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Тема: Новости UK & EEA Immigration Law от Legal Centre, 07791145923

  1. #391
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    03 February 2020 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org - +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)

    >>> More on the new Global Talent category immigration route

    In brief, the Tier 1 (Exceptional Talent) category is being re-branded.

    There no longer will be a cap on how many people can benefit from the new route. Yet it is worth remembering that the cap (max - 2000 applicants per year) for Tier 1 (Exceptional Talent) has never been reached so that seems to have been done more for show than anything else.

    The Tier 1 (Exceptional Talent) - historical background

    By way of very brief background, the Tier 1 (Exceptional Talent) category was designed to attract exceptionally talented individuals in the fields of science and medicine; engineering; humanities; digital technology and arts and culture. It was divided into two further sub-categories: Exceptional Talent, for those who are already leaders in their field, and Exceptional Promise, for those who have the potential to become leaders.

    To be granted leave as a Tier 1 (Exceptional Talent) migrant, a person must first be endorsed by an endorsing body with expertise on the particular topic (for example, applicants in the field of engineering must be endorsed by the Royal Academy of Engineering, while applicants in the field of arts and culture are endorsed by Arts Council England). Once they are endorsed, they can go on to apply for leave to enter or remain within three months.

    Unlike most other routes, there is no English language or financial requirement. Those who have been endorsed just need to show that they do not fall foul of the general grounds for refusal to be granted leave on this route.

    The differences between Exceptional Talent and Global Talent

    Nothing substantially changes for those applying in the fields of digital technology and arts and culture. The only differences at this stage are purely semantic:

    - The Tech Nation (Tier 1 Exceptional Talent) application form is now called Tech National Global Talent application form.
    - Designated competent bodies are now called endorsing bodies
    - When you have to submit a CV, you are now allowed to submit a CV on three sides of A4 (as opposed to the previous two-A4 CV)


    For those applying in the fields of science and medicine, engineering and humanities, the route has been expanded. Under the existing Exceptional Talent system, researchers in academic, industry or government research institutions can apply:

    - Under the “normal” route, by showing that they met certain criteria such as being active researchers, having a PhD etc. Their respective endorsing bodies would then go on to consider whether to endorse them.
    - Under the “accelerated” route, meaning they would be automatically endorsed if:
    >They held a specific fellowship award (or held it within the 12 months directly prior to the date of application); or
    >They were appointed to eligible senior academic or research positions at UK higher education institutions or research institutes.

    All of these routes are still available, but the statement of changes has introduced an additional "fast-track" route. This covers academics, researchers, scientists, research engineers or other skilled research technology/methodology specialists who have a grant or award worth £30,000 or more, covering a minimum period of two years.

    UK Research and Innovation has a list of approved organisations, set out in Annex 2 of Appendix W, who can act as “endorsed funders” by employing or hosting the applicants. The applicant, in turn, must be directing a “unique research or innovation project” or be making “critical contributions to research”.

    Quicker route to settlement


    All applicants endorsed in the fields of science and medicine, engineering and humanities can apply for settlement after three years, regardless of whether they were granted leave under the Exceptional Promise criteria or the Exceptional Talent criteria.

    Digital technology, arts and culture applicants endorsed under the Exceptional Promise criteria still need to wait five years to qualify for settlement. Those endorsed in these fields under the Exceptional Talent criteria can also apply for indefinite leave to remain after three years.

    Absences for research purposes do not break continuity of residence

    When applying for indefinite leave to remain, applicants must usually show that they have not broken the continuity of their residence in the UK by being out of the country for more than 180 days in any 12 months. But applicants endorsed in the fields of science and medicine, engineering and humanities (and their partners, too) can discount absences “linked to their grant of leave (such as a scientist undertaking research overseas)”.

    All in all, this is positive news. The Tier 1 (Exceptional Talent) route remains, in all but name, intact, while researchers get more options to move to or stay in the UK. It remains to be seen whether that will be sufficient to attract overseas talent to the UK.

  2. #392
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    Tier 1 General восстановленную есть надежда увидеть в скором времени, что говорят?

  3. #393
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    См. что я публиковал Выше. Что-то подобное планируется.

    Цитата Сообщение от epi Посмотреть сообщение
    Tier 1 General восстановленную есть надежда увидеть в скором времени, что говорят?
    04 February 2020 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org - +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)

    >>> Free movement continues past Brexit day, but only until the 31st December 2020


    The UK is no longer a member of the European Union. Yet the Free Movement of EU nationals and their Family Members continues until at least 31 December 2020. Articles 126 and 127 of the Brexit divorce deal say:

    "There shall be a transition or implementation period, which shall… end on 31 December 2020… Unless otherwise provided in this Agreement, Union law shall be applicable to and in the United Kingdom during the transition period."

    The transition period during which free movement continues can be extended until either 31 December 2021 or 31 December 2022, but this must be agreed by 1 July 2020. The UK legislation that implements the divorce deal says that British ministers cannot agree to an extension, although that section could be repealed if the government changed its mind.

    People who move to the UK during the transition period can also apply to stay on afterwards, using the EU Settlement Scheme. This means they must be living in the UK by 31 December 2020, with the deadline for applications being 30 June 2021.

    Finally, European Temporary Leave to Remain is out the window. It was only relevant if there had been no Brexit deal, and there is a deal. The plan — a rather optimistic plan — is for a new immigration system to be up and running by 1 January 2021, under which all new European arrivals will be expected to apply for visas to live and work in the UK just as non-EU citizens do today.

    You can get professional advice on any of the above issues from the Legal Centre 24/7, via https://legalcentre.org/Initial-Consultation.html

    >>> EU case law after Brexit


    Case law, for those who are not lawyers, refers to the decisions of courts and tribunals interpreting and applying legislation and common law rules. It often clarifies the meaning or effect of legal provisions and is frequently used by lawyers to support a particular interpretation or application of the law. Such cases set precedents that become part of the law, meaning that the same issue does not need to be litigated over and over again.

    The Court of Justice of the European Union interprets and applies EU law. Its judgments are binding on UK courts (and, despite its habitual reluctance, the UK government).

    This will end on 31 December 2020. UK courts will not be bound by future Court of Justice decisions after IP completion day and will not generally be able to refer questions of EU law to that court.

    UK courts “may have regard” to Court of Justice case law handed down after the end of transition if they want. The same goes for post-transition EU legislation. But they do not have to. It is essentially up to UK judges to decide if, and to what extent, certain provisions of EU law are to apply in the UK after Brexit.

    So to know which new EU cases are relevant to UK immigration law, we will have to keep an eye on the UK case law. The EU cases will not be automatically relevant, as they are now.

    If a helpful Court of Justice case is handed down, lawyers can highlight this and seek to persuade the UK court or tribunal to follow it; in the same way that a Scottish lawyer might highlight a non-binding decision of an English court with a view to having it followed in the Scottish courts (or vice versa).

    What about Court of Justice case law from before the end of transition? This will apply when interpreting retained EU law, unless the government decides that it should not. The 2020 Act contains controversial provisions allowing the government to pass regulations dictating to courts how and when to apply retained EU case law. It remains to be seen how frequently this “broad and constitutionally significant” power will be exercised, and what areas of the law the government will target.

    Even in the absence of such regulations, the Supreme Court can depart from pre-Brexit case law if it wishes. This can be done in the same way that the Supreme Court can depart from its own case law i.e. when in the circumstances of the case “it would be right for it to do so”. For instance, when adhering to a previous decision “would produce serious anomalies” or other “plainly unsatisfactory” results; when there has been “a fundamental change in circumstances”; or when there is experience showing that the previous decision has resulted in “unforeseen serious injustice” (see Austin v Mayor and Burgesses of the London Borough of Southwark [2010] UKSC 28 at paragraphs 24 to 26 for further details). The test for departing from Court of Justice case law after Brexit will be the same.

  4. #394
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    06 February 2020 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org - +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)

    >>> Public must be told how controversial visa streaming tool works, immigration inspector says: https://www.gov.uk/government/news/i...tent=immediate

    The Home Office should release more details about a “cryptic” computer programme that scores visa applicants as high, medium and low risk, the immigration inspector has recommended.

    David Bolt says that while applicants labelled high risk are not being automatically refused visas, officials should “demystify” the tool to allay concerns about racial bias.

    Mr Bolt’s latest inspection report notes that the Home Office’s Visas and Citizenship directorate has been using a computerised streaming tool since 2015. It scores visa applicants as Red (high risk), Amber (medium risk) or Green (low risk).

    The inspector says that among the factors that influence ratings are:

    "the nationality of the applicant, all immigration harm data collected globally by Immigration Enforcement over the preceding 12 months and attributable to particular cohorts of applicants, attributes from local risk profiles (for example, the applicant’s occupation, sponsor), and any other relevant information (such as age, reason for travel, travel history)."

  5. #395
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    07 February 2020 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org - +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)

    >>> Shamima Begum loses statelessness argument against citizenship deprivation: https://www.judiciary.uk/judgments/s...me-department/

    Despite Shamima Begum was born in the UK and was a British citizen, the Court found that she was also a citizen of Bangladesh and so would not be made stateless by being stripped of her British citizenship, the Special Immigration Appeals Commission has held. The main SIAC judgment is Shamima Begum v Secretary of State for the Home Department (SC/163/2019), while there is also a brief High Court judgment refusing a linked application for judicial review: [2020] EWHC 74 (Admin).

    How many Shamima Begums are out there? Since 2002 the government has amended and re-amended nationality law to make deprivation of citizenship easier. Since 2010 there has been a sharp increase in use of this amended and expanded legal power. Some 120+ people have been deprived of the British citizenship...

  6. #396
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    12 February 2020 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org - +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)

    >>> Unlawful “curfew” amounted to false imprisonment at common law, Supreme Court confirms: https://www.bailii.org/uk/cases/UKSC/2020/4.html

    In a pointed reminder, perhaps, to those in government threatening to “update” the Human Rights Act, Lady Hale began her Supreme Court judgment in the case of R (Jalloh) v SSHD [2020] UKSC 4 thus:

    "The right to physical liberty was highly prized and protected by the common law long before the United Kingdom became party to the European Convention on Human Rights.".

    The case concerned a claim made by Mr Jalloh – his name apparently misspelled in the court below as Jollah – that, as a result of a nightly curfew between 11pm and 7am imposed under immigration powers for over two years, he had been falsely imprisoned, and was entitled to damages as a result.

    As summarised by Lady Hale:

    "This case is about the meaning of imprisonment at common law and whether it should, or should not, now be aligned with the concept of deprivation of liberty in article 5 of the ECHR.".

    The Secretary of State had argued in the Court of Appeal that a curfew amounted to voluntary compliance with a request to remain in a particular physical place.

    This argument was about as successful as the August 1991 "Putch" the USSR, and it was perhaps surprising to see the Secretary of State giving it another go.

    In response to these rehashed arguments, the Supreme Court held that

    "24. The essence of imprisonment is being made to stay in a particular place by another person. The methods which might be used to keep a person there are many and various. They could be physical barriers, such as locks and bars. They could be physical people, such as guards who would physically prevent the person leaving if he tried to do so. They could also be threats, whether of force or of legal process…

    25. In this case there is no doubt that the defendant defined the place where the claimant was to stay between the hours of 11.00 pm and 7.00 am. There was no suggestion that he could go somewhere else during those hours without the defendant’s permission.".

    Lady Hale betrayed some of the irritation on display in the courts below with the position taken by the Secretary of State:

    "The idea that the claimant was a free agent, able to come and go as he pleased, is completely unreal.".

    An interesting feature of the judgment is the court’s treatment of the argument that the concept of imprisonment in the tort of false imprisonment should now be aligned with the concept of deprivation of liberty within the meaning of Article 5 ECHR.

    In response, the Supreme Court hold that the protections under the common law in cases such as this are greater than those afforded by human rights legislation.

    Lady Hale characterised the state’s case on this point as:

    "asking this Court… not to develop the law but to make it take a retrograde step: to restrict the classic understanding of imprisonment at common law to the very different and much more nuanced concept of deprivation of liberty under the ECHR.".

    The current incumbents of Downing Street have made clear their intention – via the Conservative manifesto – to “update” the Human Rights Act. The Attorney General, Geoffrey Cox, was heard this morning at the Institute for Government putting some flesh on this idea:

    "We will update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security, and effective government.".

    What this decision indicates is that judges believe themselves able to protect the rights of individuals even without the aid of the Human Rights Act. Striding out purposefully from the pavilion to bat for the common law, the court holds that there is

    "every reason for the common law to continue to protect those whom is [sic] has protected for centuries against unlawful imprisonment.".

    In what is likely to be one of her final Supreme Court judgments before retirement, it feels somehow right that Lady Hale is still sending shots across the bows of those who wrongly believe that human rights in this country began with the European Convention.

  7. #397
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    14 February 2020 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org - +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)

    >>> Surinder Singh route still requires genuine residence abroad: https://www.bailii.org/ew/cases/EWCA/Civ/2020/98.html

    The Court of Appeal has confirmed that in order to benefit from the Surinder Singh principle, the family involved must have genuinely resided in another EU country and have created or fortified their family life there. In Kaur & Ors v Secretary of State for the Home Department [2020] EWCA Civ 98 it rejected the argument that, as a result of the Court of Justice decision in C-202/13 McCarthy No.2, anyone with a residence card from another member state is entitled to have their family come and live with them in the United Kingdom.

    The facts of this case are not attractive. Mr Singh and Mrs Kaur had previously been married but divorced in 2004. The following year Mr Singh married a Polish national, obtained residence rights in the UK and became a British citizen in 2012. In 2013 he divorced his Polish wife and re-married Mrs Kaur. The couple went to live in Bulgaria with their children for 19 days in 2017 and Mr Singh obtained a residence permit. Then the family returned to the UK.

    The couple sought to rely on the Surinder Singh principle to get residence rights for Mrs Kaur and their children. That principle allows EU citizens to obtain residence rights for family members in their home country if they move elsewhere in the EU and then return. The idea is to ensure that EU citizens are not discouraged from moving to other European countries.

    To prevent abuse, the residence abroad must be genuine and in some way create or fortify family life.

    At their initial appeal the First-tier Tribunal, perhaps unsurprisingly, found that the residence in Bulgaria was not genuine and there was no attempt to develop a family life there. Nonetheless, it allowed the appeal on the ground that, following the decision in McCarthy No.2, any EU citizen with a residence card must be permitted to enter with their family members.

    The Upper Tribunal rejected that argument and the Court of Appeal was equally dismissive, ruling that McCarthy No. 2 was concerned with the procedural requirements on entry and not the substantive rules for residence rights:

    "There is in my judgment no basis for thinking that the CJEU in McCarthy (No. 2) intended to overrule the decision in O v Minister voor Immigratie, Integratie en Asiel. It did not say so and the two cases were dealing with very different issues. O v Minister voor Immigratie, Integratie en Asiel is referred to repeatedly in the McCarthy (No. 2) judgment (see [31], [34], [36], [54] and [62]), at one point being cited as “settled case law”, while at [62] the CJEU even referred to [60] of the judgment in O v Minister voor Immigratie, Integratie en Asiel as confirming that residence permits issued on the basis of EU law declare and do not create rights. It added that “the fact remains that … the member states are, in principle, required to recognise a residence card issued under article 10 of Directive 2004/38, for the purposes of entry into their territory without a visa”, going on to say at [63] and [64] that the United Kingdom was entitled to verify the correctness of the data appearing on the Spanish residence permit in that case, although it could not impose further conditions on entry additional to those provided for by EU law."

    Having reach that conclusion it was inevitable that the appeal would be dismissed as a result of the First-tier Tribunal’s findings that the period of residence in Bulgaria was not genuine.

    >>> Can a Tier 2(General) migrant's working hours and salary be reduced despite the salary being above the relevant Code of Practice threhsold ?

    Apparently, it cannot be reduced, according to the recent confirmation from the Home Office:

    "If a migrant’s hours are reduced and hence their salary is reduced from the salary stated on the migrant's Certificate of Sponsorship, this would be a breach of the guidance, despite the migrant's earning in excess of the relevant Code of Practice".

  8. #398
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    19 February 2020 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org - +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)

    >>> EU citizens’ rights during the Brexit transition period: https://publiclawproject.org.uk/late...sition-period/

    The Public Law Project has a new briefing on EU citizens’ rights during the transition period. It says:

    "The main takeaway is that throughout the transition period, until 31 December 2020, almost all EU rules will continue to apply in the UK. The jurisdiction of the Court of Justice of the European Union will continue until the end of the transition period. The four freedom: the freedoms of movement, services, capital and goods will continue until the end of the transition period. This means the UK will remain part of the customs union and [single] market until 31 December 2020 and British citizens will continue to be able to move freely around the EU and vice versa.

    More importantly EU nationals and their family members in the UK throughout the transition period should not be asked for proof of settled or pre-settled status to access healthcare, to rent property or to gain employment until 1 January 2021. An EU, EEA or Swiss passport or national identity card, or a residence card issued by the Home Office if someone is the family member of an EU, EEA or Swiss citizen, is sufficient to show that someone is lawfully in the UK and lawfully entitled to work and rent property until the end of the transition period.".

    The Brexit transition period ends on 31 December 2020, unless extended by mutual agreement.

  9. #399
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    19 February 2020 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org - +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)

    Important Update:

    >>> Government introduces a new immigration Points Based System (PBS): https://www.gov.uk/government/news/h...gration-system

    The government has released a few more details of what it calls a “points based system” for immigration to the UK after Brexit. To balance out the impending end of free movement of workers from the European Union, it would allow employers to sponsor migrant workers at lower salaries and skill levels than they can today, but with almost no provision for visas for people working in jobs that do not require A-level qualifications or higher.

    Today’s proposals are solely to do with economic migration: family migration, asylum and students are unaffected. They are — very optimistically — supposed to come into effect from January 2021.

    Skilled workers

    The system would introduce a limited element of flexibility in sponsored work visas (currently branded Tier 2, although the language of “tiers” is virtually absent from the policy paper).

    Sponsored workers would still need a job offer, English language skills and to be working at a certain skill level. That skill level would be reduced level 6 (degree) to level 3 (A-level), as was the case under the December 2018 white paper.

    There will still be a minimum salary required for a work visa. The headline salary threshold has been reduced to £25,600, in line with the Migration Advisory Committee’s recent recommendation. But it will no longer be the absolute minimum: some workers earning between £20,480 and £25,600 would still be able to get a visa, but only if they are highly qualified or working in shortage jobs.

    So in effect, the minimum salary for a UK work visa will be £20,480 for people working in jobs on the Shortage Occupation List or who have PhDs in science, technology, engineering or mathematics. It will be £23,040 for people with a PhD outside these subjects but nevertheless “relevant to the job”. For people with none of these characteristics, the minimum will be the headline £25,600.

    What of the May-era white paper proposal to scrap the annual cap on these work visas? That does reappear, although the word used is “suspend” rather than “abolish”. The Resident Labour Market Test will also go.

    The paper adds:

    "...here will continue to be different arrangements for a small number of occupations where the salary threshold will be based on published pay scales. We will set the requirements for new entrants 30% lower than the rate for experienced workers in any occupation and only use the base salary (and not the allowances or pension contributions) to determine whether the salary threshold is met."

    Lower-skilled workers

    There will be no visa route for “lower-skilled” workers. This is a change from the 2018 white paper, which had grudgingly proposed a system of 12-month work visas for people who do not meet the skills threshold outlined above. This would have been “for a transitional period after the UK’s exit from the EU”.

    The Johnson government no longer considers this necessary. This is primarily an ideological decision:

    "UK businesses will need to adapt and adjust to the end of free movement, and we will not seek to recreate the outcomes from free movement within the points-based system. As such, it is important that employers move away from a reliance on the UK’s immigration system as an alternative to investment in staff retention, productivity, and wider investment in technology and automation."

    In the meantime, businesses are told to make do with the existing pool of lower-skilled workers. This includes the millions of existing EU residents who have secured their right to remain post-Brexit under the EU Settlement Scheme. They will “provide employers with flexibility to meet labour market demands”.

    The paper also says that “we have committed to expanding the pilot scheme for seasonal workers in agriculture which will be quadrupled in size to 10,000 places”. So there will be visas for strawberry pickers, but not for care home workers.

    Highly skilled workers

    The Migration Advisory Committee had also said that the Tier 1 (Exceptional Talent) visa could be made points-based. Unsurprisingly, since the government introduced unrelated reforms to Exceptional Talent just days later, this recommendation is not followed.

    Instead, the paper proposes adding a new “unsponsored route” for the highly skilled alongside Exceptional Talent, with eligibility determined by personal characteristics.

    "Example characteristics for which points could be awarded include academic qualifications, age and relevant work experience."

    This would be much more Australia-style.

    But in light of past experience — the MAC pointed out that the Home Office itself had come to loathe points-based visas like Tier 1 (General) — the paper says that “this route will take longer to implement”. It adds that “we want to learn from previous experience of similar schemes in the UK that have highlighted certain challenges. The scheme will need to be designed to make sure it adds value and does not undermine the skilled worker route or create opportunities for abuse”. It may be doubted whether it will ever come to pass.

    What next?

    The most telling line of this paper is that “The Home Office will publish further detail on the points-based system in due course”. Further detail is practically overdue already: these broad brush strokes must now be translated into detailed Immigration Rules and procedures in time for January 2021.

    The Rules themselves are due for a general rewrite in line with Law Commission recommendations; the policy paper says that the government will be responding to these recommendations “shortly”.

  10. #400
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    20 February 2020 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org - +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)

    Court of Appeal lowers the bar for refusing tax discrepancy cases: https://www.bailii.org/ew/cases/EWCA/Civ/2020/157.html

    In the case of Tahir Yaseen v Secretary of State for the Home Department [2020] EWCA Civ 157, the Court of Appeal has reiterated that refusals on the ground of character or conduct require a balancing exercise, taking into account both positive and negative considerations.

    The appellant, Mr Yaseen, made an application for indefinite leave to remain on the basis of his ten-year lawful residence in the UK. His application was refused on character grounds, due to a tax issue.

    There are, however, two main differences between this case and others we have seen so far:

    - Mr Yaseen did not declare different incomes to HMRC and the Home Office. Rather, he did not submit three years worth of tax returns at all until after he submitted his application for indefinite leave and was called for an interview by the Home Office.
    - The Home Office refused the application relying not only on paragraph 322(5), but also on paragraph 276B(ii), which applies to indefinite leave to remain on the ground of ten years’ lawful residence in the UK.

    Paragraph 276B(ii) ended up being the “winning” paragraph from the Home Office point of view. It reads:

    "276B. The requirements to be met by an applicant for indefinite leave to remain on the ground of long residence… are that:



    (ii) having regard to the public interest there are no reasons why it would be undesirable for him to be given indefinite leave to remain on the ground of long residence, taking into account his:



    (c) personal history, including character, conduct…

    Paragraph 322(5) says:

    Grounds on which leave to remain and variation of leave to enter or remain in the United Kingdom should normally be refused…

    (5) the undesirability of permitting the person to remain… in the light of his conduct… character or dissociations…

    It is difficult to see the difference between the two. But the Court of Appeal agreed with the lower tribunals and the Secretary of State that a refusal under paragraph 322(5) requires a finding of dishonesty, while a refusal under paragraph 276B doesn’t. Similarly, it agreed that the case law on tax discrepancies does not apply to refusals under paragraph 276B.

    The court found, however, that before a refusal under paragraph 276B can be made, the decision-maker should conduct a balancing exercise taking into account both positive and negative factors relating to the applicant’s character. It decided that the First-tier Tribunal had failed to do so, and therefore remitted the case for the tribunal to reconsider.

    As mentioned before, it is difficult to follow the logic behind setting two different tests for paragraphs which read so much alike. All it does, it seems, is lower the bar for the Home Office. Officials can now rely on paragraph 276B instead of 322(5), without having to make a finding of dishonesty.

    People applying under the long residence rules who know there may be issues with their taxes would be well advised to submit “counter” evidence of their good character.

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