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All posts by Amir

Tier 2 licence: Preparing for a Home Office visit (pt.1)

Part 1: Sponsorship Duties

Record Keeping 

As a licenced sponsor, you are obligated to comply with the Sponsorship Duties issued by the Home Office. A full list of the duties can be found in Tier 2 and 5 Guidance for Sponsors. 

A full list of all documents required to be kept on file for each sponsored worker can be found in Appendix D. The below table summarises the most common types and should not be read alone as a reference to Appendix D is required.

It is highly recommended that you prepare files for ALL WORKERS based on the information below (Although there will be no BRP card with British nationals). You still should have a copy of their British passport.

The information need not be held together, many employers record absences on a central database, rather than on a personnel file, but the information must be readily accessible. 

Employee ID and information

You will be asked to provide;

  • A copy of each sponsored worker’s passport
    • This can be a photocopied or electronic copy of the relevant pages showing
      • ID biometric page
      • Leave stamp including their entry to the UK stamp
      • Details of their immigration status
  • Migrant’s Biometrics Residence Permit (BRP)
    • A copy of the front and back of the card must be kept on file.
  • Copy of National Insurance (NI) Number
    • This can be a copy of;
      • Their NI card or a notification letter from HMRC
      • Their wage slips
      • Their P45
      • The Real-Time Information (RTI) starter checklist (formerly the P46)
      • Their P60
      • The P11 free of tax pay (FOT): employers declaration sent to HMRC 
      • The RTI Employment Payment Summary (EPS) sent online to HMRC 
      • The FTI Full Payment Submission (FPS) sent online to HMRC
    • Each sponsored worker’s contact details
      • You will need to show the employee’s
        • Residential Address in the UK
        • Landline/ Mobile Phone number
        • Email address
        • These details should be kept up to date, and history should be kept
      • Details of children under 18
        • A copy of the letter provided by the migrant child’s parents or legal guardian consenting to the arrangements that have been made. 
        • Disclosure and Barring Service (DBS)
          • A copy of the migrants DBS check where required for the role undertaken by the sponsored migrant. 
        • Record of the Employee’s Absences
          • This may be kept either electronically or manually and include; 
            • Annual leave / Paternity / Maternity 
            • Sickness
            • Unpaid leave

Reporting duties

Reports can be made on the Sponsorship Management System by a Level 1 User. 

Sponsor Change of Circumstances

The level 1 User will be required to report the following within 10 working days.

  • The Change of Address
  • Change of Authorising Officer
  • Change of Key Personnel contact details

Organisation Change of Circumstances

The level 1 User will be required to report the following within 20 working days.

  • Takeovers 
  • Merger/De-Merger 
  • Stop Trading 
  • Administration 
  • Change the nature of business 

 Migrant Attendance

The level 1 User will be required to report the following within 10 working days.

  • Failure to attend the first date of employment
  • Failure to attend work for 10 working days in a row without communication to their Sponsor.

Migrant Attendance

The level 1 User will be required to report the following within 10 working days.

  • Termination of migrant’s sponsorship before the end date on their assigned CoS (Certificate of Sponsorship)
  • Change of salary 
  • Change of job role within the same occupation code 
  • Where a migrant’s employment is affected by TUPE

HR PROCESSES 

The Compliance Officer may wish to attend a visit either pre-licence grant or post-license grant to ensure that you have sufficient processes in place that enable you to comply fully with your Sponsorship Duties (outlined above). 

If you believe that your current HR processes are sufficient, then we advise you to have a look at each of the duties so that you can assess whether your current process can comply. 

You must monitor the end visa date for your employees

We encourage you to employ automated visa expiry reminder for each migrant employee. This can be set up via Microsoft Outlook (or equivalent) as a calendar reminder. We advise that this is set at 3 months before the expiry date of each Migrant employee. 

Your admin and HR have good file keeping

Make sure that there are paper and electronic personnel files. This is to evidence that you have efficient and effective processes in place to manage important dates for Migrant personnel. This is only relevant for current staff. 

NOTE: where your HR is handled externally by a third party, we advise that back-up files are accessible within the sponsored office. They should be accessible by the Authorising Officer upon request at any time.

To learn more and prepare for the Home Office

Call 020 7118 4546 or email: info@westkin.com  

UK Spouse visas: divorce and polygamous relationships

This blog forms part of a series of blogs on spouse visas. In particular, this blog looks at relationships that have permanently broken down as well as polygamous relationships.

Do you meet the requirements?

Appendix FM of the Immigration Rules have eligibility requirements which must be met by every applicant. If your client, or if you as the Applicant or Sponsor, has previously been married or are still married to a person other than the sponsor or applicant then you must consider whether this eligibility requirement is met:

E-ECP.2.9. (i) Any previous relationship of the applicant or their partner must have broken down permanently unless it is a relationship which falls within paragraph 278(i) of these Rules; and

(ii) If the applicant is a fiancé(e) or proposed civil partner, neither the applicant nor their partner can be married to, or in a civil partnership with, another person at the date of application.

What evidence do I need to provide?

It is important that anyone that has previously been in a marriage or civil partnership provides evidence that marriage or civil partnership has apparently broken down. Details of the evidence that needs to be provided are contained within FM-SE of the Immigration Rules.

FM-SE states:

  1. A divorce in the United Kingdom must be evidenced by a decree absolute from a civil court.
  2. A civil partnership in the United Kingdom must be evidenced by a civil partnership certificate.
  3. The dissolution of a civil partnership in the UK must be evidenced by a final order of civil partnership dissolution from a civil court.
  4. Marriages, civil partnerships or evidence of divorce or dissolution from outside the UK must be evidenced by a reasonable equivalent to the evidence detailed in paragraphs 22 to 25, valid under the law in force in the relevant country.

These are mandatory documents where an applicant’s spouse has previously been in a relationship. Therefore, a failure to provide these documents is likely to mean that the application is refused.

What if my previous marriage isn’t dissolved?

The Home Office guidance entitled family life as a partner or as a parent and where there are exceptional circumstances.

It states that where a marriage or civil partnership has not been legally dissolved, however, they can demonstrate that the previous relationship has permanently broken down, then provided the criteria for partner is met at GEN.1.2 of the Immigration Rules, that is that they have been living in a relationship akin to a marriage for at least two years with the Applicant or Sponsor, then it may be possible to make an application under the Rules that govern partners rather than spouses. This is likely to be in very limited circumstances, and it would be best practice to wait where possible for the legal dissolution of the marriage prior to application. The application would be much stronger if the dissolution of the previous marriage can be properly evidenced.

What if I am in a polygamous relationship?

It is also possible under the Immigration Rules for persons in a polygamous relationship to come to the UK. In these circumstances, it is not necessary to show that the other relationships have broken down. However, it is not possible for a person to bring more than one spouse into the UK whilst their polygamous marriages continue to exist. So, a sponsor who sponsors their spouse to come to the UK cannot then sponsor the second spouse into the UK. Notably, the order in which the marriages were conducted outside the UK is not relevant, if one spouse has been granted entry clearance to the UK, then further applications for other spouses will not meet the requirements of the Immigration Rules. There are other requirements in respect of polygamous marriages, notably that the marriage must be lawfully conducted in the country where it took place.

Are you hoping to bring a loved one over?

Westkin Associates has a specialist family law team which has supported close to 3,000 spouses visa applications.

For expert legal consultation call: 020 7118 4546 or email at: info@westkin.com

Asylum claims due to fear of persecution in Somalia

Somali citizens asylum applications in the UK have significantly reduced in more recent years; however, some persons are still at real risk of persecution in Somalia. In order to establish an asylum claim, a person must show that they have a well-founded fear of persecution for one of a number of reasons. Those reasons are their: race, religion, ethnicity, membership of a particular social group or their political opinion.

Clan membership claims

Somalia is made up of a number of different clans. The majority of clans are Hawiye, Darood, Dir or Isaaq. Digil and Mirifle are neither majority clan nor minority clan. Minority clans often come from very specific regions, such as the coastal communities of the Benadir region which consist of the Reer Hamar, Reer Brava and the Bajuni

In MOJ & Ors (Return to Mogadishu) Somalia CG [2014] UKUT 00442 (IAC)

The tribunal decided that membership of a majority clan would not put a person at risk of persecution or serious harm based on their clan membership. The tribunal also held that in Mogadishu there was no clan-based discriminatory treatment. The tribunal in MOJ only considered the position in respect of Mogadishu and not in respect of the rest of Somalia. In Mogadishu, the tribunal found that only if there was no clan or familial support available in Mogadishu and the asylum applicant was not in receipt of funds from overseas, would there be a real risk of the standard of living falling below that which is acceptable in humanitarian protection terms.

In South and Central Somalia, membership of a minority group can put a person more at risk, particularly in respect of obtaining access to employment, public services, and so on. Where members of minority groups become internally displaced within Somalia, they can be particularly vulnerable and may face discrimination and other human rights abuses which could amount to persecution.  

In some circumstances, a person from a minority clan could seek protection from a majority clan; however, the person claiming asylum will be responsible for proving that they cannot seek protection within Somalia. In respect of internal relocation, it is the view of the tribunal that both majority clan or minority clan members may be able to internally relocate to Mogadishu if their home area is not safe. It will be for the asylum claimant to show that there is no clan or family support in Mogadishu and that they would not be receiving remittances from abroad and therefore would have no prospect of securing access to funds on relocation and would face serious harm or persecution because of this.

Single women and female heads of households, who do not have male protection, particularly those originating from minority clans would not be able to relocate, and the Home Office and the tribunal should recognise that. 

Sexual and gender-based claims

Sexual and gender-based violence is problematic throughout Somalia, and a woman who does not have the support of family friends or clan may well face risk on return. A woman who fears female genital mutilation Somalia may face a real risk of harm if she is 39 years or under and her parents are unopposed to female genital mutilation. In gender-based violence claims, women are unlikely to be able to obtain protection from the state.

Fear of Al Shabaab

Asylum claimants living in Al Shabaab -controlled areas could be at risk of persecution but would not generally be at risk. Some humanitarian aid workers, NGO employees and journalists, for example, could be at risk as well as government officials, employees and members of the security forces however civilians are not considered targets of Shabaab and should not be at risk.

To speak to our lawyers, call 020 7118 4546 or email info@westkin.com

Remember to apply for the EU Settlement Scheme!

Brexit is going to happen. Boris Johnson has promised to the British public to take the United Kingdom out of the European by the end of January 2020, whilst the exact date is still up for debate, as there are concerns over the deal which will be struck, Brexit is going to happen.

How will Brexit impact immigration?

With Britain leaving the EU, freedom of movement with the EU will also end, thus putting the over 3 million EU nationals residing in the UK at risk of enforced disappearance.

The Tory landslide in the December 2019 election, has led to a drastic escalation in the number of EU applications for the EU Settlement Scheme as EU nationals residing in the UK are keen to secure their status.

The government has assured the public that there will be a robust process to deal with these applications which will only take days, but many applicants have been forced to wait months due to prolonged delays.

This delay has led to cases of EU nationals being unable to open bank accounts, rent property, or get jobs. This is because the uncertainty and confusion over the system have led banks, landlords and employers to feel uneasy as to how they should conduct their business. The government must provide clarity on these issues and take immediate action to reassure banks, landlords and employers of EEA nationals rights.

How to secure your status?

EU nationals wishing to continue residing in the UK must secure their status by the end of December 2020 when the transitional period will end, and free movement will stop.

The government has stated that they will be rolling out the European Temporary Leave to Remain (Euro TLR) which will grant EU citizens in the UK three years (36 months) further leave.

In order for EU nationals to be eligible for settled status in the UK, they must secure 5 years of continuous residence in the UK.

Is it worth becoming a British citizen?

Once you have held settled status for over a year, you will be eligible to apply for naturalisation, which will lead to British citizenship.

You will also need to show sufficient proficiency in the English language and be able to pass the ‘Life in the UK’ test.

This test can be quite difficult as it consists of questions of British culture, history, politics, sports and royalty. It has even been shown that most British people cannot pass the test without previously studying for it!

Securing British citizenship is useful as it will free you from all immigration controls. Currently, if you hold settled status, you will be able to reside in the UK indefinitely; however, you may lose this status if you stay out of the UK for over 5 years.

What may prevent you from naturalising?

One thing you will need to be wary of is the “Good character” requirement. This examines any issues in your immigration history as well as any criminal records.

If it is deemed in the public interest, the Home Office may deny settled status to an applicant, and they are also permitted to deport those who are deemed to be opposed to Britain’s public interest.

Westkin Associates has a successful track record of appealing decisions by the Home Office and is one of the few firms permitted to undertake a judicial review which can result in a successful application by highlighting mistakes by the Home Office.

Hundreds of successful EEA cases

Westkin Associates has successfully helped hundreds of European Economic Area (EEA) nationals to secure their status.

To learn more about services call our offices at 020 7118 4546 or email info@westkin.com

The public interest in deportation

As any immigration lawyer or immigration adviser who undertakes deportation cases will tell you, the chance of success in deportation appeals, that is appeals relating to foreign national criminals, has dramatically reduced in recent years. Part of the reason for this considerable push towards deportation of foreign offenders comes from the greater focus on the public interest in deportation. 

How have the rules changed?

In 2012 the Immigration Rules were amended to create a framework which Home Office caseworkers and the tribunal applied to potential deportees. This framework is available at 398 and 399 of the Immigration Rules and applies different rules for those sentenced to between 12 months and four years and those sentenced to over four years imprisonment.

Considering the public interest in deportation cases

On 28th July 2014, the Nationality Immigration and Asylum Act 2002 was amended to add section 117 and, as it relates to foreign national criminals, 117C. This created a statutory framework which bound immigration judges and ensured that weight was put on the public interest in deporting foreign national criminals. This statutorily requires courts and tribunals to have regard to Parliament’s formation of the public interest when determining the proportionality question in a Razgar style assessment under Article 8 ECHR.

Whether the weight to be attached to the public interest is fixed or is variable has been considered in a number of cases over the years since its introduction. Historically (dating back to around 2013! So not that historic!) it has been considered that the weight to be afforded to the public interest is static and immovable. However, the recently promulgated case of Akinyemi v SSHD (No 2) [2019] EWCA Civ 2098 states that the public interest in deportation can be reduced, stating it is not a ‘fixed interest’.

Case law history on deportations

The court relied on Hesham Ali [2016] UKSC 60 stating that the strength of the public interest in favour of deportation must depend on matters such as the nature and seriousness of the crime, risk of reoffending, successive rehabilitation and so on. It was the case in Akinyemi that the appellant had been born in the UK and lived his entire life in the UK. He was born in 1983 and narrowly missed being automatically British on birth, as this ceased with the enacting of the British Nationality Act 1981 in January 1983. The appellant had been entitled to apply for British Citizenship for most of his life but had not done so. Furthermore, in respect of the appellant, he had no ties to Nigeria, no support network there and had never visited the country. In respect of his offending, this had decreased in severity, and he had not offended for some years.

Sir Ernest Ryder in his concluding findings in Akinyemi adds a reminder to the tribunal that in assessing whether the appellant is able to integrate into the country of return, the judge must take into account Kamara v Secretary of State for the Home Department [2016] EWCA Civ 813 in which Sales LJ stated:  

“The idea of “integration” calls for a broad evaluative judgment to be made as to whether the individual will be enough of an insider in terms of understanding how life in the society in that other country is carried on and a capacity to participate in it, so as to have a reasonable opportunity to be accepted there, to be able to operate on a day-to-day basis in that society and to build up within a reasonable time a variety of human relationships to give substance to the individual’s private or family life.”

The case of Akinyemi seems to provide for a more sensible approach to considering whether a deportation decision is proportionate.

For more information on the deportation, follow our blog or join our mailing list through the banner at the top of this page.

Our immigration lawyers have a long history of challenging wrongful deportation or orders. To get the best legal advice on this matter call 020 7118 4546 or email info@westkin.com

How to pass the ‘Life in the UK’ visa test?

‘Sufficient knowledge of life in the United Kingdom’

The above phrase is a feature of most of the Immigration Rules in relation to settlement. It is preceded by ‘sufficient knowledge of the English language’. Sufficient knowledge of life in the United Kingdom is achieved by undertaking the ‘Life in the UK’ test.

What does the test consist of?

The ‘Life in the UK’ test is a 45-minute test consisting of 24 questions based on the history, political makeup, social matters, royalty, literature and aspects parts of British life and culture. It is noteworthy that most British people that attempt this test without study cannot pass it; therefore, any applicant that must undertake this test should study thoroughly for it.

What will you get after the test?

There have been some recent changes to this test which mean that those that take the test are no longer issued with a pass certificate but are issued with a number which can then be used on any future application. It will obviously be imperative that this an applicant correctly enters this number on the application form. 

What should you bring?

In my experience as an immigration caseworker, one of the main stumbling blocks in respect of this test is the Kafkaesque approach to entry to the test centre. Applicants must attend the test centre with a photographic identification document. This identification document must be either a valid passport or travel document, biometric residence permit or a biometric residence card. Applicants will be refused entry if their name, as recorded on the booking, differs in any way from the identification document. It is therefore important to record any middle names exactly as they are on the identification document.

The ‘Life in the UK’ test costs £50 to book and if entry is refused because the correct identity document is not brought, or the names do not match.

What will Westkin Associates do for you?

If you have to take the ‘Life in the UK’ test, contact our immigration solicitors and we will help you with our three-step process.  

  1. Booking:Westkin Associates books the exams on behalf of our clients completely for free and ensures all of the forms are filled in, saving them from the hassle.
  2. Preparation:It is important that you study for the ‘Life in the UK’ test. Westkin Associates is able to put you in contact with suitable course advisors as well as resource material to help you prepare for the exam.
  3. Practice: There are a number of mock tests available on the Internet but if you are confused by the sheer volume of material contact our lawyers, and we will find you the best material to prepare you for the course.

Questions vary in difficulty from ‘What is the capital of the UK?’ to ‘What type of government was formed after the General Election of 2010?’ The options being ‘National, All-party, One-Party or coalition’. This would be particularly tricky for a person that arrived in 2015 after that government was no longer in power. This, of course, would be the likely scenario as most people apply for indefinite leave to remain after five years in the UK the test would have to be taken in advance of the application.

It’s worth noting that the ‘Life in the UK’ test certificates do not expire as English test certificates do, so you can take your test at any time after coming to the UK. There are no ‘Life in the UK’ test centres abroad.

Start your life in the UK?

Westkin Associates recognises that the process of preparing for a ‘Life in the UK’ test can be quite daunting, but our lawyers have specialised in supporting foreign nationals through this process. We have supported hundreds of successful naturalisation applications and made the transition as smooth as possible. 

To speak to our lawyers, call 020 7118 4546 or email info@westkin.com

New Iraq Country Guidance

New country guidance been issued on Iraq and is, as with all country guidance cases, essential reading for persons with Iraqi clients. Cases concerning Iraqi and Afghani appellant make up the majority of asylum cases within the Tribunal and therefore, certainly for those practising in the legal aid field, this case will be essential reading in its entirety. 

It’s been the case in the Tribunal of late that many appellant representatives have conceded that there has been a change of circumstances in Iraq and this country guidance recognises that change. The country guidance replaces the previous country guidance which includes but is not limited to AA (Article 15(c)) Iraq CG [2015] UKUT 544 (IAC); BA (Returns to Baghdad) Iraq CG [2017] UKUT 18 (IAC); and AAH (Iraqi Kurds – internal relocation) Iraq CG [2018] UKUT 212 (IAC).

Where is your client from?

The new country guidance finds that civilians, generally, are not threatened by violence to the level which engages Article 15(c) of the Council Directive 2004/83/EC (the Qualification Directive). The level of violence varies quite dramatically between areas, and it is important as an immigration adviser that you identify the area that your client is from on a map of Iraq. The country guidance case indicates that civilians that might be returned to a small mountainous area north of Baiji in the Salah Al-Din region, which ISIL still controls would be at risk to a degree which meets the Article 15(c) threshold.

Risk factors under Article 3 and humanitarian claims

Although the area in which the Article 15(c) threshold is met is relatively small, the Tribunal does find that there may be a risk to others which could breach of Article 3 ECHR or could result in a grant of humanitarian protection. In particular, the Tribunal notes that there is considerable violence in other parts of Iraq, and certain characteristics could result in there being an Article 3 breach. For example, the Tribunal highlighted the following risk factors:

  • Opposition to or criticism of the GOI, the KRG or local security actors; Membership of a national, ethnic or religious group which is either in the minority in the area in question, or not in de facto control of that area;
  • LGBTI individuals, those not conforming to Islamic mores and wealthy or Westernised individuals;
  • Humanitarian or medical staff and those associated with Western organisations or security forces;
  • Women and children without genuine family support and Individuals with disabilities.

 It was stated by the Tribunal that these factors, combined with an area which is generally unsafe, could result in an appellant having a valid Article 3 claim/ humanitarian protection claim. 

What if an applicant doesn’t have CSID documents?

The Tribunal found once again that if an appellant was unable to obtain a CSID document or their replacement, an INID document, then this would result in a real risk of the appellant suffering treatment which would be contrary to Article 3 ECHR. 

It might be possible for Iraqi nationals to obtain a replacement CSID card in the UK; however, this would depend on the documents available and the appellant knowing the volume and page reference of the entry in the family book in Iraq. The registration system is patrilineal, and therefore this information would need to be obtained through the father’s side of the family.

Immigration lawyers that stand by you

This country guidance represents a significant change in the Tribunal’s position on Iraq; however, we at Westkin Associates are prepared. We have a strong track record of working with clients from Iraq and have an expert legal team fluent in Arabic.

To speak to our lawyers, call 020 7118 4546 or email info@westkin.com

difficulties for UK nationals with criminal convictions

British nationals with criminal convictions who want to travel to Europe and British nationals in Europe who have been convicted of offences in Europe may be in for trouble with recent case reports.

Case C‑380/18 Staatssecretaris van Justitie en Veiligheid v E.P.

This is the case concerning a ‘third-country national’ or non-EEA national who entered the Netherlands on a Schengen visa. When E.P. was in the Netherlands, he was suspected of having committed an infringement of Netherlands criminal legislation relating to drugs.

Due to his arrest, the State Secretary ordered E.P. to leave the Netherlands on the grounds that he no longer fulfilled the conditions set out in the Schengen Borders Code as he posed a threat to public policy.

The code reads:

 Article 6(1) of the Schengen Borders Code provides:

‘For intended stays on the territory of the Member States of a duration of no more than 90 days in any 180-day period, which entails considering the 180-day period preceding each day of stay, the entry conditions for third-country nationals shall be the following:

[…]

(d) they are not persons for whom an alert has been issued in the [Schengen Information System (SIS)] for the purposes of refusing entry;

(e) they are not considered to be a threat to public policy, internal security, public health or the international relations of any of the Member States, in particular where no alert has been issued in Member States’ national databases for the purposes of refusing entry on the same grounds.’

E.P. won his initial challenge against the decision in the district court in the Netherlands and the decision to expel E.P. was annulled. The State Secretary appealed, and the case was heard by the Court of Justice of the European Union. E.P. had attempted to argue that the Directive which covers the free movement of European nationals within Europe also applied to him. That is the Directive that requires that the person being removed is a present and sufficiently serious threat to public policy, public security or public health. 

The Court of Justice of the European Union concluded that competent national authorities may issue a return decision to third-country national who is present in the Member State for a short stay, on the basis that that person is considered to be a threat to public policy because he or she is suspected of having committed an offence in the event that the offence is sufficiently serious and that the authorities have evidence to support their suspicions. This sets a much lower bar than that that applies to EEA nationals.

How will this affect British nationals?

The relevance of this to British nationals is that British nationals are likely to be governed by these rules in the future. This will mean that U.K. nationals with pre-existing criminal convictions or U.K. nationals who commit offences abroad will not be protected by the same law that protects them currently and that prevents their removal.

This is unlikely to have an immediate effect on British nationals. There is currently a transitional period that will see us governed by the same rules as currently and that will end on the 31 December 2020. It may be that that transitional period is extended after that date despite Boris Johnson’s vehement denying that this will happen, it does seem unlikely that a deal can be thrashed out in the time allotted. If the transitional period, however, does end the end of December next year, then it could be that British nationals are subject to the same rules as other third-country nationals. This may result in action being immediately taken by EEA countries with British criminals.

For more information on changes in E.U. migration rules call our offices at 020 7118 4546 or email at: info@westkin.com

Marriage, spouse entry clearance and leave to remain

This blog forms part of a series on spouse visas. Spouse or partner visas tend to form a large part of many immigration representative’s caseloads. This series of comprehensive guides, therefore, looks at all the requirements and how you might meet them and also looks at common errors made by practitioners and self-represented applicants.

This blog looks at the marriage itself and whether it will be accepted under the Immigration Rules as they relate to spouses.

What does the law require?

Appendix FM of the Immigration Rules contains eligibility requirements which must be met by a person seeking entry as a spouse or partner in the UK. One of these eligibility requirements is:

E-ECP.2.7. If the applicant and partner are married or in a civil partnership, it must be a valid marriage or civil partnership, as specified.

The Home Office will usually accept a marriage that is taken place overseas as valid if:

  • It is a type of marriage or civil partnership that is recognised in the country in which it was conducted; and
  • The civil partnership or marriage was conducted in accordance with the law of the country in which it took place; and
  • There is nothing in respect of a person’s country of domicile at the time of the marriage which stops the marriage or civil partnership been recognised by that country; and
  • Any previous marriages or civil partnerships have broken down permanently.

What are the rules regarding underage marriage?

The guidance also contains information on when ‘underage’ marriages will be recognised by the UKVI. In some countries, such as South Africa and certain US states, it is lawful for a marriage to take place between people under the age of 16.  Although a person will not be able to apply at that time for entry clearance as a spouse to the UK, as they must be age 18 or over to make a spousal application, once the applicant and sponsor are both 18 years old or above, they would be able to rely on that marriage that was conducted when they were under the age of 16, provided it is a lawful marriage.

Are proxy marriages valid?

Another common circumstance that immigration practitioners come across is proxy marriages. In CB(Brazil) (validity of marriage: proxy marriage) [2008] UAIT 00080 guidance was given on when proxy marriages should be accepted as valid marriages. In order that the marriage is accepted, it must satisfy the law in the country in which it took place; the two parties must have had the capacity to marry under the law of each of their domiciles and evidence of the marriage must be provided. In respect of proxy marriages, it may be that additional documents are required by the entry clearance officer to establish that a proxy marriage has taken place. This might include a certificate of marriage a transcript of the ceremony, affidavit of the person that represented the spouse, and so on.

This gives an idea of the common problems that you might come across in respect of the validity of marriage under Appendix FM.

Our expert legal team are only a phone call away

Phone: 020 7118 4546 or email at: info@westkin.com

LGBTQ asylum applications

The refugee Convention 1951 and the protocol 1967 outline what is considered legally to be a refugee. A person must be outside their country of nationality and have a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or because of their political opinion. There must be unable to relocate to another safe place within their own country or seek the protection of the police or anyone else within their own country.

For the purpose of an asylum application, LGBTQ persons can be considered a particular social group in some countries. 

How did the Home Office handle LGBT cases?

Prior to 2010 asylum applications were sometimes refused on the basis that, whilst it was accepted that a person was LGBT, it would not be reasonable for that person to conceal their sexuality from those that might harm them. In 2010 the Supreme Court ruled in the case of HJ (Iran) v SSHD [2010] UKSC 31 that people should not have to hide their sexuality in order to avoid persecution. 

It was following this case that refusals from the Home Office then changed. Rather than accepting a person’s sexuality and saying they could return anyway, in order to refuse an applicant, they would have to dispute their sexuality. This resulted in a number of cases where Home Office interviews were found to be entirely inappropriate, with overtly sexual questioning by Home Office officials. Thankfully the situation has changed, and the Home Office has significantly improved the way they conduct interviews in order to determine sexuality.

When to apply for asylum

If you’re from a country where you are likely to be persecuted as a result of your sexuality or how you identify, then you should have legal assistance from the outset of any claim you make. You should make an asylum application at the earliest point you feel you are at risk. This may be whilst you are already in the UK for another reason.  

How to form your application

You must also support your application with as much evidence as possible. You need to write down a detailed and comprehensive account of the basis of your fear. This should include past events, for example of harassment or harm being caused to you, as well as details of any threats that you’ve received. The statement should be as detailed as possible, with dates and as much detail as possible of significant events. Whilst preparing this can be a traumatic experience, it is an essential part of the process.  

You should also provide letters or statements from people that are aware of your sexuality, for example, other members of the LGBTQ community, partners, ex-partners, friends, and so on.

In the event you have suffered any prosecution in your home country because of your sexuality, then you should detail any court appearance or police involvement. Any records that you have from official sources will be valuable in improving the chances of success in your asylum claim. If you have suffered any mental or physical injury as a result of your persecution for your sexuality, medical evidence should also be provided. It may be that a specialist report should be commissioned, particularly if there is scarring which can be attributed to the trauma described. 

How long will it take?

At the date of writing this blog, in January 2020, the Home Office is taking a relatively long time to decide asylum cases, averaging about a year. This timeframe goes from initial application, through screening interview, through substantive asylum interview and onto receiving a written decision from the Home Office. The timeframes for appeals being listed if the Home Office refuse your application are relatively low at present. An asylum case can be listed within around a month of lodging the appeal.

Westkin Associates is LGBT friendly

Our expert solicitors have a proud history of supporting a wide range of LGBT immigration applications with particular strengths in asylum. 

To learn more about how we can support you call us at: 020 7118 4546

 Or email us at: info@westkin.com

The Queen’s polo hot water

The Queen has recently faced criticism for allegedly interfering with a 2016 decision when the Home Office stated they would be getting rid of the concession which allowed polo players and grooms people to come into the UK. In 2015 the Home Office approached Hurlingham Polo Association, the recognised endorsing body for Polo and requested that they consider tightening their criteria so that only those players playing at the highest level were able to obtain entry. After initially stating the concession would be revisited, a meeting between the Queen and Amber Rudd reportedly led the Home Office to change their mind about the immediate tightening of the restrictions, and there were transitional arrangements put in place for the 2017 season. The palace stated the Queen would never interfere with policy decisions.

What are Tier 2 and Tier 5 visas?

Tier 2 and Tier 5 are both routes that allow Sponsor’s in the UK or employers to apply for a licence which allows them to Sponsor workers from outside the EU. 

It is important firstly to lay out the general rules relating to Tier 2 and Tier 5 Creative and Sporting categories. Tier 2 and Tier 5 routes are used to employ non-EEA nationals who are specialists as, you guessed it, creative or sporting people. Tier 2 is a longer-term route and can lead to settlement in the UK. Tier 5 is the route for temporary migrants who are coming to the UK for shorter periods of time. 

Sporting Sponsorships

Under both routes, the applicant is required to have a Sponsor, the Sponsor must be a licence holder and will have ‘Certificates of Sponsorships’ from the Home Office to issue. In the Sporting categories, endorsing bodies have been certified by the Home Office to provide an endorsement to the those that will become Sponsor licence holders. This allows people, specialised in the field, to confirm that the body applying for licence genuinely needs workers and is a genuine club or body in the field. A full list of all endorsing bodies is available at Appendix M of the Immigration Rules. It is not possible for agents to obtain a Sponsorship Licence, a body applies for an endorsement from Hurlingham Polo Association, followed by a licence from the Home Office. It is possible for a body to obtain a licence for more than one sport if necessary; however, if this is required, the applicant will have to apply for an endorsement from each body.

The Certificates of Sponsorship are issued to persons wishing to apply for leave to enter or remain in the UK. It is mandatory to have these as part of an entry clearance application in these categories.

Applying without advance for Entry Clearance

It is also possible for persons to come on the Tier 5 route without applying in advance for Entry Clearance. Where a person wishes to come to the UK for three months or less, they can be issued a Certificate of Sponsorship and simply fly to the UK for processing at the border. This allows persons to come at short notice for sporting engagements. In order to use this concession for Creative and Sporting workers, you must be a non-visa national as per the list contained in the Immigration Rules in Appendix 2 of Appendix V.

For those that are Sporting workers who wish to stay in the UK more than three months but less than 12 months, they will need to apply for formal leave to enter and will not be able to rely on the concession. Under Tier 5, an applicant can stay up to twelve months in the UK. For a longer period of stays, it will be necessary to apply under Tier 2. 

Need visa advice?

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3 bogus arguments against migration

1. Mass migration decrease wages

Full Fact UK has denied the claim that a 10% rise in immigration has resulted in a 2% reduction in wages. This claim originates from a misreading of the Bank of England’s reporting which had identified that in 2004-2006 and in 2012-2014, there was an increase of 8% in the number of low-skilled and semi-skilled migrants in the UK which was accompanied by a slight decrease in wages.

The Prime Minister has claimed that as companies have access to large reserves of labour, they can employ foreign for cheaper wages. There is some truth in this as workers were paid £8 pounds an hour. However, this amounts to a negligible one or two pence per hour for each year.

Instead, scholars have pointed to separate factors such as the decline of trade unions which could argue for fixed minimum wages for all as well as changes in technology and trade.

In fact, the reverse could be argued, according to the Migration Advisory Committee (MAC), in 201 the average European migrant has contributed £2,370 more to the British Treasury than his British born counterpart which has a positive effect on wages.

2. Immigrants are abusing the NHS

The claim that immigrants are abusing the NHS is simply outlandish and ignores the net benefits which they have brought. In 2019 it was reported that over 13% of healthcare workers were non-British and 28.4% of doctors were also non-British. The NHS is currently suffering from a staff shortage which could be greatly lessened by increased immigration which the government has recognised and hopes to support through their planned NHS visa.

But what about non-NHS workers?

Even if one were to ignore to huge contribution immigrants make to the NHS, one would have to recognise that immigrants contribute far more in terms of finance to the NHS. All foreign nationals have to pay an annual immigration healthcare surcharge in addition to taxes which amount to £400 to support the NHS, and the government have considered raising this to £625.

3. Immigrants are to blame for the housing crisis

There is a general perception in the UK that immigrants come over to the UK and jump the queue on social housing, meaning that native Brits have less access to social housing, but is this really true?

The Oxford Migration Observatory reported that migrants are far more likely to rent private sector accommodation as opposed to social housing. The data gathered indicates that as of 2016, only 9% of social housing is taken up by non-British migrants and that close to 74% of migrants rented from the private sector.

Some economists have even made the case that immigration could lead to a reduction in house prices. To many, this appears counter-intuitive as it makes sense that if the demand for housing is inflated by migration, the prices will naturally increase. However, what this seems to ignore is the supply side.

According to the London School of Economics, the majority of the demand for housing is not caused by migration but rather a lack of social housing. This is in part caused because people are living longer, fewer people are getting married and living together, and perhaps most importantly, the government isn’t building social housing.

The Chartered Institute of Building has stated that were there to be a cap on immigration it would be detrimental to housebuilding rates as few British natives have the skills or interest in construction. Hence migration plays a positive role in creating more housing.

Conclusion

These are the three most often trotted out reasons for opposing migration, but as we have shown, three arguments are false and conceal a much more complex system. For a legal team that understands the complexities behind immigration call Westkin Associates.

Phone: 020 7118 4546

Email: info@westkin.com

Family reunion for refugees

The Refugee Convention 1951 and the Refugee Protocol 1967 is the legal framework for how the UK and other signatories to the Refugee Convention accept people fleeing persecution from other countries. The Refugee Convention itself does not explicitly outline rights to family reunion; however, the UNHCR Handbook does set out the minimum requirements. Those requirements are that a person granted refugee status or humanitarian protection in the UK should be able to bring their spouse and minor children to the UK where their family unity has been disrupted due to persecution.

How does family reunion applications work?

The EU qualification directive (2004/83/EC) at Article 23 also sets out criteria which member states must apply when considering family unity for refugees and those with humanitarian protection.

The Immigration Rules at 352A – 352FJ set out the national requirements for family reunion for spouses, partners and minor children.

Family reunion applications are most commonly made from outside the UK, although they can also be made from inside the UK. If they are made outside the UK, then the applicants must use the online application system. There is no fee for a family reunion application and the documents required for submission are limited to evidencing a relationship with a person in the UK granted refugee status or humanitarian protection and evidencing that that relationship has been in existence since before the refugee fled from the country. This is known as ‘pre-flight’.

What must the applicant do?

The applicant must produce proof of identity, such as a passport and provide biometrics, that is fingerprints and photographs to the application centre. The applicant should also provide a copy of the refugee’s grant of leave, which will usually be a copy front and back of a biometric residence permit. They will also need to provide evidence of marriage, cohabitation and relevant birth certificates. 

What are the grounds for refusal?

The Home Office or entry clearance officer will also check whether any false documents have been submitted with the application if they have, then the application can be refused under the general grounds for refusal at 320 (entry clearance) or 322 (leave to remain). This could also be the case where an applicant has criminal convictions or has provided incorrect information or withheld relevant information as part of the application.

How do refugees become citizens?

When a person is granted refugee status initially, they are granted 5 years leave to remain in the UK. At the end of 5 years, they are entitled to indefinite leave to remain provided they meet the criteria at that time. Persons granted refugee status can apply for family reunion at any point up until there granted British citizenship. Once they are granted British citizenship, they can no longer sponsor family reunion applications.

Family reunion applications do not need to sit an English language exam

Family reunion applicants do not have to satisfy the Immigration Rules under Appendix FM, which includes the financial, accommodation and English language requirements. The family reunion applicant would usually be granted 5 years leave after which they could apply for indefinite leave to remain after those 5 years of expired. At that point, unlike any other category of applicant under the Immigration Rules; a family reunion applicant (akin with refugees) will not have to meet the knowledge of language and life in the UK requirements. This means they do not have to take English tests or provide evidence of their knowledge of life in the UK by taking an exam. 

The relationships which meet the rules for family reunion are very limited and do not include, for example, the parents and siblings of a child who has been recognised as a refugee. In these circumstances, it may still be possible to make family reunion application invoking the family exceptional circumstances guidance and outlining compassionate factors which may still warrant a grant of leave.

Specialist immigration lawyers are only a call away.

Our specialist legal team has a combined total of over 80 years of experience in family reunion and asylum applications.

To get the best legal advice phone 020 7118 4546 or email info@westkin.com

Claiming asylum as a refugee from Afghanistan

Afghanistan has the highest population of refugees outside Afghanistan after Syria. Refugees have been leaving Afghanistan en masse since the Soviet invasion in 1979. Pakistan hosts the largest number of Afghan refugees, with 1.4 million registered Afghan refugees. It is thought that around a million more live in Pakistan without proper documentation.

How do Afghan refugees come to the UK?

A relatively small number of Afghan refugees make it to the UK. All refugees coming to the UK go through the same process in terms of the application. A person will claim at Port, if they come through a port, such as an airport or ferry port, or if they do not claim at a port of entry they can claim once they enter the UK either by going to the Home Office or by phoning the Home Office to lodge their claim. It is usual with Afghan refugees that they enter the UK illegally, often coming in lorries or vehicles over the border at Calais. Many Afghan refugees have several attempts to enter the UK before they finally manage to do so.  

It is usual that refugees don’t speak English, having recently arrived in the UK. As an Afghan refugee, you may wish to have a Farsi or Dari interpreter. The Home Office will provide an interpreter for you if required, for all of your Home Office interviews. Your lawyer should also provide an interpreter for you for meetings with your lawyer. 

What claim to persecution do Afghan refugees have?

People from Afghanistan can be persecuted for a number of reasons and claims relating to all aspects of the Refugee Convention are common. 

Political asylum claims

In respect of political asylum applications, applicants can be persecuted for supporting the government, and for supporting anti-government groups such as the Taliban. Indeed, applicants can also be persecuted for their perceived support given to either the government or anti-government groups. This creates a large swathe of people that can have political opinion claims or imputed political opinion claims without being high-level activists.

General asylum claims

There are also general claims on the security situation in Afghanistan. The situation on the ground in Afghanistan is extremely dangerous and whilst the levels do not currently meet the high level of indiscriminate violence for non-combatants required by article 15C of the Qualification Directive, the situation is extremely bad in Afghanistan. In some instances, the general security situation will be sufficient for a person to qualify for some kind of protection.

Gender-based asylum claims

In respect of gender claims, women are treated with a high level of discrimination, which can amount to persecution where there is no appropriate male protection. As such females that could be the victims of honour crimes could be at risk and lone females returning could also face persecution in Afghanistan.

How will young people be treated?

Afghanistan also has a high number of young, usually male, asylum applicants in the UK. Where applicants are under the age of 18, they will be treated differently by the Home Office and have a lower standard to which they need to prove their case. Furthermore, applicants under the age of 18 will be supported by social services and be provided with housing, funding and support from the state at a higher level than an adult refugee would. 

Religious asylum claims

There are also religious claimants from Afghanistan, for example by Hindus and Sikhs who can face persecution in Afghanistan for their religious beliefs. Some minority ethnic groups also face persecution, in particular, claims by Hazaras are common in Afghan cases and need to be judged on a case-by-case basis.

There are considerable numbers of country guidance cases concerning the situation for many different groups of people in Afghanistan, and when choosing your lawyer, you should ensure that they are mindful of these cases when preparing your case.

Westkin Associates continues to be a leading supporter of Afghan refugees.

Speak to our expert lawyers at 020 7118 4546.

Email us at info@westkin.com

Is the government preparing for war on asylum seekers?

In the 2019 Conservative party manifesto, there is one mention of asylum seekers and refugees. This statement claims that the government will continue to support refugees who are fleeing from life-threatening conflict but states that the “ultimate aim” is to return them when it is safe to do so. In this post, we examine the government’s record on asylum and cast down over their commitment to safeguarding the most vulnerable in our society.

Removing the child refugee pledge

As of writing this post, the government has decided to drop protections for child refugees from the EU withdrawal agreement bill. The bill was passed by a majority of 348 against 252.

The measure was previously accepted by the government of Theresa May and would allow unaccompanied child refugees to be reunited with family residing in the UK post-Brexit. She has however voted against the measure and with the government.

Labour’s Lord Dubs, who came to the UK as a Jewish refugee when he was a child, had vigorously campaigned for the measure.

Priti Patel, the current Home Secretary, has defended the measure by pledging to provide strong support for family reunion but adding that the proper place is not in this legislation.

LGBT scepticism

The Home Office also has a track record of hostility towards LGBT asylum seekers. In 2019, it was reported that the Home Office had refused at least 3,100 LGBT asylum claims from countries where homosexuality is criminalised, this includes Pakistan, Nigeria and Bangladesh.

Applicants have been routinely subject to degrading, and inappropriate questioning over their personal life as Home Office caseworkers deciding on the matter are tasked with seeking out a reason for refusal. Applicants are forced to relive trauma and to be as detailed as possible so that their application is seen as credible. Frequently, the reason given for refusal is disbelief that the applicant is actually gay.

This has often reached absurd lengths with one judge claiming that he did not believe the applicant because he did not have a “gay demeanour”. The judge then went on to contrast the applicant’s appearance with that of a stereotype of gay men being more effeminate and vainer.

Overworked and underpaid

In 2018, two whistle-blowers at the Home Office revealed the level of dysfunction at the Home Office as staff are reportedly overworked and underpaid.

In a year, decision-makers are expected to have conducted 225 interviews or have completed 225 decision reports. Under such circumstances, it became commonplace for decision-makers to cut corners and not to take issues on a case by case purpose. Instead, they would often simply copy and paste a previous decision that they had made.

Worse yet, a culture of hostility existed towards applicants with some caseworkers taking pride in refusing applicants. The whistle-blowers reported that staff would often mock applicants amongst themselves and would enjoy intimidating applicants during the interview.

Failure to act

The Home Office has also been negligent in terms of responding to applications often pushing them back for as long as possible. The Home Office must recognise when dealing with people who are fleeing for their lives; this refusal to act promptly will inevitably leave them at risk.

In one case, a rape survivor who fled Afghanistan with her children applied for asylum in the UK but was delayed significantly, allowing her husband to track her down and stab her in an eye.

The woman, who has not been named for confidentiality reasons, was raped by a man who was not her husband and fled out of fear of the violence her husband would inflict upon her. She was able to get to France but wished for shelter with her sister, who was living in the UK.

Whilst in France she sent numerous correspondence letters to the Home Office which were routinely ignored. Her husband was able to track her down in France and attacked with a knife to her right eye. He would have taken out her other eye but, thankfully, she was able to push him away and flee.

It was only after the woman was able to obtain a court order which mandated that the Home Office hear her case that they finally relented and granted her and her children asylum. However, as of writing, they are still in France.

A war on asylum

As Britain gears towards Brexit, it seems the government are willing to cater to demands of far-right nationalists and to create an even more recalcitrant immigration system. One which worsens the lives of the most vulnerable.

Westkin Associates has a proud history of defending the rights of asylum seekers and has stood by those who seek entry into Britain for a better life. Our lawyers have a proven track record of refuting wrongful decisions by the Home Office and will continue to fight for the legal rights of migrants.

To learn more about how we can help you, call 020 7118 4546 or email info@westkin.com 

Soleimani death: affect on Iranian & Iraqi UK citizens

On Friday, 3 January 2020 the US president Donald Trump ordered an airstrike at Baghdad airport which resulted in the death of Qasem Soleimani, who spearheaded Middle East operations as the head of the elite Quds forces. The Iraqi paramilitary chief Abu Mahdi al-Muhandis was killed in a US airstrike on Thursday 2 January 2020. In the airstrike on a motorcade on 3 January 2020 five Iraqis and five Iranians were killed outside Baghdad airport.

How has Iran responded?

This has resulted in a huge escalation in tensions between the US and the Middle East. As a result, the US has sent 3000 additional troops to the Middle East. The language used by Ayatollah Khamenei and other Iranian officials is worrying. Ayatollah Khamenei has been quoted: ‘severe revenge awaits the criminals’. Whilst the commander of the Revolutionary guards in Kerman in the south of Iran, General Gholamali Abuhamzeh, has described 35 vital US positions as ‘within reach’. It was also suggested by General Gholamali Abuhamzeh, that American destroyers and warships in the Gulf could face attacks. 

Can I travel to Iran or Iraq?

British citizens have been advised against all travel to Iraq, except to the Kurdistan region of Iraq against which all but essential travel is advised. All but essential travel to Iran is also advised. 

It may be that the killing has had an impact on Iranians and Iraqis already in the UK. Whilst the negative oratory is currently directed at US citizens; it may be that the consequence of this is increased tensions and possibly military action. It may be that such military action places Iranians and Iraqis already in the UK for reasons such as work or study at risk on return.

How does British asylum law work?

Section 8 of the Asylum and Immigration (treatment of claimants etc.) Act 2004 provides that a person should claim asylum at the earliest opportunity, and any delay in doing so could affect a person’s credibility. At the current point in time, it is unlikely that the killing of Soleimani would have created a situation that puts any Iraqi or Iranian at greater risk of persecution in Iran or Iraq, however, in light of the words used by Iranian officials and US officials such Donald Trump and Mike Pompeo, Iraqi or Iranian citizens in the UK will be well-advised pay close attention to the news and to ensure that where any risk to them arises either on the basis of being a refugee, or on the basis of their being a general risk of their life due to any deteriorating situation in Iran or Iraq, should claim asylum as soon as that risk arises, or they risk having their credibility questioned for not claiming at the earliest opportunity. It is worth noting that s8 is often read as requiring you to claim as soon as you arrive in the UK. However, if the risk arises whilst you are in the UK, then you may claim as soon as that arises without damaging your credibility, even where you arrived in the UK many years before. 

If the situation in Iraq or Iran deteriorates to a point where the return is generally unsafe for all people, then it is likely that the Home Office would create a policy for nationals of those countries. For example, there is a concession currently in force in respect of Syria, which allows persons who would otherwise have had to leave the UK and apply from Syria, to apply from within the UK. Those with leave are likely to be granted an extension of that leave even where they do not meet all the requirements of the Rule, because of the current country situation in Syria.

Do you need support with an asylum application?

Our expert lawyers can speak Farsi, Dari, Arabic, Urdu and many other languages.

If you require assistance in an asylum, or any other immigration application,

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A love letter to Lady Hale

Lady Hale has long been revered by law students, particularly female law students, so it was with some delight that I watched her catapulted into the limelight after her typically well-reasoned and clear judgement, in the case of the prorogation of Parliament. I have enjoyed reading numerous articles about lady Hale’s background and watching interviews with her on YouTube where she so effortlessly navigates that treacherous ground between ‘things you definitely cannot say’ and ‘saying nothing of any interest’.  Lady Hale’s comments on the benefits of being a woman at Oxford University in a male-dominated environment are particularly tickling.

What I’ve noticed from those interviews, is that despite having made her career as a judge and despite some of the things being said to her being absolutely outrageous, there never seems to be any flicker of disbelief or judgement in her eyes. Just a well-reasoned response and a point of view capable of change. It is this ability to change her mind that makes me think it’s not the right time for retirement for this Lady.

My first encounter

I once attended a talk with Lady Hale, or Baroness Hale, as she was then called at the College of Law. Lady Hale attended with another female judge to talk about feminism and the law. The other female judge, whose name I forget and given what follows, it is probably for the best, recounted a tale, where, as head of Chambers, she recruited a number of bright young female pupils, who later gained tenancy at Chambers and, after several years later, more or less the same time, all left to have children.  The female judge stated that the next time she recruited pupils, she would ensure that there was a mix of genders and recruited less able men over their female adversaries. Again, it was without judgement that Lady Hale explained that this is what we were up against, before also saying that of course, this was totally illegal and that as good female lawyers we would be expected to take appropriate action.

The legacy of Hale

Apart from Lady Hale’s immaculate manner, it is her ability to state her opinion and for all around her to say ‘well, yes, obviously’. If you look at the changes that lady Hale has been responsible for throughout her career, not just as a judge, they appear radical. But they are not radical changes; they are obvious changes. Lady Hale has been a driving force behind the Children’s Act, putting children’s interests first and other interests second. In immigration law, lady Hale’s leading judgement in  ZH (Tanzania) v SSHD [2011] UKSC 4 was that the European Convention on Human Rights should not be interpreted in a vacuum, but should be interpreted in harmony with general principles of international law, namely the United Nation’s Convention of the Rights of the Child 1989. This is hardly radical when putting like that, but that is Lady Hale’s knack. An ability to state the obvious without anyone having realised it was obvious before it was stated by her. Perhaps this is because Lady Hale is a woman and has been a ‘first’ numerous times throughout her career. Perhaps it is because hers is the first female voice we have heard at many levels. I suspect though, it’s the quality of that voice, rather than just the gender of that voice. I guess we will have to see in the coming month. Please step up Lady Black and Lady Arden!

Reach our immigration lawyers by calling: 020 7118 4546 or email at: info@westkin.com

Legal update for OISC professionals: Jan 2020

December seems to have brought forth a raft of reported decisions which are not necessarily favourable for appellants but are at the very least interesting for immigration practitioners.  The selection of important, recently reported decisions are detailed below.

AXB (Art 3 health: obligations; suicide) Jamaica [2019] UKUT 00397 (IAC)

Article 3 ECHR health cases have had a brutal history in immigration law.  They seem to start fairly enough. However, the case of N v United Kingdom [2008] ECHR 453 set a high threshold for Article 3 ECHR to be met in respect of health cases.  With the exception of D v UK (App no. 30240/96), there’s been little cause for celebration since.

AXB considered the implications on the UK of returning a person who would commit suicide on return to their home state. The UK has obligations in order to fulfil those obligations; they must provide ‘appropriate procedures’ for examination and assessment to be carried out. Those procedures can be met in the UK by Home Office consideration of the case and consideration by a tribunal following an appeal against that decision.

The decision in AXB finds that there are no obligations on the UK to make enquiries of the country to which a person is to be returned to obtain any assurances in respect of treatment on the return of that person. This was previously suggested in the case of Paposhvili.  AXB addresses the burden of proof and states that there is a burden on the appellant to establish that there is a real risk of breach of Article 3 ECHR. If the appellant establishes that that burden is met is for the Secretary of State for the Home Department to provide evidence of assurance, that can dispel the doubts the appellant’s evidence. AXB states that the evidence might include general evidence related to country situation as well as specific evidence from the country where the appellant is due to be removed to and may include evidence from that state related to the appellant but does not necessarily need to.

The threshold of establishing Article 3 harm remains the same that is that described in N v United Kingdom [2008] ECHR 453. This risk differs if it involves hostile actions of the country where the person is to be removed to. If there are hostile actions, there bear in mind the decisions in RA (Sri Lanka) v Secretary of State for the Home Department [2008] EWCA Civ 1210; Y and Z v Secretary of State for the Home Department [2009] EWCA Civ 362

SB (vulnerable adult: credibility) Ghana [2019] UKUT 00398 (IAC)

This case concerns how the tribunal treats evidence once they have determined that the witnesses are vulnerable. Treatment of an adult as a vulnerable adult does not mean that the tribunal cannot make adverse credibility findings against that person. It’s for the tribunal to determine the relationship between the vulnerability of the witness and the evidence adduced.

Niaz (NIAA 2002 s. 104: pending appeal) [2019] UKUT 00399 (IAC)

The case of Niaz states that section 104 (2) the Nationality Immigration and Asylum Act 2002 contains an exhaustive list of when an appeal under section 82 (1) is not finally determined. If none of the situations described in 104 (2) occurs, and the appeal has not lapsed, been withdrawn, or been abandoned, then the appeal is treated as finally determined.

Interestingly, an appeal that has ceased to be pending under 104 can become pending again if the Upper Tribunal’s decision refusing permission to appeal from the First-tier Tribunal is quashed by way of judicial review.

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How do fresh claims work in asylum cases?

If a person has claimed asylum in the UK and that asylum claim is refused by the Home Office, a person has a right of appeal within the UK, initially to the First-Tier Tribunal (Immigration and Asylum Chamber) and subsequently, if there is an error of law in the first judge’s decision, to the Upper Tier Tribunal (Immigration and Asylum Chamber). It may be that an appellant has a further right of appeal to the Court of Appeal or in very rare cases the Supreme Court.  In order to obtain a hearing in any of the courts other than the First-Tier Tribunal, an appellant must obtain permission to appeal. If they do not obtain permission to appeal, then they will become ‘appeal rights exhausted’.

What happens if my appeal rights are exhausted?

It is not unusual for a person to remain in the UK after becoming appeal rights exhausted. They will usually have no access to any supporting benefits any longer; they will also have no access to the rental market, the employment market, and so on. This is known as the ‘hostile environment’ (or the rebranded ‘compliant environment’).

Failed asylum-seekers have the right to make further submissions to the Home Office at any point after their asylum claim was refused and they are appeal rights exhausted. There are many reasons why a person may make further submissions. If the failed asylum seeker was politically active in their home country, it might be the case that they have been politically active in the UK. This is known as a sur-place claim.

Submitting new evidence in asylum cases

In other cases, new evidence becomes available that proves that the Home Office and judges involved in deciding their case were wrong. This might be physical evidence such as an arrest warrant, or a political membership card from their own country, or could be evidence of a witness, for example, someone that the failed asylum seeker knew in their home country. In some cases, the country situation has changed so dramatically since that failed asylum seeker was refused it would now be accepted that they could not return to that country.

If there is new evidence, the failed asylum seeker can travel to Liverpool to submit further submissions to the Home Office. Those submissions will amount to a ‘fresh claim’ if they are significantly different from the material that was previously considered by the Home Office and the tribunal. The Home Office will only consider those submissions to be significantly different, if, firstly, they have not already been considered, meaning that this is new information or new evidence that wasn’t before the Home Office or the tribunal and that taken with that previously considered material, the further submissions create a realistic prospect of success.

The 3 possible outcomes

There are three possible outcomes to putting in further submissions. Firstly, the applicant can be granted refugee status. Secondly, the applicant can be refused refugee status; however, the Home Office is satisfied that the further submissions amount to a fresh claim and therefore, there is right of appeal to the tribunal. Finally, the further submissions could be refused by the Home Office, and they could also conclude that there is no realistic prospect of success and therefore certify the claim, meaning that there is no right of appeal to the tribunal. The only challenge to the third outcome would be to review that refusal as being unreasonable or unlawful judicially. This may result in the Home Office reconsidering whether to treat the submissions as a fresh claim and ultimately refusing without certifying, so as to allow the applicant a right of appeal to the tribunal.

You can reach our office at: 020 7118 4546 or email at: info@westkin.com

Boris’s immigration plans for Britian: January 2020

British Prime Minister, Boris Johnson, has announced his plan to transform Britain into a “supercharged magnet” which would attract the best and brightest scientists from around the world. This follows a landslide victory in the UK general election where the Conservatives won 364 out of 650 seats. With overwhelming support from the British electorate will the government be able to transform the current immigration system and how will they do it?

What immigration policy are in the manifesto?

In the lead up to the general election the Conservative party released their manifesto which pledged an overall reduction in the total number of immigrants coming to the UK. However, the manifesto also maintains the importance of opening routes for those who make the “biggest contribution” to British society.

The most central shift in British immigration policy is the ending of free movement with the European Union. This has raised concerns with a number of industries which are heavily reliant on EU labour.

The government have defended its policy by maintaining that they will continue to attract highly skilled labourers, international talent and high net worth individuals as oppose to low-skilled labourers.

How will the government attract talent?

Fast Track Visas

Priti Patel, Britain’s Home Secretary, has announced that government will be doubling the number of fast-track visas available to international scientists. Currently scientists apply for a fellowship under the Tier 1 (Exceptional Talent) route which has thus far been capped to a limited number. Patel has stated that the number of fellowships available for scientists will increase from 62 to over 120. In addition, the government has announced that they will abolish the cap on Tier 1 (Exceptional Talent) visas and will provide a fast-track to settlement for those on the scheme. The policy change is expected to be introduced in early 2020.


Whilst the expansion of Tier 1 (Exceptional Talent) visa has been met with applause from Britain’s scientific community there continues to be frustration with the ending of the free movement with the European Union. This is because of the growth of EU academics who have left their position at prestigious British institutions. In the year following the Brexit referendum (2016-2017) 4,280 European staff left their post compared to 3,865 who had left the previous year. This is a marked increase of 11 percent.

Post Study visa

The government have also pledged to introduce a new post-study visa which will permit international students a further two years leave. This decision is actually a reversal of Theresa May’s decision in 2012 as she had scrapped the original provision of leave for international students, describing it as “too generous”.

Innovator visa

In their manifesto the Conservative party pledged to continue supporting “bespoke” visas which permit international talent to come and contribute to the UK. In particular interest is the UK innovator visa which permits foreign nationals to come to the UK with a business idea which proves to be “innovative, scalable and viable”. Whilst this need not be specifically in science and technology, there have been a number of visas granted for businesses which have brought innovation in tech. It is likely that the government will continue to support, and possibly expand, this programme.

Westkin Associates – Supporting Science and Innovation

Westkin Associates is a leading British immigration law firm with specialised immigration lawyers who have successfully supported exceptional talent, innovator and student visas.

We were among the first firms to be granted innovator and start-up visas when they were introduced and have supported technology companies bringing innovation to the UK.

For the best legal advice available call: 020 7118 4546 or email: info@westkin.com

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