non european immigrants remove on the theory of ‘deport first, appeal later’ measures start to have an impact

Powers introduced in the government’s flagship Immigration Act are cracking down on the appeals conveyor belt used by criminals to delay their removal from the UK. And more than 300 have already been removed – with nearly 500 more currently going through the system.

Non-suspensive appeals came into force in July, meaning Home Office officials can deport criminals before they have the opportunity to launch spurious claims under the Human Rights Act or falsely claim asylum.

Those deported then have the right to launch an appeal from their own country, rather than clogging the British justice system – costing UK taxpayers time and money in fighting the cases through the courts.

And the new powers have seen a number of criminals deported despite having family members in the UK – reinforcing the government’s stance that the right to a family life should not override the rights of wider society.

Immigration and Security Minister James Brokenshire said:

Foreign nationals who abuse our hospitality by committing crime in Britain should be in no doubt of our determination to deport them.

The countless appeals and re-appeals lodged by criminals attempting to cheat the system cost us all money and are an affront to British justice.

Non-suspensive appeals are allowing us to kick out foreign criminals more quickly and more efficiently than ever before and I want to see them used as often as possible.

Alongside tougher crime fighting measures, improved protection at the border and greater collaboration between police and immigration enforcement officers, the Immigration Act will help us deliver an immigration system that is fair to the people of this country and legitimate immigrants and tough on those who flout the rules.

The Act has also slashed the number of appeals available to foreign criminals from 17 to just four. And they have been denied the right to appeal against deportation simply because they do not agree with our decision.

Under the new rules, once a decision has been taken to deport a foreign criminal they will have to lodge any appeal and all papers their lawyers think are relevant to their attempts to stay from outside the country. This is putting a stop to delaying tactics often employed by criminals desperate to thwart justice. Previously, it was commonplace for criminals to submit to the court reams of new, unconsidered ‘evidence’ creating legal delays while government lawyers studied the new paperwork.

The non-suspensive appeals measures will work alongside other powers in the Immigration Act to speed up the justice system and make it more efficient.

Note:

The figures in this article are taken from internal management information compiled by Home Office officials (between 28 July 2014, when the first Immigration Act Commencement Order was laid and when the amendments to the EEA Regulations came into effect, and 17 December 2014). They are provisional and so subject to revision.

All of these cases in this article are associated with non-suspensive appeals for deportees. These are contained in Section 17(1) and 17(3) of the Immigration Act 2014 (certification of human rights claims made by persons liable to deportation) and, in respect of EEA nationals, in Regulations 24AA and 29(3) of the Immigration (European Economic Area) Regulations 2006 (as amended) (human rights considerations and interim orders to suspend removal, and effect of appeals). Regulation 29(3) provides that an appeal against a deportation decision no longer automatically suspends removal proceedings.

New application forms for UK visa after 13/12/2012

New application forms will be effective on or after 13/12/2012, kindly keep in mind before applying 

• Tier 1 (Exceptional talent) form
• Tier 1 (Investor) form
• Tier 1 (Graduate entrepreneur) form
• Tier 1 (Entrepreneur) form
• Tier 1 (General) form
• NTL form
• TOC form
• SET(M) form
• SET(BUS) form
• SET(DV) form
• SET(F) form
• SET(O) form
• DRF1 form
• FLR(M) form
• FLR(O) form
• FLR(BUS) form
• FLR(P) form
• BRP(RC) form
• DL (formerly HPDL) form
• BR(1) form
• BR(3) form

You can download the forms from this website and you should use the new forms if you apply on or after 13 December.

In line with paragraph 34(i) of the Immigration Rules, we will continue to accept applications made on the previous version of these forms up to and including 3 January 2013. We will consider any application submitted on or after 13 December 2012 under the revised Immigration Rules regardless of which version of the application form is sent.

INVALID APPLICATION

Invalid immigration applications cause serious difficulties. The problem is that the UK Border Agency advises people not to make applications until shortly before their existing leave is due to expire. However, it often takes the Border Agency days or weeks to look at the application, by which time the person’s existing leave has expired. As long as the application was valid, this causes few difficulties because the person’s leave is automatically extended by section 3C of the Immigration Act 1971 until the end of the application or appeal process. A serious problem arises where the Border Agency in their wisdom return the application as invalid: the person becomes an overstayer, commits a criminal offence by even remaining in the UK to re-submit the application, risks a re-entry ban and loses any right of appeal if the re-submitted application is unsuccessful.

There are many reasons why applications are declared invalid. In fact, it is quite difficult to get absolutely everything right. I once acted in a case where an application where it was declared invalid because the applicant had not entered a land line telephone number in the mandatory box. He had no landline. Applications are sometimes rejected because the photographs are too small, too smiley or too frowny. Submitting the incorrect fee (too much or too little does the trick) leads to automatic refusal, despite the difficulties calculating that fee when there are dependents involved. All of this would be good reason to hold the application and ask for further information or repayment, but it is not a good reason to criminalise the person concerned. Some might think that it makes such a mockery of the idea of criminal immigration offending that UKBA can hardly continue to go around saying that overstaying is a serious matter.

There are several cases where these issues have been canvassed. One of the most useful is that of Forrester, which I wrote about at the time. A handy little new case has just come out that may help some people: R (on the application of Kisuule) v Secretary of State for the Home Department [2011] EWHC 2966 (Admin). In this case the application was refused on the grounds that photographs were not included at all. The applicant insisted that he was very sure he had included them. The judge sided with him and held that the application had been validly made in the first place. The Border Agency will have had to pay the claimant’s costs.

These invalidity cases are a huge waste of everyone’s time and effort, they make a mockery of a criminal offence and it is high time the Border Agency reverted to the old system where leave was automatically extended for 28 days to give an opportunity to resubmit an application.

 

Watch out old work permit holders !!!!!!!!!!!!!!!!!!!!!!!!!!

Back on 6 April 2011 the UK Border Agency made a change to the settlement rules for work permit holders who had entered the UK before the Points Based System was introduced. The change required a work permit holder to be paid a certain salary in order to qualify for settlement, or Indefinite Leave to Remain. The salary required is that specified in the myriad Codes of Practice for Tier 2 of the Points Based System.

The problem since faced by many work permit holder seeking settlement after five years of living and working in the UK is that their work permit was approved for one salary, which is what they have as a consequence been paid by their employer, but suddenly, with no individual warning, that salary level is no longer sufficient and the work permit holder neither qualifies for settlement nor for an extension under Tier 2.

An announcement recently went up on the UK Border Agency website that as of 31 October 2011, work permit holders will not only need to be paid the Code of Practice salary but will need to submit certain specified documents in order to demonstrate this. Previously certification by the employer was sufficient, but no longer.

The 6 April change was clearly an unfair one in the moral sense – the rules of the game were changed without notification. Foreign workers have a potentially difficult relationship with their employer in any event, and negotiating a rise in salary might well have been difficult even had they known one was needed. However, in immigration law it is very difficult to succeed on the basis of a legitimate expectation or a fairness argument. The courts have repeatedly held that there is no legitimate expectation that the Immigration Rules will remain the same. Cases that have succeeded, like the HSMP and BAPIO challenges, were based on specific assurances that the rules would remain the same, assurances that are not normally given. I have myself struggled to come up with a robust legal solution for those facing this problem. Article 8 ECHR is the best I can offer, but I would be interested to hear if anyone has done better.

Those work permit holders coming to the end of their five years and considering applying for settlement would be well advised to make sure they have checked they are paid in accordance with the relevant Code of Practice.

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IMMIGRATION Post Study work visa / Immigration Post Study work visa

IMMIGRATION

Post Study work visa / Immigration

Post Study work visa This would the sub- category of TIER 1 where the students who have done either a diploma or a Bachelors degree or Masters degree or PHD from a recognized or listed body in the UK, would be able to switch to a two – year post study visa. Those who are currently on IGS having obtained their leave to remain for one year would be allowed to obtain further leave to remain for another year in line with the new Post Study work visa. Their applications would be dealt under the Transitional measures that would be put in place once the complete TIER 1 would be introduced. The time scale for introducing Post study work visa is in July 2008. A similar framework of points would be introduced as it is available for TIER 1 (General) category. The students would be required to claim 75 points under the attributes, 10 points under English language and 10 points for their maintenance. The distribution of points would be as under: Attributes (from 01.04.2009) 1. Having successfully completed one of the following: 20 Points A UK recognized degree at Bachelors level; or A UK recognized degree at post graduate level; or A UK post graduate certificate in education (PGCE); or An HND from a Scottish Institution 2. Having completed one of the above mentioned courses / degree at a UK institution that is either a recognized or listed body - 20 points. 3. Having obtained the above mentioned qualification whilst in the UK with a valid student leave or as a dependant of someone with valid leave in an immigration category permitting the bringing in of dependants - 20 points. 4. Having made the application within 12 months of obtaining the eligible qualification - 15 points. English language All applicants who successfully claims 75 points as indicated above, would be deemed to have sufficient level of English thus would be given points under this section. Maintenance If a persons would like to switch to post study work category while remaining int eh UK, he would be expected to have at least £800 for his maintenance and £533 for each dependant in the last three months` bank statements at all time. If a person is seeking entry clearance the amount required for maintenance would be £2800 for the main applicant and 2/3 of this amount for first dependant and further 1/3 of the amount for other dependants - 10 points. Successful applicants would be free to seek employment or engage in self employment activities without having a sponsor. But unlike the other highly skilled sub-categories, it is there only to provide a bridge to highly skilled or skilled work. People with post study work leave will be expected to switch into another part of the points system as soon they are able to do so. It would not be possible to extend the visa for more than a total of 2 years, and the time period spent in this category would not be counted towards the threshold for being eligible to apply settlement. However, Post study workers can still return to their student visas, if they wish to continue their studies in the UK. For further information and free assessment call us 0091-79-30229666

IMMIGRATION TIER 1 (HSMP) / Immigration Point Based System (PBS) – Tier 1 General (HSMP) HSMP Forum Judicial Review: Settlement (20.05.2009) Judicial Review – Home office Policy for Highly Skilled Migrants (10.07.2008) The TIER 1 (Point Based System) has already been launched and is currently active. This has affected a large number of applicants who wish to apply for Highly skilled migrant programme (Tier 1 General), Business person visa (Tier 1 Entrepreneur), Investor visa (Tier 1 Investor) and Post study work visa. We will now discuss each of the TIER 1 categories separately to have full understanding on the subject TIER 1 (General) TIER 1 (Entrepreneur) TIER 1 (Investor) TIER 1 (Post study work) Tier 1 (General) The applicants are required to score at least 95 points in total to successfully apply for the required visa and they can claim following points under the various heads: A. Scoring Sections I Attributes Initial Application The applicant has to score 75 points under this section that can be claimed in the following manner: By completing a Qualifying MBA under the Transitional Arrangements: 75 points (max.) or Qualifications (35 – 50 Points) Previous Earnings: (15 – 45 points) UK experience (5 Points max.) Age: (5-20 points) The applicant must claim 75 points either by doing a qualifying MBA under Transitional arrangements or a total of 75 points using any or all of the options given above. Qualifying MBA: Applicants who have enrolled on an eligible MBA programme before 30 June 2008 and have completed the MBA within the 12 months prior to making his / her application may claim 75 points for “Attributes”. In this case, they do not require scoring points under any of the above sub sections. Qualifications (from 01.04.2009): An applicant having a Masters degree will be able to claim 35 points or 50 points for having a PHD in any subject. The maximum is 50 points that can be claimed under this section. Past Earnings (from 01.04.2009): Applicants will be able to use earnings earned in the 12 out of last 15 months from the date of application. The UKBA has now given a single list of earning levels that will enable the applicants to claim points according to the level of earnings instead of making different income bands for different set of countries. However, uplift multiples are available to enable the overseas applicants multiply their overseas earnings to assess the number of points they can get under this section. The applicants can get 15 points for having earnings of above £20K and 45 points for having earnings more than £40K in the 12 months out of last 15 months. There is an exception for those who have been on full time study or were on maternity or adoption – related absence; they can earnings earned in the 12 months out of last 15 months, immediately before commencing their full time studies or going on maternity or adoption – related leave. UK Experience: Maximum 5 points can be claimed if an applicant scores points for past earnings and those earnings were made in the UK or has studied for at least one full academic year at a Bachelors degree level or higher in full time higher education in the UK. Age: The maximum one can get is 20 points for being under 28 years of age while the minimum is 0 for being 32 or over. The applicants of age 28-29 can get 10 points while applicants of age 30-31 can only get 5 points. Extension Application The applicant has to re-qualify under the point based system and score 75 points that can be claimed in the following manner: Qualifications (30 – 50 Points) Previous Earnings: (5 – 45 points) UK experience (5 Points max.) Age: (5-20 points) Qualifying MBA: Thos applicants who got their previous grant of leave on the basis of having completed a qualifying MBA must have to claim a total of 75 points under the sections mentioned above. They will not be given 75 points automatically as he got in their first application. Qualifications: An applicant having a UK Bachelors Degree will be able to claim 30 points, or 35 points for having a Masters degree or 50 points for having a PHD in any subject. The maximum is 50 points that can be claimed under this section. Past Earnings: Applicants will be able to use earnings earned in the 12 out of last 15 months from the date of application. The applicants will be able to use their earnings in the UK and also their income from overseas. But they will not be allowed to use multiples in extension applications. The applicants can get 5 points for having earnings of above £16K and 45 points for having earnings more than £40K in the 12 months out of last 15 months. There is an exception for those who have been on full time study or were on maternity or adoption – related absence; they can earnings earned in the 12 months out of last 15 months, immediately before commencing their full time studies or going on maternity or adoption – related leave. UK Experience: Maximum 5 points can be claimed if an applicant scores points for past earnings and those earnings were made in the UK or has studied for at least one full academic year at a Bachelors degree level or higher in full time higher education in the UK. Age: The maximum one can get is 20 points for being under 31 years of age while the minimum is 0 for being over 34 years of age. The applicants of age 31-32 can get 10 points while applicants of age 33-34 can only get 5 points. The applicant can only claim a total of 75 points if he can provide the relevant documentary evidences and claim points under any of the sub sections mentioned above. II English Language For Tier 1 (General), applicants are required to provide evidence that they speak, communicate and understand English language to a certain level. This requirement can be met in one of the following three ways: By being a national of one of the English speaking countries i.e. USA , Australia , Canada etc. By having a degree level qualification from an English speaking country By having passed an English language Test (IELTS: 6.5) This will give 10 points to the applicant. Exemptions. Following persons however will automatically be given 10 points under this section: The one who has got leave to remain / entry clearance under Tier 1 (General) or Tier 1 (Entrepreneur) and is seeking extension of leave to remain. The one who has got leave to remain / entry clearance under HSMP after 05th of Dec. 2006 and is seeking to switch to Tier 1 (General). III Maintenance The applicant need to score 10 points under this section by providing evidences confirming that he has got sufficient amount of money for the maintenance and accommodation of himself and any of his dependants. He has to provide evidences that he has maintained a specific amount of money for at least 3 months prior to making the application (initial or extension). The applicant must provide evidences that he has got access to following amounts of money to make the visa application for himself and / or for his family members: £2800, if the applicant is making an entry clearance application from outside the UK £800 if the applicant is making an in-country application either to extend his existing visa or an initial application while remaining in the UK. £1600 for each family member, in addition to the £2800 for his own, if he is being accompanied by his family members and all of them are making entry clearance applications from the relevant British Diplomatic posts £1600 for each family member, if he is in the UK for less than 12 months and his family members are making an application from overseas £533 for each family member, if the main applicant has been residing in the UK for more than 12 months Please note that the funds for the maintenance of the family members can be available in the main applicant`s name or the dependant`s name. This is a very strict requirement and the application will likely to be refused even if the balance falls down the required threshold at any stage in the last three months. There are no exemptions of this requirement. B. Duration of Tier 1 (General) The first time applicants will be given 3 years visa whether they apply for entry clearance or switch from another immigration category. Those who are already on Tier 1 (General) will get extension for 2 years to enable them complete five years residence in the UK and apply for ILR. C. Work Allowed Applicants having leave to remain or leave to enter under the Tier 1 (General) will be allowed to take any employment or engage in self employment activities or work in a combination of both. The dependants will also be enjoying full rights to work in the UK similar to the main applicant. The only restriction that they will have is that they will not be allowed to work as a Training doctor. D. Switching Rules Into Tier 1 (General): Following persons will be able to switch into Tier 1 (General): A highly skilled migrant A Tier 1 (Entrepreneur) migrant A Tier 1 (Post – Study) migrant A Tier 1 (Investor) migrant A participant in the FT: WISS A participant in the IGS A Business Person An Innovator A student A student nurse A student re-sitting an examination A student writing up a thesis A post graduate doctor or dentist A work permit holder A self employed Lawyer A writer, composer or Artist Please note that the rules of switching are very strict and no one else is allowed to switch to Tier 1 (General) while remaining in the UK , unless there are truly compassionate circumstances. E. Settlement Prospects Although the persons on above mentioned visas are allowed to switch to Tier 1 (General) visa, only following will be able to use time spent on their previous visas towards 5 years residence criteria for ILR. Highly Skilled migrant programme participant Work permit holder Innovator Self employed lawyer Writer , Composer or Artist It means that if a Tier 1 (Entrepreneur) migrant having already spent 2 years on that visa, switches to Tier 1 (General) category, will lose that 2 years time for settlement purposes and have to complete 5 years on Tier 1 (General) to become eligible for permanent settlement. Those who have completed a total of five years in a combination of any of the above mentioned immigration categories will be able to apply for Indefinite leave to remain one month before completing their five years. F. Administrative Review (Entry clearance applications only) If the entry clearance application is refused by the ECO in the British Diplomatic post, the applicant will be given a right of making a request for a review of the decision that must be exercised within 28 days of the date of service of decision. The applicant will only be able to rely on the information / documents already submitted with the application and will not be allowed to provide / submit any fresh documentary evidences with the review request. It is therefore strongly advised to take professional help while making grounds for making review request. G. Appeals (In country Applications only) The applicants whose Tier 1 application is refused will be given full rights of appeal, provided they are not left with any leave to remain in the UK at the time of the decision. In these appeals, the applicant will however be allowed to make use of fresh documentary evidences / information in support of his appeal against the decision of the UKBA. The applicant will have 10 working days from the date of service of decision to lodge an appeal against that decision. It is strongly advised to take independent professional assistance to lodge an appeal against the decision of the UKBA. H. What services we can offer? We can advise on the procedure, requirements and merits of making an application to the home office / British Diplomatic post. We can provide assistance in completing the application forms and advise on the list of required documents. We can advise and represent our clients in making representations in support of their immigration matters. We can advise and represent our clients’ dependant to seek dependant visas in line with the visa of the main applicant. We can lodge an appeal (in-country only) or make a request for an administrative review if the applicant`s entry clearance application is turned down for some reason. We can advise in making permanent residence (ILR) applications for those who have already completed their five years period in the UK . Whatever the case, we are here to help, assist, advise and represent our clients in relation to any aspect of the immigration matters of our clients.