to a sponsor licence application, or advice following a revocation or refusal, contact our Immigration legal advisers on 0161 529 7779 or complete our enquiry form below.

Immigration Health Surcharge (IHS) Cost To Increase By 66%

Tue, 09 Jan 2024 13:44:55 GMT

On 13 October 2023, the UK Government announced a substantial 66% increase in the Immigration Health Surcharge (IHS). Originally set to take effect from 16 January 2024, since a delegated legislation committee of the House of Commons will be debating the draft Immigration (Health Charge) (Amendment) Order 2023 on Wednesday, 10 January at 4.30pm, the IHS fee increase cannot now be implemented any earlier than 31 January 2024. In this post, we’ll delve into the core aspects of the Immigration Health Surcharge, its purpose, and the reasons behind the upcoming increase. We’ll explore who is affected by the Immigration Health Surcharge rise, and provide insights into the government’s motives for this significant uplift to the IHS.

What Is the Immigration Health Surcharge (IHS)?

The Immigration Health Surcharge, or IHS, was first introduced on 6 April 2015 to ensure migrants contribute to the cost of healthcare provided by the NHS.

The Immigration Health Surcharge is an upfront cost paid alongside the submission of (most) visa applications so that the individual is entitled to have full access to the National Health Service (NHS) whilst in the UK. There is no limit to how much one can access the NHS. Additionally, there is no option to opt out of the Immigration Health Surcharge even if you believe you will not use the NHS or would prefer to pay for private health care.

The IHS is charged per year and covers the duration of any visa application applied for.

To read more about what the Immigration Health Surcharge is, please see our previous post.

When Do I Pay the Immigration Health Surcharge?

When Is the IHS Increasing?

Originally set to take effect from 16 January 2024, since a delegated legislation committee of the House of Commons will be debating the draft Immigration (Health Charge) (Amendment) Order 2023 on Wednesday, 10 January at 4.30pm, the IHS fee increase cannot now be implemented any earlier than 31 January 2024.

Why Is the Immigration Health Surcharge Increasing?

The Immigration Health Surcharge has increased in line with the 2019 manifesto commitment as outlined in the the equality impact assessment, which states that:

What Is the IHS Increasing to and Who Is Affected by This Increase?

The details of the Immigration Health Surcharge increase have been confirmed in the Immigration (Health Charge) (Amendment) Order 2023. The Order needs to be approved by both Houses of Parliament and ratified.

Please note, we have previously highlighted in a post that some application fees increased on 04 October 2023.

Who Is Not Affected by the Immigration Health Surcharge (IHS) Increase?

There is no IHS for Health and Care workers, visitors, those applying under the EU Settlement Scheme, or for those applying for entry clearance as a Fiance under Appendix FM. Likewise, there is no Immigration Health Surcharge for those claiming asylum or applying for entry clearance or permission to stay under the Ukraine Scheme. Additionally, there is no requirement to pay the IHS for those applying for indefinite leave to remain or for British Citizenship.

A full list for those who are not affected by the Immigration Health Surcharge increase can be found in our previous post.

Fee Waivers for UK Immigration Applications: Part 1
Fee Waivers for UK Immigration Applications: Part 2
Affordability Fee Waivers: Citizenship Registration for Under-18’s

What Happens if I Do Not Pay the Immigration Health Surcharge?

Can I Get the Immigration Health Surcharge Refunded?

Contact Our Immigration Legal Advisers

For expert advice and assistance in relation to a visa or immigration application, contact our immigration legal advisers on 0161 529 7779 or complete our enquiry form below.

Settlement as a Sole Representative Visa Holder

Sat, 06 Jan 2024 08:43:53 GMT

The Representative of an Overseas Business category was closed on 11 April 2022, but many individuals who are already in the Sole Representative route will be looking to extend their leave or apply for indefinite leave to remain (ILR). In this post, we provide an overview of the requirements when applying for settlement on the Sole Representative of an Overseas Business route. We have also included brief information for dependants who may be eligible to apply at the same time as the main applicant.

Businesses that wish to send their senior managers and specialist employees to the UK to expand their overseas business, may consider the Global Business Mobility – UK Expansion Worker route. Further details are explained in our earlier post.

Overview of Sole Representative of an Overseas Business Route

In order to be eligible for settlement on the Sole Representative route, you will need to show that:

You meet the validity requirements, which includes completing the correct application form and paying the application fee;
You must not fall for refusal under the suitability requirements;
You must be in the UK and have, or have last been granted, permission as a Representative of an Overseas Business;
You have spent a continuous period of 5 years in the UK before the date of application with permission as a Sole Representative of an Overseas Business;
You can show English language ability;
You meet Knowledge of Life in the UK requirement;
You are still required to continue your work;
You meet the work and business requirements;

If your application is successful, you will be granted settlement. Do check our website for information on applying for British citizenship by naturalisation if this is the next step you have in mind.

Continuous residence in ILR applications

An individual may be eligible to apply for ILR after 5 years lawfully in the UK. You must have spent the last 5 years before the date of application in the UK with permission as a Representative of an Overseas Business and meet the continuous residence requirement. In accordance with Home Office guidance, continuous residence means that:

“The applicant must show all of the following:

they have lived in the UK with relevant permission
their residence is lawful
they have not been absent for more than the specified periods, unless for permitted reasons”

The Home Office may check your immigration history to see whether you have spent time in the UK with the relevant permission. The period of continuous residence means that your absences outside the UK must be no more than 180 days in any 12 month period unless an exception applies, such as compelling and compassionate personal circumstances.

Considering the work and business requirements for settlement as a Sole Representative

Work requirement

The work requirement for the Sole Representative in a settlement application means providing evidence that the overseas business has been active and trading and its headquarters continues to remain outside the UK. As a representative of the UK business, you must have been employed by and working full time for the overseas business you represent or for the business’s UK branch or subsidiary throughout the relevant period. You also must not have undertaken work for other businesses or engaged in business of your own.

Business requirement

In terms of the business, the Home Office guidance states that:

“If the applicant has or last had permission as a Sole Representative and is applying for settlement, throughout the qualifying period they must have met the following requirements:

they must not have had a majority stake in, or otherwise owned or controlled a majority of the overseas business they represent, whether that ownership or control was by means of a shareholding, partnership agreement, sole proprietorship or any other arrangement
the applicant must have established and then supervised the registered branch or wholly owned subsidiary of the overseas business they represent in the UK, where that branch or subsidiary was actively trading in the same type of business as the overseas business”

To meet this requirement, specific documents are required by the Home Office and it is important to seek legal advice to ensure that you provide the right documentation.

English Language and Life in the UK test

One of the requirements to be eligible to apply for settlement as a Sole Representative is that you will need to show that you meet the English language and Knowledge of Life in the UK requirements, unless an exemption applies. For example, if you are aged 65 or over, you do not need to demonstrate sufficient knowledge of the English language and Knowledge of Life in the UK.

Dependants of Sole Representative of Overseas Business applicants

In our earlier post, Applying for ILR as a Dependant on Business Routes, we set out the specific requirements for the dependants of individuals who are in the UK on the business routes. As mentioned in the post, dependants include

Spouses
Civil partners
Partners who are not married or in a civil partnership but who have lived together in a relationship similar to a marriage or civil partnership for at least 2 years
Dependent children under the age of 18 on the date of application
Dependent children over 18 who were last granted permission as a dependent child of their parent(s)

Dependent partners must be over 18 years old and the relationship must be genuine and subsisting. Children applying as a dependent child of a Representative of an Overseas Business migrant have to be under 18 years of age on the date of application, unless the last permission was as a dependent child and the applicant is not leading an independent life.

For settlement applications, the dependent partner and dependent child must be applying at the same time as the main applicant unless the main applicant is already settled in the UK or has become a British citizen while holding permission on the same route. They must also be last granted leave to remain as a dependent partner or dependent child of the main applicant unless the dependent child was born in the UK and is applying as a child of the main applicant.

Both the dependent partner and dependent child will need to meet the English language and Knowledge of life in the UK requirements unless an exception applies.

The position of the dependants is further discussed in our earlier post, The Sole Representative Visa is Closed – But Not for Dependants!

Contact Our Immigration Legal Advisers

For expert advice and assistance with a settlement application as a Representative of an Overseas Business, contact our business immigration legal advisers on 0161 529 7779 or complete our enquiry form below.

UK Shortage Occupation List 2024

Sat, 30 Dec 2023 09:07:25 GMT

When sponsoring a worker for a particular role, employers need to understand how to apply for a sponsor licence and that the worker is sponsored for a job in an eligible standard occupational classification (‘SOC’) code listed in the Appendix. The SOC codes can be found in the published Immigration Rules Appendix Skilled Occupations and Appendix Shortage Occupation List. In this post, we will take a look at the UK Shortage Occupation List 2024.

What is the Shortage Occupation List?

The Shortage Occupation List shows a list of occupations where there is a shortage of skilled labour in the UK. The Migration Advisory Committee (MAC) provides recommendations on the jobs to be placed on the Shortage Occupation List. This list is regularly reviewed and updated.

If the job is on the Shortage Occupation List, the full salary threshold does not need to be met. The salary for the job on the Shortage Occupation List must equal or exceed £20,960 per year, £10.75 per hour and 80% of the going rate for the occupation code. The going rate refers to the minimum salary for a particular occupation code.

If the job is on the Shortage Occupation List, it must be confirmed in the Certificate of Sponsorship.

The visa application fee for a Skilled Worker Visa is lower if the job is on the Shortage Occupation List.

Choosing the right SOC code on the Shortage Occupation List

To have a better understanding of the right SOC code for the job, employers can refer to the Office for National Statistics website to have a look at the job descriptions, tasks and entry requirements.

It is important to choose the most appropriate occupation code to avoid any delay or refusal of the worker’s visa application. If the Home Office has reasonable grounds to believe that the sponsor has not chosen the correct SOC code or the vacancy is not genuine, this may trigger the Home Office to conduct a sponsor compliance visit on an announced or unannounced basis and may also lead to a sponsor licence being suspended.

UK Shortage Occupation List 2024

The UK Shortage Occupation List 2024 can be found here. The list shows whether the shortage of labour is in England, Scotland, Wales or Northern Ireland.

Table 1 is a list of shortage occupations where 80% of the going rate for the occupation code may be paid:

Shortage Occupation List Jobs in Health and Care

1181 Health services and public health managers and directors
1242 Residential, day and domiciliary care managers and proprietors
6146 Senior care workers

Shortage Occupation List Jobs in Science/ Engineering

2111 Chemical scientists in the nuclear industry
2112 Biological scientists and biochemists
2113 Physical scientists in the construction-related ground engineering industry, limited to

o engineering geologist

o hydrogeologist

o geophysicist

2113 Physical scientists in the oil and gas industry, limited to

o geophysicist

o geoscientist

o geologist

o geochemist

o technical services manager in the decommissioning and waste areas of the nuclear industry

o senior resource geologist and staff geologist in the mining sector

2114 Social and humanities scientists, limited to archaeologists
2121 Civil engineers
2122 Mechanical engineers
2123 Electrical engineers
2124 Electronics engineers
2126 Design and development engineers
2127 Production and process engineers
2129 Engineering professionals not elsewhere classified
2461 Quality control and planning engineers

Shortage Occupation List Jobs in Construction

5312 Bricklayers and masons
5313 Roofers, roof tilers and slaters
5315 Carpenters and joiners
5319 Construction and building trades not elsewhere classified
5321 Plasterers (including dryliners)

Shortage Occupation List Jobs in IT

2135 IT business analysts, architects and systems designers
2136 Programmers and software development professionals
2137 Web design and development professionals
2139 Information technology and communications professionals not elsewhere classified, limited to cyber security specialists

Shortage Occupation List Jobs in Fishing

5119 Agriculture and fishing trades not elsewhere classified
9119 Fishing and other elementary agriculture occupations not elsewhere classified – only deckhands on large fishing vessels (9 metres and above) where the job requires the worker to have at least 3 years’ full-time experience in using their skills.

Shortage Occupation List Jobs in Professional Services/Medicine/ Other Trades

2216 Veterinarians
2425 Actuaries, economists and statisticians, limited to

o Bio-informaticians

o Informaticians

2431 Architects
3111 Laboratory technicians
5215 Welding trades – only high integrity pipe welders, where the job requires 3 or more years’ related on-the-job experience. This experience must not have been gained through working illegally.

Shortage Occupation List Jobs in Creative Sector

3411 Artists
3414 Dancers and choreographers – only skilled classical ballet dancers or skilled contemporary dancers who meet the standard required by internationally recognised UK ballet or contemporary dance companies.The company must be endorsed as being internationally recognised by a UK industry body such as the Arts Councils (of England, Scotland or Wales).
3415 Musicians – only skilled orchestral musicians who are leaders, principals, sub-principals or numbered string positions, and who meet the standard required by internationally recognised UK orchestras.

The orchestra must be a full member of the Association of British Orchestras.

3416 Arts officers, producers and directors
3421 Graphic designers

Table 2 refers to health and education occupations where the going rates are based on national pay scales:

Shortage Occupation List Jobs in Medicine

2211 Medical practitioners
2212 Psychologists
2213 Pharmacists
2217 Medical radiographers – including radiotherapy practitioners/ technologists)
2219 Health professionals not elsewhere classified
2232 Nurses
3213 Paramedics
6141 Nursing auxiliaries and assistants

Shortage Occupation List Jobs in Therapy

2221 Physiotherapists
2222 Occupational therapists
2223 Speech and language therapists

Shortage Occupation List Jobs in Education/ Professional Services

2314 Secondary education teaching professionals – only teachers in maths, physics, science (where an element of physics will be taught), computer science and modern foreign languages
2314 Secondary education teaching professionals – only teachers in Gaelic
2315 Primary and nursery education teaching professionals – only Gaelic medium teachers
2442 Social workers

The occupation code 6145 Care workers and home carers has been added to the Shortage Occupation List and related job titles include Care assistant, Care worker, Carer, Home care assistant, Home carer and Support worker (nursing home). However, private households or individuals (other than sole traders sponsoring someone to work for their business) cannot sponsor Skilled Worker applicants.

Types of Sponsor Licence

To sponsor a worker for a role in the Shortage Occupation List or Appendix Skilled Occupations, the employer will need to have a sponsor licence for the relevant route. Further details on the relevant sponsor licence can be found here:

Skilled Worker Sponsor Licence: How to Apply For A Skilled Worker Sponsor Licence
Global Business Mobility Sponsor Licence: Global Business Mobility Sponsor Licence Application Guide
Scale-up Sponsor Licence: Scale-up Sponsor Licence Application Guidance
Health & Care Worker Sponsor Licence: Apply for a Health & Care Worker Sponsor Licence

Contact Our Immigration Legal Advisers

For expert advice and assistance in relation to a Sponsor Licence application or Skilled Worker visa application, contact our immigration Legal advisers in Manchester on 0161 529 7779 or via the enquiry form below.

UK Visa Processing & Decision Waiting Times

Fri, 29 Dec 2023 10:56:57 GMT

UK Visas and Immigration (UKVI) has published service standards for waiting times for decisions on visa and immigration applications. UKVI also publishes up-to-date information on current processing times for visa and immigration applications submitted both within the UK and outside the UK.

In this post we take an in-depth look at UK visa processing times, including the Home Office service standards for waiting times, current Home Office visa processing times, options for securing a faster decision on a visa or immigration application and how to challenge a delay in the processing of a UK visa or immigration application. We also answer some frequently asked questions relating to UKVI visa processing times and look at some of the factors to consider when timing an immigration application.

UKVI Visa Processing Standard Processing Times

Non-settlement visa applications submitted outside the UK: 90% to be decided within 3 weeks; 98% within 6 weeks and 100% within 12 weeks of the application date (where 1 week is 5 working days);
Settlement visa applications submitted outside the UK: 98.5% of settlement applications to be decided within 12 weeks of the application date and 100% within 24 weeks of the application date (where 1 week is 5 working days);
Applications for leave to remain submitted within the UK, including as spouses, workers and students: 8 weeks to be decided;
Applications for indefinite leave to remain (ILR) submitted within the UK: 6 months to be decided;
Applications for no time limit (NTL) submitted within the UK: 6 months to be decided;
Organisations seeking to sponsor a worker: 8 weeks;
Organisations updating their sponsor licence details: 18 weeks.

The processing time standard for applications submitted via the priority service and super-priority service is 5 workings days and the next working day respectively, where these services are available (see further below). Applications for a sponsor licence submitted via the pre-licence priority sponsor licence service should be decided within 10 working days.

What Factors Affect UK Visa Processing Times?

There are a number of factors which can delay UK visa processing times including:

The complexity of the case, for example if it involves an assessment of Article 8 ECHR rights or derivative rights of EEA extended family members;
Concerns regarding suitability requirements such as criminality;
Consideration of any adverse immigration history;
Any concerns regarding the authenticity of documents;
The volume of documents provided;
Whether further investigations are required or an interview scheduled;
The capacity of caseworkers; and
The time of the year.

There is no published service standard for waiting times for more complex applications and UKVI has a wide margin of appreciation with regard to the timing of their decisions.

Home Office decision-making is sometimes delayed. In the last couple of years, many UK visa applicants have experienced extended waiting times during the Covid-19 pandemic. Currently, as we outline below, decisions on some UK visa applications are being delayed again as the Home Office seeks to prioritise Ukraine Visa Scheme applications in response to the humanitarian crisis caused by the invasion of Ukraine.

To discuss your UK visa or immigration application with one of our immigration barristers, call us on 0161 529 7779 or complete the enquiry form below.

What Are the Current Home Office UK Visa Processing Times?

The Home Office publishes visa decision waiting times for applications submitted outside and inside the UK. From this information it is possible to ascertain approximately how long it should take for a pending visa application to be decided.

The information provided below assumes that the application has, or will be, submitted via the standard service and that a priority service or super-priority service, where available (see further below), has not been used.

Work in the UK

The UK offers a range of sponsored and non-sponsored work and business immigration routes, including:

Long Term Work Visas (including Skilled Worker, Scale-up, International Sportsperson and Minister of Religion)
Short Term Work Visas (including High Potential Individual and Creative Worker)
Business Visas (including Innovator)
Global Business Mobility Visas (including Senior or Specialist Worker and UK Expansion Worker)
Talent Visas

You can apply for a UK work visa up to 3 months before the day you are due to start work in the UK.

According to Home Office service standards, applicants applying for a work visa from overseas in any of the above-mentioned categories should normally receive a decision on their application within 3 weeks. This service standard is currently being met in practice.

The standard processing time for an application to switch into or extend a stay in the UK on a work visa route is 8 weeks. This service standard is generally being met in practice currently. However, due to the war in Ukraine and high global demand for visas, applications to switch into or extend a Skilled Worker visa are currently taking, on average, 9 weeks to be decided.

Applications to switch into or extend a Health and Care Worker visa are generally being processed within 3 weeks currently.

If you are applying for settlement on a work or business route you should usually receive a decision within 6 months.

Join or Stay With Family in the UK

You can apply for a family visa to live in the UK with your British or settled family member as a:

Spouse
Civil Partner
Unmarried Partner
Fiancé(e)
Proposed civil partner
Child
Adult dependent relative

Applications for partner and family visas can be submitted up to 3 months before the intended date of travel.

The published service standard for deciding an application from outside the UK to settle in the UK as the spouse, partner or family member of a British citizen or settled person is 12 weeks. Following a reduction in the backlog of Ukraine Visa Scheme applications, the Home Office has recently announced that standard family visa applications are now being processed within 60 working days.

Can I Visit the UK While My Partner Visa Is Being Processed?

An application from within the UK to switch into or extend as a spouse, civil partner, unmarried partner, fiancé(e) or proposed civil partner, child or adult dependent relative should still be processed within 8 weeks.

If you are applying for an EU Settlement Scheme Family Permit, the Home Office is currently advising that you will receive a decision as soon as possible after proving your identity and providing your documents.

There are no standard processing times for applications submitted as a partner, parent or on the basis of private life (10-year routes or 5-year parent route to settlement). The average wait time for a decision on a private life application is currently 9 months.

If you are applying for settlement you should usually receive a decision within 6 months.

Visit the UK

The UK offers a range of Short Stay Visit Visas, for purposes such as:

Visiting friends, family and/or for a short holiday;
Short-term unpaid business activity;
Unpaid creative activities;
Short courses of study or research;
Unpaid sporting activities;
Receiving private medical treatment;
Marriage or civil partnership in the UK;

Applications for a UK visit visa can be submitted up to 3 months before the intended date of travel.

Visitor visa applications submitted from outside the UK are currently taking an average of 3 weeks to process. This is in line with the 3-week service standard.

Most visitors cannot extend their stay from within the UK, but if you are a patient receiving medical treatment, an academic who still meets the eligibility requirements or a graduate doing a clinical attachment or retaking the PLAB test and you wish to extend as a visitor then you should usually receive a decision within 8 weeks.

Visitors are not eligible to apply for settlement.

Study in the UK

The Student visa is for individuals who are aged 16 or over and who wish to study on a further or higher education course in the UK. The Child Student visa route is for children aged between 4 and 17 who wish to study at an independent school in the UK, which is a Home Office approved student sponsor. The Short-term Student visa is a route for persons aged 16 and over who want to study an English language course in the UK for between 6 and 11 months without a student

sponsor but at an accredited institution.

If applying from outside the UK, applications for UK Student visas can be submitted up to 6 months before the start date of the course. The customer service standard for receiving a decision is 3 weeks.

The Home Office is currently advising that Student visa applications are taking on average 3 weeks to process. This is in line with the service standard. Short-term study visas are also currently taking on average 3 weeks to process.

If applying from inside the UK to switch into or extend a Student or Child Student visa, an application for permission to stay can be submitted up to 3 months before the start date of the course. The customer service standard for receiving a decision on such an application is 8 weeks and decisions are currently being made within this timeframe.

Students are not eligible to apply for settlement.

Hong Kong British National (Overseas)

The Hong Kong BN(O) Status Holder Visa is an immigration route for Hong Kong British National (Overseas) citizens to live, work and study in the UK. The Hong Kong BN(O) Household Member Visa is an immigration route for adult children (aged 18 or over) of a BN(O) Status Holder or a BN(O) Status Holder’s partner, born on or after 1 July 1997, to live, work and study in the UK.

If you apply for a Hong Kong BN(O) Status Holder visa or Hong Kong BN(O) Household Member visa from overseas then you should receive a decision within 12 weeks. The same processing time currently applies to applications to extend a Hong Kong BN(O) visa from within the UK.

If you are applying for settlement on the Hong Kong BN(O) route you should usually receive a decision within 6 months.

UK Ancestry

If you are a Commonwealth citizen and have a grandparent who was born in the UK, you may be able to live and work in the UK on the basis of your UK Ancestry. A UK Ancestry visa can only be obtained from outside the UK.

If you are applying for a UK Ancestry visa you should receive a decision within 3 weeks once you attend your appointment at the visa application centre. If you apply to extend an Ancestry visa from within the UK then you should usually receive a decision within 8 weeks.

If you are applying for settlement you should usually receive a decision within 6 months.

Returning Residents

If you are a non-UK citizen and are not currently in the UK, but have previously been granted indefinite leave to remain in the UK, you may be eligible to return to the UK for settlement on the basis of a returning resident visa. When you apply for a Returning Resident visa from overseas you should normally receive a decision within 3 weeks currently.

Our immigration barristers assist individuals and businesses across the globe to prepare and submit successful UK visa and immigration applications. Call us on 0161 529 7779 or complete our enquiry form below to find out more.

UK Visa Decision Waiting Times: Frequently Asked Questions

When Does the UK Visa Application Processing Time Start and End?

For UK visa applications submitted outside the UK, visa processing time will start from either the date you provide your biometric information (fingerprints and a photograph) at a visa application centre or, if eligible, the date you verify your identity using the UK Immigration: ID Check app. The waiting time will end on the date when you receive an email with a decision on your application.

For a UK immigration application submitted from within the UK, the waiting time will generally start from the date when you submit your application online. An exception is made for Graduate Immigration Route applications, where the waiting time starts from the date when the applicant attends an appointment at a visa service centre or submits their documents using the UK Immigration ID Check app. In all in-country cases the waiting time will end on the date when you receive either a letter or email with a decision.

The service standard does not include the time taken to issue you with your Biometric Residence Permit (BRP). You will usually receive your BRP within 7 working days after a decision has been made on your application. If you do not receive a BRP you can report it.

Will My Dependents’ Visas Be Processed Within the Same Time Frame?

Dependent visas should be processed within the same time frame as the main applicant’s visa and dependents should receive their decision at the same time. Dependent visas will not be issued before the main applicant has received their decision. Where a dependent applies after the main applicant has received a positive decision, this may shorten the time to receive an outcome.

Can I Get a Faster Decision on My UK Visa Application?

UK Visas & Immigration offers a ‘priority service’ and a ‘super priority service’ for applicants who, for an additional fee, wish to receive a faster decision on their UK visa application. Selecting one of these premium services will ensure that an application is placed at the front of the queue at every stage of the decision-making process.

Eligible applicants who apply via the priority service should receive a decision within 5 working days of their appointment at the visa application centre (for overseas applicants) or within 5 working days of either the day of their appointment at a UKVCAS appointment centre or the working day after having finished uploading documents if using the UK Immigration: ID Check app (for in-country applicants).

Eligible applicants who apply via the super priority service should receive a decision by the end of the next working day after their appointment at the visa application centre (for overseas applicants) or their appointment at a UKVCAS appointment centre (for in-country applicants) or within 2 working days if the appointment is at the weekend. In-country applicants cannot use the super-priority service if applying using the UK Immigration: ID Check App to confirm their identity.

The Super Priority Visa is currently temporarily suspended for new Family Visa applications submitted outside the UK. However, the Priority Visa Service has, since 20 February 2023, now resumed for new Marriage and Family Visa applications submitted outside the UK. Applicants can expect to receive a decision within 30 working days.

Additionally, from 9 January 2023, existing applicants with a pending Family Visa application have started to be offered the option of upgrading to a 15 full working days/3 weeks Priority Service.

For work (except Innovator Founder and High Potential Individual), study and visitor visa applications, priority and super priority services are available in the majority of overseas locations on an appointment basis. However, there is a reduction in the availability of the priority visa service for visit visa applications.

The priority and super priority services are currently both still available to applicants who are applying for leave to remain and settlement in eligible routes from within the UK.

Overseas applicants should check with their visa application centre to see if the priority visa service or super priority visa service is available in the country they are applying from for their application type.

Applicants applying from within the UK can check the eligible visa and settlement application tables to confirm whether the type of application they are making is eligible for either the priority 5 working day or super priority next working day service (note that there are separate tables for switching/extending applications and settlement applications).

Priority and super-priority services may not be appropriate for complex applications which cannot be processed expeditiously. In these cases, your application will be put at the front of the queue at each decision-making stage, but a decision may exceed the priority and super-priority timescales.

These premium services should also be considered carefully when making extension applications or switching categories where there is a risk of refusal. Specialist advice should be sought to ensure that complex applications are timed strategically and sensibly.

A Guide to UK Visa Premium and Priority Services

Can I Stay in the UK While Waiting for a Decision on My Immigration Application?

If you applied from within the UK before your last leave expired then you will be able to stay in the UK until you receive a decision from the Home Office, even if a decision is delayed.

Can I Travel Outside the UK While My In-Country Application Is Being Processed?

If you have submitted a visa application from within the UK, the general rule is that you must not travel outside the UK while waiting for an immigration decision. If you leave the UK, your immigration application will be treated as withdrawn and you will not be able to request a refund of your application fee.

You may travel outside of the UK if you have submitted a naturalisation application or have applied for the EU Settlement Scheme.

Travel outside the UK while waiting for an immigration decision

What Can I Do if a Decision Is Not Made in Time or I Need an Urgent Decision?

If UKVI is not able to process your visa application in time, due to its complexity for example, you should receive a letter explaining the reasons and what will happen next. This letter should be received within the standard processing time.

If you do not receive an update from the Home Office, you can contact them directly (by phone, in writing or both) to request an update on your application status.

You may wish to consider providing evidence of how the delay is impacting you, for example if you do not have a right to work or study. If there is an urgency or the standard processing time has passed it is possible to ask for the matter to be escalated as a priority.

If you paid for a priority or super-priority service and a decision has not been made within the standard processing time then you may also be able to request a refund of the priority or super-priority service fee.

When making enquiries, always take care to make clear that you are not intending to withdraw your application.

Additionally you may also consider making a formal written complaint to UKVI. The complaint process can take up to 20 working days.

You may also consider contacting your local MP.

Please note that UKVI has a discretion to treat incomplete applications, for example those that do not include all mandatory documents, outside of the standard service processing times.

How to Chase a Delayed UK Visa Application

How Can I Challenge Home Office Delay in Deciding My Application?

If there is still no response then you may consider a further legal avenue of challenge. There is no right of appeal when there is no decision, but you may consider judicial review proceedings as a way to ask a judge to review the failure of the Home Office to act and make a decision.

If this is a route you wish to consider then you will need to ensure that you have evidence of all stages of your attempts to obtain a decision. Keeping a written record and details of any Home Office ‘ticket’ numbers you are provided is highly recommended. The steps you have taken to obtain a decision and the reasons why one is required will be relevant considerations.

Before commencing proceedings you will need to follow a pre-action protocol process. This will give UKVI the opportunity to consider the position before you commence proceedings.

Judicial review proceedings can be legally complex, costly and time consuming. You may wish to consider seeking legal advice before commencing any proceedings.

How to Chase a Delayed UK Visa Application
UK Visa Application Granted – What Next?

Contact our Immigration Legal Advisers

For expert advice and assistance regarding a UK visa application, contact our immigration legal advisers on 0161 529 7779 or complete our enquiry form below.

Home Office Revises Minimum Income Requirement for Spouse, Partner and Family Visas to £29,000

Sat, 23 Dec 2023 08:08:20 GMT

As we reported in our earlier post, on Monday, 4 December, the Home Secretary unveiled a series of significant measures aimed at reducing legal migration numbers to the UK by around 300,000. These measures included an increase in the minimum income threshold for spouse and partner visas under Appendix FM from £18,600 to £38,700, set to come into effect in Spring 2024.

Revised Minimum Income Thresholds for Family Visas Unveiled

Less than 3 weeks later, in a spectacular U-turn, the Home Office yesterday announced that in Spring 2024, the partner and family visa minimum income requirement will in fact increase from £18,600 to £29,000, and not £38,700 as originally announced. In a further development, there will no longer be a separate child element to the minimum income requirement.

What the Revised £29,000 Minimum Income Requirement Means for Families

Full details of transitional provisions will be set out next year when further policy details will be announced. However, based on an official Home Office Fact Sheet, we can now confirm as follows:

If you already have a Family Visa (i.e. a Spouse Visa, a Civil Partner Visa or an Unmarried Partner Visa) on the five-year partner route and you wish to apply to extend your stay or settle in the UK, your application will be assessed against the current £18,600 income requirement and you will not be required to meet the increased threshold of £29,000. This will also be the case for any children seeking to join or accompany you as their parent;
If you apply for a Family Visa (i.e. a Spouse Visa, a Civil Partner Visa or an Unmarried Partner Visa) on the five-year partner route before the minimum income threshold is raised from £18,600, your application will be assessed against the current £18,600 income requirement and you will not be required to meet the increased threshold of £29,000. This will also be the case for any children seeking to join or accompany you as their parent;
If you are granted a Fianc(é)e Visa before the minimum income threshold is raised from £18,600 to £29,000, then when you apply for a Family Visa on the five-year partner route, your application will also be assessed against the current income requirement of £18,600 and you will not be required to meet the increased threshold of £29,000;
If you do not already have a Family Visa on the five-year partner route and you wish to apply for a Family Visa on the five-year partner route after the minimum income requirement has been increased in Spring 2024, you will be subject to the new £29,000 minimum income requirement;
If you are already in the UK on a different route and you wish to apply to switch into the five-year partner route after the minimum income requirement has been increased in Spring 2024, you will be subject to the new minimum income requirement of £29,000.

Strategic Considerations: Navigating the Evolving Landscape of UK Family Visas

While many family members will welcome the fact that the Home Office has railed back from its proposal to immediately increase the minimum income requirement for a spouse or partner visa from £18,600 to £38,700, the new £29,000 threshold is still above the average UK working salary and has the potential to prevent many thousands of couples from living together in the UK

If the new £29,000 financial requirement will apply to you and you are concerned that you may not be able to satisfy the new requirement once it is introduced, you may wish to apply for your spouse, partner or fiance to join you before the new minimum income requirement is introduced in Spring 2024. If this is an option, our immigration barristers would be pleased to advise and assist you further.

Alternatively, if the new £29,000 financial requirement will apply to you, you are concerned that you may not be able to satisfy the new minimum income requirement and you cannot apply for a spouse, partner or fiance visa before Spring 2024, then you may still be able to enter or remain in the UK after Spring 2024 by invoking an exception to the financial requirement. You can read more about the exceptions to the Appendix FM financial requirement in our previous posts. Due to the complexity of such applications, we recommend that anyone considering an application on this basis seeks legal advice.

Staged Increase: the Future of the Financial Requirement for a UK Family Visa

All applicants should be aware that the government is not doing away with its plan to introduce a £38,700 threshold for family visas entirely. The government has said that the increase in the minimum income threshold for a spouse or partner visa to £29,000 is part of a staged increase, so, in Spring 2024 the partner and family visa minimum income requirement will increase from £18,600 to £29,000, but the plan is for this figure to eventually rise to £34,500 and then £38,700.

No dates have been announced for these subsequent incremental increases beyond £29,000, raising the real prospect that they may never be introduced, particularly with a general election on the horizon.

Contact our Immigration Legal Advisers

For expert advice in relation to a UK visa application or immigration appeal, contact our immigration legal advisers on 0161 529 7779 or complete our enquiry form below.

UK-Ireland Travel: A Guide for Visa Nationals

Fri, 22 Dec 2023 12:15:54 GMT

In two previous posts, we explained the impact of the Common Travel Area (CTA) on travel between the UK and Ireland. In our first post, we explained how non-visa nationals may automatically benefit from “deemed leave” when travelling within the CTA – for example, from London to Dublin and back. In our second post, we explained how travel works for British citizens and their family members going to Ireland, and for Irish citizens and their family members coming to the UK.

As explained in our previous post, “visa nationals” – i.e. nationals of countries listed in the visa national list of Appendix Visitor to the Immigration Rules – do not benefit from deemed leave. As such, this post provides an overview of how travel between the UK and Ireland works for visa nationals who are in the UK with some form of permission to be in the UK. It will explain how travel works for those in the UK with a short-term visa, and for those with longer term forms of permission, including indefinite leave to remain (ILR).

As with our previous posts, please note that we are only able to advise on UK immigration law, and we cannot advise on Irish immigration law. Any references to elements of Irish law are only intended as a starting point, and do not constitute advice on Irish immigration law. For further information on Irish immigration law, you may wish to consult the Irish Immigration Service webpage, or a lawyer qualified to advise on Irish immigration law.

I Have a Short-Term UK Visa – How Does Visiting Ireland Work?

If you are a visa national in the UK on a short-term visa (e.g. a six-month UK Visitor visa), the default position is that you still need to apply for an Irish visa to visit Ireland.

However, there are a number of exceptions to this. You do not need a visa to enter Ireland as a Visitor if:

You have a valid Irish residence permit, or a travel document issued by Ireland;
You are a citizen of a country in Ireland’s list of non-visa-required nationalities;
You have a residence card issued by an EEA country or Switzerland, as you are a family member of an EEA/Swiss citizen who is living in the EEA/Switzerland but outside of their home country (e.g. you are an Egyptian national with a French residence card, because you normally live in France with your Swedish spouse);
You are a Ukrainian citizen; or
You have a short-term UK visa, and you qualify for either Ireland’s Short-stay Visa Waiver Programme or the British-Irish Visa Scheme (see below).

Short-Stay Visa Waiver Programme

If you are a national of an eligible country (in Eastern Europe, the Middle East, Asia, and South America), and you entered the UK on an eligible short-stay visa, you may benefit from Ireland’s Short-stay Visa Waiver Programme.

According to the Irish Immigration Service webpage, the UK visas that are eligible for the Programme are “UK short-stay visit visas”, except for those issued to “visitors in transit” or “visitors seeking to marry or to enter a civil partnership”. The webpage also states that “long-term visitors” to the UK – including those on long-term Student visas and persons seeking to join a spouse or for family reunification (though none of these entail true “Visitor” visas in UK immigration law) – are not eligible for the Programme.

While the concept of “UK short-stay visitor visas” is not fully defined on the webpage, there are references to periods of leave to remain in the UK for “up to a maximum of 180 days each time”. As such, it would appear that qualifying UK visas are those granted for up to 180 days.

However, given the webpage’s rather flexible use of the word “visitor”, it is slightly unclear whether the excluded category of “visitors seeking to marry or to enter a civil partnership” includes those in the UK on Fiancé visas, as well as those in the UK on Marriage Visitor visas. Further, unlike other pages on the site, the webpage does not specify whether Permitted Paid Engagement visas are eligible or ineligible. If either of these situations is applicable to you, please consult a lawyer qualified to advise on Irish immigration law for further clarification.

If you are eligible for this Programme, you can travel from the UK into Ireland without applying for an Irish visa. You can then stay in Ireland as a Visitor for the shorter of: (i) the length of permission remaining on your short-stay UK visa, or (ii) 90 days. For example, if you had 20 days remaining on your UK short-stay visa, you would only be able to stay in Ireland under this Programme for 20 days. By way of further example, if you had 100 days remaining on your UK short-stay visa, you would only be able to stay in Ireland for 90 days, in line with the Programme’s overall time limit.

Note that the Programme only applies if you first use your short-stay UK visa to lawfully enter the UK, and then travel on to Ireland. However, this also includes the scenario where you enter the UK using your UK short-stay visa, travel elsewhere, but still have time remaining on your UK permission. In this case, you can travel directly to Ireland from the third country, and stay in Ireland for the length of permission remaining on your UK short-stay visa.

British-Irish Visa Scheme

The British-Irish Visa Scheme (BIVS) allows eligible Indian and Chinese nationals to visit both the UK and Ireland using a single Irish short-stay visa or a single UK Visitor visa.

You are eligible for BIVS if, at the time of application, you are an Indian national living in India or a Chinese national living in China (including those living in Hong Kong and Macau).

As an eligible person, the Scheme applies to you if:

You hold an eligible Irish visa (visit (family/friend), visit (tourist), conference/event, business); or
You hold an eligible UK visa (all standard Visitor visas where the maximum period for a single visit is 6 months, and Permitted Paid Engagement visas – but not visas for “visitor in transit” or “visitor for marriage or civil partnership”).

Please note that, similarly to the Short-Stay Visa Waiver Programme, the BIVS only operates if you first travel to whichever country issued your short-stay or Visitor visa before travelling on to the other country. For example, if you hold an Irish short-stay visa, you must first travel to Ireland before coming to the UK.

Likewise, if you hold a UK Visitor visa, you must first come to the UK before travelling on to Ireland.

In addition, in order to avail of the BIVS, your visa must be endorsed by an immigration officer with the letters “BIVS”. Please note that there is no right of appeal against a decision not to endorse a visa in this way.

As with the Short-Stay Visa Waiver Programme, the maximum period of time you will be able to remain in Ireland under the BIVS is the shorter of: (i) the length of permission remaining on your UK Visitor visa, or (ii) 90 days.

Given that Irish short-stay visas are only granted for up to 90 days, the maximum period of time you will be able to remain in the UK under the BIVS will be the length of permission remaining on your Irish short-stay visa, which will at most be 90 days.

I Have a Long-Term UK Visa or Indefinite Leave to Remain (ILR) – How Does Visiting Ireland Work?

If you do not have a valid UK short-stay visa (as discussed above), and you do not qualify for any of the other exceptions listed above (e.g. Irish residence permit or travel document, non-visa required national, relevant EEA/Swiss residence card, Ukrainian citizenship), you must apply for an Irish visa to visit Ireland.

Entering Ireland for a Longer Period

If you are a visa national in the UK with permission (whether on a short-term visa or long-term visa), and you want to enter Ireland for longer than 90 days, you must normally apply for the Irish visa or preclearance relevant to your reason for entering Ireland (e.g. work, study, joining family).

Though having a long-term UK visa or ILR will not exempt you from the requirement to apply for an Irish visa, it may mean that you are exempt from paying the visa fee.

For more information on applying for Irish visas, please see the Irish government website.

Contact our Immigration Legal Advisers.

For expert advice regarding travel and entry to the UK, or regarding your immigration status in the UK, contact our immigration legal advisers on 0161 529 7779 or complete our enquiry form below.

Grounds for Refusal of a UK Immigration Application Explained

Thu, 21 Dec 2023 12:31:47 GMT

Part 9 of the Immigration Rules applies to the vast majority of applications for entry clearance and permission to stay in the UK. It contains the general grounds of refusals and in certain circumstances provides a mandatory ground for refusal, even if an applicant meets the remainder of the suitability, eligibility and validity requirements for their application.

If a mandatory ground applies, the entry clearance officer must refuse the application or cancel permission, whereas if a discretionary ground does, the entry clearance officer has the discretion to refuse permission.

This post will focus on Part 9 grounds for refusal in relation to the prospect of refusal of an application but not on cancelling existing permission. This is Part 1 of 2 posts and covers refusals under: non-conducive grounds, criminality grounds and breach of immigration laws. Part 2 will cover refusals under: exclusion, deportation order or travel ban grounds, false representations grounds, involvement in sham marriage/civil partnership grounds and exclusion from asylum or humanitarian protection grounds.

Which Applications Does Part 9 General Grounds for Refusal Apply To?

Part 9 grounds for refusal apply to the vast majority of applications. However, there are several types of applications which it does not apply to, so it is worth checking prior to the consideration of Part 9. Section 1 of Part 9 states that Part 9 does not apply to applications made under:

Appendix EU
Appendix EU (Family Permit)
Appendix S2 Healthcare Visitor
Appendix Service Providers from Switzerland
Appendix Settlement Protection
Appendix Electronic Travel Authorisation

It also only applies in part to some applications, including those made under:

Appendix FM
Appendix Private Life
Appendix Armed Forces
Part 11 (Asylum)
Appendix Settlement Family Life
Appendix Adult Dependent Relative

Ground 1: Breach of Immigration Law Grounds

If an applicant has breached immigration law and then makes a further immigration application, Part 9 may be engaged.

A breach of immigration law is defined at paragraph 9.8.4 as someone who:

If, when they were aged 18 or over, they:

(a) overstayed their permission and neither paragraph 9.8.5. nor paragraph 9.8.6. apply; or
(b) breached a condition attached to their permission and entry clearance or further permission was not subsequently granted in the knowledge of the breach; or
(c) were (or still are) an illegal entrant; or
(d) used deception in relation to an application (whether or not successfully).

Further information on what constitutes a breach of immigration law can be found in this blog post.

Consequences of Breaching Immigration Law for Entry Clearance and Permission to Enter

Breaching an immigration law is a mandatory ground for refusal if the application was made in the relevant time period as set out at paragraph 9.8.7. Breaching an immigration law is a discretionary ground for refusal if the application was made outside the time specified in 9.8.7 and ‘the applicant has previously contrived in a significant way to frustrate the intention of the rules, or there are other aggravating circumstances (in addition to the immigration breach), such as a failure to cooperate with the redocumentation process, such as using a false identity, or a failure to comply with enforcement processes, such as failing to report, or absconding.’ This can include individuals who have been encountered by the Home Office whilst in the UK and have failed to co-operate.

Paragraph 9.8.7 contains the relevant information on re-entry bans. The minimum ban is 12 months for applicants who left the UK voluntarily and at their own expense. The maximum is 10 years if there has been a finding of deception.

Consequences of Breaching Immigration Law for Permission to Stay

For permission to stay, there is a discretionary ground of refusal where ‘a person has previously failed to comply with the conditions of their permission, unless permission has been granted in the knowledge of the previous breach.’

For all applications (to enter or to stay in the UK) there is a further discretionary ground for refusal if there is a finding of deception regarding a previous application.

Ground 2: Criminality Grounds

Criminality is a mandatory ground for refusal if the applicant:

has been convicted of a criminal offence in the UK or overseas for which they have received a custodial sentence of 12 months or more; or
is a persistent offender who shows a particular disregard for the law; or
has committed a criminal offence, or offences, which caused serious harm

A persistent offender is defined in the guidance as someone who, ‘shows a pattern of offending over a period of time. This can mean a series of offences committed in a fairly short timeframe, or offences which escalate in seriousness over time, or a long history of minor offences for the same behaviour which demonstrate a clear disregard for the law.’ This can include fines, suspended sentences or community orders if a pattern of offending is established.

Criminality is a discretionary ground for refusal where the applicant:

has been convicted of a criminal offence in the UK or overseas for which they have received a custodial sentence of less than 12 months; or
has been convicted of a criminal offence in the UK or overseas for which they have received a non-custodial sentence, or received an out-of-court disposal that is recorded on their criminal record

For applications to enter under Appendix Visitor a specific mandatory provision applies and so the applicant must be refused where the applicant:

has been convicted of a criminal offence in the UK or overseas for which they have received a custodial sentence of less than 12 months, unless more than 12 months have passed since the end of the custodial sentence
has been convicted of a criminal offence in the UK or overseas for which they have received a non-custodial sentence, or received an out-of-court disposal that is recorded on their criminal record, unless more than 12 months have passed since the end of the custodial sentence

A criminal conviction could also amount to conduct which is non-conducive to the public good, as covered below.

Ground 3: Non-conducive to the Public Good Grounds

Part 9 states at 9.3.1 that:

‘An application for entry clearance, permission to enter or permission to stay must be refused where the applicant’s presence in the UK is not conducive to the public good because of their conduct, character, associations or other reasons (including convictions which do not fall within the criminality grounds).’

And 9.3.2 similarly states:

‘Entry clearance or permission held by a person must be cancelled where the person’s presence in the UK is not conducive to the public good.’

This is therefore a mandatory grounds for refusal. To meet the threshold of ‘non conducive to the public good’ there does not need to be a criminal conviction but that it itself could meet the threshold should it be serious enough.

The guidance defines non-conducive to the public good as, ‘it is undesirable to admit the person to the UK, based on their character, conduct, or associations because they pose a threat to UK society.’ This applies to matters in the UK and abroad. It is a broad test to be applied on a case-by-case basis and who is required to consider if, on the balance of probabilities, a decision to refuse is based on sufficiently reliable information.

A list of factors which weigh into the decision are also given, including:

the nature and seriousness of the behaviour
the level of difficulty we could experience in the UK as a result of admitting the person with that behaviour
the frequency of the behaviour
the other relevant circumstances pertaining to that individual

This blog post explores in further detail what can constitute conduct which is non-conducive to the public good. Examples include if an individual is a threat to national security, engaged in extremism, committed serious immigration offences and is likely to incite public disorder. It is worth noting that the decision maker must consider the reliability of the evidence before them and that, ‘Allegations, unsubstantiated and vague generalisations are not sufficient.’

What Are the Options if an Application Is Refused on Part 9 Grounds?

Should your immigration application be refused on Part 9 grounds, you will be unlikely to have a right to appeal unless your application constitutes a human rights claim.

You can make a fresh immigration application, under the same or a different route.

You could also apply for Administrative Review if it can be shown that a caseworking error was made, or a Judicial Review if it can be shown that the decision is unlawful.

Contact Our Immigration Legal Advisers

For expert advice and assistance with the application of Part 9 Grounds for Refusal contact our Immigration legal advisers on 0161 529 7779 or complete our enquiry form below.

Divorce and the EU Settlement Scheme: Retained Rights of Residence

Tue, 19 Dec 2023 09:30:16 GMT

A common question for those who hold Pre-Settled Status in the UK as the spouse of an EEA national is what will happen to their rights in the event of a divorce, and whether they will be eligible for Settled Status. This article will explore the provisions contained within Appendix EU of the Immigration Rules which relate to a family member’s rights in the event of divorce.

As a starting point, it should be noted that the definition of ‘spouse of an EEA national’ is centred around the existence of a marriage between an EEA national and their family member, and a requirement that this is not a marriage of convenience. There is no requirement which mirrors that of Appendix FM to demonstrate that a relationship remains genuine and subsisting. The family relationship will therefore cease to exist, under Appendix EU, at the point of divorce.

Appendix EU contains provisions which allow an individual to make an application on the basis of being a ‘family member who has retained a right of residence’. We address some of the main questions that might arise about these provisions below.

What period of residence do I need to demonstrate in the UK?

An applicant will need to demonstrate that they were in the UK at the date of the termination of their marriage or civil partnership. If they are applying for Settled Status, they also need to demonstrate that they have completed a continuous qualifying period of residence in the UK of 5 years or more; that is, a period of 5 years’ residence in the UK with no more than 6 months of absence in any 12 month period.

Does my EEA national former spouse need to be resident in the UK when I apply?

The rules are less clear on this point. They are clear that they require an applicant to demonstrate that they ceased to be the family member of a ‘relevant EEA citizen’ on the termination of their marriage or civil partnership. The definition of a ‘relevant EEA citizen’ sheds light on the answer to this question.

The definition includes an EEA national who has been granted Settled or Pre-Settled Status under the EU Settlement Scheme, which has not lapsed, or been cancelled, curtailed or invalidated. However, some applicants may be in a position where their former partner never held Pre-Settled or Settled Status. They can still come within the scope of the rules, but they would need to demonstrate that their partner would have been granted such leave if they had submitted an application before 1 July 2021; and that the leave would not have lapsed, or been cancelled, curtailed or invalidated. This could require substantial evidence of their former partner’s residence. Given the potential difficulties which might arise with this following the breakdown of a relationship, the Home Office guidance does incorporate some degree of flexibility, detailed below. However, this remains a significant hurdle for applicants. The question also arises as to when an individual will stop being considered to be a relevant EEA citizen, and the impact this will have on an application.

Appendix EU states that where an individual met the definition of an ‘EEA citizen’ at the point that the proceedings for divorce were initiated, but then ceased to meet that definition, they will be considered to have remained a relevant EEA citizen until the termination of the marriage/civil partnership. This reflects the principles of retained rights under EU law which applied before the UK left the European Union and implies that an application could still be made after a former partner has ceased to meet the definition of ‘relevant EEA citizen’. However, there is some lack of clarity in the rules in these circumstances.

Appendix EU does, as a result of the above, appear to be more generous than the EEA Regulations, which required the EEA national to be exercising treaty rights in the UK at the date of the initiation of proceedings for divorce or the termination of a civil partnership. By contrast, under Appendix EU, an EEA citizen could be outside of the UK, whilst still meeting the definition of ‘relevant EEA citizen’. However, it is important to note that this status may have lapsed, and applicants should seek legal advice to determine whether they could meet the rules on this basis in their specific circumstances.

How long do we need to have been married for?

One route to demonstrating that an applicant meets the requirements of Appendix EU is to demonstrate that, prior to the initiation of the proceedings for termination of the marriage or civil partnership, the marriage or civil partnership lasted for at least 3 years. If an applicant is relying on this provision, they will also need to show that they lived together in the UK for a continuous qualifying period of at least one year during the marriage. This is a period of at least one year, which commenced before the specified date, with no absences of more than 6 months in any 12 month period.

What are the routes if we had not been married for 3 years?

There are alternative ways of meeting the requirements. One is to demonstrate that an applicant has custody of a child of the relevant EEA citizen. Another is to show that an applicant has a right of access to a child of an EEA citizen where the child is under the age of 18 years and where a court has ordered that such access must take place in the UK.

There are also provisions which allow an applicant to provide evidence that the relationship broke down permanently as a result of domestic violence or abuse, and that the Applicant was resident in the UK when the relationship broke down permanently. The provisions also allow evidence to be provided that another family member has been the victim of domestic violence and that the applicant’s continued right of residence in the UK is warranted as a result.

What if my former partner won’t provide me with the evidence I need?

As mentioned above, a common problem applicants may face is that such applications are contingent on evidence from a former partner; and a former partner may well not be willing to assist with an application. The Home Office’s guidance does take this into account. It allows caseworkers to, for example, accept alternative evidence of the identity and nationality of the relevant EEA citizen in the case of a permanent relationship breakdown. They may also make reasonable enquiries on behalf of an applicant to obtain the required evidence where it is ‘necessary and appropriate’.

Conclusion

In some cases therefore, the former spouse or civil partner of an EEA national can apply to remain in the UK on the basis of their ‘retained rights of residence’. However, the relevant provisions contained within the Immigration Rules are complex, and lack some clarity. It may be that future litigation sheds more light on the exact implications of these provisions. In the meantime, it is important that such applications are carefully prepared and well evidenced.

Contact our Immigration Legal Advisers

For expert advice and assistance with an application to remain in the UK on the basis of a ‘retained rights of residence’, contact our immigration legal advisers in Manchester on 0161 529 7779 or complete our enquiry form.

Supreme Court Weighs in on Long Residence, Validity and Section 3C

Mon, 18 Dec 2023 08:50:12 GMT

In R (on the application of Afzal) & R (on the application of Iyieke) v Secretary of State for the Home Department [2023] UKSC 46 the Supreme Court considered matters arising from two applications for indefinite leave to remain in the UK on the basis of long residence, often referred to as 10 years continuous lawful residence.

Issue 1 – Failure to pay the IHS – invalidity – section 3C

The first issue the Court had to consider was whether section 3C of the Immigration Act 1971 applies in circumstances where an application for leave to remain is considered invalid for failure to pay the Immigration Health Surcharge (IHS).

Mr Afzal had leave to remain in the UK until 14 July 2017 and made an in-time application for further leave to remain on 6 July 2017, together with an application for waiver of the relevant fees. On 18 October 2017, the Secretary of State rejected his fee waiver application and notified him that he had to pay the application fee and the IHS. Mr Afzal paid the application fee on 1 November 2017, but not the IHS. On 8 November 2017, the Secretary of State wrote to him to remind him to pay the IHS within 10 days. With the IHS having remained unpaid, the Secretary of State wrote to Mr Afzal on 22 January 2018 to notify him that his application for further leave to remain had been rejected as invalid. Mr Afzal did not challenge this, but made a fresh application for leave to remain, together with the relevant payments, on 2 February 2018. This application was successful and Mr Afzal was granted leave to remain on 5 September 2019.

The issue for the Court was whether section 3C had been engaged so as to extend Mr Afzal’s leave to remain in the UK beyond 14 July 2017 and, if so, until when. This turned on the issue of whether Mr Afzal’s application made on 6 July 2017 was invalid and, if so, when it had become invalid.

In considering this, the Court considered the effect of its previous judgment in R (Mirza) v Secretary of State for the Home Department [2016] UKSC 63. In Mirza it was held that section 3C applies only if a valid application for variation of leave to enter or remain is made. An application may be valid for the purposes of engaging section 3C in circumstances where the Secretary of State has discretion to treat an application as invalid after it is made. To apply this to Mr Afzal’s circumstances, the Court considered the contents of the Immigration (Health Charge) Order 2015. This states that the IHS must be paid when the person applies for entry clearance or leave to remain, but that the Secretary of State has a discretion to waive it. Further, it states that where a person fails to comply with the requirement to pay the IHS, the Secretary of State has a discretion to request the applicant to pay it. In the event of a failure to pay the IHS within 10 working days from when the request is sent in writing or made by telephone or in person, the application for leave to remain must be treated as invalid by the Secretary of State.

As such, the Court held that:

Given that Mr Afzal’s application for leave to remain was combined with an application for waiver of the fee, it was not valid ab initio (from the outset), because at that stage it was not known whether the payment of the fee was in fact required;
An application in these circumstances is conditionally valid. It becomes invalid if and when the obligation to pay the fee is confirmed following the refusal to grant the fee waiver, the request for the fee is sent, and the fee is not thereafter paid within 10 working days; and
In Mr Afzal’s case, the request was sent on 18 October 2017 and therefore the application ceased to be valid within 10 working days of that date, on 31 October 2017. It was on that date that Mr Afzal’s leave extended by section 3C ended, when his application ceased to be valid.

The Court broadly affirmed the Court of Appeal’s judgment, although it held that the 10 working days begin from the date the original request for the IHS is sent, which in Mr Afzal’s case was on 18 October 2017. The reminder to pay on 8 November 2017 was found not to affect the position.

Further, the invalidity occurs by operation of law and not by way of a decision, so that the notification that an application is invalid, which in Mr Afzal’s case was sent on 22 January 2018, is not determinative of the invalidity or of the date on which the application ceased to be valid. The circumstances of Ms Ehsan’s case in Mirza were distinguished from Mr Afzal’s case.

Issue 2 – Paragraph 276B(v) – can “disregarded” periods of overstaying count towards the 10 year continuous lawful residence requirement?

As it was found that Mr Afzal’s leave to remain ended on 31 October 2017, he became an overstayer on that date and was an overstayer when he made his fresh application on 2 February 2018. However, as this was made within 14 days from the date when he was notified that his previous application had been rejected as invalid on 22 January 2018, the Court of Appeal previously had concluded that paragraph 39E(2)(b)(i) of the Immigration Rules applied, so that the period between the expiry of Mr Afzal’s leave in 2017 and the fresh grant of leave to remain on 5 September 2019, constituted book-ended overstaying within the meaning of paragraph 276B(v). Such a period ought to be disregarded for the purposes of calculating whether Mr Afzal had 10 years continuous residence under paragraph 276B(a)(i). The Secretary of State did not appeal against this finding and had accepted the Court of Appeal’s conclusion.

However, the Supreme Court had to consider what “disregarded” means in paragraph 276B(v): should the book-ended period of overstaying be treated as a period of lawful residence or not? The answer was no.

The Supreme Court agreed with the Court of Appeal’s ruling that the natural meaning of “disregarded” is ignored. Whilst the period of overstay does not break the continuous lawful residence, it cannot be treated as such residence. Whilst Underhill LJ had concluded otherwise in Hoque v Secretary of State for the Home Department [2020] EWCA Civ 1357, this was obiter and incorrect. The natural meaning of paragraph 276B(v) was held to be unambiguous and, therefore, it was not appropriate to refer to the Secretary of State’s guidance to interpret that rule.

The Court affirmed the Court of Appeal’s decision and dismissed Mr Afzal’s appeal.

Issue 3 – Paragraph 276B(v)(a) – the previous application

Mr Iyieke’s appeal related to the interpretation of “the previous application” in sub-paragraph (a) of paragraph 276B(v). Effectively, he made an application on 2 September 2014, after his leave had expired on 10 August 2014. The application was out of time, but within 28 days of his leave expiring. However, this application was refused without a right of appeal and Mr Iyieke made a further application on 26 February 2015 which was ultimately successful on appeal, leading to a grant of leave on 11 August 2017.

Mr Iyieke argued that, since he made an application within 28 days of his leave expiring, the 2 September 2014 application, and since he was then granted leave on 11 August 2017, his period of overstaying should be disregarded. The “previous application” was that of 2 September 2014, even though it was the 26 February 2015 application that resulted in the grant of leave.

The Supreme Court rejected this argument. It was held that “the previous application” referred to the application which resulted in the second leave being granted. In Mr Iyieke’s case that was the 26 February 2015 application, which was more than 28 days after the expiry of his leave and therefore did not come under paragraph 276B(v)(a)). The Court held that the interpretation argued on behalf of Mr Iyieke cannot reasonably be thought to be what the drafter intended, as it would lead to perverse effects, namely that it would be more advantageous to make an application out of time than prior to the expiry of leave.

For these reasons, Mr Iyieke’s appeal was dismissed.

Commentary

The circumstances of Mr Afzal’s case are unlikely to occur in the future. Fee waiver applications are now made electronically and the decision on the fee waiver application is made prior to the associated application for leave to remain being made. As such, whether the application fee and IHS are required will be known at the point of submission, as the Secretary of State would have reached a decision on whether to exercise his discretion to waive the fees or not.

Further, applications for leave to remain are also made electronically and, in the absence of a fee waiver reference, the application fee and IHS have to be paid before the application is submitted. Nonetheless, the validity or invalidity of applications and, by extension, the application of section 3C are matters of law and they arise more often than not when considering a person’s immigration history for the purposes of a long residence application. The Supreme Court’s judgment in Afzal offers, therefore, helpful guidance in addition to that given previously in Mirza.

Interestingly, whilst, following Mirza, it was thought that the failure to enrol biometrics will never result in an application’s automatic invalidity in the absence of a decision rejecting an application on that basis, this will need to be revisited in view of the Court’s obiter observation in paragraph 50 of Afzal. In some circumstances the failure to enrol biometrics results in automatic invalidity, without any discretion on the part of the Secretary of State, and the timing of the invalidity would need to be determined accordingly by examining and applying the Biometric Regulations to the relevant facts of the case.

Finally, it is worth noting that the Supreme Court echoed the sentiments expressed by the courts at all levels when considering this part of the Immigration Rules: they are poorly drafted and result in uncertainties and expensive litigation. The Court stressed that the project to simplify and clarify the Rules should be completed.

Contact our Immigration Legal Advisers

For expert advice and assistance with long residence applications and appeals, contact our immigration legal advisers in Manchester on 0161 529 7779 or complete our enquiry form below.

Legal Implications of Doubling the Family Visa Income Requirement

Sun, 17 Dec 2023 11:38:31 GMT

As many readers will be aware, part of the Home Secretary’s recently announced “five-point plan” on immigration included a significant increase to the minimum income threshold for family visas under Appendix FM of the Immigration Rules.

Whereas currently those eligible under Appendix FM (ordinarily the partners of British citizens or individuals settled in the UK) need to demonstrate that they meet a minimum income requirement of £18,600, under the proposed changes this threshold will more than double to £38,700.

This post delves into the potential ramifications of this significant increase, examining the current landscape, projecting its impacts based on insights from the Migration Observatory, and anticipating the legal challenges that are likely to emerge. Drawing parallels with past legal precedents, particularly the Supreme Court’s decision in R (on the application of MM (Lebanon)), we aim to shed light on the considerations that may form the basis of future challenges.

Impact Analysis: Migration Observatory Insights

As previously mentioned, individuals qualifying under Appendix FM, typically the spouses of British citizens or individuals residing in the UK, are currently required to prove that they meet a minimum income threshold of £18,600. However, the current UK Government proposes a substantial increase, with this threshold soaring to £38,700.

The wide reaching and potentially devastating impact this will have on individuals and families is already apparent. As outlined in our previous post, according to the Migration Observatory, just under 70% of British employees working in the UK earned less than the new income threshold in 2023 and the increased income threshold will disproportionately impact certain demographic groups. Specifically, while approximately 60% of men earn less than the new income requirement, this percentage rises to over 75% for women. Moreover, nearly all part-time employees earn below the threshold, effectively restricting the ability of migrant dependents to reside in the UK to full-time workers.

Legal Challenges on the Horizon: Revisiting the Supreme Court’s Decision in MM (Lebanon)

It seems clear that legal challenges will follow. At this stage, particularly with so few details of the new rules available, it is not possible to predict the outcome or the scope of the arguments that might be advanced in those challenges.

However, this is not the first time that the minimum income requirement has been considered by the courts. This article will revisit the Supreme Court’s decision in R (on the application of MM (Lebanon) (AP) (Appellant) v. Secretary of State for the Home Department (Respondent) [2017] UKSC 10, in which the current £18,600 minimum income requirement was the subject of legal challenge, and will consider how the considerations at that time might shed light on the events that are to come.

Legal Grounds: Challenge under Articles 8, 12, and/or 14

The Supreme Court was considering four judicial review claims which constituted a general challenge to the minimum income requirement in Appendix FM of £18,600, and the ongoing appeal of SS, whose entry clearance application was refused. The requirement was challenged on the ground that it was incompatible with the rights of the claimants and their partners (and in one case a child) under Articles 8, 12 and/or 14 of the European Convention of Human Rights. It was also contended that the requirement was unreasonable and ultra vires on common law principles.

The Court’s Considerations: Legitimacy of Minimum Income Requirement

The Supreme Court was asked to consider the legality of the rules, rather than simply their application in an individual case. It is this kind of challenge which one might anticipate in respect of the new minimum income requirement. Of course, there will also inevitably be a large number of individual challenges to the application of the rules in specific cases and arguments concerning the specific proportionality of individual decisions.

It was made clear that such general challenges are very difficult. The Court must consider whether the measures strike a fair balance between the rights of the individual and the interests of the community. Moreover, it is not enough that a rule may lead to infringements of that principle in individual cases. The Court would not be entitled to strike down a rule unless satisfied that it was incapable of being operated in a proportionate way and so inherently unjustified in all or nearly all cases.

The Supreme Court acknowledged that even the current minimum income requirement of £18,600 had caused and would continue to cause significant hardship to many thousands of couples who would have a good reason for wanting to make their lives together in the UK. However, the fact that the rules cause hardship to many was not sufficient to warrant the conclusion that it was incompatible with Convention rights or otherwise unlawful at common law.

The aims of a minimum income requirement were found to be entirely legitimate and sufficient to justify the interference with, or lack of respect for, the Article 8 right. The stated aim was to ensure that a couple did not have recourse to welfare benefits and had sufficient resources to be able to play a full part in British life. It was argued that there was no rational connection between those legitimate aims and the particular income threshold. However, this argument was rejected, with the Court making specific reference to the work of the Migration Advisory Committee in determining the threshold as “a model of economic rationality”.

Proposed Threshold: Rationale and Concerns

Turning to the present, it remains to be seen on what basis the proposed threshold of £38,700 has been reached. The rationale for such a substantial increase may be relevant to the merit of an argument as to whether there is a rational connection between the government’s aim and the new income threshold.

Disparate Impacts: Gender and Ethnic Disparities

It was acknowledged that the minimum income requirement may constitute a permanent impediment to many couples and that female sponsors are disproportionately affected, as are sponsors from certain ethnic groups. Such disparate impacts are expected to be exacerbated by the impending changes. As noted above, the Migration Observatory has stated that the increased income threshold will disproportionately impact certain demographic groups. For example, whilst 60% of men earn less than the new income requirement, this percentage rises to over 75% for women.

Discrimination Considerations: Article 14 and Equality Impact Assessment

The Supreme Court agreed with the Court of Appeal, for reasons also articulated by the High Court, that no separate issue arises in respect of discrimination under Article 14. The High Court concluded that setting the minimum income threshold above the subsistence level was a judgement in economic as well as immigration policy, and an appropriately broad discretionary area of judgement must be afforded to the Secretary of the State in such a case. It was found that no overtly discriminatory criteria had been used. It was inevitable, having regard to the legitimate aim, that the measures would disproportionately impact migrant families on low incomes, but this is the group to whom the legitimate policy aim was directed. Further, the fact of such differential impact had been sufficiently noted in the equality impact assessment for the due regard required by domestic law to have been paid to it. Once more, it remains to be seen whether the same conclusions could be drawn in respect of the new threshold.

Individual Cases vs. General Rules: Balancing Convention Rights

As above, the Supreme Court was clear in its emphasis that it is generally the decision in an individual case which may be incompatible with the Convention rights, rather than the relevant general rules or policies.

Seeking Legal Guidance: Options for Individuals

The provisions of the Immigration Rules themselves allow for Article 8 considerations in the event that specific requirements are not met, and it is these considerations which will need to form the basis of the application from those who do not meet the minimum income requirement when the changes come into force. However, the details of the provisions yet to be published will provide further insight into the potential basis for more general challenges. In the meantime, individuals who might be affected may wish to seek legal advice in respect of their options.

Exceptional Circumstances in Appendix FM Family Visa Applications
Exceptions to Appendix FM Partner & Parent Visa Requirements

Contact our Immigration Legal Advisers

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Even More Changes to the UK’s Immigration Rules!

Wed, 13 Dec 2023 09:32:03 GMT

Hot off the back of the Home Secretary’s announcement regarding changes to the Skilled Worker minimum salary threshold, modifications to the Shortage Occupation List, adjustments to dependant visas, and a review of the Graduate visa route, in its latest Statement of Changes to the Immigration Rules (HC246), published on 7 December 2023, the Home Office has announced various changes to a number of UK immigration routes, as well as the introduction of several new appendices to the Immigration Rules. In this post we highlight some of the key changes to the Immigration Rules that applicants should be aware of, including:

A requirement that joining family members submit any application to the EU Settlement Scheme within 3 months of arrival;
A change to the right to work conditions for Visitors to allow visitors to the UK to work remotely while in the UK, provided this is not the primary purpose of their visit;
Merging of the Permitted Paid Engagement Visitor route into the Standard Visitor route, meaning that all visitors can undertake Permitted Paid Engagements;
The addition of Uruguay to the Youth Mobility Scheme, together with a simplified YMS application process for Japanese and South Korean Citizens;
The introduction of Appendix Bereaved Partner, Appendix Victim of Domestic Abuse and Appendix Statelessness.

The changes set out below will come into effect on either 16 January 2024 or 31 January 2024, as indicated.

Changes to the EU Settlement Scheme (EUSS)

The EUSS enables EU, other European Economic Area and Swiss citizens living in the UK by the end of the transition period on 31 December 2020, and their familymembers, to obtain the UK immigration status they need to continue living in the UK.

The key changes being introduced in respect of the Immigration Rules for the EUSS in Appendix EU are as follows:

Preventing Applications from Irregular Arrivals: To reinforce the government’s commitment to tackling illegal migration, changes are being made to prevent valid EUSS applications from being submitted by irregular arrivals, including those arriving via small boats.
Timely Applications for Joining Family Members: Individuals in the UK as visitors will be required to submit their application to the EUSS as a joining family member within three months of their arrival.
Curtailing Limited Leave Under EUSS: The revised rules will empower the Home Office to curtail limited leave to enter or remain granted under the EUSS, provided there are grounds for proportionality. This measure, subject to the right of appeal, will allow for curtailment when individuals never met the requirements of Appendix EU.

These changes to the EUSS will take effect on 16 January 2024.

Changes to the Visitor Rules

The key changes in respect of the Immigration Rules for Visitors that are being introduced are as follows:

Permitted Intra-Corporate Activities: The government is removing the prohibition on working directly with clients for intra-corporate activities. However, a new requirement is being introduced – client-facing activity must be incidental to the visitor’s employment abroad and should not amount to the offshoring of a project or service to their overseas employer.
Remote Working Permission: Visitors will now be permitted to work remotely while in the UK, but with a crucial caveat – remote working must not be the primary purpose of their visit. This change reflects the growing trend of flexible work arrangements and acknowledges the importance of adaptability in the modern workplace.
Aviation Industry: Flight crew members will be allowed to come to the UK as part of a Civil Aviation Authority-approved wet lease arrangement between March and October. This adjustment formalises an existing concession outside the rules, bringing it into the Visitor rules.
Enhanced Opportunities for Scientists, Researchers, and Academics: Scientists, researchers, and academics will have expanded opportunities to conduct research in the UK during their visit. Previously limited to independent research, scientists and researchers, as well as academics, will now be permitted to engage in research activities beyond their individual purposes. Notably, these changes do not apply to academics applying for a 12-month visit visa or those seeking to extend their permission from within the UK.
Legal Professionals: The scope of permitted activities for legal professionals is being expanded, offering them greater flexibility during their visits to the UK.
Paid Engagements for Conference Speakers: Conference speakers will now be able to be remunerated for their participation, as this is being included in the list of Permitted Paid Engagements (PPE). This change acknowledges the valuable contributions of speakers and ensures fair compensation for their time and expertise.
Consolidation of Permitted Paid Engagement Visitor Route: The provisions of the Permitted Paid Engagement Visitor route are being merged into the Standard Visitor route. This means that all visitors, without the need for a special visa, will be able to undertake Permitted Paid Engagements. However, it’s crucial to note that individuals intending to participate in a PPE must have arranged their activities before travelling to the UK and complete them within 30 days of arrival.

These changes will take effect on 31 January 2024.

Changes to the Youth Mobility Scheme

The key changes being introduced in respect of the Youth Mobility Scheme are as follows:

Addition of Uruguay: The UK is adding Uruguay to the list of countries participating in the Youth Mobility Scheme. As a result, up to 500 Uruguayan citizens will now have the chance to explore the UK through the YMS each year.
Enhancements with Japan and the Republic of Korea: The total number of allocated places for nationals of Japan and the Republic of Korea participating in the YMS is being increased to 6,000 and 5,000 respectively. Notably, the age range for nationals of the Republic of Korea is also being expanded from 18-30 to 18-35, offering a broader window for participation in the scheme.
Simplified Application Process for Japanese and South Korean Citizens : In a move to streamline the Youth Mobility Scheme for Japanese and South Korean citizens, the requirement to obtain an invitation to apply is also being removed.

These changes will take effect on 31 January 2024.

Introduction of new Appendix Bereaved Partner

The newly introduced Appendix Bereaved Partner will take the place of existing provisions for bereaved partners and their dependent children found in Part 8, Appendix FM, and Appendix Armed Forces of the Immigration Rules.

The key changes to previous provisions in the Immigration Rules are:

Incorporating Dependent Children: Appendix Bereaved Partner will include provisions for dependent children of Bereaved Partners. This adjustment aims to provide a more holistic and supportive approach, recognising the interconnected nature of family units affected by bereavement.
Application of General Grounds for Refusal: In a move towards standardisation, the general grounds for refusal outlined in Part 9 of the rules will now also applied to the Bereaved Partner route.
Exclusions for Gurkhas and Hong Kong Veterans: While Appendix Bereaved Partner will cover a broad spectrum of cases, it’s important to note that provisions for Bereaved Partners of Gurkhas or Hong Kong Veterans discharged before 1 July 1997 will not be included. Instead, these specific cases are addressed in Appendix Gurkhas and Hong Kong military unit veterans discharged before 1 July 1997.

These changes will take effect on 31 January 2024.

Introduction of new Appendix Victim of Domestic Abuse

Appendix Victim of Domestic Abuse will replace existing provisions for Victims ofDomestic Abuse and their dependent children in Part 8, Appendix FM and Appendix Armed Forces of the Immigration Rules.

The key changes to previous provisions in the Immigration Rules are:

Entry Clearance for Victims Abandoned Overseas: Appendix Victim of Domestic Abuse will allow victims of domestic abuse and their dependents to apply for entry clearance from outside the UK. This is particularly crucial for individuals who have been abandoned overseas as part of the domestic abuse they have endured.
Fee Waiver for Settlement Applications: For both overseas and in-country settlement applications as a Victim of Domestic Abuse, a fee waiver will be available based on destitution.
Expanded Eligibility for Settlement: Individuals who were last granted permission as a partner under Appendix FM, Part 11, or Appendix Family Reunion (Protection) of a person with permission as a refugee will now be eligible to apply for settlement as a Victim of Domestic Abuse.
Inclusion of Dependent Children: Provisions for dependent children of victims of domestic abuse will be incorporated within Appendix Victim of Domestic Abuse.
Application of General Grounds for Refusal: The general grounds for refusal outlined in Part 9 of the rules will be applied to the Victim of Domestic Abuse route.

These changes will take effect on 31 January 2024.

Introduction of new Appendix Statelessness

Appendix Statelessness will replace existing provisions for Stateless Persons in Part 14 of the Immigration Rules.

Changes are being introduced which affect partners and children of a Stateless Person, including:

Alternative Routes for Partners and Children: Effective from 16 January 2024, partners and children will no longer be able to apply for entry clearance, permission to stay, or settlement under Appendix Stateless. Instead, partners or children of Stateless Persons who are not stateless themselves or are residing overseas will be able to apply to come to or stay in the UK under the family provisions in Appendix FM. Amendments to Appendix FM will allow a Stateless person to sponsor a partner and dependent child. Applicants under Appendix FM will need to meet the relevant partner or child requirements and pay the application fee unless granted a fee waiver.
Continued Permission for Current Partners and Children: Partners or children who currently have permission under Part 14: Stateless Persons will continue to have the option to extend their permission or settle in the UK under those provisions.
Combining Time on Other Routes: Additional changes will permit Stateless applicants to combine time spent on other routes that qualify for settlement after a 5-year qualifying period. To be eligible, the applicant must have entered the UK legally and held permission on the stateless route for at least 1 year at the time of applying for settlement.

These changes will take effect on 31 January 2024.

Contact our Immigration Legal Advisers

For expert advice in relation to a UK visa application or immigration appeal, contact our immigration legal advisers on 0161 529 7779 or complete our enquiry form below.

Spring 2024 Immigration Changes: What Businesses and Individuals Need to Know

Sat, 09 Dec 2023 13:12:30 GMT

In a move aimed at reducing legal migration numbers to the UK by around 300,000, on Monday, 4 December, the Home Secretary unveiled a series of significant measures, including changes to the Skilled Worker minimum salary threshold, modifications to the Shortage Occupation List, adjustments to dependant visas, and a review of the Graduate visa route.

These changes, set to take effect in Spring 2024, come on the back of a recent increase in visa application fees and an increase in the Immigration Health Surcharge due to come into force from next month. They represent a substantial shift in the UK’s immigration landscape and carry wide-ranging implications for businesses, workers and family members of British or settled persons. In this post, we will delve into the key changes and their potential impacts for businesses and individuals.

Skilled Worker Minimum Salary Threshold

The headline change is the substantial increase in the minimum salary threshold for Skilled Worker visas, rising nearly 50% from £26,200 to £38,700 per annum. While Health and Care Workers will remain exempt from the increase, this adjustment poses challenges for businesses, particularly those heavily reliant on sponsoring lower-paid skilled workers. The increase, exceeding the median UK salary, may lead to difficulties in recruitment for sectors like hospitality, where an estimated 95% of sponsored visas for roles such as chefs and managers could fail to meet the new threshold.

In our analysis, 210 out of the 225 occupation codes that are eligible for a Skilled Worker visa (excluding health and education occupation codes) will be impacted by the increase in the minimum salary threshold, as the going rate in these 210 occupation codes is currently less than £38,700 (assuming a 37.5 hour working week).

We calculate that minimum salaries for jobs falling within these 210 occupation codes will need to increase by between 1% and 47.7% in order to satisfy the new minimum. Of the 210 occupation codes facing an increased general salary threshold, workers whose jobs fall within 116 (55%) of these occupation codes will need to be paid a minimum salary that is at least 47.7% higher than under current arrangements (again assuming a 37.5 hour working week).

Since the going rate is calculated on the basis of a 37.5 hour working week and must be pro-rated based on the weekly working hours stated on the certificate of sponsorship (CoS), the new arrangements will put pressure on employers to increase the working hours of sponsored workers, either as an alternative to paying higher salaries or to offset some of the additional cost.

That said, as the Migration Observatory has pointed out, it is also true that the elevated £38,700 requirement for long-term skilled work visas impacts only a limited segment of recipients. Specifically, approximately half of the 208,000 Skilled Worker visas granted to primary applicants in the year ending September 2023 were allocated to care workers and senior care workers. Notably, these groups are exempted from the salary increase. Additionally, another 20% of visas were issued to individuals in health or teaching roles, and they remain unaffected by the new requirement as their salaries are determined based on nationally agreed pay scales.

Consequently, the repercussions of the increase to the skilled worker minimum salary threshold will be felt by the remaining occupations, constituting approximately 30% of visa grants, predominantly situated in the private sector. Even for this category of workers though, it’s worth noting that many migrants occupying these positions already earn salaries surpassing the newly established £38,700 threshold.

As the Migration Observatory has observed, the impact of the raise will, therefore, be most noticeable in middle-skilled occupations, such as butchers and chefs, where typical salaries hover around £26,000, mirroring the existing salary threshold. Small businesses, particularly those beyond London and the South East, generally offer slightly lower pay, making them also more susceptible to the impact of the heightened threshold.

Salaries being paid to existing employees will not be impacted immediately. It is hoped that transitional measures will apply when their visas need to be renewed, but whether this is the case or not remains to be seen.

It also remains unclear whether sponsored skilled workers applying under the Skilled Worker route will be able to be paid less than £38,700 where, as currently, they are awarded additional so-called ‘tradable points’ for other attributes such as being a new entrant to the labour market or having a job offer for a job in a shortage occupation. If they are able to be paid less than the new general salary threshold of £38,700, the applicable minimum remains to be seen.

Shortage Occupation List (SOL)

The government intends to replace the existing Shortage Occupation List (SOL) with a new Immigration Salary List. The Immigration Salary List will remove the 20% discount to the minimum salary for shortage occupation roles, although it is understood that a general salary threshold discount will be retained.

This change, coupled with a review by the Migration Advisory Committee (MAC), indicates potential disruption in sectors such as technology, engineering and construction. Employers should anticipate a reduction in the number of occupations on the list, potentially impacting recruitment strategies in specific industries.

Family and Dependant Visas

While social care workers will not be permitted to bring dependents to the UK from Spring 2024, there was no announcement regarding limitations on dependents for Skilled Workers or Global Business Mobility migrants.

However, the increase in the minimum income threshold for family visas under Appendix FM from £18,600 to £38,700 will introduce a financial barrier for many British citizens, or those settled in the UK, seeking to sponsor a spouse, partner or fiance.

According to the Migration Observatory, just under 70% of British employees working in the UK earned less than the new income threshold in 2023 and the increased income threshold will disproportionately impact certain demographic groups. Specifically, while approximately 60% of men earn less than the new income requirement, this percentage rises to over 75% for women. Moreover, nearly all part-time employees earn below the threshold, effectively restricting the ability of migrant dependents to reside in the UK to full-time workers.

Recalling the Supreme Court’s judgment in MM (Lebanon) [2017] UKSC 10, the increase in the partner visa minimum income requirement is arguably incompatible with Article 8 of the European Convention on Human Rights and will, no doubt, be subject to legal challenge. However, more immediately, applicants who fear that they may not be able to satisfy the new financial requirement may wish to consider applying for their spouse, partner or fiance to join them before the new income requirement is introduced in “Spring 2024”.

Family members who are not able to apply before the new rules are introduced and who are not able to satisfy the new financial requirement for a UK spouse, partner or fiance visa may still be able to enter or remain in the UK by relying on third-party support or by invoking an exception to the financial requirement. Due to the complexity of such applications, we recommend that anyone considering an application on either of these bases seeks legal advice.

Graduate Immigration Route

The Graduate Visa, introduced in 2021, allowing international graduates to stay in the UK for an additional two years post-study, is now under review. The Government has announced that it will be asking the Migration Advisory Committee to review the route following questions about the route’s effectiveness, potential abuse, and the future career paths available to international graduates.

This review underscores the government’s commitment to ensuring that the Graduate visa route aligns with the UK’s best interests and doesn’t inadvertently contribute to labour market imbalances. Businesses relying on international talent will need to monitor these developments closely, considering their implications for future recruitment strategies.

Conclusion

The Home Secretary’s recent announcement signifies a significant shift in the UK’s immigration policies, aiming to strike a balance between controlling migration numbers and addressing skills shortages.

Further details will be available when the government publishes a Statement of Changes to the Immigration Rules, although we may need to wait until March 2024 for this.

In the meantime, as businesses and family members navigate these changes, strategic considerations are crucial. Employers should assess their current and future recruitment needs, potentially accelerating visa applications before the impending increases. Spouses, partners and fiances should ideally consider applying before the minimum income requirement is increased, or alternatively assess their eligibility to enter or remain in the UK on human rights grounds.

Contact Our Immigration Legal Advisers

For expert advice and assistance in relation to a UK visa application as a skilled worker or family member of a British citizen or settled person, contact our immigration legal advisers on 0161 529 7779 or complete our enquiry form below.

eVisa System: Online Immigration Status Guidance

Wed, 06 Dec 2023 12:43:43 GMT

As we have seen in recent years, UK Visas and Immigration (UKVI) have developed and are implementing a digital immigration system. In summary, this means replacing physical documents with an online record of a migrant’s immigration status. This is known as an eVisa.

From 1 January 2020, applicants who were granted five years limited leave to remain started to receive Biometric Residence Permits endorsed with an expiry date of 31 December 2024. Initially, this was due to requirements introduced by the European Union to incorporate next generation encryption technology. As this could not be fulfilled they contained a validity date of no later than 31 December 2024. In January 2021, the EU restrictions on format were lifted and the system moved to issuing a new UK format of BRP. However, the Home Office continued after this date with plans to digitalise the system.

Thereafter, in line with plans to digitalise the system the Home Office continued to short date all BRPs to no later than the end of 2024, thus meaning most applicants now receive a BRP which expires sooner than their leave expires.

In the interim, and in accordance with plans to digitalise immigration status information, the Home Office has made immigration status information available via the online ‘view and prove your immigration status’ service on gov.uk. It is hoped that all individuals will have online access to their immigration status information by the end of 2024.

We examined all of these developments in our earlier post: Why Does My BRP Expire on 31 December 2024?

New Online Immigration Status eVisa Guidance – 30 October 2023

On 30 October 2023, the new Online immigration status (eVisa) guidance was published.

This outlines further developments and steps in the plan to move to online records as opposed to physical documents.

What Is Being Replaced?

The physical documents UKVI are replacing with an eVisa are as follows:

biometric residence permits (BRP)
biometric residence cards (BRC)
passport endorsements, this may for example include an indefinite leave to enter wet ink stamp
vignette stickers in passports, such as entry clearance or visa vignette

eVisa – What Is It?

The eVisa is an online record of your immigration status and the conditions of your permission to enter or stay in the UK. The eVisa will be used to travel to the UK and eventually you will not be required to carry a physical document. It is important to note that until you have an eVisa you will need to continue to carry your physical document as evidence of your status.

The published guidance records the following apparent benefits of eVisas:

they are secure and cannot be lost, stolen or tampered with, unlike a physical document
you will not need to wait for, or collect, a physical document after your application is decided – you might still need to provide biometric information in person, and we will tell you if you need to do this
it will be quicker and easier to prove your status at the UK border

Does This New Digital System Affect My Status?

Many will be concerned about their current immigration status and the impact the new digital system may have. The guidance confirms:

Updating your physical document to an eVisa does not affect your immigration status or the conditions of your permission to enter or stay in the UK.

What is a UKVI Account and Why Do I Need One?

You will register for a UKVI account to access the view and prove service and see your eVisa. There is no charge to register for a UKVI account. When you have an account, you will then be able to view and share relevant information about your status and any conditions attached securely with third parties, such as employers or landlords.

You can do this by generating a share code in the view and prove service. The share code will give others time-limited access to your immigration status information. Fortunately, there is no need to remember a single unique code to be able to prove your status as you can get a share code whenever you need one. Some information about your immigration status may automatically be shared with some government departments and other public authorities. This is for the purpose of convenience.

It is important to remember that you will be required to keep your passport details up to date in your UKVI account and inform UKVI of any changes. This should hopefully mean that your immigration status can be easily identified and confirmed at the UK border. If you are waiting for your account to be updated and have not yet received confirmation the following guidance applies:

If you’ve told us you have a new passport and you’re still waiting for confirmation that your UKVI account has been updated, you should also carry your old document with you, if possible, to avoid unnecessary delays at the border.

What Action Do I Need to Take Now?

If you currently have permission to stay in the UK and have a physical document including a BRP or BRC to prove your immigration status, there is no action to take at this time.

The newly issued guidance confirms that throughout 2024, updates will be provided regarding when you need to register for a UKVI account, what you need to do and any other steps to take.

If you are currently required to make a new application or you want to make a new application for permission to stay in the UK, this does not impact upon your ability to do so. Information and guidance will be provided during your application process if you need to create a UKVI account.

If you have permission to stay in the UK, once you’ve completed your UKVI account registration you’ll be able to see your eVisa in the view and prove service.

The Future

There have been many arguments advanced in favour of digital status, including efficiency, convenience, security and reduction of errors.

UKVI launched a digital system in 2018 to coincide with those holding permission under the EU Settlement Scheme. There were reported difficulties at this time by many individuals and through organisations and watchdogs. Many of the difficulties faced by individuals were reported in the media.

Of course, further difficulties are likely to be experienced by those unable to create an account and therefore rendered unable to prove their status. Concerns have been raised about those individuals who are limited in accessing the system by not having the necessary English language skills, computer literacy and access to the needed technology. Many organisations and watchdogs continue to call upon the government to make allowances for the use of physical proof of immigration status. If not, individuals are forced into a position where they are unable to prove their status with the significant inevitable consequences.

Contact our Immigration Legal Advisers

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How the New Immigration Policies Affect Britons and Businesses

Tue, 05 Dec 2023 13:45:59 GMT

On 04 December 2023, the recently appointed Home Secretary, James Cleverly, announced a plan to slash migration levels and to “curb abuse of the immigration system”.

The Press Release promises “Together, this package will mean around 300,000 people who came to the UK last year would now not be able to come.”

The press release states:

The package of measures will end the high numbers of dependants coming to the UK, increase the minimum salaries that overseas workers and British or settled people sponsoring family members must earn, and tackle exploitation across the immigration system.

It is not clear how, exactly, pricing out British families and businesses tackles ‘exploitation of the immigration system’. It is also not clear how migrants and their families have exploited the system in place through being sponsored, as the people who have migrated to the UK under the Immigration Rules specifically had to meet the requirements that the government set for them. Meeting the Rules cannot be exploiting the Rules.

Who Do the Changes Affect?

The newly announced policies will have an effect on:

British / settled people and their non-British/settled partners and families;
British companies needing workers;
Families of students studying for undergraduate / master’s degrees;
Families of carers.

British / settled persons and their families

Currently, to sponsor a partner, a British or settled person has to meet financial requirements and demonstrate earnings of £18,600 from specified sources, or, if they do not have an income at all, cash savings held for six months of £62,500.

Following the announcement, it is understood that, from “next spring”, the minimum income requirement will be more than doubled, to £38,700. This is an enormous shift and will no doubt cause difficulty for many families.

Under the current Rules, to sponsor a first dependent child, there must be £16,800 plus an additional £3,800 in income (or 2.5 x that in savings) and a further £2,400 (or 2.5 x that in savings) for each additional child.

At this stage, it is not clear what the increase to sponsor children, in addition to a partner, may be. Presumably the new rules will have some kind of uplift for children, given the stated aim is to make sure people can afford not to be a burden on the state.

What is clearer, is that the new minimum financial requirement applicable to British and settled persons who wish to sponsor a family member is likely to lead to a significant increase in both human rights-based applications and immigration appeals as many of those who are now not able to satisfy the family visa financial requirement will seek to rely on one of the exceptions to the partner visa requirements instead.

British companies needing skilled workers

The current minimum earnings threshold for a Skilled Worker is £26,200 pa / £10.75ph / the ‘going rate’ for the specific occupation code. There is also currently a Shortage Occupation list, which the government updates and which sets out jobs the UK particularly needs to fill, and enables sponsorship of these roles for less than the general threshold / going rate for the role.

Following the new announcement, from “next spring”, the government will increase the earning threshold for overseas workers by nearly 50% from its current position of £26,200 to £38,700, “encouraging businesses to look to British talent first and invest in their workforce, helping us to deter employers from over-relying on migration, whilst bringing salaries in line with the average full-time salary for these types of jobs”.

In this, the government is neglecting the skill level it introduced with the Skilled Worker route (when it was reduced from RQF Level 6 to RQF Level 3), and is likely pricing out the jobs at RQF Level 3 which would be unlikely to be paid £38,700pa.

Examples

The ‘going rate’ requires a calculation based on the number of hours.

The occupation code ‘1115 Chief executives and senior officials’ has the highest going rate of £59,300 per annum / £30.41 ph based on a 37.5 hour work week.

This, presumably, would be unchanged, unless a worker’s hours were such that the going rate would be less than £38,700.

The occupation code ‘1135 Human resource managers and directors’ has a going rate of £36,500 per annum / £18.72 ph based on a 37.5 hour work week.

As this is below the £38,700 based on a 37.5 hour week, the new minimum threshold would presumably apply, or the migrant contracted to work a greater number of hours – 40 hours per week would take this role to an annual salary of £38,933.33.

If the hours of a migrant are still relevant in the same way as currently, this increase could lead to risks of higher contracted hours and potentially risk employment law breaches.

If the Home Office were concerned about the salaries migrants are earning in sponsored roles it could have a set minimum for each job code, rather than variable depending on hours. This may be what the proposed ‘Immigration Salary List’ entails, or it may not.

Closing the shortage occupation list

To “crackdown on cut-price labour from overseas”, the government will end the 20% going rate salary discount for shortage occupations and replace the Shortage Occupation List with a new Immigration Salary List, which will retain a general threshold discount.

This may be a rebranding, but it is too soon to know. The best way to deal with the ‘shortage occupation list’ would surely be to ensure that the UK workforce has ample engineers, programme developers, vets, architects, artists, bricklayers, roofers, carpenters, plasterers, care workers, pharmacists, nurses, radiographers, paramedics, maths teachers, etc. to fill the roles, so that there is no shortage list at all, rather than to prevent people with appropriate skill from taking on a genuine role.

It is not demonstrated that a NHS hospital hiring a nurse from overseas is paying that nurse less than a UK/settled equivalent, or that taking on a nurse from overseas keeps the pay of their colleagues down. How the Immigration Salary list will function remains to be seen.

The Press Release states that the Home Office

“is prioritising growing our domestic workforce through our Back to Work Plan – a package of employment focused support that will help people stay healthy, get off benefits and move into work – as part of the Autumn Statement.”

Whether the domestic workforce is able to become healthy, cease claiming benefits and immediately commence a career in veterinary medicine or bricklaying, or as a developer, remains to be seen.

There is no recognition of the price businesses already pay to sponsor migrant workers in the form of the Immigration Skills Charge – £364pa for small / medium business / £1000 pa for larger businesses, payable per sponsored migrant, in addition to the worker’s salary and normal PAYE contributions.

Health and Care Worker visas

The government will reduce the numbers of workers on the Health and Care visa by preventing overseas care workers from bringing their dependants to the UK. In addition, care providers in England will now only be able to sponsor migrant workers if they are undertaking activities regulated by the Care Quality Commission.

It is important that the Health and Care visa is not abused, and the Skilled Worker system does rely on trust – there are many instances of poor work conditions and the Home Office Sponsor Licence team is busy auditing / suspending and revoking many sponsor licences held by care companies.

The above salary threshold is, however, not being brought in in relation to the Health and Care visa route:

“Those coming on the Health and Care visa route will be exempted from the increase to the salary threshold for Skilled Worker visas, so we can continue to bring the healthcare workers that our care sector and NHS need, and we will exempt those on national pay scales, for example teachers.”

Students

The government announced its plan to remove the rights of students to bring partners and children to the UK, unless the student is studying for a postgraduate research course.

Conclusions

Having closed the Tier 1 (Investor) route, the Tier 1 (Entrepreneur) route and the Sole Representative route to basically make all workers / persons wishing to undertake business in the UK either be ‘innovative’ or a sponsored worker, the ‘worker’ route is now under attack.

Raising the salary threshold to well above the average UK full-time salary is clearly intended to reduce the number of workers from overseas. As the UK population is finite and following the end of free movement rights, this does not seem likely to be beneficial for the economy, or address the many job shortages the shortage occupation list recognises.

Preventing British and settled persons earning an average full-time salary in the UK from sponsoring a partner from overseas is going to have a disproportionate impact on those on lower incomes and families living outside of London. Full-time salaries in areas such as the West-Midlands / North-East are unlikely to reach the threshold, particularly if a working spouse has caring responsibilities. The increase is likely to disproportionately affect women looking to sponsor their partner when they have children / other responsibilities, as women are more likely to work part-time.

In pricing out businesses and families, the government is failing to acknowledge the important financial contributions migrants make, not only in terms of visa application fees, paying the IHS charge, if students, paying course fees, if workers, doing work and paying tax, but also in spending in the UK: migrants eat, shop, pay bills, etc. If the UK economy is to grow, jobs need to be filled and money needs to be spent.

Preventing students who are not undertaking postgraduate research from bringing family members is potentially less damaging to the numbers of students, as the student route is not a direct route to settlement. However, preventing care workers, who are on a 5-year route to settlement, from bringing family members to the UK is likely to reduce numbers of care worker applicants. The prospect of having to work for five years and get indefinite leave to remain before bringing your family is unlikely to encourage more carers to move to the UK.

In aiming to cut net migration in this way, the Home Secretary is likely going to cause harm.

None of the categories addressed have anything to do with “illegal” immigration or asylum claims.

Contact Our Immigration Legal Advisers

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Who Can Be a Referee in a British Citizenship Application?

Thu, 30 Nov 2023 09:52:33 GMT

When making an application to become a British citizen, one of the most important requirements that will be encountered is in relation to the rules surrounding the selection of referees. Given the nature of this application, and the Home Office’s view (expressed in their guidance ) that applying for citizenship “is not an entitlement” but rather a privilege, it should come as no surprise that strict requirements are placed on who is eligible to act as a referee in this type of application. As such, the purpose of this article is to provide an explanation of the rules and requirements that govern referees for British citizenship, including who can act as a referee in a British Citizenship application.

Overview of British Citizenship

Becoming a British citizen carries with it a significant degree of importance, as is made abundantly clear by the Home Office, who have stated in their published guidance that aside from the practical benefits of making such an application (namely the ability to later make an application for a British passport – a process discussed in previous blog posts ), it also “gives you the opportunity to participate more fully in the life of your local community”.

Given the significance placed on being granted citizenship, it may be helpful to first provide a brief explanation of the routes to ‘British citizenship’, before turning to consider the specific requirements imposed on referees. It should be noted from the outset that naturalisation is not the only means through which an individual could obtain British citizenship. As has been explained in prior blog posts, it is possible for an individual to obtain citizenship through automatic acquisition , through registration , and of course through naturalisation .

Each of these routes imposes their own requirements and as such, full consideration of the exact rules which must be followed in each route is beyond the scope of this article, and in any event has been outlined in depth in all three of the separate posts linked above. However it is worth emphasising that determining which specific application route is most appropriate will require careful consideration of all the facts at hand in order to avoid making mistakes which could impede an individual’s citizenship application.

Home Office Guidance on Referees for British Citizenship

The Home Office’s Guidance on referees for British Citizenship ( Nationality Policy: general information – all British nationals ) outlines that all applicants for British citizenship are required to provide two referees who can establish the applicant’s identity.

Who Can Act as a Referee for a British Citizenship Application?

The guidance goes on to outline the following requirements that all referees must adhere to. These include the following points:

The referee must have know the (adult) applicant for at least 3 years;
The referee must be a British passport holder and either a;
Professional Person; or
Aged over 25

The guidance then explains that the referee must also not fall into one of the following categories:

The referee must not be related to the applicant or the other referee
They must not be the applicant’s representative
They must not be employed by the Home Office
They must not have been convicted of an imprisonable offence in the last 10 years for which the sentence is not spent under the Rehabilitation of Offenders Act 1974

The Home Office’s ‘Guide AN: Naturalisation booklet’ builds upon this latter point by providing that “Checks may be carried out to ensure that the referees do not have unspent convictions”, again highlighting the strict nature of these requirements.

Do Both Referees Have to Be British Citizens?

A key ambiguity that arises when selecting referees is the fact that the guidance and the Referee Declaration itself appear to say two different things in respect of the nationality requirements imposed on referees. As we saw above, the Home Office’s ‘Nationality Policy’ document refers to referees needing to be a “British passport holder and either a professional person or aged over 25”. In contrast, the Home Office’s ‘Guide AN’ document explicitly states that “One referee can be of any nationality”, as is also stated in the Referee Declaration itself (which says that “one referee should be a person of any nationality” and the second “must normally be the holder of a British citizen passport”)

As of the time of writing this article, this inconsistency between the ‘Nationality Policy’ guidance on the one hand, and ‘Guide AN/Referee Declaration’ on the other still appears to be present. In the absence of clear direction from the Home Office, if it is possible to do so, it may be that the safest option for an applicant is to provide two British referees. However, if this is not possible, then an applicant may be able to rely on the provisions in both the referee declaration and Guide AN to provide one referee who is not a British citizen, and another referee who is a British citizen.

What is an ‘Acceptable Professional Person’?

Another key requirement in both the ‘Referee Declaration’ and the guidance is that at least one of the referees must be a ‘professional person’. The declaration describes this as a person who “has professional standing, eg minister of religion, civil servant, or a member of a professional body e.g. accountant or solicitor (who is not representing you with this application)”.

The guidance builds on this by providing a non-exhaustive list of what constitutes an ‘acceptable professional person’. The full list can be found here and from this, we can see that there are a wide array of professions which would be acceptable for the purposes of acting as a referee. This list should be consulted prior to submitting a citizenship application in order to ensure that at least one of the chosen individuals is in a suitable profession. It is also worth remembering that when selecting potential referees, only one of them needs to be a professional person for these purposes. However this does not preclude an applicant from relying on two professional persons should they choose to do so.

What Does a British Citizenship Referee Need to Do?

Once an applicant has identified suitable referees and confirmed that they satisfy the criteria detailed above, both referees will be required to provide a ‘referee declaration’ (an example of which can be found here ) confirming that they are:

Qualified to act as a referee;
That the photograph of the applicant (which will need to be enclosed along with the application) is a ‘true likeness’ of them;
That to the best of their knowledge, the details provided by the applicant in their citizenship application are correct;
That the details which the referee has provided in the citizenship application are also correct.

The Home Office retains a power to contact referees but the guidance expressly states that caseworkers must only do so “if this could resolve concerns about the application” and they have “authority from a senior caseworker to do so”. Therefore, it is important to explain to chosen referees that they may be contacted by Home Office officials and ensure that they are willing to do so in the event that they are contacted.

If the Home Office comes to the conclusion that a referee does not meet one or more of the requirements detailed above, the guidance directs a caseworker to ask the applicant to provide alternative referees. Given the potential delays and additional inconvenience that this could entail, it is again worth emphasising that applicants should carefully consider who they are selecting as their referees in order to avoid such an outcome.

Finally, Guide AN brings specific attention to the fact that it is a criminal offence for a referee to provide false information (either knowingly or recklessly) and where such an offence is committed the guidance outlines that it is “punishable with up to 3 months imprisonment or by a fine not exceeding £5,000 or both under section 46(1) of the British Nationality Act 1981.”

Conclusion

As will hopefully have been seen from this article, selecting a suitable referee to support your British citizenship application may not be a straightforward endeavour. As has been explained, there are many requirements and restrictions on who is able to act as a referee as well as certain duties being imposed on referees. Given the importance of obtaining British citizenship, it is vital that both applicants and the referees themselves carefully consider the requirements and responsibilities detailed above in order to avoid any undue issues.

Contact our Immigration Experts

For expert advice in relation to a UK visa application or immigration appeal , contact our immigration experts on 0161 529 7779 or complete our enquiry form.

Using Family Court Documents in the Immigration Tribunal

Wed, 29 Nov 2023 10:56:25 GMT

Although often characterised by the Home Office as a largely administrative process, the reality of many immigration, asylum and nationality applications is that they incorporate diverse and complex legal and personal issues, which must be properly addressed in order to meet the relevant requirements.

One common issue is the use of family court documents in immigration applications or appeals. Many people would expect to be able to do as they choose with documents relating to their own divorce or child care arrangements, but this is not the case. In fact, the family courts have strict rules regarding the type of documents which can be ‘published’ to third parties, which includes disclosing such documents to the Home Office and immigration tribunals.

This is an incredibly important issue and legal practitioners – or even applicants themselves – who fail to follow these rules can be held ‘in contempt of court’.

This article will set out the broad principles which govern the disclosure of documents from family court proceedings in immigration, asylum and nationality applications and appeals.

Why might I need to provide my family court documents in an immigration matter?

The evidential requirements for an application or appeal will always depend heavily on the individual circumstances of the applicant and the relevant requirements for their case. However, there are some common areas where evidence relating to family court proceedings may be relevant. These include:

Demonstrating freedom to marry;
Demonstrating ‘sole responsibility’ for a dependent child;
Demonstrating a genuine and subsisting relationship with a British child under paragraph EX.1 of Appendix FM;
Substantiating domestic abuse allegations in an application for ILR or on the basis of Article 8;
Evidence relating to UK adoptions;

Why can’t I do what I like with my own documents?

The reason that the disclosure of family court documents is restricted is because of the nature of family court proceedings themselves. Unlike most other legal proceedings, which are expected to be conducted publicly in the interests of open justice, family court proceedings are generally carried out in private in order to protect the anonymity of any children involved. This is because of the very intimate nature of family court proceedings, which often concern quite sensitive details relating to the welfare and upbringing of the relevant children.

This principle is considered to be so important that nearly all matters conducted in the family courts, whether or not they concern any particularly sensitive details, are governed by the privacy rules.

Therefore, the basic starting point, per Section 12 of the Administration of Justice Act is that the ‘publication’ of information relating to proceedings which:

“i) relate to the exercise of the inherent jurisdiction of the High Court with respect to minors;

(ii) are brought under the Children Act 1989 or the Adoption and Children Act 2002; or

(iii) otherwise relate wholly or mainly to the maintenance or upbringing of a minor;”

will be considered contempt of court.

According to the case of Kent County Council, Re B (A Child) v the Mother & Ors [2004] EWHC 411, this includes the following:

“a) accounts of what has gone on in front of the judge sitting in private;

b) documents such as affidavits, witness statements, reports, position statements, skeleton arguments or other documents filed in the proceedings, transcripts or notes of the evidence or submissions, and transcripts or notes of the judgment (this list is not necessarily exhaustive);

c) extracts or quotations from such documents;

d) summaries of such documents.”

Munby J went on to note that “These prohibitions apply whether or not the information or the document being published has been anonymised.”

It is also important to note s.97 of the Children Act 1989, which makes it a criminal offence to identify children subject proceedings under the Act as follows:

“(2) No person shall publish to the public at large or any section of the public any material which is intended, or likely, to identify—

(a) any child as being involved in any proceedings before the High Court or the family court in which any power under this Act or the Adoption and Children Act 2002 may be exercised by the court with respect to that or any other child; or

(b) an address or school as being that of a child involved in any such proceedings.

(3) In any proceedings for an offence under this section it shall be a defence for the accused to prove that he did not know, and had no reason to suspect, that the published material was intended, or likely, to identify the child”

What is publication?

The definition of ‘publication’ in these circumstances was also set out in Re B, in which Munby J deliberately defined publication in very broad terms:

“there is a “publication” for the purposes of section 12 whenever the law of defamation would treat there as being a publication. I recognise that this means that most forms of dissemination, whether oral or written, will constitute a publication, but I do not shrink from that. […] that there is a “publication” for this purpose whether the dissemination of information or documents is to a journalist or to a Member of Parliament, a Minister of the Crown, a Law Officer, the Director of Public Prosecutions, the Crown Prosecution Service, the police (except when exercising child protection functions), the General Medical Council, or any other public body or public official.”

One exception to this is of course when “there is a communication of information by someone to a professional, each acting in furtherance of the protection of children”. In addition, information will not be ‘published’ within the meaning of Section 12 when it is communicated to certain people involved in the Family Court proceedings themselves – such as the other party or legal representatives – or when it is communicated with the court’s permission.

However, it is clear that any of the possible uses for family court documents in immigration cases are likely to amount to publication.

Are there any documents which are exempt from Family Court privacy rules?

There are some limited exceptions to Family Court privacy rules. Probably of most relevance to immigration matters is the fact that there is an exception for declarations of divorce, nullity and judicial separation.

This means that, for example, visa applicants who are seeking to prove their freedom to marry or the breakdown of any previous relationships can provide divorce certificates as part of their evidence without having to take any further steps.

What are the consequences of publishing prohibited documents?

The consequences of publishing private family court documents without following the proper process are extremely serious. In addition to the criminal offence established under the Children Act, publication of Family Court documents may also amount to contempt of court, an offence which can result in up to two years’ imprisonment.

A famous cautionary tale amongst immigration practitioners is the case of Nasrullah Mursalin, a paralegal who was sentenced to six months’ imprisonment for breaching family court rules after he sent papers from family proceedings to an Immigration and Asylum First-Tier Tribunal. Although his sentence was eventually quashed, the case serves as a reminder of how seriously this kind of breach is taken.

What should I do if I need to rely on private documents?

Given the risk of being in contempt of court, individual applicants/appellants or legal practitioners should generally seek the advice of a specialist family court practitioner to understand their options in terms of disclosing certain documents to the Home Office or Immigration Tribunal.

As a general rule, the first step should be to seek the consent of the other party or parties to the proceedings. If their consent is given, a Consent Order can be drawn up and sent for approval of the family court.

Otherwise, the permission of the Family Court will need to be sought to publish the information without the consent of the other party.

For ongoing family court proceedings, this can be done using Form C2, where applicants can apply to have a select list of documents disclosed. This should be accompanied by a statement explaining why the documents are sought.

Conclusion

Practitioners and applicants should be extremely cautious with documents from the Family Court – disclosure could have serious consequences. Applicants should be reassured that some key documents they may wish to use in immigration, asylum or nationality applications should be exempt from these rules, but should seek advice from a family law practitioner if in any doubt.

Contact our Immigration Experts

For expert advice in relation to a UK visa application or immigration appeal , contact our immigration experts on 0161 529 7779 or complete our enquiry form.

No-Notice Citizenship Deprivation Under the Nationality and Borders Act 2022

Tue, 28 Nov 2023 10:54:43 GMT

This blog is no stranger to the increasing number of challenges against citizenship deprivations. Despite the absence of Home Office data since 2019, ‘transparency data’, Freedom of Information requests and sporadic national security reports suggest a sharp rise and a corresponding increase in the number of challenges.

The controversial dispensation of the requirement to give notice was intensely debated before the passing of the Nationality and Borders Act 2022 (‘NABA’), with its opponents condemning it as a breach of constitutional rights, the common law duty to give notice, and international protections against statelessness. In January 2022, the Court of Appeal dismissed an appeal against the High Court’s ruling that the power to deprive individuals of their citizenship without notice was ultra vires. The House of Lords rejected the clause in the same month, amidst a public furore that included a parliamentary petition to remove it signed by over 300,000 people. Nevertheless, ‘no notice’ deprivations were reinstated by the House of Commons in March 2022 and passed into law. This article examines the changed position on no-notice citizenship deprivation before and after the introduction of NABA.

The pre-NABA position: R (on the application of D4) (Notice of deprivation of citizenship) v Secretary of State for the Home Department [2022] EWCA Civ 33

D4 concerned a dual Pakistani and British citizen who was detained in a camp in Syria and deprived of her citizenship on the grounds that this would be conducive to the public good. For a detailed analysis of the grounds on which the Secretary of State has the power to deprive a person of their British citizenship. A copy of the notice was placed on her file, which was a common practice by the Home Office at the time, despite the requirement under Section 40(5) of the British Nationality Act 1981 (hereafter “BNA”) which states:

“(5) Before making an order under this section in respect of a person the Secretary of State must give the person written notice specifying—

(a) that the Secretary of State has decided to make an order,

(b) the reasons for the order, and

(c) the person’s right of appeal under section 40A(1) or under section 2B of the Special Immigration Appeals Commission Act 1997.”

The provision the Home Office relied on to permit this was Regulation 3 of the British Nationality (General) (Amendment) Regulations 2018/851 (hereafter the “2018 Amending Regulations”), which amended Regulation 10(4) of the British Nationality (General) Regulations 2003 to read as follows:

“(4) Where—

(a) the person’s whereabouts are not known; and

(b) either—

(i) no address has been provided for correspondence and the Secretary of State does not know of any address which the person has used in the past; or

(ii) the address provided to the Secretary of State is defective, false or no longer in use by the person; and

(c) no representative appears to be acting for the person or the address provided in respect of that representative is defective, false or no longer used by the representative,

the notice shall be deemed to have been given when the Secretary of State enters a record of the above circumstances and places the notice or a copy of it on the person’s file.”

Counsel for the Secretary of State for the Home Department argued this measure was ‘intended to promote national security and protect British citizens’ and as a whole ‘provides a coherent and reasonable approach to notice, only permitting notice to be served to file where there is no other practicable means of giving notice’. On the other hand, counsel for D4 submitted, ‘Regulation 10(4) is the antithesis of notice, it is in effect a regulation permitting service to be dispensed with altogether. The Home Secretary does not have power, by section 41(1)(e) or by any other provision, to make secondary legislation which has the effect of removing the requirement for notice in the primary legislation.’

Handing down judgement, Whipple LJ concluded that the power under Regulation 10(4) was ultra vires. In reaching this conclusion, she identified the purpose of section 40(5) BNA at paragraph 53:

“The reason for and purpose of giving notice is clear from section 40(5) itself: the person needs to know that a decision has been made; the person is entitled to know the reasons for that decision; and the person is put on notice of their appeal rights.”

She went on:

“It can be inferred from the legislation that the Parliamentarians…deliberately structured the process for depriving someone of their citizenship to include minimum safeguards for the individual. Section 40(5) thus represents a balance between the public interest in permitting the Home Secretary to deprive a person of their citizenship, and the individual’s rights to know that has occurred, why, and what avenues are open to them to challenge the decision.”

Parliamentarians were well aware that this was subject to limitations, which was why there were more flexible provisions for notice to be given at a ‘last known address’. Crucially, the statute did not allow notice to be dispensed with altogether. Agreeing with the submissions of counsel for D4, she explains at paragraph 59:

“As a matter of language, regulation 10(4) is at odds with section 40(5); it does not provide for the giving of notice, but rather for notice to be dispensed with…Yet further, to dispense with service is inconsistent with the constitutional principle recognised in Anufrijeva; as the House of Lords recognised in that case, it would be possible for Parliament to legislate contrary to that principle, either expressly or by necessary implication in the statute, but there is nothing in section 40(5) to suggest that notice should be given “so far as is possible” or similar, and there is nothing in the language of section 41(1) or section 41(1)(e) to support the extreme effect of this deeming provision.”

As such, Regulation 10(4) was deemed ultra vires and unable to confer the powers of no notice citizenship deprivations. The Secretary of State has appealed this decision to the Supreme Court, but the appeal has since been withdrawn.

What did Section 10 NABA do?

The new power conferred under Section 10(2) NABA disapplies the requirement to give notice under Section 40(5) as follows:

“(5A) Subsection (5) does not apply if—

the Secretary of State does not have the information needed to be able to give notice under that subsection,
the Secretary of State reasonably considers it necessary, in the interests of—

(i) national security,

(ii) he investigation or prosecution of organised or serious crime,

(iii) preventing or reducing a risk to the safety of any person, or

(iv) the relationship between the United Kingdom and another country,

that notice under that subsection should not be given.”

The vagueness of this provision opens more questions than it answers. The latest Home Office Guidance on Deprivation of British Citizenship (02 October 2023) does not prove very enlightening. It merely states that caseworkers must consider “all of the evidence available to you and give appropriate weight”, give reasons for their decision and inform the person of the deprivation if they later contact the Home Office directly. The effect of this legislation is to empower the Secretary of State to do precisely what the majority of the Court of Appeal in D4 ruled was ultra vires.

The difference this time around is that Parliament has passed legislation rendering it lawful not to give notice when depriving someone of their citizenship in certain circumstances. Whilst regulation 10(4) was previously ultra vires in view of the duty to give notice in section 40(5) BNA, section 40(5A) has changed the position by disapplying section 40(5) under certain conditions, therefore rendering the deprivation of citizenship without notice lawful when those conditions are met.

A common law duty to give notice is unlikely to assist either in view of the coming into force of section 40(5A). As the House of Lords recognised in R (Anufrijeva) v Secretary of State for the Home Department [2003] UKHL 36 at paragraph 31:

‘If this analysis is correct, it is plain that Parliament has not expressly or by necessary implication legislated to the contrary effect. The decision in question involves a fundamental right. It is in effect one involving a binding determination as to status. It is of importance to the individual to be informed of it so that he or she can decide what to do. Moreover, neither cost nor administrative convenience can in such a case conceivably justify a different approach. This is underlined by the fact that the bizarre earlier practice has now been abandoned. Given this context Parliament has not in specific and unmistakeable terms legislated to displace the applicable constitutional principles.’

As Parliament arguably has ‘expressly or by necessary implication legislated to the contrary effect’, it is hard to see how no-notice deprivations can be said to be ultra vires if they fall within the specified circumstances in section 40(5A). A further issue beyond the scope of this piece, however, is whether the judicial oversight in Schedule 2 of NABA affords the safeguards required by international conventions, such as the 1961 Convention on the Reduction of Statelessness, which the UK has ratified.

Conclusion

Due to the absence of published statistics, it is not clear to what extent the requirement to give notice has been dispensed with in the last year, nor how many of the increasing appeals raise the issue. What is certain is that the position on no-notice citizenship deprivations as it stood after D4 has been significantly altered by subsequent legislation, requiring a change in approach to any challenges.

Contact our Immigration Experts

For expert advice in relation to a UK visa application or immigration appeal , contact our immigration experts on 0161 529 7779 or complete our enquiry form.

UK Transit Visas: Frequently Asked Questions

Mon, 27 Nov 2023 09:43:54 GMT

While many of our clients are intending to settle in the UK, we realise that for some it is very important to enter the UK for a much, much shorter period. Even if you are just going in and out at the airport you may still need a visa. Therefore, this post will answer some frequently asked questions about UK transit visas.

Frequently Asked Questions About UK Transit Visas

1.Who needs to apply for a UK transit visa?

If you are a non-visa national, you will not need to apply for a UK transit visa. If you are a visa national, you will not need to apply for a transit visa if you hold any of the following:

EU Settlement Scheme family permit
Home Office travel document, these are usually provided to refugees or stateless people
Standard Visitor visa
Marriage Visitor visa

As explained below, some people transiting through the UK will not be deemed to have entered the UK. If you have not entered the UK you generally do not require permission to enter or stay in the UK. However, you will need to apply for a Direct Airside Transit if you are a national of one of the following countries:

Afghanistan
Albania
Algeria
Angola
Bangladesh
Belarus
Burma
Burundi
Cameroon
Congo
Democratic Republic of the Congo
Egypt
Eritrea
Ethiopia
Former Yugoslav Republic of Macedonia
Gambia
Ghana
Guinea
Guinea-Bissau
India
Iran
Iraq
Ivory Coast
Jamaica
Kenya
Kosovo
Lebanon
Lesotho
Liberia
Libya
Malawi
Moldova
Mongolia
Nepal
Nigeria
Pakistan
Palestinian Territories
People’s Republic of China
Rwanda
Senegal
Serbia
Sierra Leone
Somalia
South Africa
South Sudan
Sri Lanka
Sudan
Swaziland
Syria
Tanzania
Turkey
Uganda
Vietnam
Yemen
Zimbabwe
Holding a travel document issued by “Turkish Republic of Northern Cyprus”
Holding a passport issued by the Republic of Venezuela that does not contain biometric information in an electronic chip.

2.What are the two main types of UK transit visas?

When transiting through the UK, you can transit in one of two ways: landside or airside.

If you are transiting landside, this means you are going through UK border control and so entering the UK. You can be transiting landside even if you are just moving from one airport to another, or if you are going past UK border control just to re-check in your luggage.

To transit landside, you need a Visitor in Transit visa. A Visitor in Transit visa usually costs £64, but this may change slightly depending on the country you are applying from. Note that if you plan to regularly transit through the UK over a longer period you can apply for a Standard Visitor visa. You can apply for a multiple entry visitor visa for 2, 5, or 10 years.

If you are transiting airside, that means you are not going through UK border control and so you are not deemed to have entered the UK. For example, if you are arriving in an airport and travelling out on an onward flight from the same airport.

To transit airside you need a Direct Airside Transit visa. A Direct Airside Transit visa usually costs £35, but this may change slightly depending on the country you are applying from.

3.How do I successfully apply for a UK transit visa?

To apply successfully for a UK transit visa the applicant must satisfy the Entry Clearance Officer that:

You are genuinely in transit to another country outside the Common Travel Area and you are taking a reasonable transit route;
You will not access public funds or medical treatment, work or study in the UK;
You genuinely intend and will be able to leave the UK within 48 hours of your arrival; and
You are assured entry by your country of destination and any other country you may be travelling through to get there.

There are no specified documents for a transit visa application but the Entry Clearance Officer will take into account the following factors which give you some indication of some of the documents you may include in your application:

Whether the transit route is reasonable: the Home Office does not specify what is an acceptable route but you can use your common sense. Home Office guidance gives the example of transiting through the UK to get from Australia to New Zealand as an unreasonable route.
Credibility of the application as a whole: this is the main purpose of your whole journey to your final destination. For example, if you are going on holiday you could include your hotel booking. Be aware the Home Office will also consider your full travel history, for example any visa refusals or overstaying, when considering this factor.
Intention and ability to leave the UK within 48 hours of arrival: the Home Office will consider the details and availability of connecting flights and whether you have appropriate bookings. Therefore, it may be useful to include bookings for your onward journey.
Assurance of entry by the country of destination and any other countries on the way there: if you require a visa or entry clearance for any country you are travelling to beyond the UK, it may be useful to include this in your application.

To apply for a UK transit visa you will need to complete an online application form. Once you have submitted your application form, you will need to have your fingerprints and photograph taken at a visa application centre. You should receive a decision within three weeks of providing your fingerprints and photograph.

4. Can I get a UK transit visa at a UK airport?

Technically, no.

Some travellers are eligible for the Transit Without a Visa scheme. This means that they will be allowed to transit without having to apply for a transit visa beforehand.

To be eligible for this scheme you must satisfy the following requirements:

You must have arrived in the UK by air and depart by air;
You must genuinely intend to transit the UK and be taking a reasonable transit route;
You must not access public funds, medical treatment, work or study in the UK;
You must genuinely intend and be able to leave the UK before 23:59 hours on the day after the day you arrive;
You have a confirmed booking on a flight departing the UK 23:59 hours on the day after the day you arrive;
You must be assured entry to your country of destination and any other countries you are transiting on the way.
You must hold one of the various documents listed on the list at TWOV 3 found here .

As noted above, there is a mandatory document you will need for the application. Make sure that you have a hard copy, electronic or printed versions will not be accepted. Other than that there are no specified documents but note that the Border Officer will be considering many of the same factors as an Entry Clearance Officer, for example:

Reasonable transit route;
Credibility of the application as a whole;
Intention and ability to leave the UK before the specified time;
Assurance of entry to their country of destination and any other countries you are transiting on the way.

Therefore, in practice you will need many of the same pieces of evidence as you would if you were applying beforehand.

Contact our Immigration Experts

For expert advice in relation to a UK visa application or immigration appeal , contact our immigration experts on 0161 529 7779 or complete our enquiry form.

Section 117B Public Interest Considerations Explained

Mon, 27 Nov 2023 09:35:19 GMT

When considering immigration matters involving Article 8 (ECHR), one of the most important factors that decision-makers, courts and tribunals will take into account when reaching their conclusion is whether any of the issues raised run counter to the ‘public interest’. This concept is defined under S.117B of the Nationality, Immigration and Asylum Act 2002 and comes into play when a court or tribunal has to consider whether an interference with an applicant’s Article 8 rights is proportionate. As such, understanding what falls under ‘the public interest’ will be very significant when attempting to establish any factors which might weigh against an individual’s Article 8 rights in the context of this proportionality exercise. Therefore, in the following article, we will provide an overview of the different factors that form part of these ‘public interest’ considerations and explore how they interact with Article 8 (ECHR).

Background to S.117B:

S.117B was originally inserted into the Nationality, Immigration and Asylum Act 2002 by Section 19 of the Immigration Act 2014 . The purpose of these provisions appears to be an attempt to direct, and to an extent limit, the way in which courts and tribunals consider Article 8 in an immigration context, specifically the factors which must be considered when a court or tribunal conducts the balancing exercise between an individual’s Article 8 rights and factors which pull against that.

As the explanatory notes for the Immigration Act 2014 states, the intention here was that the “Immigration Rules would be made to reflect the Government’s and Parliament’s view of how the balance should be struck between the right to respect for private and family life under Article 8 of the ECHR and the public interest [Emphasis added]”.

Similarly, the Home Office’s ‘Family Migration’ Consultation paper , published in July 2011, also outlines the policy objectives operating in the background of these provisions, namely that:

“…the government has a responsibility to set out a framework for where and why the wider public interest in protecting the public and controlling immigration justifies rational and proportionate interference in the exercise of the right to respect for private and family life…”

[…]

“Of course, those with a legitimate right to come here must still be able to do so. But we need to crack down on abuse of the family route and to tighten up the system.”

[…]

“We do not suggest that simply because a family could live elsewhere that they must do so: that would be closing the door to much family migration, which is not our objective. But we do believe that Article 8 enables us to impose requirements on applicants for family migration as long as those requirements serve a legitimate public interest and are proportionate.”

The provisions of S.117B:

Section 117B provides that the following are public interest considerations which are applicable in all cases:

Maintaining effective immigration controls;
Preventing burdens on the taxpayer;
Promoting integration;
Protecting the rights and freedoms of others.

Thus, in line with the policy objectives which we explored above, we can arguably see that these provisions do indeed “tighten up the system” by directing courts and tribunals as to how they must consider the public interest, and what that phrase encompasses in an immigration context. The attempt to limit Article 8, as was also alluded to above, can also be seen through these provisions. For example, S.117B(4) and S.117B(5) explicitly outline scenarios where “little weight should be given to a private life”, namely where an individual’s immigration status in the UK was precarious. Again, this is consistent with Home Office policy to “crack down on abuse of the family route” by limiting the ability of individuals to rely on private life ties, formed at a time when their status in the UK is deficient in some way, as a means of circumventing immigration rules.

How does S.117B interact with Article 8?:

As alluded to earlier, the provisions of S.117B arguably represent an attempt to direct how courts and tribunals should consider and apply Article 8 (ECHR) and, in particular, the factors which should be taken into consideration when making that assessment. A detailed discussion of Article 8 is largely outside the scope of this article. For our purposes, it is sufficient to say that Article 8 is a qualified right, found under the provisions of the ECHR, which protects an individual’s right to family life and private life. As it is a qualified right, Article 8(2) does allow for inference with an individual’s private or family life in certain circumstances.

In previous decisions, the court has dealt with the question of whether the provisions of S.117 more broadly are compatible with Article 8 (ECHR). The conclusion from these judgments seem to be that these statutory provisions are not, in themselves, in breach of Article 8. For example, the court in NE-A (Nigeria) v SSHD (2017) held that:

“Part 5A of the 2002 Act, by contrast, is primary legislation directed to tribunals and governing their decision-making in relation to Article 8 claims in the context of appeals under the Immigration Acts. I see no reason to doubt what was common ground in Rhuppiah and was drawn from NA (Pakistan), that sections 117A-117D, taken together, are intended to provide for a structured approach to the application of Article 8 which produces in all cases a final result which is compatible with Article 8”

Likewise, the decision reached in Rhuppiah v SSHD (2016) also raises important considerations in regards to how the provisions of S.117B interact with Article 8. In that decision, the court held that:

“Where Parliament has itself declared that something is in the public interest – see sections 117B(1), (2) and (3) and section 117C(1) – that is definitive as to that aspect of the public interest.

But it should be noted that having regard to such considerations does not mandate any particular outcome in an Article 8 balancing exercise: a court or tribunal has to take these considerations into account and give them considerable weight, as is appropriate for a definitive statement by Parliament about a particular aspect of the public interest, but they are in principle capable of being outweighed by other relevant considerations which may make it disproportionate under Article 8 for an individual to be removed from the UK.”

Both of these cases arguably reveal some important details regarding the operation of S.117. Firstly, in line with the Government and Home Office policy detailed above, S.117B does indeed appear to have achieved its intended effect of defining, and to an extent limiting, the range of factors which can be considered as falling within the ‘public interest’. Thus, by placing these factors on a statutory footing, the public interest considerations under S.117B are, as commented on in Rhuppiah, “definitive as to that aspect of the public interest”.

Secondly, and perhaps most importantly in the context of conducting a balancing exercise under Article 8, it should be emphasised that even though statute has determined what is to be considered as falling under ‘the public interest’, and has mandated that courts and tribunals must have regard to these factors (as per S.117A(2) ), this does not necessarily mean that the balancing exercise is a foregone conclusion. Indeed, as was quoted above, the court in Rhuppiah held that these ‘public interest considerations’ “are in principle capable of being outweighed by other relevant considerations”. Therefore, in each individual case, it will still be important to attempt to advance arguments and evidence demonstrating the strength of an applicant’s Article 8 ties, whether they be in terms of their private life or family life in the UK.

Conclusion

As will hopefully have been seen from this blog post, the public interest considerations detailed under S.117B will form a crucial part of the balancing exercise conducted under Article 8 when courts or tribunals are called upon to determine a decision under the Immigration Acts. Given that courts and tribunals must have regard to these factors, it is therefore incredibly important to be aware of these provisions, their intended purpose, and their effects. It is worth re-emphasising at the close that it is entirely possible for sufficiently strong and compelling evidence regarding an applicant’s private or family life ties under Article 8 to be advanced, and indeed, to tip the proportionality exercise in an applicant’s favour. As always, doing so will require careful examination of the specific facts of each individual case.

Contact our Immigration Experts

For expert advice in relation to a UK visa application or immigration appeal , contact our immigration experts on 0161 529 7779 or complete our enquiry form.

Updated British Citizenship Good Character Guidance

Sat, 25 Nov 2023 14:30:27 GMT

The British Nationality Act (BNA 1981) contains a good character requirement, which applies to certain applications for registration as a British citizen and naturalisation as a British citizen for those over 10 years old at the date of application.

The good character requirement previously only applied to applications for British citizenship by naturalisation, but in 2010 this was extended to other routes to British citizenship.

Definition of Good Character

The BNA 1981 does not provide a definition of good character, and therefore each application must be considered individually. The decision maker must be satisfied that an applicant is of good character requirement on the balance of probabilities. Applicants will therefore want to carefully consider information to include in their application to demonstrate they meet the requirement.

Generally the following key areas will be assessed and considered:

Criminality;
International crimes, terrorism and other non-conducive activity;
Financial soundness;
Notoriety;
Deception and dishonesty;
Immigration-related matters; and
Deprivation.

This list is non-exhaustive and an application for British citizenship may be refused if an applicant does not clearly fall into one of these categories but there are doubts regarding their character. A caseworker may request an interview in order to make an overall assessment as to character.

Home Office British Citizenship Good Character Requirement Guidance

The Home Office, Nationality: good character requirement, Version 4.0 published on 31 July 2023 provides instructions to caseworkers as to the application of the good character requirement. All those applying for British citizenship should read this guidance and ensure that they accurately complete the application form and provide relevant documentation.

The guidance confirms that there are consequences for non-disclosure:

Concealment of information or lack of frankness will raise doubt about, and therefore reflect poorly on, the applicant’s character.

An application will normally be refused only where the person has attempted to lie or conceal the truth about an aspect of their application, whether on the application form or in the course of enquiries, including where they have knowingly provided false personal details, for example date of birth, name or nationality.

Home Secretary Announces Crackdown on Criminals Receiving Citizenship

On 30 July 2023 the UK government announced that it intended to toughen-up the criminality threshold for British citizenship to line them up with the Immigration Rules.

Home Secretary, Suella Braverman said:

British citizenship is a privilege. Those who commit crimes shouldn’t be able to enjoy the breadth of rights citizenship brings, including holding a British passport, voting and accessing free medical care from the NHS.

I am cracking down on abuse of the UK’s immigration and nationality system, by introducing a tougher threshold so that serious criminals cannot gain British citizenship. This is the fair and right thing to do for our country.

Updated British Citizenship Good Character Guidance

In light of the announcement, the Home Office guidance on assessing good character was updated from 30 July 2023 and a new sentence threshold applies to applications made from 31 July 2023.

Having a criminal record does not mean that an application will be refused. The updated guidance reads:

A person will normally be refused if they:

have received a custodial sentence of at least 12 months in the UK or overseas
have consecutive sentences totalling at least 12 months in the UK or overseas
are a persistent offender who shows a particular disregard for the law
have committed an offence which has caused serious harm
have committed a sexual offence or their details are recorded by the police on a register

A person must be refused if they have:

a custodial sentence of less than 12 months
a non-custodial sentence or out-of-court disposal recorded on their criminal record

and you are not satisfied, on the balance of probabilities, that they are of good character.

Where an application was made before 31 July 2023 and a decision is outstanding, the guidance confirms that an application will normally be refused if the applicant has received:

a custodial sentence of at least 4 years
a custodial sentence of at least 12 months but less than 4 years unless a period of 15 years has passed since the end of the sentence
a custodial sentence of less than 12 months unless a period of 10 years has passed since the end of the sentence
a non-custodial sentence or out-of-court disposal that is recorded on their criminal record which occurred in the 3 years prior to the date of application

In the case of non-custodial sentences and out-of-court disposals, if a person was convicted within 3 years of submitting the application, but more than 3 years have passed on the date the application is decided, the application must not be refused solely on this basis. However, where there are other issues of concern, previous offences may be considered relevant when considering good character as a whole.

Considering the Balance of Probabilities

The following factors will fall to be considered in any assessment of good character on the balance of probabilities:

Length of time since offences;
Number of offences;
Period over which offences were committed;
The seriousness of the offence;
Any escalation in seriousness of offences;
Nature of offences;
Applicant’s age at the date of conviction; and
Exceptional or other circumstances.

Mitigating Factors

The caseworker will consider other mitigating factors:

You must also consider whether the applicant has demonstrated genuine, meaningful attempts to change their behaviour and comply with the law that may indicate, on a balance of probabilities, they are now considered to be of good character despite earlier offending. A long period of time with no offending will be a more positive factor than a short period of time.

An applicant may have also been involved in activities that indicate they may be of good character. For example, they may have,

engaged with programmes or activities aimed at addressing the cause of the offending, such as (but not limited to) treatments aimed at reduction of alcohol consumption, or drug dependency or anger management courses
actively engaged with voluntary work, charity work, or actively promoted the reduction of crime

The list of factors is indicative, not exhaustive.

Certainly, this change means that it will now be harder for certain applicants to meet the good character requirement and qualify for British citizenship. Therefore, you may wish to consider seeking legal advice regarding the good character requirement to determine how best to present your British citizenship application.

Contact our Immigration Legal Advisers

For expert advice and assistance in relation to a nationality application, contact our immigration legal advisers in Manchester on 0161 529 7779 or via the enquiry form below.

Switching from a Start-up Visa to an Innovator Founder Visa

Sat, 25 Nov 2023 14:13:27 GMT

In a previous post we discussed how to switch from an Innovator Visa to an Innovator Founder Visa. This post will focus on switching from the Start-Up route to the Innovator Founder route. Applicants can switch on the basis of having had a business previously endorsed for the Start-up route (“same business”) or on the basis of having a new business endorsed. The requirements are slightly different depending on whether the business is a same business or a new business.
This post will focus on switching into the Innovator Founder route based on having the same business.

As explained in a previous post, the Innovator Founder Visa route is a route to settlement for experienced entrepreneurs and business people who want to establish a business in the UK. It replaced the Innovator route on 13 April 2023. The Innovator Founder route is essentially a mix of two immigration routes, the Start-up Visa route which is now closed to new entrants without an endorsement issued before 13 April 2023 and officially closed to all new applications on 13 July 2023 and the Innovator Visa route.

General Requirements to Switch from the Innovator Visa to the Innovator Founder Visa

In order to switch from a Start-up Visa to an Innovator Founder Visa by relying on a previously endorsed business you will need to satisfy the following:

You are aged at least 18 years old on the date of application;
You have been issued with an endorsement letter from an approved UK Endorsing Body or Legacy Endorsing Body;
You meet the English English language requirements, CEFR Level B2 (similar to IELTS 5.5.) in the four components of reading, writing, listening and speaking;
If you have been in the UK for less than 12 months, you will need to have at least £1,270 in maintenance funds for yourself, additionally £285 for a dependent partner, £315 for the first child and £200 for each additional child;
Your application must not fall for refusal under the General Grounds for Refusal.

Endorsement from a Legacy Endorsing Body for the Same Business

The Immigration Rules are well known for being badly drafted and to be full of mistakes. Appendix Innovator Founder, where the rules for those wishing to apply to enter the UK as an Innovator Founder or to switch into this route from within the UK can be found, is no exception. Please bear with me as we wade into some muddy waters of drafting.

Start-up applicants will currently be in the UK with an endorsement for a business. They should be, and technically are (if able to navigate the Home Office Rules), able to use this same business to switch into the Innovator Founder route. The impact of this is that applicants will not need to apply for a new endorsement from a new Innovator Founder Endorsing Body, however, can use their previously endorsed business and a new letter of endorsement from a Legacy Endorsing Body in order to switch into the Innovator Founder route. This is ultimately beneficial as applicants who are looking to switch will not need to come up with a new business idea that is innovative, viable and scalable.

The Rules appear to be clear in stating that one can rely on the same business where their previous permission was: “in the Innovator Founder, Innovator, Start-up or Tier 1 (Graduate Entrepreneur) route and they are pursuing a business assessed by a Home Office approved endorsing body either for the previous endorsement or at a contact point.” [Emphasis added]

This all seems straightforward so far, however, the current online version of the Immigration Rules, which was last updated on 25 July 2023 at the time of writing, currently puts a roadblock on those wishing to switch from the Start-up route into the Innovator Founder route on the basis of having the same business. Let’s break this down further. The online version of the rules currently reads as follows in relation to the mandatory requirement to have an endorsement letter:

“INNF 7.2. A letter of endorsement from a Legacy Endorsing Body in support of an application under the same business criteria will only be accepted, and points will only be awarded, if:

(a) the applicant has or, in the 12 months immediately prior to the date of application, had permission as an Innovator Founder; and
(b) the Legacy Endorsing Body supporting the current application is the same as the Endorsing Body for that previous permission.” [Emphasis added]

INNF 7.2 (a) is understandably confusing as one might question how they can have permission as an Innovator Founder when they are applying to switch from the Start-up route into the Innovator Founder route. The definition of Innovator Founder sheds some light on the operation of this requirement, however, it is still not helpful for Start-up applicants wishing to switch into the route on the basis of having the same business. The definition states:

“Innovator Founder means a person who has, or had, permission under Appendix Innovator Founder, or as an Innovator under Appendix Innovator of the rules in force before 13 April 2023 or under Appendix W of the rules in force before 01 December 2020.”

This definition results in an understanding of INNF 7.2. which demonstrates that those endorsed in the Innovator route pre 13 April 2013 are able to switch into the Innovator Founder route on the basis of having an endorsement letter issued by a Legacy Endorsing Body in relation to the same business they were originally endorsed for in the Innovator route, however, this definition still excludes those within the Start-up route. Ultimately it seems that Start-up applicants wishing to switch into the Innovator Founder route on the basis of a business which was previously endorsed are unable to do so as they are excluded from obtaining an endorsement letter from a Legacy Endorsing Body given that they will not have had permission in a route coming within the definition of Innovator Founder.

Despite this being the current reading of Appendix Innovator Founder, the Home Office appear to have realised that there is a mistake in the Rules and made changes in a Statement of Changes issued on 17 July 2023, that INNF 7.2(a) should be updated as follows:

“APP INNF1. In INNF 7.2(a), after “Innovator Founder”, insert “or permission under the Start-up route”.

The online version of the rules, which has for some reason not been updated to reflect this actual reading of the requirements despite the latest update of the website being after the publishing of this statement of changes and the other changes relating to Appendix Innovator Founder having been reflected on the website, should therefore read as follows:

“INNF 7.2. A letter of endorsement from a Legacy Endorsing Body in support of an application under the same business criteria will only be accepted, and points will only be awarded, if:

(a) the applicant has or, in the 12 months immediately prior to the date of application, had permission as an Innovator Founder or permission under the Start-up route; and
(b) the Legacy Endorsing Body supporting the current application is the same as the Endorsing Body for that previous permission.” [Emphasis added]

Ultimately, therefore, Start-up applicants can obtain an endorsement letter from a Legacy Endorsing Body where they seek to rely on their same business to switch into the Innovator Founder category. This endorsement letter will be important as it will need to confirm that they meet the requirements needed to rely on the same business, these are that:

their same business is active, trading and sustainable;
their same business is registered with Companies House and the Applicant is listed as a director or member of that business;
the Applicant has an active day-to-day role in the management and development of that business.

There is another requirement, which should be reflected in the endorsement letter but it is not very clear cut. This states:

“INNF 9.3 The applicant must:

(a) if they have or have last had permission as an Innovator Founder, demonstrate that they have attended at least 2 Contact point meetings with their Endorsing Body at regular intervals during their period of permission or similar regular checkpoint assessments with their Legacy Endorsing Body; and
(b) confirm that they will have at least two Contact point meetings with the endorsing body at regular intervals during their period of permission.”[Emphasis added]

The use of ‘and’ in the above creates some difficulties, as it appears that those switching from the Innovator route (coming within the definition of having or having last had permission as an Innovator Founder) are the only ones who will be required to have at least two Contact point meetings with their Endorsing Body once on the route. The Home Office Guidance reads, in relation to a section where an Endorsing Body informs them that an applicant has missed a regular contact point meeting:

“The applicant must have at least 2 contact point meetings with the endorsing body at regular intervals within their permission (normally after 12 and 24 months). The endorsing body must advise the Home Office if the applicant has missed a contact.”

It might, of course, be the case that those switching from the Start-up route will not be required to have such contact points once in the Innovator Founder route, however, this seems unusual and it is our understanding that everyone in the route is required to have at least two contact point meetings and this should be confirmed in their endorsement letter.

Further Endorsement Letter Requirements

There are other specific requirements which endorsement letters from Legacy Endorsing Bodies will need to meet. These include:

meeting the general requirements for all letters, one of which includes the letter being dated no earlier than 3 months before the date of application to switch into the Innovator Founder route;
demonstrating that the applicant’s business is a business previously assessed by an Endorsing Body or Legacy Endorsing Body while the applicant had permission on the Start-up route;
confirmation of each of the same business criteria identified further above e.g. registration with Companies House, being met.

Changes to the General Grounds for Refusal for Innovator Founders

The General Grounds for Refusal relate to some of the suitability requirements which migrants seeking to enter or remain in the UK must meet when making such applications. They can be found in Part 9 of the Immigration Rules. These have been added to as a result of the new Innovator Founder route, which is focused on ensuring that applicants are genuine innovators.

Applications for permission to stay in the UK as an Innovator Founder may now be refused if a decision maker has reason to believe that an applicant:

is the subject of any serious civil or criminal proceeding or investigation which relates to corruption, financial misconduct or other financial crime; or
is or has been the subject of sanctions of a non-criminal nature, which include being disbarred from acting as a director or conducting regulated financial activities in any country.

Settlement as an Innovator Founder

The time spent in the Start-up route will not count towards the 3 year continuous residence period in order to obtain Indefinite Leave to Remain (‘ILR’) status in the UK. Applicants will therefore need to spend a full 3 years in the category and meet the criteria for ILR before they can settle in the UK. For more information on the Innovator Founder route, including a section on the requirements for ILR, please see here: UK Innovator Founder Visa.

Contact our Immigration Legal Advisers

For expert advice and assistance with preparing an application to switch from a Start-up Visa to an Innovator Founder Visa, contact our immigration legal advisers in Manchester on 0161 529 7779 or via our enquiry form below.

How to Apply for a Long-Term UK Visitor Visa

Fri, 24 Nov 2023 12:18:04 GMT

Welcome to our guide on navigating the intricacies of applying for a UK Long-Term Visitor Visa. Whether you’re seeking to explore the UK’s historical treasures, pursue educational opportunities, or reunite with loved ones, the United Kingdom offers a wealth of experiences for extended stays. However, embarking on this journey requires a clear understanding of the application process, eligibility criteria, and essential documents. In this post, we’ll walk you through the step-by-step procedure and provide some valuable tips to enhance your chances of securing a UK Long-Term Visitor Visa.

What is a Long-Term Visitor Visa?

When submitting an application for a Standard Visitor visa, applicants are able to indicate the desired length of the visa. Ordinarily, the Standard Visitor visa is chosen by individuals wishing to visit the United Kingdom for a temporary period of up to six months. However, it is also possible to apply for a long-term Standard Visitor visa, which allows for multiple entries to the United Kingdom for a period of two, five or ten years. Each entry to the United Kingdom is limited to a maximum of 6 months on any individual visit. This route is desirable for those who have an ongoing need to visit the United Kingdom and seek to avoid making multiple entry-clearance applications.

Requirements for a Long-term Visitor Visa

Visa National vs Non-Visa National

To be eligible for a long-term visitor visa, applicants need to demonstrate to UK Visas & Immigration (UKVI) that they are a visa national. Visa nationals require entry clearance prior to travelling to the United Kingdom as a visitor, whereas non-visa nationals can normally seek entry as a Visitor on arrival at the UK border. The list of nationalities which require entry clearance is set out in Appendix Visitor: Visa national list here.

Suitability

Those applying for entry clearance on a long-term Standard Visitor visa must not fall for refusal under the Immigration Rules part 9 .

Genuine Visitor

For an application to succeed, the UKVI decision maker must be satisfied that an applicant is a genuine visitor. To meet this requirement, an applicant must show that they:

Will leave the United Kingdom at the end of their visit;
Will not live in the United Kingdom for extended periods of time;
Are genuinely seeking entry for a purpose permitted by the visitor routes;
Will not undertake any prohibited activities, and;
Have sufficient funds to cover all reasonable costs in relation to their visit, without working or accessing public funds in the United Kingdom.

When applying for a long-term Standard Visitor visa, the evidence submitted in support of these factors ought to demonstrate an ongoing need to visit the United Kingdom as a visitor. The risks of insufficiently demonstrating a recurring need to travel to the United Kingdom when making this application are outlined below.

The Home Office acknowledges that where a person holds a long-term Standard Visitor visa for two, five or ten years, their reason for visiting is likely to differ over time; this is permissible if the person intends to continue undertaking permitted visitor activities. For an in-depth look at what activities are permitted and what activities are prohibited on a Standard Visitor visa, please see this article.

In assessing whether an applicant is a genuine visitor, UKVI caseworkers will refer to the Visit Guidance which lists a number of different factors, including:

Immigration history in both the United Kingdom and other countries, and their record of compliance with immigration rules;
Previous patterns of travel to the United Kingdom;
Personal and economic ties to their home country, and;
The credibility of their intentions in light of their personal, family and economic circumstances.

In the case of Sawmynaden (Family visitors – considerations) [2012] UKUT 00161 (IAC), the Upper Tribunal set out relevant factors in assessing whether an applicant genuinely seeks entry as a visitor. See our previous article Visit visas – avoiding refusal for not showing a ‘genuine intention to visit’ for more information on the factors considered in Sawmynaden.

The Visit Guidance further provides a non-exhaustive list of factors which may lead a decision maker to doubt whether an applicant is genuine, including:

A lack of family or economic ties to to their home country and familial connections in the UK;
Previous attempts to deceive the Home Office in an application made by the applicant, the sponsor or any other relevant party;
Discrepancies in the statements made in an application;
The information provided in an application cannot be verified;
The reasons for the visit or the information submitted lacks credibility, or;
A luggage search at the border reveals items which contradict their intention to visit.

Application Process For a Long-Term Visitor Visa

Those applying for entry clearance as a long-term Standard Visitor must apply from overseas in a country where they have a right of residence using the specified online form, “Apply for a UK visit visa”. The form allows applicants to select the length of the visa they wish to apply for.

The length of the visitor visa will determine the application fee. As of writing this article, the prices for Standard Visitor visas are listed as follows:

6 month Standard Visitor visa £100

2 year long-term Standard Visitor visa £376

5 year long-term Standard Visitor visa £670

10 year long-term Standard Visitor visa £837

Once the appropriate fee has been paid and the application has been submitted, applicants are able to upload all supporting documents online and book an appointment to enrol their biometrics. These appointments additionally require the provision of an identity document (ordinarily a passport) which confirms the applicant’s nationality and identity. Applications made for a Standard Visitor visa are typically decided within three weeks of attending a biometrics appointment.

The Risks of Applying for a Long-Term Visitor Visa

It is important for applicants to be aware that there are several risks when applying for a long-term visitor visa.

Refusal of a Long-Term Standard Visitor Visa

As with the six month Standard Visitor visa, there is a risk of an application being refused. In the event of a refusal, applicants are very unlikely to have a legal right of appeal; a right of appeal is only possible where the visit engages human rights considerations. Applicants may otherwise be able to pursue judicial review proceedings as a remedy. You may wish to speak to one of our barristers for expert advice on making a fresh visit visa application if your application has been refused.

Issuing of a Shorter Long-Term Visitor Visa

If UKVI are not satisfied that an applicant meets the eligibility requirements for the duration of the visa applied for, they may alternatively be issued a shorter visa than was applied for. In this instance, the difference in the application fees will not be refunded.

Applicants Under 18

Applicants under the age of 18 must consider that their long-term Standard Visitor visas will be valid only for 6 months after they have turned 18.

Risk of Visa Cancellation

There is a chance that a long-term Standard Visitor visa might be cancelled if a caseworker has reason to believe that an applicant is using frequent and successive visits to make the United Kingdom their home. The use of a long-term Standard Visitor visa to make the United Kingdom one’s home could prompt a refusal in future visa applications. Visa nationals should carefully consider this possibility when travelling on a long-term Standard Visitor visa.

Contact Our Immigration Legal Advisers

For expert advice and assistance with an application for a long-term Standard Visitor visa, contact our Immigration legal advisers on 0161 529 7779 or complete our enquiry form below.

Travel Between the UK and Ireland: A Guide for British and Irish Citizens

Fri, 24 Nov 2023 11:14:49 GMT

In a previous blog post, we explained travel from Ireland to the UK for non-visa nationals, and how such people may benefit from “deemed leave” when travelling within the Common Travel Area (CTA) – for example, when travelling from Dublin to London.

We also explained that deemed leave does not apply to British and Irish citizens, as they already have a right to enter the UK without having to rely on deemed leave. But, if deemed leave does not apply, how does travel between the UK and Ireland work for British and Irish citizens?

This blog post will provide an overview of the status of British citizens in Ireland, and of Irish citizens in the UK. In particular, it will explain how travel between the UK and Ireland works for British and Irish citizens. We also explain the position for the family members of such British or Irish nationals, where these family members are not themselves British or Irish. We explain the position both for family members who are nationals of European Economic Area states (i.e. “EEA nationals”) and nationals of non-EEA states (i.e. “non-EEA nationals”).

Please note that we are only able to advise on UK immigration law, and we cannot advise on Irish immigration law. While this blogpost includes references to elements of Irish law, this post is only intended as a starting point, and does not constitute advice on Irish immigration law. For further information on Irish immigration law, you may wish to consult the Irish Immigration Service webpage, or an immigration lawyer qualified to advise on Irish immigration law.

I’m a British Citizen Going to Ireland – Do I Need a Visa or Passport, and How Does Travel Work?

British citizens hold a unique status under Irish nationality law. If you are a British citizen, the existence of the CTA means that you do not need a visa or any residence or employment permit to visit, live, work or study in Ireland. Indeed, you do not technically need any ID to cross the Irish land border, as a matter of immigration law. You also have the right to access the public healthcare system in Ireland, and vote in general elections (though you likely cannot vote in Irish European elections, as UK citizens are no longer EU citizens).

While you do not technically need a passport to enter Ireland as a matter of immigration law, some carriers and airlines might require you to produce some ID, and Irish immigration officers do check the ID of all passengers arriving by air from the UK. As such, from a practical point of view, it is certainly wise to carry your British passport or other proof of British nationality when travelling to Ireland, particularly if you were born outside the UK.

I’m a British Citizen Going to Ireland – What About My Family?

All of the above applies if your family members are themselves British or Irish; they can enter Ireland in their own right.

The position is different for any non-EEA family members you might have. (Note that any EEA family members continue to benefit from their own free movement rights post-Brexit.)

If you and your non-EEA family member are visiting (rather than moving to) Ireland, your non-EEA family member needs a visa to enter Ireland, unless:

They have a short-term UK visa and qualify for the Short-stay Visa Waiver Programme or the British-Irish Visa Scheme; or
They are a citizen of certain listed countries.

In terms of more long-term travel, as of 01 January 2021, any non-EEA family members moving with you to Ireland must apply for a visa or preclearance approval letter. For more information on Irish immigration law, please see the relevant webpage on the Irish government website.

I’m an Irish Citizen Coming to the UK – Do I Need a Visa or Passport, and How Does Travel Work?

Similarly to British citizens in Ireland, Irish citizens hold a special status under UK nationality law (see also our earlier blog post on The Rights of Irish Citizens in the UK after Brexit). If you are an Irish citizen, you do not need permission to enter or remain in the UK (though there are limited exceptions – for instance, if you are subject to a deportation order).

This means that you can move freely between the UK and Ireland, and work or study in the UK, without any need to apply for a visa or for any work or residence permit. As an Irish citizen, you can also enter and stay in the UK without seeking permission, even if you are not travelling from Ireland.

In addition, you can access the UK’s social security system (including benefits, social housing and pensions), and access the NHS in the same way as British citizens. You can also vote in national and local elections in the UK.

As with British citizens travelling to the UK, you do not technically need a passport to enter the UK, as a matter of immigration law. However, all air and sea carriers require some form of ID, and some immigration authorities may require you to produce some photographic ID showing your nationality. As such, it is always advisable to travel with your passport when coming to the UK, even directly from Ireland.

In law, when you come to live and work in the UK, you are considered to automatically acquire “settled” status, also known as “indefinite leave to remain”. This also means that, unlike other EU citizens, you do not need to register under the EU Settlement Scheme (EUSS).

While Irish citizens may apply to the EUSS if they wish to do so and if they had lived continuously in the UK before 31 December 2020, any applications made now would be classed as a “late” application, requiring reasonable grounds for the lateness (see our previous blog post on late applications under the EUSS).

I’m an Irish Citizen Coming to the UK – What About My Family?

Again, the above explanations regarding British and Irish citizens apply if your family members are themselves British or Irish; they can enter the UK in their own right.

The situation is more complex for any family members coming with you who are not British or Irish. This is because the CTA only caters for British and Irish nationals, and does not provide residence rights for their family members if they are not themselves British or Irish. For CTA purposes, it does not matter whether your family members are EEA or non-EEA nationals.

If your family members are coming to the UK for a short-term visit, standard rules on visit visas apply, which vary depending on whether the family members are “visa nationals” or “non-visa nationals” (for more information, see our previous blog post on visit visas).

In terms of joining or accompanying you to come to the UK for the longer term, there are a few possible scenarios for your family members who are not British or Irish:

If your family members are EEA nationals and were living in the UK continuously before 31 December 2020, they may be eligible for settled or pre-settled status in their own right, regardless of whether they were living with you;
If your family members are non-EEA nationals, and were living with you in the UK continuously before 31 December 2020, they may be eligible for settled or pre-settled status as a family member of an EU citizen (by virtue of your Irish nationality);
If your family members were not living with you in the UK before 31 December 2020, but you were living in the UK before this date, your family members may be eligible to “join” you under the EUSS (whether they are EEA nationals or non-EEA nationals);
If neither you nor your family members were living in the UK before 31 December 2020, the EUSS will not apply (whether your family members are EEA nationals or non-EEA nationals). Your family members will therefore have to apply for entry clearance under Appendix FM.

Again, any applications made by your family members under the EUSS, whether for EUSS status or for an EUSS Family Permit, would also now be classed as a “late” application, and therefore subject to the same rules on late applications referred to above.

Contact our Immigration Legal Advisers

For expert advice regarding travel and entry to the UK, or regarding your immigration status in the UK as an Irish citizen, contact our immigration legal advisers on 0161 529 7779 or complete our enquiry form below.

A Guide to Working in the UK on a Student Visa

Thu, 23 Nov 2023 12:17:55 GMT

The Home Office acknowledges that many students work during their studies in order to support themselves and/or to gain experience which may benefit their career after they graduate. However, it is also keen to ensure that migrants do not use the student route purely to come and work in the UK. For this reason, student migrants are permitted to take on a limited amount of work, subject to stringent conditions. In this post, we answer some frequently asked questions about the work that students can and cannot take on whilst studying in the UK on a UK student visa.

What Work Am I Permitted to Do on a Student Visa?

In short it depends. The amount and nature of work you are permitted to do as a student with a Student Visa will depend upon:

Whether your course is below, at or above degree level;
Whether your course is full-time or part-time;
Whether your course provider has a track record of compliance with UK immigration law (you can check this by looking for your provider’s entry in the Register of Student sponsors – it will state the words “track record” in the ‘Status’ column);
Whether your course provider is a UK institution, or an overseas higher education institution sponsoring you for a short-term study-abroad programme.

If you are considering coming to the UK to study, and planning to work whilst you do so, you should be sure of all of the above as these will dictate the conditions of your Student visa.

I Am Taking a Full-Time, Degree Level Course at a UK Institution. What Work Is Permitted?

If you are studying full-time at a UK higher education provider for a course at degree level or above, and your institution has a track record of compliance, you are permitted to work as follows:

Part-time during term-time (up to a maximum of 20 hours a week)
Full-time during vacations, including the period before the course starts
On a work placement as part of the course
Full-time as a postgraduate doctor or dentist on a recognised foundation programme when permission has been – granted for this course type
As a Student Union Sabbatical Officer for up to 2 years when permission has been granted for this purpose

If your provider does not have a track record of compliance, your entitlement to work is significantly more restricted. You are not permitted to work within or outside of term-time, except to undertake a work placement as part of your course or as a Student Union Sabbatical Officer for up to 2 years.

If you are studying in the UK on a study-abroad programme, you are permitted to do the same as above.

I Am Taking a Full-Time Course Below Degree Level at a UK Institution. What Work Is Permitted?

If your course is below degree level, the rules are largely similar to those set out above. The only significant difference is that the maximum number of hours you are allowed to work during term time is 10 hours rather than 20. During vacations and before the course starts you are permitted to work full-time.

Once again, if your provider does not have a track record of compliance, you are not permitted work except to undertake a work placement as part of your course or as a Student Union Sabbatical Officer for up to 2 years.

I Am Studying Part-Time. What Work Is Permitted?

Unfortunately if you are studying part-time on a Student visa, you are not permitted to undertake any employment.

What Is “Term Time”?

Universities, colleges and schools in the UK generally teach in three terms per year, separated by periods of holiday or vacation.“Term time” is not defined as a concept in the Immigration Rules or in the Home Office’s guidance, so you will need to follow the dates set by your sponsor. Your term dates will usually be available on your institution’s website or in your course information.

If for any reason you are unclear about your term-dates (for example, if you are undertaking a research-only postgraduate course), you should clarify this with your student sponsor.

Can I Be Self-Employed or Run My Own Business on a Student Visa?

Generally speaking, no. You are not permitted to be self-employed whilst on a student visa, nor are you permitted to “engage in business activity”. “Engaging in business activity” is defined as working for a business in which you have a financial or other significant beneficial interest in a capacity other than as an employee. Examples of that would include setting up a business (which proceeds to trade or establishes a trading presence) as a sole trader or under a partnership; being employed in a company where you own 10% or more of the shares; or working for a company where you hold a statutory role such as a director.

The Immigration Rules technically still provide for one exception to this, which relates to students who are switching to the Start-up immigration route, and are awaiting decisions on their application. However, given that the Start-up route has now closed, this is unlikely to be of any relevance.

What Other Work Is Prohibited?

You are not permitted to take employment as an entertainer or professional sportsperson (including a sports coach) whilst on a student visa.

“Entertainer” is not defined, but you should be wary of accepting payment for anything that involves performance.

Being a “professional sportsperson” is deemed to include playing or coaching in any capacity at a professional or semi-professional level; receiving payment (or payment in kind) that covers all or the majority of your costs for travelling to and living in the UK; being registered with a professional or semi-professional team including in the academy and development age groups; representing a national, state or regional team; establishing an international reputation in your chosen field of sport; or engaging an agent or representative, with the aim of finding professional opportunities or developing your career.

If you have been awarded a sports scholarship for a course at degree level above, and are required to play sports as a condition of your scholarship, it is permitted to do so for your student sponsor or for British Universities and Colleges Sport (BUCS).

I Have Finished My Course but Still Have Time Left on My Visa. Can I Work?

If you have graduated or finished your course, you remain bound by all of the same conditions as throughout your Student visa. However, periods after you have finished your course are considered to be outside term-time.

Can I Volunteer as a Student?

Students are permitted to volunteer whilst they are studying. However they must bear in mind the difference between volunteering and voluntary work.

A volunteer will usually be helping a voluntary organisation, charity or public sector organisation. They must not be paid (or receive payment in kind, though reasonable travel and subsistence expenses are allowed), must not have a contract, and must not be a substitute for an employee.

Voluntary work, on the other hand, involves contractual obligations (whether or not there is a written contract) and often involves payment in kind. Students are permitted to do voluntary work, but this is subject to the same restrictions as applied to employment.

What Work Can I Do as a Child Student?

If you are on a Child Student visa and are aged 16 or above, you may work for up to 10 hours per week during term time, or any duration during the holidays. You can also undertake a course-related work placement (subject to various further requirements).

As a Child Student, you are subject to the same restrictions described above with regards to self-employment, business activity, working as a sportsperson or entertainer, and voluntary work.

Contact our Immigration Legal Advisers

Working in breach of the conditions of your visa is an immigration offence which can have potentially very serious consequences for your future. For expert advice and assistance in relation to a student visa application, or would like to switch from a student visa to a different route to permit you greater freedom to work, contact our Immigration legal advisers on 0161 529 7779 or complete our enquiry form below.

How Are Sponsor Licence Applications Assessed?

Thu, 23 Nov 2023 10:54:04 GMT

When you are preparing your application for a Sponsor Licence, there are various factors to consider. Our previous post, How to Apply for a Skilled Worker Sponsor Licence sets out the suitability and eligibility criteria. In this article, let’s focus on the key areas when assessing Sponsor Licence applications.

Assessing Eligibility Criteria in Sponsor Licence Applications

To meet the eligibility criteria, you need to provide the right documents to show that your business is genuine and has an operating presence in the UK. As set out in the article, Employer’s Guide to Appendix A Sponsor Licence Documents, most organisations will need to provide at least four supporting documents set out in the Appendix A. There are four tables setting out the types of documents that can be provided for different types of organisations. Go through Tables 1 to 3 to check the type of documents required for your organisation, for example, what are the documents if your organisation is subject to regulation or inspection. Then proceed to Table 4 to see all the other possible documents that can be provided to make up the minimum four documents. For start-ups, the article here provides further guidance.

Getting the right documents is important to show that your company is genuine and operating in the UK. It is advisable to seek legal help in order to submit a fully prepared sponsor licence application. We have posted, here, about some of our skilled worker sponsor licence success stories.

Sponsor Duties When Applying for a Licence

When assessing a sponsor licence application, the Home Office may check whether you have human resource and recruitment systems in place to meet your sponsor duties. The Home Office Guidance sets out the sponsor duties as follows:

“Your duties as a licensed sponsor include:

reporting duties
record-keeping duties
complying with our immigration laws, including all parts of the Worker and Temporary Worker sponsor guidance
complying with wider UK law
not engaging in behaviour or actions that are not conducive to the public good”

Reporting duties: When there are certain changes in the worker’s circumstances, these must be reported within 10 working days or 20 working days of the changes. For example, if the worker is absent from work for more than 10 consecutive working days without permission, this must be reported no later than 10 working days after the tenth day of absence.

Record-keeping duties: the list of documents that must be kept for each worker is published in Appendix D, which also explains how long you must keep the relevant records;

Complying with immigration laws: includes employing workers who are qualified or experienced to under the role;

Complying with wider UK law: this is other than immigration law, such as complying with illegal working legislation. Our recent post, Fines For Employing Illegal Workers Set To Rise Significantly talked about the government’s recent announcement;

Not engaging in behaviour that is not conducive to the public good: The behaviour and actions of the organisations should be in a manner that is not detrimental to the public good.

Key Personnel in Sponsor Licence Applications

To ensure that the sponsor duties are met, you must show in the sponsor licence application that you have the key personnel to carry out the relevant roles. Key Personnel include an Authorising Officer, Key Contact, Level 1 User and Level 2 User. Some of the key personnel will have access to the sponsorship management system (‘SMS’).

Authorising Officer

An Authorising Officer should be the most senior person in your organisation who is responsible for the recruitment of migrant workers and your organisation must have an Authorising Officer throughout the licence. The Authorising Officer also ensures that all the sponsor duties are met.

Key Contact

This person will be the main point of contact between the organisation and the Home Office.

Level 1 User

A Level 1 User will be responsible for day-to-day management of the licence. Their responsibilities can include assigning the Certificate of Sponsorship to workers and reporting a change of circumstances on the SMS. In the initial application, your nominated Level 1 User must be an employee, partner or director.

Level 2 User

Access is more restricted for a Level 2 User. A Level 2 User can be appointed by a Level 1 User once the sponsor licence has been granted.

Employment Requirements for Specific Routes

When assessing applications for sponsor licence under the Skilled Worker, Scale-Up or Global Business Mobility routes, you must show that the employment is genuine and meets the salary and skill level requirements.

Genuine Vacancy

The role must be genuine. It must not be a role that does not exist or created for the sponsored worker to come to the UK or stay in the UK.

Salary

The sponsored worker must be paid the minimum salary specified for that route as set out in the Immigration Rules.

Skill-level

The job must be at an appropriate skill level in an eligible standard occupational classification code set out in the Appendix Skilled Occupations.

Looking at Criminal Convictions and Civil Penalties in Sponsor Licence Applications

The Home Office may conduct a check on the following persons to see whether they have any criminal convictions or have been issued with any civil penalty or charge:

Owner;
Director;
Authorising Officer;
Key Contact;
Level 1 User;
Any person involved in the day-to-day running of the business;

Pre-licence Compliance Checks in Sponsor Licence Applications

After the sponsor licence application has been submitted, the Home Office may carry out a compliance check if:

There is any doubt about the evidence that you have provided;
Further information may be required;
Checks with other government departments may be needed;
Your business has little or no physical premises;

The Home Office may conduct an announced or unannounced compliance check and interview. For more information on immigration audits, do have a read here.

Contact Our Immigration Legal Advisers

For expert advice and assistance in relation to a Sponsor Licence application, contact our immigration legal advisers in Cheshire on 0161 529 7779 or via the enquiry form below.

How to Vary an Existing Immigration Application

Wed, 22 Nov 2023 13:30:00 GMT

It is possible to vary an existing immigration application under the Immigration Rules, that is to submit another application whilst you already have an application pending. There are, however, certain complexities associated with this.

The Home Office’s Guidance clarifies that the variation rules apply to both applications made under the Immigration Rules in and outside of the UK, however the variation rules “are currently only applied in practice as variation requirements to applications made in the UK.” This post therefore concerns variations of permission to stay applications, those made within the UK.

What is a variation application?

A variation application is “any further application” that is made when an applicant has an outstanding application, for the purposes of this blog, the outstanding application is one for permission to stay in the UK (“the original application”). Paragraph 34BB of the Immigration Rules identifies some of the requirements of variation applications and the manner in which they operate.

How do I make a variation application?

Ensure it meets the validity requirements

Paragraph 34BB(2) states that any application to vary a previous application must “comply with the requirements listed in paragraph 34 of the Immigration rules or the validity requirements for the route applied for.” Paragraph 34 identifies how a valid application for permission to stay can be made in the UK. It is important to note that Paragraph A34 provides a significant number of immigration routes to which Paragraphs 34 and 34A do not apply. In such cases in order for a variation application to be valid, it will have to meet the validity requirements for the route applied for, which Paragraph 34BB, quoted above, allows for.

Where the validity requirements are not met whether in line with Paragraph 34 or those relating to the specific route which pertains to the variation application, the variation application will be treated as invalid and not considered. Paragraph 34BB, however goes on to state this is subject to paragraph 34B which, summarised, states that the application will be invalid unless the Secretary of State notifies the applicant that the validity and/or suitability requirements have not been met and gives them the opportunity to rectify the situation and the applicant does so within the specified time frame.

Ensure it meets the temporal requirements

An applicant will need to submit a variation application before a decision is made on the original application. If the decision has been made on the original application, the variation application will be treated as a new immigration application. An application is treated as submitted in the following situations:

where a paper application form is sent by Post via Royal Mail, whether or not with a fee waiver request, the date of posting which is shown on the tracking information or where not tracked, the postmark date on the envelope;
where a paper application is sent by courier, or another provider of postal services, the date it is delivered to the Home Office;
where the application is made online and there is no fee waiver request, the date on which the online application is submitted;
where the application is made online and with a fee waiver request, the date on which the online request for the fee waiver is submitted, provided that the completed application for permission to stay is submitted within 10 working days of the decision on the fee waiver having been received.

Ensure that the the other requirements for the route of variation are met

The variation application will also need to meet the suitability, eligibility and any other requirements of the specific route being applied for. If applicable, one will therefore need to also submit any supporting documents to demonstrate that the requirements are met. One will also need to provide their biometric information to ensure that their application can start being processed.

Which application will the Home Office consider and how will they consider it?

Once a variation application has been made, Paragraph 34BB states that the Secretary of State (the Home Office) will contact the Applicant to notify them that the new application “is being treated as an application to vary and that any previous application will have been varied.” This notification does not seem to always be sent, therefore it can be unclear whether a variation application has been made. However, if you have made a valid variation application as described above and in line with the Immigration Rules it is reasonable to consider that the original application has been varied. The original application as a result will no longer be considered and the Immigration Rules are clear that only the “most recent application will be considered.”

When does a variation application apply/in which situations can a variation application be made?

Variation is a useful tool for various reasons. There are three main situations which come to mind when considering when a variation application will be necessary.

Firstly, the situation which is likely the one envisioned by those who drafted the Immigration Rules and decision makers, one involving a change of circumstances. For example, an applicant submits an application for leave to remain on the Skilled Worker route, however for some reason no longer meets the requirements for the route and decides that they want to apply for the Global Talent route instead. The applicant, if they meet all the requirements for the route, such as having the necessary endorsement, can submit an application for permission to stay in the UK in the Global Talent route. This new Global Talent application will be treated as a variation provided that it happens in line with the Immigration Rules on variation and the route’s requirements as explained above.

Secondly, a situation where the applicant’s leave in the UK is about to expire, however they are not yet able to submit an application to extend their stay in the UK for whatever reason but will be able to shortly. The applicant might, for example, be in a situation where if their leave expires and they leave the UK, as required when their permission ends if not validly extended, they will not be able to meet the continuous lawful residence requirement for any future settlement application. Making a generic visa application for a route which allows them to stay in the UK (“a holding application”) before their current leave expires and then submitting a variation application for the route they meet the requirements for in order to extend their stay, will aid in allowing them to be in the UK continuously. Both applications, however, will need to be made carefully and with immigration advice in order to ensure that the rules are effectively met and there will be no potential suitability issues in the future.

Thirdly, where an applicant has made an application but does not want to vary their application to another route but instead submit an application in the same immigration route. This can, for example, be useful where one would like to get a faster decision on their application, in the event of an emergency that requires them to travel out of the Common Travel Area as travel outside of this area will lead to an application being withdrawn. It can also be useful if one did not originally obtain priority services, for example, if they were not available at the time they made the original application but are now available and a decision still has not been made on the original application. The applicant can technically submit a new application in the same category and use the priority services, if available, to get a faster decision on their immigration application. Although it is likely that the Immigration Rules did not envision this scenario as the reason for variation applications, as above, Paragraph 34BB(1) states that:

“Where an applicant has an outstanding application for […] permission to stay which has not been decided “the previous application”), any further application for […] permission to stay will be treated as an application to vary the previous application and only the most recent application will be considered.” [Emphasis added]

The use of “any further application” in the above, makes it easy to consider the submission of a new application in the same Immigration route as the original application previously submitted by an applicant, a variation application.

The above scenarios do come with their own complications and whether they are applicable will vary depending on each person’s circumstances. It is important to obtain expert immigration advice when considering making a variation application as there are many factors that will come into play. These factors include, timing, making sure that validity requirements are met, ensuring that the rules have not changed, for example, where the new variation application being submitted is in the same route as the original application and ensuring that one does not overstay.

The Home Office’s Guidance also states that there are certain applications which cannot be varied, for example, human rights applications, including asylum claims. If you are in a situation where you have submitted a human rights application and would like to submit a variation application in a non-human rights route, it is important that you contact our expert immigration advisers to obtain advice on how to approach this situation. One should also seek advice where they are considering making a new application whilst their leave in the UK is extended by virtue of Section 3C of the Immigration Act 1971. It is also important to note that Paragraph 34BB does not apply to applications made under Appendix EU.

Which date will my application be seen as having been made?

In most cases the variation application will be treated as having been made on the date the original application was made. It is important to note, however, that the variation application will be considered according to the rules applicable at the time that the variation application was made and not the date when the original application was made.

Any evidence submitted will be considered from the date of the variation application and not the original application. For example, where financial evidence has to be provided for the last six months and within 28 days of the date of application, the date relied upon will be the date on which the variation application was made and not the original application.

Variation applications and dependants

Dependants can also make variation applications where the immigration route in which the variation application is being made allows for this. Dependants will need to apply at the same time as the main applicant, either using the same application form as the main applicant, where the variation form allows for this or using separate application forms to the main applicant, where the variation application form does not allow for dependants to be added to the same form as the main applicant.

If the dependant was included in the original application and is included in the variation application, the dependant’s date of application will be the date that the original application was made. Where the dependant was for some reason not included in the original application but is included in the variation application, the date of application for the dependant’s application is the date the new application was made.

Application fees and variation applications

A new application fee and Immigration Health Surcharge fee will need to be paid when a variation application is submitted. The applicant should have their previous application fees refunded, this can however take some time and might also require one to resort to UKVI’s complaints procedure.

The refund of fees can also be complicated, for example, where there is a difference between the application fees paid as the applicant will need to pay the difference between the two fees. This will need to be considered where the new route has more costly application fees as compared to the original application’s route. It will also soon likely need to be considered even where a variation application is made in the same route as the original application if the original application was made before 04 October 2023 and the variation application made on or after that date, the date when the visa application fees are set to increase.

Contact our Immigration Legal Advisers

Immigration Health Surcharge (IHS) Cost To Increase By 66%

Wed, 22 Nov 2023 12:38:15 GMT

On 13 October 2023, the UK Government announced a substantial 66% increase in the Immigration Health Surcharge (IHS), set to take effect from 16 January 2024. In this post, we’ll delve into the core aspects of the Immigration Health Surcharge, its purpose, and the reasons behind the upcoming increase. We’ll explore who is affected by the Immigration Health Surcharge rise, and provide insights into the government’s motives for this significant uplift to the IHS.

What Is the Immigration Health Surcharge (IHS)?

The Immigration Health Surcharge was first introduced on 6 April 2015 to ensure migrants contribute to the cost of healthcare provided by the NHS.

The Immigration Health Surcharge is an upfront cost paid alongside the submission of (most) visa applications so that the individual is entitled to have full access to the National Health Service (NHS) whilst in the UK. There is no limit to how much one can access the NHS. Additionally, there is no option to opt out of the Immigration Health Surcharge even if you believe you will not use the NHS or would prefer to pay for private health care.

The Immigration Health Surcharge is charged per year and covers the duration of any visa application applied for.

To read more about what the Immigration Health Surcharge is, please see our previous post here.

When Do I Pay the Immigration Health Surcharge?

When Is the Immigration Health Surcharge Increasing?

The Immigration Health Surcharge will increase on the latter of 16 January 2024 or the twenty-first day after the day on which the The Immigration (Health Charge) (Amendment) Order 2023 is approved by both Houses of Parliament.

Why Is the Immigration Health Surcharge Increasing?

The Immigration Health Surcharge has increased in line with the 2019 manifesto commitment as outlined in the the equality impact assessment, which states that:

What Is the Immigration Health Surcharge Increasing to and Who Is Affected by This Increase?

The details of the Immigration Health Surcharge increase have been confirmed in the Immigration (Health Charge) (Amendment) Order 2023. The Order needs to be approved by both Houses of Parliament and ratified.

Please note, we have previously highlighted in a post that some application fees increased on 04 October 2023. This post can be found here.

Who Is Not Affected by the Immigration Health Surcharge Increase?

There is no Immigration Health Surcharge for Health and Care workers, visitors, those applying under the EU Settlement Scheme, or for those applying for entry clearance as a fiance under Appendix FM. Likewise, there is no Immigration Health Surcharge for those claiming asylum or applying for entry clearance or permission to stay under the Ukraine Scheme. Additionally, there is no requirement to pay the Immigration Health Surcharge for those applying for indefinite leave to remain or for British Citizenship.

A full list for those who are not affected by the Immigration Health Surcharge increase can be found in our previous post, here.

Additionally, people who cannot afford to pay can request a fee waiver if they have credibly demonstrated that they cannot afford the fee. For more guidance on eligibility please see our post below.

Fee Waivers for UK Immigration Applications: Part 1
Fee Waivers for UK Immigration Applications: Part 2
Affordability Fee Waivers: Citizenship Registration for Under-18’s

What Happens if I Do Not Pay the Immigration Health Surcharge?

As stated under paragraph 34(4) of the Immigration Rules, a failure to pay the Immigration Health Surcharge will result in an invalid application and your application will not be processed. If applying from inside the UK, your application will be rejected within 10 working days, and if applying from outside the UK, your application will be rejected within 7 working days.

Can I Get the Immigration Health Surcharge Refunded?

Contact Our Immigration Legal Advisers

For expert advice and assistance in relation to a visa or immigration application, contact our immigration legal advisers on 0161 529 7779 or complete our enquiry form below.

How to Vary an Existing Immigration Application

Tue, 21 Nov 2023 11:01:22 GMT

What is a variation application?

How do I make a variation application?

Ensure it meets the validity requirements

Ensure it meets the temporal requirements

where a paper application form is sent by Post via Royal Mail, whether or not with a fee waiver request, the date of posting which is shown on the tracking information or where not tracked, the postmark date on the envelope;
where a paper application is sent by courier, or another provider of postal services, the date it is delivered to the Home Office;
where the application is made online and there is no fee waiver request, the date on which the online application is submitted;
where the application is made online and with a fee waiver request, the date on which the online request for the fee waiver is submitted, provided that the completed application for permission to stay is submitted within 10 working days of the decision on the fee waiver having been received.

Ensure that the the other requirements for the route of variation are met

Which application will the Home Office consider and how will they consider it?

When does a variation application apply/in which situations can a variation application be made?

Variation is a useful tool for various reasons. There are three main situations which come to mind when considering when a variation application will be necessary.

Which date will my application be seen as having been made?

Variation applications and dependants

Application fees and variation applications

Contact our Immigration Legal Experts

Our immigration experts and immigration legal advisers have experience assisting with all types of visa and application matters. Whether you are looking to apply for indefinite leave to remain, naturalisation on your own or on the basis of your marriage to a British citizen, our immigration experts can guide you through the complexities of the UK citizenship process and British nationality law.

For expert advice in relation to a UK visa application or immigration appeal, contact our immigration experts on 0161 529 7779 or complete our enquiry form.

Indefinite Leave to Remain vs. British Citizenship Explained

Tue, 21 Nov 2023 09:58:10 GMT

In this post, we discuss the similarities and differences between Indefinite Leave to Remain (ILR) and Naturalisation as a British Citizen. Understanding these two paths to residency and citizenship is crucial for anyone navigating the complex landscape of UK immigration law.

Indefinite Leave to Remain, or ILR, grants individuals the right to reside in the UK without immigration time restrictions. On the other hand, British Citizenship represents the ultimate legal recognition as a national of the UK, endowing individuals with the full right to abode in the country. While both offer certain rights and privileges, there are essential differences that set them apart.

In this post, we will explore the similarities and differences between these two immigration statuses, touching on the rights and benefits that British Citizens enjoy in comparison to those with Indefinite Leave to Remain. We’ll also address the fundamental requirements for naturalisation and the cost associated with the process.

What is Indefinite Leave to Remain (ILR)?

Indefinite Leave to Remain is an immigration status whereby the individual has a right of residence in the UK and is free from immigration time restrictions. This can be acquired through a number of different routes and is normally granted after 3 to 5 years (depending on the route). Other terms for ‘Indefinite Leave to Remain’ are ‘settled status’ (acquired through the EU Settlement scheme), and Indefinite Leave to Enter the UK (permission to move to the UK permanently from abroad).

What is British Citizenship/ ‘Naturalisation’?

British Citizenship or Naturalisation is the process in which an individual becomes legally recognised as a national of the UK and therefore has a full right to abode in the UK.

What Are the Similarities Between Indefinite Leave to Remain and British Citizenship?

The similarities between Indefinite Leave to Remain and Naturalisation as a British Citizen are:

Both have a right of residence in the UK and includes full access to the NHS, the right to study, work, and access public funds in the UK;
Neither have an Immigration Health Surcharge;
That many Indefinite Leave to Remain routes also require the Life in the UK Test;
That many Indefinite Leave to Remain routes also require an English requirement to be satisfied. Either a English qualification at B1, B2, C1 or C2 level, or a degree taught or researched in English is required.

What Are the Differences Between Indefinite Leave to Remain and British Citizenship?

Absences

A significant difference is that British Citizenship lasts for life and absences outside the UK will not lapse that right. In comparison, Indefinite Leave to Remain can be lost if an individual is outside the UK for too long. Indefinite Leave to remain will lapse if an individual has been outside the UK for more than 2 years consecutively. If an individual has settled status under the EU Settlement Scheme then this will lapse after 5 consecutive years outside the UK. Lastly, if you are a Swiss citizen, or the family member of a Swiss citizen, and you have settled status this will lapse after 4 consecutive years outside the UK.

A particular advantage to naturalising as a British Citizen is the ability to travel for as long as you want with no restrictions.

If your Indefinite Leave to Remain has lapsed you may be entitled to return to the UK on a Returning Resident Visa.

Voting rights

Additionally, another key difference awarded to British Citizens is that they have full voting rights and the ability to stand for office. This includes voting in UK Parliamentary elections and referendums. Those with Indefinite Leave to Remain as a EU citizen or Commonwealth citizen may only vote in some elections and are much more restricted.

Children

Moreover, there is a difference in how children can acquire British Citizenship. If naturalised as a British Citizen, any child born will automatically acquire British citizenship whether or not they were born in or outside of the UK. Those with Indefinite Leave to Remain can apply for their child to naturalise as a British Citizen so long as they are under the age of 18.

British Passport

Another difference is that after naturalising as a British Citizen you will be entitled to a British passport. This is particularly beneficial as you will be entitled to travel to visa free countries. To see a list of visa free countries for UK passport holders please see here .

You will also be entitled to hold dual nationality if your other country of nationality allows.

After naturalising as a British Citizen you can only enter the UK on either a British passport or on a certificate of entitlement to the right of abode.

What Are the Requirements to Naturalise as a British Citizen?

The general rule is that you can apply for British citizenship 12 months after you have obtained Indefinite Leave to Remain. The exception is for those who are married to a British Citizen as they can apply as soon as obtaining Indefinite Leave to Remain.

Those not married to a British Citizen must:

be over 18;
be of sound mind;
have lived in the UK for a minimum of 5 years before applying;
have been physically present in the UK (including the Isle of Man or the Channel Islands) on the day 5 years before the application is received by the Home Office;
not have been in breach of the immigration laws in the 5-year period before making your application;
be free from immigration time restrictions on the date of application and for the 12-month period before making the application;
not have had more than 450 days outside the UK in the 5-year period before making the application;
not have had more than 90 days outside the UK in the 12-month period before making the application;
intend to continue to live in the UK;
have passed the Life in the UK test;
be able to communicate in English (or Welsh or Scottish Gaelic) to an acceptable level; and
be of good character.

Those married to a British Citizen must:

be over 18;
of sound mind;
be married to or the civil partner of a British citizen on the date of application;
have lived in the UK for a minimum of 3 years before applying;
have been physically present in the UK (including the Isle of Man or the Channel Islands) on the day 3 years before the application is received by the Home Office;
not have been in breach of the immigration laws in the 3-year period before making your application;
be free from immigration time restrictions on the date of application;
not have had more than 270 days outside the UK in the 3-year period before making the application;
not have had more than 90 days outside the UK in the 12-month period before making the application;
have passed the Life in the UK test;
are able to communicate in English (or Welsh or Scottish Gaelic) to an acceptable level;
be of good character;

How Much Does It Cost to Naturalise as a British Citizen?

The current immigration application fee for an application for Naturalisation as a British Citizen is £1,500.

Contact our Immigration Legal Experts

In this post we have highlighted some of the key differences between Indefinite Leave to Remain and Naturalisation as a British Citizen.

Our immigration experts and immigration legal advisers have experience assisting with all types of nationality matters. Whether you are looking to apply for naturalisation on your own or on the basis of your marriage to a British citizen, our immigration experts can guide you through the complexities of the UK citizenship process and British nationality law.

For expert advice in relation to a UK visa application or immigration appeal, contact our immigration experts on 0161 529 7779 or complete our enquiry form.

Applying for ILR as a Dependant on Business Routes

Mon, 20 Nov 2023 12:48:42 GMT

If your partner or parent is in the UK on a business/work route and you have accompanied them as a dependant, you may be eligible to apply to ‘settle’ in the UK, also known as obtaining indefinite leave to remain. In this post, we will navigate through the intricacies of settling in the UK as a dependant, shedding light on the various business immigration routes available and the specific requirements each entails.

What Are the Business Immigration Routes?

The business and work routes of the Immigration Rules which allow settlement for dependants are:

Skilled Worker
T2 Minister of Religion
International Sportsperson
Representative of an Overseas Business
UK Ancestry
Global Talent
Innovator Founder
Scale-up

This post covers the business routes generally. Route-specific guidance for applying as a dependant of a killed worker is covered here.

Who Is a Permitted Dependant?

In the business and work routes of the Immigration Rules, the following dependants are permitted:

Spouses
Civil partners
Partners who are not married or in a civil partnership but who have lived together in a relationship similar to a marriage or civil partnership for at least 2 years
Dependent children under the age of 18 on the date of application
Dependent children over 18 who were last granted permission as a dependent child of their parent(s)

Note that those 18 years old or older who have not previously been granted permission as a dependent of the main applicant, cannot be granted permission as a dependent child. It is also not permitted for other relatives such as parents and grandparents to apply as dependants.

For children from previous relationships, it is required that any dependent children are either the sole responsibility of the main applicant or their dependent partner, or that they are jointly responsible for the child.

How Long Does It Take To Settle as a Dependant?

Being a dependant on a business route means that you can settle after 5 years in the route, subject to meeting the other criteria. This five years of residence must be completed in the dependants own right. This is even the case if the main applicant is on an accelerated route to settlement, although there are exceptions as set out below.

General ILR Requirements for Dependants

Dependent applicants must all meet the suitability requirements and not fall under any of the general grounds for refusal.

In order for an applicant’s dependants to apply for ILR, the main applicant must either:

Be being granted settlement at the same time as the applicant;
Have previously been granted settlement while holding permission on the relevant immigration route;
Have become a British citizen, having previously been granted settlement while holding permission on the relevant immigration route.

Requirements for partners:

To be eligible for settlement as a partner, the following requirements must be met:

To have been in a relationship with the main applicant for a minimum of five years (for Skilled Worker or a Scale-up Worker);
To be in a genuine and subsisting relationship with the main applicant at the date of application;
To have most recently been granted permission as a dependant of the main applicant (for Global Talent, Innovator, Representative of an Overseas Business, International Sportsperson and Skilled Worker routes);
To have held permission as a dependant for the qualifying period (this is five years for dependants on Global Talent, Innovator Founder, T2 Minister of Religion, International Sportsperson, Scale-up and Skilled Worker routes);
To meet the continuous residence requirements;
To meet the English language requirement, unless exempt;
To meet the Knowledge of Life in the UK requirement, unless exempt.
To intend to live in the UK with the main applicant permanently.

Requirements for children:

To be eligible for settlement as a child dependant, the following requirements must be met:

To have most recently been granted permission as a dependant of the main applicant (unless born in the UK before the main applicant settled), which can be permission in a different route (for Global Talent, Innovator, Representative of an Overseas Business, International Sportsperson and Skilled Worker routes);
To have held permission as a dependant for the qualifying period;
To meet the residence requirements;
If over 16 years old, to not be leading an independent life on the date of application;
If a child applicant is 18 years old or older, they must also meet the English language and Knowledge of Life in the UK requirements, unless an exception applies.

Note that there are no absence requirements for child applicants.

Do I Have to Apply for ILR at the Same Time as the Main Applicant?

You can choose to apply for ILR at the same time as the main applicant or after they have applied – not before.

If you apply for ILR at the same time as the main applicant then the Home Office will consider the ILR applications together.

Exceptions: UK Ancestry and Sole Representative of an Overseas Business

UK Ancestry Visa

Dependants of main applicants on the UK Ancestry route can qualify for settlement as soon as the person with UK Ancestry has been granted settlement – they do not have to complete a specific qualifying period. They also do not have to have been previously granted on this route.

Dependants applying for settlement on the UK Ancestry route must not have, or have last been granted, permission on any of the following routes:

As a Visitor
As a Short-term Student
As a Parent of a Child Student
As a Seasonal Worker
As a Domestic Worker in a Private Household
Outside the Immigration Rules

Sole Representative of an Overseas Business

For dependants on the Sole Representatives of an Overseas Business route, there is also no residence requirement so they can also qualify for settlement so long as the main applicant is settled.

Contact Our Immigration Legal Advisers

For expert advice and assistance with an application for settlement as the dependant on a work route, contact our specialist immigration legal advisers on 0161 529 7779 or via the enquiry form below.

Update on EU Settlement Scheme Deadlines and Late Applications

Mon, 20 Nov 2023 12:22:34 GMT

The EU Settlement Scheme provides a basis for nationals of the EU, other EEA countries and Switzerland, who were resident in the UK by 31 December 2020, to apply for an immigration status that will allow them to continue residing in the UK lawfully beyond 30 June 2021. It can also apply to the family members of nationals of these countries, and family members of British citizens in very narrow circumstances. Since 09 August 2023, the Immigration Rules and Home Office guidance on accepting new applications to the EU Settlement Scheme have changed.

This post summarises:

Key deadlines for making applications to the EU Settlement Scheme;
The possibility of making a late application where there are ‘reasonable grounds’ for doing so;
New, stricter Home Office guidance on what counts as reasonable grounds for making a late application;
Implications of a finding that there were no reasonable grounds for making a late application.

This information relates to new applications to the EU Settlement Scheme. The deadlines discussed here do not apply to applicants switching from pre-settled to settled status after five years’ continuous residence in the UK.

Key Deadlines for EU Settlement Scheme Applications

The deadline for most applications to the EU Settlement Scheme was 01 July 2021.

However, as explained in our earlier post, there are some circumstances where a different deadline applies, for example:

For family members of EEA citizens arriving in the UK on an EU Settlement Scheme Family Permit after 01 April 2021, the deadline is three months after their arrival in the UK;
A specified spouse or civil partner of a Swiss citizen who arrived in the UK on or after 01 April 2021 should apply within 3 months of the date on which they arrived in the UK, and before 01 January 2026;
A joining family member who is a child born in the UK on or after 01 April 2021 (including a child adopted in the UK on or after that date, or who becomes subject to a relevant guardianship order) should apply within three months of their being born in the UK (or within three months of being adopted in the UK or becoming subject to such an order).

Making a Late EUSS Application

Under the Withdrawal Agreement between the UK and the EU, if an applicant has reasonable grounds for failing to respect the initial deadline for the EU Settlement Scheme, the Home Office must give them a further reasonable period of time to apply. In considering a particular case, the Home Office must assess all the circumstances and reasons for which a person failed to respect their given deadline for applying to the EU Settlement Scheme.

As set out in our previous post, earlier versions of Home Office guidance required caseworkers to look to grant status under the scheme, rather than to look for reasons to refuse applications. Applicants were given ‘the benefit of any doubt’ regarding whether there were reasonable grounds for delay in making their application. However, changes to the Immigration Rules and Home Office guidance since 09 August 2023 mean the Home Office is now taking a more stringent approach to assessing late applications under the Scheme.

What counts as reasonable grounds for making a late EUSS application?

The test that Home Office caseworkers are required to apply under the guidance remains whether, ‘on the balance of probabilities and based on all the information and evidence provided by the applicant or otherwise available’, they are satisfied that ‘at the date of application, there are reasonable grounds for the person’s delay in making their application under the EU Settlement Scheme’.

However, the types of scenarios in which the Home Office is likely to consider a person to have reasonable grounds for making a late application have now changed. Home Office guidance describes some of the circumstances in which individuals may be considered to have reasonable grounds for their delay in making their application under the EU Settlement Scheme. The guidance states that the list is not exhaustive.

The following example scenarios are set out in the Home Office guidance as likely to constitute reasonable grounds for making a late application to the EU Settlement Scheme: (Please note that these are summaries only and you should seek further advice if you are considering making a late EU Settlement Scheme application.)

Exemption from immigration control

If a person is exempt from immigration control, for example because they work in a foreign government’s diplomatic service or for an international organisation, they can still apply to the EU Settlement Scheme whilst they are exempt from immigration control. Alternatively, such a person can wait and apply to the EU Settlement Scheme after they cease to be exempt from immigration control. An EEA citizen or their family member who was resident in the UK by 31 December 2020, but was exempt from immigration control until after the 30 June 2021 deadline for applying to the EU Settlement Scheme, is considered to have reasonable grounds for delaying their application to the Scheme if they apply within 90 days of ceasing to be exempt from immigration control.

Existing limited leave to enter or remain

Similarly, where an EEA citizen or their family member resident in the UK by 31 December 2020 has existing limited leave to remain that expires after the 30 June 2021 deadline (i.e. they are currently in the UK on a different type of visa), the guidance suggests they have reasonable grounds for making a late application as long as they apply before the expiry of their existing leave.

Children (including children in care and care leavers)

Where a parent, guardian or local authority failed to make an in-time application on behalf of an applicant who was under 18, the Home Office guidance suggests the applicant may have reasonable grounds for making a late application if they apply as a child or as an adult. Where a person becomes aware as an adult that an application should have been made on their behalf, they then need to make a late application within a reasonable period.

Physical or mental capacity and/or care or support needs

Where a person has lacked the physical or mental capacity to apply to the EU Settlement Scheme since the deadline applicable to them, or has had significant, ongoing care or support needs since that time, this will normally constitute reasonable grounds for delay in making an application.

Serious medical condition or significant medical treatment

Having a serious medical condition or significant medical treatment may constitute reasonable grounds for making a late application. However, applicants have to explain the entirety of any period of delay. This means that if a person has had a serious medical condition for only part of the period since the passing of the 30 June 2021 deadline, this may not be enough to constitute reasonable grounds for delay for the entirety of that period.

Abusive or controlling relationship or situation

The guidance states that a person who was initially prevented from applying to the EU Settlement Scheme because they are or were a victim of domestic violence or abuse (or the family member of such a victim), or they are or were otherwise in a controlling relationship or situation which prevented them from applying by the applicable deadline, will normally have reasonable grounds for making a late application.

Served or serving a sentence of imprisonment

In certain circumstances, a person released from prison after the EU Settlement Scheme deadline applicable to them may have reasonable grounds for the delay in their application. The guidance suggests this may be the case, for example, if a person had reduced access to relevant documents while in prison or were unable to enrol their biometrics.

Circumstances that will not generally constitute reasonable grounds for delay

The Home Office guidance also suggests that certain circumstances are now unlikely to be accepted as reasonable grounds for making a late application to the Scheme.

These include:

Lack of awareness of the EU Settlement Scheme;
Lack of internet access or having limited computer skills;
Having limited English language skills;
Having been hampered in accessing application support by restrictions related to the COVID-19 pandemic;
General personal circumstances such as work or study commitments.

However, the guidance does note that ‘every case must be considered in light of its particular circumstances and the evidence provided’.

Implications of a finding that there were no reasonable grounds for making a late application

The Immigration Rules have now changed so that an EU Settlement Scheme application will be invalid if a person makes a late application and is found not to have reasonable grounds for their delay. This means that there will be no further assessment of whether an Applicant meets the eligibility requirements under Appendix EU. Further, this means that an Applicant will not be granted a right of appeal or administrative review against the decision. The only option for challenging an invalidity decision is via judicial review. However, the relevant consideration in judicial review proceedings will be whether the Home Office’s decision is lawful. This will not necessarily constitute a full reconsideration of the merits of an applicant’s grounds for a late application. Applicants may therefore be forced to consider making applications to stay in the UK via other immigration routes.

Contact our Immigration Legal Advisers

For expert advice and assistance in relation to a late application under the EU Settlement Scheme, contact our immigration legal advisers on 0161 529 7779 or complete the enquiry form below.

How to Apply for a UK Electronic Travel Authorisation (UK ETA)

Sat, 18 Nov 2023 11:10:24 GMT

Electronic Travel Authorisation (ETA) is a new requirement for non-visa nationals to come to the UK.

You will need Electronic Travel Authorisation in order to transit through the UK, stay for six months as a visitor or stay for three months on the Creative Worker visa concession. The Electronic Travel Authorisation will allow you to make multiple entries into the UK within two years of your grant. It will be electronically linked to your passport.

This post will provide an overview of the UK Electronic Travel Authorisation scheme and answer some frequently asked questions regarding the UK ETA application process.

What Is a a Non-visa National and Who Needs to Make a UK ETA Application?

A non-visa national is any national who can enter the UK as a visitor for six months without having to apply for a visit visa beforehand. Basically, if you can turn up at the border and walk through the passport e-gates then you’re a non-visa national!

If you are from Qatar then you will need to apply for a UK Electronic Travel Authorisation from 25 October 2023.

If you are from any of these countries you will need to apply for a UK ETA or Electronic Travel Authorisation from 01 February 2024:

Bahrain
Jordan
Kuwait
Oman
United Arab Emirates
Saudi Arabia

Electronic Travel Authorisation will become mandatory for all other non-visa nationals before the end of 2024.

Does the UK ETA Scheme Apply to Visa Nationals?

If you come from a country where you have to apply for a visit visa before entering the UK, the UK ETA scheme does not apply to you. There is no indication that the process and requirements for visa nationals will change.

Is a UK Electronic Travel Authorisation Needed to Cross the Irish Border?

The land border between the Republic of Ireland and Northern Ireland is a unique case.

If you are legally resident in Ireland and a non visa national, you will not be required to get a UK Electronic Travel Authorisation in order to cross the border from the Republic of Ireland into Northern Ireland.

However, if you are a non-Irish resident of Ireland travelling to the UK from outside the Common Travel Area (United Kingdom, Ireland, Isle of Man, and the Channel Islands) you will need to apply for an Electronic Travel Authorisation.

Is Electronic Visa Waiver the Same as Electronic Travel Authorisation?

If you are from Bahrain, Kuwait, Oman, Qatar, Saudi Arabia or the United Arab Emirates, you are currently able to apply for an Electronic Visa Waiver instead of a visitor visa.

The Electronic Visa Waivers allows you to visit the UK once and stay for six months for tourism, business, study or medical treatment.

Electronic Travel Authorisation is similar except it will allow you to enter the UK multiple times within a two year period or before the expiry date of your passport, whichever is earlier.

How to Apply for a UK Electronic Travel Authorisation (ETA)

When you apply for a UK ETA you will need to pay an Electronic Travel Authorisation application fee of £10, provide your contact and passport details, a valid passport photo and answer a set of questions about suitability.

You can apply using the ETA App, or via an online form.

What Is the Processing Time for a UK ETA Application?

The Home Office states that it will aim to process UK ETA applications within three days.

What Are the Grounds for Refusal of an Electronic Travel Authorisation Application?

The Immigration Rules state that an application for Electronic Travel Authorisation must be refused in the following circumstances:

Exclusion or deportation grounds: where the Home Secretary has personally directed that the UK ETA applicant be excluded from the UK; the UK ETA applicant is the subject of an exclusion order; or the UK ETA applicant the subject of a deportation order or a decision to make a deportation order.
Criminality grounds: where the UK ETA applicant has been convicted of a criminal offence for which they have received a custodial sentence of 12 months or more; where the UK ETA applicant has been convicted of a criminal offence unless 12 months have passed since the date of conviction. Please note both convictions in the UK and in any other country are relevant.
Non-conducive grounds: where the UK ETA applicant’s presence in the UK is not conducive to the public good because of their conduct, character, associations or other reasons (including convictions which do not fall within the criminality grounds).
Previous breach of immigration laws grounds: where the UK ETA applicant was over the age of 18 and overstayed their leave, breached a condition of their leave (unless entry clearance or a further grant of leave was later made with knowledge of the breach), used deception in relation to an immigration application.
False representations: where in relation to a current or previous application false representations were made, false documents or false information submitted. Please note that it does not matter if this was relevant to the application or whether it was made with the UK ETA applicant’s knowledge. Also, where relevant facts were not disclosed.
Debt to NHS grounds: where the UK ETA applicant has failed to pay charges on NHS use by overseas visitors and those outstanding charges have a total value of at least £500.
Unpaid litigation costs grounds: where the UK ETA applicant has failed to pay litigations costs awarded to the Home Office.

It is important to disclose all relevant information when filling out an application for Electronic Travel Authorisation, or indeed any immigration application. Failure to do so may not only result in a refusal of Electronic Travel Authorisation but may have long term negative effects on your ability to travel to the UK.

If you are unsure whether something is relevant to your UK ETA application, it is recommended that you seek professional legal advice.

What if I Am Refused a UK Electronic Travel Authorisation?

If you are refused a UK ETA then you will need to apply for one of the following visas:

Standard visitor visa
Creative worker visa
Transit visa

If your application for a UK ETA has been refused and you wish to apply to enter the UK in one of the above-mentioned immigration routes then you may wish to seek professional legal advice.

Can a UK Electronic Travel Authorisation Be Cancelled?

The Immigration Rules state that Electronic Travel Authorisation must be cancelled on grounds which mirror the grounds for refusal: exclusion or deportation, criminality, non-conducive grounds, breach of immigration laws, false representations, due to the NHS, and unpaid litigation costs.

Contact our Immigration Legal Advisers

For expert advice and assistance regarding an application for a UK Electronic Travel Authorisation or a UK visa application, contact our immigration legal advisers on 0161 529 7779 or complete our enquiry form below.

An Employer's Guide to Immigration Civil Penalty Notices

Sat, 18 Nov 2023 10:55:21 GMT

Navigating the complexities of immigration law can be a daunting task, especially for employers in the United Kingdom. Under the Immigration Act of 2016, employers can face civil penalties if they are found to have knowingly employed individuals without the legal right to work in the UK. These penalties are not just financial; they can also have significant repercussions on an organisation’s reputation and its ability to hire foreign workers in the future.

In this comprehensive guide, we will delve into the world of immigration civil penalties, shedding light on what they entail, how they are assessed, and what steps employers can take to mitigate or challenge these penalties.

What Is a Civil Penalty in Immigration Law?

Under the Immigration Act 2016, a civil penalty can be brought if an employer knew or had ‘reasonable cause to believe’ that their employee(s) did not have the right to work in the UK. This includes migrants who are breaching the conditions of their current permission by working in the UK. Civil penalties in immigration law act to prevent and discourage illegal working.

A civil penalty notice can occur following a Home Office compliance visit where a referral is made to the civil penalty compliance team. This team may then request further information about the worker(s) who were identified during the visit and information about any such right to work checks which have been carried out. The employer will have 10 days to complete an information request response form and attach evidence. It is important to provide extensive evidence at this stage as it can dictate whether or not a civil penalty is issued, or reduce the fee if one is issued.

What Can The Impact of a Civil Penalty Notice Be?

For an organisation’s first breach in three years, the starting penalty is £15,000 per illegal worker. The Home Office recently announced planned increases in 2024 to the maximum illegal working civil penalty, from £20,000 to £60,000. This blog post provides further details on these increases.

The amount payable for a civil penalty will be assessed holistically. If an employer has previously employed illegal workers, the fine will increase. If mitigating factors apply, the fine can decrease.

The civil penalty notice will set out that there is a 30% reduction in the total penalty for fast payment, which is usually within 21 days.

Mitigating Factors and Determining the Penalty

Mitigating factors which the Home Office consider when considering the penalty include:

Reporting: If you have a history of reporting suspected illegal workers to the Home Office, the fee could be reduced by £5,000;
Active Cooperation: If you have actively cooperated with the Home Office throughout the investigation the fee could be reduced by a further £5,000;
Effective Right to Work Procedures: If you have effective document checking practices regarding employees’ right to work this can reduce the civil penalty notice to being a warning notice and thus no fee is due.

Criminal proceedings can also be brought against an employer who has knowingly employed illegal workers, an offence which is punishable by up to 5 years’ imprisonment and/or an unlimited fine.

Two Options: To Pay or To Challenge?

You can challenge a civil penalty notice by written objection and the date by which this must be done will be contained in the notice itself. Whether you have decided to pay the fee or to challenge it, you must respond to the Home Office within 28 days.

It is also possible to request an instalment payment plan over usually 24 months and exceptionally up to 36 months at this stage. To do this, you should provide details of your ability to pay over the plan period and why you cannot pay the penalty in full.

Grounds Of Challenge

There are three grounds on which you can challenge the penalty when you are applying to either appeal to remove the penalty, or to reduce it. These are:

You are not liable to pay the civil penalty, including because you are not actually the employer of the illegal worker(s) in question;
You have a statutory excuse, where you conducted a compliant right to work check;
The amount of the penalty is too high, where this has been miscalculated or you can show that you have met certain mitigating criteria which has not been taken into account.

Only mitigating factors which are referenced in the Home Office’s published Consideration Framework will be considered. These are the same mitigating factors as set out above but you will need to include extensive evidence to demonstrate why such factor(s) apply.

You should note that the Home Office is able to increase the original penalty at the appeal stage so prior to challenging the penalty, you should consider seeking legal advice as to the merits of challenging a civil penalty notice and consider your organisation’s circumstances, including the impact on sponsored workers.

The appeal may consequently proceed to the County Court, and therefore be considered by those external to the Home Office.

Possible Consequences: Revocation of Sponsor Licence

It is possible for the Home Office to downgrade or revoke your sponsor licence following a civil penalty notice. The guidance states that:

if we issue you with a civil penalty, we are likely to revoke your licence and you will not be eligible for a new licence until at least 12 months have passed since you have paid the civil penalty in full (this period could be up to 5 years if you are issued with more than one civil penalty)

The above refers to the cooling off period starting from 12 months in which you cannot apply for a new sponsor licence.

A civil penalty notice may also impact an individual’s ability to be a company director if enforcement action is taken against them.

How Can Employers Avoid Civil Penalty Notices?

As set out in this blog post, employers will have a statutory excuse should it later arise that an employee did not have the right to work, if they have carried out compliant right to work checks prior to commencement of employment. Note that the right to work check must be compliant and if it is not, there is no statutory excuse. You may wish to refer to the Employer’s guide to right to work checks, available here.

Therefore, it is vital that compliant right to work checks are carried out prior to the worker commencing employment and that record keeping is kept up-to-date in the event of a compliance visit.

Contact our Immigration Legal Advisers

For expert advice and assistance with your immigration matter, including responding to civil penalty notices, contact our immigration legal advisers in Manchester on 0161 529 7779 or via our enquiry form below.

Supreme Court Rwanda Judgment: Government's Rwanda Policy Is Unlawful

Fri, 17 Nov 2023 11:58:46 GMT

In a unanimous decision by Lord Reed and Lord Lloyd-Jones, with whom Lord Hodge, Lord Briggs and Lord Sales agreed, the Supreme Court has declared the government’s Rwanda policy unlawful. In this post, I review the Supreme Court’s Rwanda Judgment, offering insights into the legal intricacies surrounding the government’s now-unlawful policy of removing asylum seekers to Rwanda.

Supreme Court Rwanda Judgment

It its judgment in AAA (Syria) & Ors, R (on the application of) v Secretary of State for the Home Department [2023] UKSC 42 (15 November 2023), the Supreme Court held that the Court of Appeal was correct to reverse the decision of the Divisional Court and was entitled to find that there are substantial grounds for believing that the removal of the claimants to Rwanda would expose them to a real risk of ill-treatment by reason of refoulement. For that reason, the Rwanda policy was held to be unlawful and the Secretary of State’s appeal was dismissed.

The cross-appeal by one of the appellants, regarding whether provisions of EU law that prevent the removal of asylum seekers to a safe third country with which they have no connection have been retained in domestic law, was also dismissed.

Analysis of the Appeal to the Supreme Court in the Rwanda Case

Was the Court of Appeal correct to interfere with the decision of the Divisional Court? Yes

The first question that the Supreme Court was required to consider was whether the Court of Appeal had lawfully interfered with the Divisional Court’s decision as part of the former’s appellate jurisdiction. This question, in turn, required consideration of two issues:

Whether the Divisional Court had applied the correct test; and
If so, whether the Court of Appeal was otherwise entitled to interfere with its conclusion.

Did the Divisional Court apply the correct test? Unclear, but immaterial

The Supreme Court in the Rwanda Case confirmed that the correct approach, set out in Soering, was for the Divisional Court to assess for itself whether there were substantial grounds for believing that asylum seekers sent to Rwanda would be at a real risk of refoulement. Had the Divisional Court instead merely reviewed the reasonableness of the Secretary of State’s assessment, it would have applied the wrong test.

The Supreme Court recognised that the wording of several passages in the Divisional Court’s judgment suggest that it had misunderstood its function, by asking itself whether the Secretary of State’s conclusion on the risk of refoulement was tenable. In a different passage, the Supreme Court noted that the Divisional Court had recognised that it had to carry out the necessary assessment itself. As such, the Supreme Court held it was not easy to determine which test the Divisional Court had applied.

Nonetheless, it was not necessary to reach a view on this matter. The Supreme Court held that the Court of Appeal was entitled in any event to to interfere with the Divisional Court’s conclusion and to consider the question for itself. The reason was that the Divisional Court had erred in its treatment of the evidence that was relevant to the risk of refoulement, by failing to engage with the UNHCR’s evidence before it.

Was the Court of Appeal entitled to interfere with the Divisional Court’s decision? Yes, because the latter had erred in its approach to the evidence.

Strasbourg jurisprudence confirms that deficiencies identified by bodies such as UNHCR are relevant to the assessment of how the asylum system in the receiving state operates in practice. In turn, this is relevant to the question whether there are adequate procedures in place in that state to avert the risk of refoulement to asylum seekers removed there for their asylum claims to be determined. State assurances are also relevant, but not in themselves sufficient to ensure adequate protection; a fact-sensitive assessment of how assurances will operate in practice, in the circumstances prevailing at the material time, remains necessary.

In its Rwanda Judgment, the Supreme Court held that the Divisional Court did not follow this approach in considering the evidence. Instead, the Divisional Court wrongly:

Stated it could only go behind the government’s opinion if there were compelling evidence to the contrary; and
Considered that the evidence of the UNHCR carried no special weight.

There was no requirement for there to be compelling evidence in order for the Court to reach a different conclusion to that of the government regarding whether Rwanda’s assurances provided an adequate safeguard to the risk of refoulement. The Court ought to have considered for itself how the assurances would operate in practice and, in that context, the UNHCR’s evidence of the past and present circumstances in Rwanda was of particular importance. The Divisional Court therefore erred in its approach to the evidence and the Court of Appeal was entitled to interfere with its decision.

Was the Court of Appeal entitled to conclude that there were substantial grounds for believing that asylum seekers would face a real risk of ill-treatment by reason of refoulement following removal to Rwanda? Yes

In its Rwanda Judgment, the Supreme Court’s conclusion on this issue was affirmative, in view of the evidence on:

The general human rights situation in Rwanda;
The adequacy of Rwanda’s asylum system; and
The Israel/Rwanda previous arrangements.

The Secretary of State argued that the current inadequacies in Rwanda’s asylum system and its past history of refoulement and failure to comply with its assurances were not determinative and that the current assurances provided an adequate safeguard.

The Supreme Court acknowledged that a consideration of risk involves prediction, but such predictive assessment is based on past and present circumstances, as well as future promises. It held that there was no doubt that Rwanda had entered the relevant agreements in good faith. Nonetheless, the evidence demonstrated its practical inability to fulfil its assurances.

It was concluded that, as matters stand, the evidence establishes substantial grounds for believing that there is a real risk that asylum claims will not be determined properly, and that asylum seekers will in consequence be at risk of being returned directly or indirectly to their country of origin.

Cross-Appeals

Other issues arising in relation to article 3 ECHR

The Supreme Court in the Rwanda Case held that, in view of its conclusion on the issue of refoulement, it was not necessary to consider whether there was a risk of ill-treatment to asylum seekers in Rwanda in view of the reception conditions there, or whether the Secretary of State had failed to consider the risk of refoulement with the required degree of care.

Retained EU law

The Supreme Court was also required to consider whether the Procedures Directive remained in force in UK domestic law, as “retained EU law”. If so, then the Rwanda policy would be unlawful in principle, as it would entail the removal of asylum seekers to a country to which they have no connection, which is not permitted by articles 25 and 27 of the Procedures Directive. The incompatibility of the Rwanda policy with those provisions of the Procedures Directive was common ground. The only matter in dispute was whether the Procedures Directive had been repealed by the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020.

The Supreme Court held that the 2020 Act had repealed the Procedures Directive. In concluding this, it rejected the argument that references to “immigration” in the Act do not include matters relating to asylum. The extraneous aids to interpretation do not cast doubt on the meaning of the statute. The principle of legality, requiring a statute which interferes with a fundamental or constitutional right to have clear and unambiguous wording, is not applicable. The relevant provisions of the Procedures Directive involve an important protection, but not a fundamental or constitutional right and therefore the normal canons of statutory construction apply. In any event, the Supreme Court held that Parliament’s intention had been unambiguously expressed in the 2020 Act.

A previous Supreme Court judgment, in which the Procedures Directive was considered retained EU law, was held to have proceeded on the basis of a concession and without full argument on whether in fact the Directive was extant in domestic law. Having heard full argument, the Supreme Court in this case concluded that the effect of the 2020 Act is that articles 25 and 27 of the Procedures Directive do not have effect in the domestic law of the United Kingdom as retained EU law.

Commentary on the Supreme Court Rwanda Judgment

As set out in my previous article following the Court of Appeal’s judgment, the Supreme Court’s Rwanda Judgment does not rule out the possibility that the Rwanda scheme could become lawful in the future, through structural changes and capacity-building needed to eliminate the risk of refoulement. The possibility of the lawfulness of a different scheme, where asylum seekers are sent to a different third country to have their asylum claims determined, is also not ruled out in principle. The provisions of EU law that prevented this are no longer directly effective in domestic law and have been repealed.

Nonetheless, it is highly unlikely that the required changes can be delivered anytime soon, let alone prior to the next elections. It would also require additional, significant costs for training, monitoring and infrastructure. This demonstrates that the Rwanda scheme was a misguided, problematic, and ultimately fruitless endeavour by the government, which involved an inordinate amount of resources and funds.

Of course, this will inevitably be spun as a consequence of judicial interference and of the UK’s international obligations. This was already pre-empted by the former Home Secretary’s letter to the Prime Minister, on Tuesday 14 November, in which she referred to blocking off the ECHR, if not leaving it altogether, along with other obligations which “inhibit our ability to remove those with no right to be in the UK” and to the lack of a “Plan B” in the event of the government’s defeat in the Supreme Court.

The issues with this rhetoric are obvious: the ECHR has never inhibited the UK or any contracting state’s ability to remove those with no right to be in their territory. There is no obligation with such an effect. The ECHR prohibits the removal of persons from the UK only insofar as that would entail placing them at risk of serious harm. This includes asylum seekers removed to a third country for determining their asylum claims, where that country’s asylum procedures are flawed to the extent that genuine refugees will be at risk of being returned to their country of nationality, where they would face persecution. This is a fundamental, human right that, by definition, all people should enjoy and which was recognised and agreed between contracting states following the terrors of the Second World War. The courts can only interfere with policies when they are incompatible with such a right.

Reference to a Plan B is equally flawed. The plan should have always been the allocation of appropriate resources to ensure that asylum claims in the UK are processed in a timely manner and establishing safe routes for those seeking protection. Broadly, the UK’s asylum processing system does not suffer from systemic deficiencies and there are adequate safeguards, as opposed to that of Rwanda. However, backlogs have caused significant delays in determining asylum claims in the UK, often for several years. Had the government allocated the same time and resources to alleviating those backlogs and to ensuring a fair and prompt determination of asylum claims in the UK as it did for the Rwanda scheme, it would have reached an effective outcome whilst being compliant with the UK’s international obligations. Its complete failure to do so is attributable only to itself.

Contact our Immigration Legal Advisers

For advice and assistance with asylum applications, appeals and judicial review claims, contact our immigration legal advisers on 0161 529 7779 or complete our enquiry form below.

Certificates of Sponsorship: All You Need to Know

Wed, 15 Nov 2023 14:28:20 GMT

What is a Certificate of Sponsorship (CoS)?

A Certificate of Sponsorship (‘CoS’) is an electronic certificate which must be assigned for each migrant worker who wishes to apply under a relevant worker route. Applicants under the Skilled Worker route cannot make their visa / permission to stay application without a Certificate of Sponsorship as the unique reference number must be inputted on the application form.

What Is the Purpose of a Certificate of Sponsorship (CoS)?

The purpose of the Certificate of Sponsorship is for the licensed sponsor to confirm:

That they wish to sponsor the worker;
That they are satisfied that the worker can meet the relevant immigration requirements for the route they are applying under;
That they are eligible to sponsor the worker on the relevant route; and
That they agree to abide by the terms of conditions as stated on the SMS.

Having a valid CoS does not, however, guarantee that the worker will be granted entry clearance, permission to enter, or permission to stay. Applicants under this route must ensure that they meet the requirements of the sponsored route under which they apply.

To discuss your Skilled Worker Visa application with one of our immigration legal advisers, contact our Skilled Worker Route lawyers on 0161 529 7779 or complete our enquiry form below.

What Is an Undefined Certificate of Sponsorship and Who Needs One?

Undefined Certificates of Sponsorship must be assigned to Skilled Workers applying for permission to stay in the UK, from within the UK.

Undefined Certificates of Sponsorship must also be assigned to workers applying on any other sponsored route, such as the Global Business Mobility or Temporary Worker routes. This is regardless of whether they are applying for entry clearance, permission to enter, or permission to stay.

How Do I Get an Undefined Certificate of Sponsorship?

Undefined Certificates of Sponsorship must be assigned to a migrant from the sponsor’s annual allocation.

What Is an Annual CoS Allocation?

When employers apply for a Sponsor Licence, they will be asked for an estimate of the number of Undefined Certificates of Sponsorship they may wish to assign in their first year in each route for which they are applying to be licensed. This must be justified and further information can be requested.

Each year, the Sponsor will be asked to make an annual allocation request for the next CoS year.

Any Certificates of Sponsorship granted will be valid for 12 months. Any unused CoS will be removed from the SMS account, they cannot be carried over.

What Is an Annual Allocation Request?

Each year sponsors are asked to request an annual allocation for the next year. This can be a manual or automated request, depending on the sponsor’s circumstances (you can log on to the SMS to check this). This request is made through the SMS system and should be made prior to the end of the allocation year.

The allocation year will depend on when the sponsor licence was obtained. Sponsors should check the SMS system to see when their allocation year runs.

What if I Need More Undefined CoS Allocations in the Allocation Year?

If a sponsor needs more Certificate of Sponsorship allocations in their allocation year, they can request an in-year allocation increase by making an application through the SMS system. Reasons must be provided for requesting an increase to the allocation.

An in-year allocation increase request can take up to 18 weeks to be decided, unless priority services are obtained.

What Does the Home Office Consider in a CoS Allocation Application?

The Home Office will consider a number of factors, including, but not limited to:

Any agents you will use to recruit workers and whether they have been linked to immigration abuse in the past;
Your previous record in dealing with us, including under the current sponsorship arrangements, the previous Tier 2 and Tier 5 arrangements, or the work permit arrangements that were in place before the introduction of Tier 2 and Tier 5;
The number of workers employed at your organisation;
The kind of business you conduct;
The extent of the business you conduct; and
The length of time you have been trading.

The Home Office is not obligated to grant a CoS allocation application. If it is not adequately justified, or insufficient reasoning / evidence is provided, they can refuse an allocation grant, or grant fewer than the number requested. Sponsors may wish to seek legal advice when making their CoS allocation application.

How Do I Assign a Certificate of Sponsorship?

Certificates of Sponsorship must be assigned to the migrant using the SMS system. A CoS can only be assigned by a person who has access to the SMS as a Level 1 or Level 2 user. A CoS cannot be assigned more than three months in advance of the migrant’s start-date.

Considering applying for a Sponsor Licence? Read our employer guides to applying for a Skilled Worker Sponsor Licence or UK Expansion Worker Sponsor Licence.

What Is a Defined Certificate of Sponsorship and Who Needs One?

A Defined Certificate of Sponsorship is required by a Skilled Worker applying for entry clearance from outside the UK.

A Defined Certificate of Sponsorship is not assigned from the sponsor’s annual allocation – there are no limits to the number of Certificates available. Sponsors must make a request for a Defined CoS allocation. Contrary to the Undefined CoS allocation requests, specific details of the migrant must be provided. Once the allocation is received, the CoS can only be assigned to the migrant that the request was made for.

Defined Certificate of Sponsorship allocation requests take around 24-48 hours to be processed, however, we have seen delays where the Home Office wishes to request further information.

What Information Must Be Included on the Certificate of Sponsorship?

The Certificate of Sponsorship must include: the route on which the migrant is being sponsored, the migrant’s personal information, contact details, work address(es) in the UK, job description, hours, salary, and start and end date of employment. The Certificate of Sponsorship must include the same details as stated in the applicant worker’s passport.

What Happens if I Assign the Wrong Type of Certificate of Sponsorship?

It is very important that the correct type of Certificate of Sponsorship is assigned to a migrant and that Sponsors understand the difference between Defined and Undefined CoS. If an Undefined CoS is assigned to a migrant who requires a Defined CoS, this is a ground for revocation.

Annex C2 of the Part 3 guidance contains ‘“circumstances in which we will normally revoke your licence”.

It lists the following as a ground for revocation:

“u. You assign an undefined Skilled Worker CoS (or an unrestricted Tier 2 (General) CoS) to a worker who requires a defined (or restricted) one”

Sponsors should seek legal advice if they are not sure.

How Much Does a Certificate of Sponsorship Cost?

Sponsors must pay a fee each time they assign a Certificate of Sponsorship. If the correct fee is not paid, then the Home Office may cancel the CoS.

It costs £199 to assign a Certificate of Sponsorship, unless the migrant is applying as a Temporary Worker or as an International Sportsperson (for up to 12 months) in which case it costs £21.

Sponsors may also need to pay the Immigration Skills Charge.

Contact our Immigration Legal Advisers

For expert advice and assistance in relation to Certificates of Sponsorship, contact our immigration legal advisers in Manchester and Cheshire on 0161 529 7779 or via the enquiry form below.

Pre-Licence Priority Service Sponsor Licence Guide

Mon, 13 Nov 2023 15:49:39 GMT

When a company wishes to employ workers from overseas, they will need to have a sponsor licence to sponsor the workers. This applies to most overseas workers. The company will need to meet the requirements for the relevant immigration route and submit an application to the Home Office. The Home Office application fee will depend on the type of sponsor licence and the size of the organisation. Sponsor licence applications typically take up to 8 weeks to be decided by the Home Office.

In this post, we look at the Home Office’s Pre-licence Priority Service. The Pre-licence Priority Service is a service whereby, for an additional fee, it is possible for the processing time for a sponsor licence application to be expedited. If a request for a Pre-licence Priority Service is successful, the sponsor licence application will typically be decided within just 10 working days.

Sponsor Licence Application Preparation

Before applying for a Pre-licence Priority Service, you will need to prepare the sponsor licence application. Depending on the type of organisation, different supporting documents will be required. We have prepared a blog, Employer’s Guide to Appendix A Sponsor Licence Documents setting out the documents that can be provided in support of a sponsor licence application. You will also need to consider who will be your key personnel and understand the sponsor duties that you must comply with to maintain your licence. You will come across Certificate of Sponsorship and Standard Occupational Classification in your preparation so do have a look at our articles for a better understanding.

Advantages of the Pre-licence Priority Sponsor Licence Service

The normal processing times for a standard sponsor licence application is around 8 weeks. The Pre-licence Priority Service is available for a fee of £500.00 per request and a decision should normally be made within 10 working days.

If your sponsor licence application is granted, you will be issued with a sponsor licence valid for 4 years from the date of decision.

Eligibility for the Sponsor Licence Pre-licence Priority Service

The Home Office sponsor licence guidance states that ‘To be eligible for this service:

you must have applied for a sponsor licence in an eligible route(s) by registering and completing the online application form on the Home Office Website;
you must have paid the application fee and the priority service fee;
you must have sent us your submission sheet and all mandatory and supplementary documents for the work routes you are applying for as explained in Appendix A to SponsorshipValidations@homeoffice.gov.uk;
within 5 working days of paying the priority service fee if you are submitting your application;
if you are adding the priority service to an already submitted application, you must already have submitted these documents;
if you want to add the priority service to an already submitted application your application must not be in progress.

How to Apply for the Pre-licence Priority Service

Prior to 21 June 2023

After the sponsor licence application has been submitted and documents sent to SponsorshipValidations@homeoffice.gov.uk, the Pre-licence Priority Service can be requested. The priority service with a maximum of 30 slots was available for eligible applications submitted between 9.00am and 23.59pm for Monday to Friday and excluding public holidays.

Any successful requests for a pre-licence priority service slot would receive an email confirming that a slot was available. Another email with the payment link would be sent and any payments must be made within 72 hours of receiving this email. If there was no news, it meant that the request was not successful.

Post 21 June 2023

A different way to request the Sponsor Licence Pre-licence Priority Service was introduced and took effect from 21 June 2023. It is now possible to request the Pre-licence Priority Service when you apply for a sponsor licence. You must continue to meet the eligibility criteria mentioned above. On your submission sheet will be the confirmation of your payment and the priority service.

The Pre-licence Priority Services is available for eligible applications submitted between 9.00am and 23.59pm Monday to Friday, excluding public holidays. Each day, a maximum of 30 Priority service requests are available across all eligible routes.

Post Submission of Sponsor Licence Applications

It may still be possible to request the Pre-licence Priority Service after you have submitted your application and paid your application fee, subject to the eligibility criteria. The steps are:

log back into your sponsor application account and enter your username and password;
once logged in, select ‘Finish incomplete applications’.

You will receive confirmation of your payment on a separate submission sheet.

Please note that the 10 working day period starts the next working day after your request has been accepted and you have paid the fee. The Home Office set out the example that ‘If you were accepted for the Priority service for the 21st June 2023 then the 10 working day period would start on 22nd June 2023.’

Sponsor Licence Priority Service Processing Times

Although the processing time for the priority service is 10 working days, there may be situations where the Home Office is not able to decide your application within that time frame. The reasons could be because extra checks are required or complex issues are raised. If a decision is not possible within the 10 day service standard, the Home Office will send an email to the authorising officer. In certain circumstances, the priority service fee may not be refunded.

Reasons for Unsuccessful Requests of the Pre-licence Priority Service

If you are applying for a sponsor licence and are not able to secure a slot for the pre-licence priority service, the reasons for this may include:

your chosen route is GBM Expansion worker, GBM service supplier or Scale up, which are ineligible routes for priority service;
the Home Office’s daily limit of requests has been reached;
you submitted a request outside of the service operating times;
a caseworker is already considering your sponsor licence application.

A Look at Some of the Sponsor Licence Routes

There are different types of sponsor licence routes and not all of them are eligible to use the Pre-licence Priority Service. A Skilled Worker Sponsor licence application is eligible. For a Global Business Mobility Sponsor licence application, only routes for Senior or Specialist Worker and Graduate Trainees are eligible. A Scale up Sponsor Licence application is not eligible for the priority service at this time.

Contact Our Immigration Legal Advisers

For expert advice and assistance in relation to a Sponsor Licence application, contact our immigration legal advisers in Manchester on 0161 529 7779 or via the enquiry form below.

A Step-by-Step Guide to Sponsor Licence Renewal

Fri, 10 Nov 2023 15:54:56 GMT

When a sponsor licence application is granted, it is usually valid for four years. The sponsor normally receives a first renewal reminder 120 calendar days before the expiry date with subsequent reminders. A final renewal reminder is sent 14 calendar days before the sponsor licence is due to expire. You can make a sponsor licence renewal application from 90 days before the licence end date. In this post we look at the essential steps and key considerations for a successful sponsor licence renewal, including the online renewal, fees, compliance visits, and what to do if your licence is suspended.

Sponsor licence renewal process

Online sponsor licence renewal

To start off the sponsor licence renewal process, the Level 1 User will need to login to the sponsorship management system (‘SMS’) account. The Authorising Officer will need to provide their consent to the licence renewal before the application is made. The Level 1 User will complete the online form, make the payment and keep a copy of the submission sheet for records.

Request for documentation

The Home Office will write to you if they require any supporting documents and you will have 5 working days to respond and send the requested documents. As explained, depending on the type of organisation, there are different types of documents required. They may also request to see documents which are not listed in Appendix A.

Sponsor licence renewal checks

The Home Office may conduct checks before deciding on your application. The checks could include checking your key personnel and whether you meet your sponsor duties. The key personnel include the Authorising Officer, Key Contact, Level 1 User and Level 2 User.

A reminder that your sponsor duties are:

Reporting duties;
Record keeping duties;
Complying with immigration laws;
Complying with wider UK law;
Not engaging in behaviour or actions that are not conducive to the public good.

Sponsor licence renewal fees

To renew your sponsor licence, the fee is £536 for small businesses and charities. For medium or large businesses, the fee is £536 for the worker route (such as Skilled Worker and Senior or Specialist Worker of the Global Business Mobility route) and £1,476 for the temporary worker route (such as Creative Worker).

“Small businesses normally have at least two of the following:

Annual turnover of £10.2m or less;
Total assets with £5.1m or less;
50 employees or fewer.

Charitable sponsors are registered as charities in England, Wales, Scotland, Northern Ireland or an excepted/exempt charity or an ecclesiastical corporation established for charitable purposes.”

Understand the consequences of missing the deadline to renew your sponsor licence

Have a look at your licence end date in the SMS system to ensure that you renew your licence before the expiry date as this is the last date you can renew your licence. Please note that if your licence is granted on the UK Expansion Worker route or the Scale-up route, you will not be able to renew your licence beyond 4 years.

If you miss the end date to renew your licence, you will:

Not be able to sponsor any new workers;
No longer be able to access your SMS account;
Not be able to assign any more certificates of sponsorship;
Be removed from the Home Office’s Register of licenced sponsors;
Have to make a new application if you wish to sponsor workers;

The permission of any current workers sponsored by you will usually be shortened to 60 calendar days unless their visas expire before then. It is therefore important to apply in good time.

Getting ready for a compliance visit following a sponsor licence renewal

During the renewal process, the Home Office may conduct a compliance check. If the Home Office decides to conduct a compliance visit, the visit may be on an announced or unannounced basis.

Interviews: The Home Office may conduct interviews with sponsored workers and key personnel.

Illegal working checks: They may also check whether your organisation is employing workers illegally and the correct right to work checks have been carried out.

Human resources systems checks: They may check whether you are complying with your sponsor duties such as inspecting your record keeping systems to see whether you have the documents specified in Appendix D.

Verify information provided: The Home Office may also verify any information provided, including checking with other government departments .

Criminal records checks: The Home Office may conduct criminal records checks on the directors and key personnel as well as on anyone involved in the running of the business.

It is useful to seek legal assistance in conducting an immigration audit of your business so that you can be prepared for any Home Office inspection.

Outcome following sponsor licence renewal concerns

If the Home Office has any concerns and needs to carry out a full investigation, they may suspend your licence. They will write to you setting the reasons for the suspension. Our post, Sponsor Licence Suspended – What To Do Now explains what happens when your licence is suspended and Sponsor Licence Suspended – What’s Next sets out the potential outcomes.

If you are an A-rated sponsor at the time of the renewal application and the Home Office has any concerns, they may grant your application but choose to downgrade your licence to a B-rating or they may revoke your licence.

One point to note is that the Home Office’s guidance states ‘If your licence is suspended but is due to expire, you must still apply to renew it. If you don’t apply to renew it and the result of the suspension does not lead to your licence being revoked, we will not be able to reinstate your licence if it has expired.’

Do seek legal advice as soon as possible if your licence is suspended so you are aware of your options and the next steps.

Contact Our Immigration Legal Advisers

For expert advice and assistance in relation to a Sponsor Licence application, contact our immigration legal advisers in Cheshire on 0161 529 7779 or via the enquiry form below.

UK Visa Application Fees From 4 October 2023

Tue, 19 Sep 2023 14:56:57 GMT

UK Visa Application Fees From 4 October 2023

In 2023, the United Kingdom’s visa landscape is evolving, and with it, so are the costs involved. Whether you’re planning a short-term visit, a long-term study programme, to join family or pursue employment in the UK, understanding the latest visa application fees is crucial for effective planning. In this comprehensive guide, we’ll walk you through the latest UK visa application fees in force from 4 October 2023, shedding light on the various categories and recent changes. Read to the end for links to some other posts from Waltons that will help you prepare for your journey to the UK.

To discuss your UK visa application with one of our Immigration experts, contact our immigration department on 0161 529 7779 or complete our enquiry form.

Sponsor Licence - Need to employ foreign workers?

Fri, 01 Sep 2023 15:02:07 GMT

Get a sponsor licence with us

Every UK based company, looking to employ EU / non-EU nationals, must obtain a sponsor licence. It allows your business to issue a certificate of sponsorship to your new (or existing) employee, permitting them to work for your business in an eligible role.

Your company can hire from outside the UK or from within the UK. If you are looking to hire someone from within the UK, you can do so if the individual is currently on a temporary visa or if they work for another sponsoring company. You can also sponsor an international student studying in the UK; this allows your business to broaden its talent pool with access to global markets.

If you want to improve your diversity, equality and inclusion (DE&I) credentials, sponsoring an employee is a fantastic way to achieve this, as you access a much broader set of skills from different backgrounds.

Our immigration experts have 20+ years experience

What can we provide?

Advice, preparation and a complete application submission
Fixed fee application service
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