11 January 2017 - UK & EEA Immigration Law Updates from the Legal Centre

ENG: Legal Centre’s Services at a glance: https://legalcentre.org/
RUS: Вкраце об услугах Legal Centre: https://legalcentre.org/language.php?lang=ru

Updated UK BA Guidance

• Points-based system: Tier 1 (Exceptional Talent): https://www.gov.uk/government/public...ptional-talent - This version explains the new online application process introduced on 19 December 2016

• Guidance on application for UK visa under Tier 5 (Temporary Worker): https://www.gov.uk/government/public...mporary-worker

• Guidance for dependants of UK visa applicants (Tiers 1, 2, 4, 5): https://www.gov.uk/government/public...-1-2-4-5Family members of points-based system migrants: https://www.gov.uk/government/public...ystem-migrants - Updated to allow sponsors to underwrite maintenance for Dependants of Tier 5 migrantsPoints-based system: Tier 5 (Temporary Worker): https://www.gov.uk/government/public...mporary-worker - This guidance has been changed to reflect Immigration Rules changes made in November 2016

• Points-based system: Tier 2: https://www.gov.uk/government/public...-system-tier-2

• Visitor guidance update: https://www.gov.uk/government/public...visit-guidance

• Criminal records checks for overseas applicants (20th December 2016): Criminal records checks for overseas applicants (20th December 2016) - Who can apply, how to apply and contact details for criminal record checks overseas

• Returns preparation: https://www.gov.uk/government/public...ns-preparation

• PBS Dependents’ certain absences from the UK may lead to the PBS dependents’ losing the right to apply for Settlement in line with the recent Statement of changes: https://www.gov.uk/government/public...-november-2016 : “In paragraph 319E(d)(ii) insert after (c):
“In this sub-paragraph “continuous” means an unbroken period and for this purpose a period shall not be considered to have been broken in any of the circumstances set out in paragraph 245AAA(a)(i) to (iii).”.”

• Entry clearance applications as a partner under Appendix FM – acceptable English language tests. See: https://www.gov.uk/government/upload...st_Centres.pdf clarified that the applicant needs a test from the list in Table 1, and it only mentions IELTS Life Skills and IELTS for UKVI

General

• Parliamentary and Health Service Ombudsman upholds three in four complaints about the Home Office: http://www.ombudsman.org.uk/about-us...report-reveals

• The President of the Immigration and Asylum Chamber of the Upper Tribunal has found that the Home Office abused its power in forcing a college to expel a student and deliberately depriving him of a statutory right of appeal: https://www.channel4.com/news/home-o...ower-over-visa

Recent case-law:

• R (on the application of Mohibullah) v Secretary of State for the Home Department (TOEIC – ETS – judicial review principles) [2016] UKUT 00561 (IAC)

Tribunals Service link: https://tribunalsdecisions.service.g.../2016-ukut-261

(i) Where there is a multiplicity of decision making mechanisms, some generating a right of appeal and others not, there is a public law duty on the decision maker to be aware of the options and to take same into account when opting for a particular mechanism.
(ii) Where a Tier 4 Student is considered to have made false representations, thereby being liable to discretionary curtailment of leave and has been withdrawn from a course, thereby being liable to mandatory curtailment action there is a duty on the Secretary of State to consider both of the corresponding sections in the “Curtailment of Leave” policy guidance.
(iii) A failure to give effect to policy guidance without justification is in breach of the Lumba principle and renders the ensuing decision vulnerable to being quashed.
(iv) Where a curtailment of leave decision is underpinned by the Secretary of State’s decision that leave to remain had been procured by deception, the appropriate standard of review is the Wednesbury principle rather than proof of the precedent fact of deception.
(v) A decision which has a conspicuously unfair impact on the subject may qualify for condemnation as unreasonable, or irrational, in contravention of the Wednesbury principle.
(vi) The student’s knowledge of an allegation by ETS that he has procured his TOEIC certificate by deception will normally suffice to convey the gist of the case against him, thereby rendering the Secretary of State’s decision making process (in this respect) procedurally fair.