Article 8 ECHR changed!

Article 8 ECHR changes: New immigration categories based on private and family life

On 9th July 2012, changes to the Immigration Rules came into force. Some of these new Rules will make it easier for people who want to stay in the UK due to their private or family life here.

Long residence

Rule 276ADE enables you to apply for leave to remain based on your length of residence if you meet one of the following requirements:

• You have lived in the UK for at least 20 years; or

• You are between 18 and 25 and you have lived in the UK for at least half of your life; or

• You are an adult who has lived in the UK for less than 20 years but you do not have any social, cultural or family ties to your home country; or;

• You are a child under 18 and you have lived in the UK for at least 7 years.

If your application is successful then you will be granted 2 and a half years' leave to remain in the UK. You will have to apply to extend this for a further 2 and a half years at a time. Once you have been in the UK for 10 years in this category, you can apply for indefinite leave to remain.

Family life with your child

If you do not meet the other requirements of the Immigration Rules then you may be able to apply for leave to remain based on your family life with your child or children under new provisions in the Immigration Rules.

You will need to show that you meet the following requirements:

• You have a genuine and subsisting parental relationship with a child under 18; and

• The child is in the UK; and

• The child is British or has lived in the UK for at least 7 years; and

• It would not be reasonable to expect the child to leave the UK; and

• You have not been sentenced to 12 months or more in prison for a criminal offence; and

• The Home Office does not consider that your presence in the UK would be contrary to the public good; and

• You have not previously failed to provide information to the Home Office or to attend for an interview or medical examination that they required of you.

If your application is successful then you will be granted 2 and a half years' leave to remain and you will need to apply to extend it as above.

Family life with your spouse or partner

If you do not meet all the requirements for leave to remain as a spouse or partner, then you may still be able to apply for leave to remain based on your family life. The Home Office have now created a category in the Immigration Rules to enable you to do this.

You will need to show that you meet the following requirements:

• You are in a genuine relationship with someone who is British or who has indefinite leave to remain, refugee status or humanitarian protection; and

• There are 'insurmountable obstacles' to family life with your spouse or partner continuing outside the UK; and

• You have not been sentenced to 12 months or more in prison for a criminal offence; and

• The Home Office does not consider that your presence in the UK would be contrary to the public good; and

• You have not previously failed to provide information to the Home Office or to attend for an interview or medical examination that they required of you.

(Please note that the courts have previously said that a requirement of 'insurmountable obstacles' breaches Article 8 of the European Convention on Human Rights and that the correct test should be whether it is reasonable for your spouse or partner to live outside the UK. This new requirement of the Immigration Rules is therefore likely to be challengeable in court.)

If your application is successful then you will be granted 2 and a half years' leave to remain and you will need to apply to extend it as above.

Deportation

If you have been convicted of a criminal offence and sentenced to at least 12 months in prison then you are automatically liable to be deported. However, you can avoid being deported if you can show that requiring you to leave the UK would breach your right to respect for private and family life under Article 8.

The new Immigration Rules say that in a deportation case you may be able to stay in the UK if you meet one of the following requirements:

1. Relationship with a child

• You have not been sentenced to 4 years or more in prison; and

• You have a genuine and subsisting parental relationship with a child under 18; and

• The child is in the UK; and

• The child is British or has lived in the UK for at least 7 years; and

• There are no other family members who could care for the child in the UK.

AND/OR

2. Relationship with a spouse or partner

• You have not been sentenced to 4 years or more in prison; and

• You are in a genuine relationship with someone who is British or has indefinite leave to remain, refugee status or humanitarian protection; and

• You have lived in the UK legally for at least 15 years before the decision to deport you (not including any time that you have spent in prison); and

• There are insurmountable obstacles to family life with your spouse or partner continuing outside the UK.

AND/OR

3. Long residence in the UK

• You have not been sentenced to 4 years or more in prison; and

• You have lived in the UK for at least 20 years before the decision to deport you and you have no social, cultural or family ties to your home country; OR

• You are under 25, you have spent at least half your life in the UK before the decision to deport you and you have no social, cultural or family ties to your home country.

OR

4. Exceptional circumstances

• You do not fall into any of the above categories but there are 'exceptional circumstances' in your case that mean requiring you to leave the UK would be disproportionate.

Changes to Immigration Rules for Point based Scheme

Changes to the Immigration Rules following the Supreme Court decision in Alvi

In R (on the application of Alvi) v Secretary of State for the Home Department [2012] UKSC 33 the Supreme Court held that the UK Border Agency cannot refuse immigration applications purely because of Policy Guidance that is not contained in the Immigration Rules.

The Immigration Rules set out the requirements that people have to meet in order to be granted a visa or further leave to remain. They have to be laid before Parliament before coming into force, which gives them legal authority. However, the UKBA has often issued Policy Guidance and other documents, particularly in relation to the Points Based System, that claims to introduce additional requirements that are not contained in the Immigration Rules. The Supreme Court has now said that the Policy Guidance does not have the status of law. This means that it would be wrong to refuse someone who did not meet a requirement in the Policy Guidance unless that requirement was also contained in the Immigration Rules.

For example, the applicant in Alvi had been refused leave to remain as a Tier 2 (General) Migrant because his job was not at the correct level in the UKBA's Codes of Practice. However, the Supreme Court said that he should not have been refused for this reason because the Codes of Practice were not in the Immigration Rules and therefore they were not part of the law.

This confirms the judgment of the Court of Appeal in Secretary of State for the Home Department v Pankina and others [2010] EWCA Civ 719.

In response to this, new changes have been made to the Immigration Rules. The UKBA have attempted to put all the requirements of the Policy Guidance and other documents such as the Codes of Practice into the Immigration Rules so that they are now able to refuse applications that do not comply with them. The changes mainly affect applications under the Points Based System and applications by family members.

This means that the Immigration Rules are now a lot more complicated, with several new appendices. It would therefore be very easy to miss some of the strict new requirements.

New UK Student visa Pilot scheme launched

Service launched for universities sponsoring foreign students

A new pilot scheme offering universities a range of specialist immigration services has been launched, recognising the importance of universities within the higher education sector.

Following feedback from the sector, universities will now have a dedicated point of contact within the UK Border Agency as well as access to expert advice and information.

The scheme has been tailored for universities, and the UK Border Agency has worked closely with Universities UK in developing the service, which includes:

1.a dedicated account manager,
2.training events for universities on topics such as compliance and how to maintain highly trusted sponsor status,
3.access to a range of events each year,
the ability to quickly check whether or not a potential student is eligible to come to the UK, and
4.receipt of a monthly report outlining how many overseas students have taken up the university’s offer to sponsor their study in the UK.
5.If the pilot is successful then the UK Border Agency will consider how the service might benefit other education institutions that sponsor international students

Reducing immigration comes at significant economic cost

Reducing immigration comes at significant economic cost

Think tank IPPR has commented on the latest statistics from the Office for National Statistics, which show that immigration to the UK was 566,000 in 2011 and emigration was 350,000, giving a net migration figure (the difference between immigration and emigration) of 216,000.

Sarah Mulley, Associate Director at IPPR, said:

“Migration statistics published today demonstrate again, as they do every quarter, the folly of the Government's target to reduce net migration to less than 100,000 a year. The figures do suggest a small decline in net migration to the UK, down from 252,000 in 2010, though the fall is not statistically significant. The combination of recession and immigration policy changes may be starting to have an impact but more than a third of the fall is due to a rise in emigration.

“The statistics show that the Government remains a long way from its goal. More up-to-date visa data also released today suggests that further declines in immigration are on their way – student visas issued in the year to June 2012 were down 21% compared to the previous twelve months, and the next quarter’s data will likely show further falls. But even reductions on this scale seem unlikely to be enough to get net migration under 100,000, not least because student migration is mostly short-term, which means that reduced immigration now leads to reduced emigration later, drastically reducing the impact on net migration after the first year or two.

“The more immediate problem though, is that the Government is making progress towards its target only at significant economic cost: reducing the numbers of skilled migrants who come to the UK to work hard, pay taxes, help businesses grow, and staff our public services, as well as fee-paying students who support our colleges and universities and provide jobs for thousands.”

Time limit to lodge an Appeal towards the refused decision

Time limits in immigration appeals

(1) Lodging notice of appeal to the First-tier Tribunal against a decision of the UKBA

Appellant in UK and not in immigration detention: must be received by the First-Tier Tribunal within 12 working days (2+10) after the date on which the UKBA's decision was sent out (or 5 working days if it was served personally or electronically).

Appellant in UK and in immigration detention: must be received by the First-tier Tribunal within 7 working days (2+5) after the date on which the UKBA's decision was sent out (or 5 working days if it was served personally or electronically).

Appellant outside UK: must be received by the First-tier Tribunal within 28 days (not working days) after the date on which the UKBA's decision was served.

(2) Lodging application for permission to appeal against a decision of the First-tier Tribunal

Appellant in UK: must be received by the First-tier Tribunal within 7 working days (2+5) after the date on which the First-tier Tribunal's  determination was sent out (or 5 working days if served personally or electronically)

Fast track: must be received by the First-tier Tribunal within 4 working days (2+2) after the date on which the First-tier Tribunal's determination was sent out (or 2 working days if served personally or electronically)

Appellant outside UK: must be received by the First-tier Tribunal within 56 days (not working days) (28+28) after the date on which the First-tier Tribunal's determination was sent out (or 28 days if served personally or electronically)

(3) Lodging renewed application to the Upper Tribunal for permission to appeal against a decision of the First-tier Tribunal

Appellant in UK: must be received by the Upper Tribunal within 7 working days (2+5) after the date on which the First-tier Tribunal's refusal of permission was sent out (or 5 working days if notice sent electronically or delivered personally)

Fast Track: must be received by the Upper Tribunal within 4 working days (2+2) after the date on which the First-tier Tribunal's refusal of permission was sent out (or 2 working days if notice sent electronically or delivered personally)

Appellant outside UK: must be received by the Upper Tribunal within 56 days (not working days) (28+28) from the date on which notice of First-tier Tribunal's refusal of permission was sent out (or 28 days (not working days) if notice sent electronically or delivered personally)

(4) Lodging application for permission to apply for judicial review of a decision of the Upper Tribunal refusing permission to appeal

All cases: must be received promptly, and in any case within 3 months of the date of the decision

(5) Lodging application for permission to appeal to the Court of Appeal against a substantive decision of the Upper Tribunal

Appellant in UK and not in immigration detention: must be received by the Upper Tribunal within 12 working days (2+10) from the date on which the Upper Tribunal's determination was sent out

Appellant in UK and in immigration detention: must be received by the Upper Tribunal within 7 working days (2+5) from the date on which the Upper Tribunal's determination was sent out

Appellant outside UK: must be received by the Upper Tribunal within 38 days (not working days) (28+10) from the date on which the Upper Tribuanl's  determination was sent out

(6) Lodging renewed application for permission to appeal to the Court of Appeal directly to the Court of Appeal

Appellant in UK: must be received by the Court of Appeal within 2 working days from date on which the Upper Tribunal's refusal of permission was sent out PLUS 14 days (2+14)

Appellant outside UK: must be received by the Court of Appeal within 42 days from the date on which the Upper Tribunal's refusal of permission was sent out (28+14)