Legal News

In this issue: Key developments UK immigration control: how it works Sponsored Work Family members under Part 8 and Appendix FM EU law rights and EU Settlement Scheme Challenging immigration decisions and enforcement Daily and weekly news alerts New Q& A Key developments Future developments— Immigration calendar Note that our Immigration calendar outlines key forthcoming developments for business immigration advisers. Immigration ( Health Charge) ( Amendment) Order 2024, SI 2024/55 This Order updates the Immigration ( Health Charge) Order 2015, SI 2015/792. It also formally clarifies, in legislation, the exemptions currently in operation from paying the Health Charge for applicants on the Ukraine Schemes and the Statelessness immigration route. In addition, by replacing obsolete terminology, it ensures existing waivers from the Health Charge for certain NHS workers, their dependants and specified protection cohorts are...

In this issue: Key developments UK immigration control: how it works Sponsored Work Challenging immigration decisions and enforcement Daily and weekly news alerts International New and updated content New Q& As Key developments Future developments— Immigration calendar Note that our Immigration calendar sets out key forthcoming developments relevant to business immigration advisers. Immigration cases 2023— July to December review Adam Pipe, barrister at No 8 Chambers, surveys the standout judgments from July to December 2023 for immigration advisers, highlighting their significance. The roundup spans EU Settlement Scheme durable partners, procedural fairness across contexts, Article 8 issues, long residence, the Supreme Court’s ruling on the Rwanda policy, the GDPR immigration exemption, the standard of proof in protection claims, another successful challenge to the No recourse to public funds policy, and a selection of Upper Tribunal...

Supreme Court rejects Home Office Rwanda policy appeal In the most widely reported decision of 2023, R ( AAA ( Syria)) v Secretary of State for the Home Department ( SSHD) ( United Nations High Commissioner for Refugees intervening) [2023] UKSC 42, [2024] 1 All ER 1 (15 November 2023), the Supreme Court unanimously rejected the Home Secretary’s appeal, endorsing the Court of Appeal majority’s finding that the Rwanda policy is unlawful. The court held there are compelling grounds to believe that asylum seekers would face a genuine risk of ill-treatment owing to refoulement to their countries of origin were they removed to Rwanda. The Supreme Court also dismissed the cross-appeal advanced by ASM ( Iraq), which contended the Rwanda policy is unlawful on the basis of incompatibility with retained EU law......

R (on the application of IAB and others) v Secretary of State for the Home Department and another [2023] EWHC 2930 ( Admin) What are the practical implications of this case? This important ruling (which may yet be appealed) appears to mark a shift in the Administrative Court’s approach to when it is acceptable to redact names in materials produced by the defendant on disclosure. It is delivered against a backdrop where, via social media and websites, documents used in litigation routinely become accessible to the public. Moreover, defendants at times feel compelled to carry out a comprehensive disclosure exercise (searching for documents) to convince claimants that they have fulfilled their duty of candour. Even so, Mr Justice Swift emphasised that the conduct of litigation should not be driven by fear of the baser instincts of a misguided minority (para [28]), and remarked that open debate about...

ETIAS will soon mean that visa-exempt travellers can no longer rely on entirely paperwork-free, administratively unburdened short stays in the EU using only a valid passport. Although it aims to operate with maximum smoothness, ETIAS could put a spanner in the works for day-to-day corporate activity across sectors, disrupting company initiatives and their staff’s business trips. To prevent this, and to help travellers and organisations alike adjust their routines and policies to this shift, it is prudent to confront key, practical questions— What is ETIAS? Who will be impacted? Why might an ETIAS request be rejected, and how should businesses get ready? What is ETIAS? ETIAS has been years in development across the bloc and within EU institutions. The initial seed of the concept, in its earliest guise, dates to 2008 as proposals on modernising the EU’s border management system began to surface. At the same time, the...

R ( Sandy) v Home Secretary [2023] EWHC 640 ( Admin) What are the practical implications of this case? Applicants should note that broad‑brush claims offer scant assistance in naturalisation applications. The particulars of any asylum claim should be reviewed with care, and material from that period augmented where necessary. The guidance sets an exacting bar for good character, so meticulous attention to its thresholds and the language employed is crucial. Of wider note is Mostyn J’s analysis of why he dismissed the claimant’s striking submission—summarised at paras [43]–[45]—that proportionality, rather than rationality, ought to be the operative test. For the principled foundations of the rationality standard in this sphere, see paras [25]–[33] and [38]–[42]. Ongoing attempts to invoke proportionality are likely to meet a frosty reception from the judiciary. As he remarks at para [47], within judicial review...

R (on the application of Oceana) v Upper Tribunal ( Immigration and Asylum Chamber) [2023] EWHC 791 ( Admin) What are the practical implications of this case? Given the thorough consultation and investigation undertaken by the Independent Review of Administrative Law, it would have been unexpected if the Administrative Court had concluded that the meticulously framed ouster provisions were incapable of achieving their narrowly targeted aim. This ruling confirms it is exceptionally difficult to maintain that they are ineffective. It further underlines that the general jurisdictional gateway in TCEA 2007, s 11(4)—showing the UT acted ‘in such a procedurally defective way as amounts to a fundamental breach of the principles of natural justice’—poses a ‘substantial hurdle’ (at para [33]). Practitioners should note that this hurdle is usually cleared only where there is ‘a failure in process which is so grave as to rob the process of any...

Updated on 28 February 2023 Information on the ballot procedure was made public 13 months after the Youth Mobility Scheme ( YMS) was widened to include citizens of India and Iceland on 1 January 2023 (via the Statement of Changes in Immigration Rules, HC 617). Under the YMS, 3,000 places per year are allocated to Indian nationals. This expansion was made further to the UK/ Indian Migration and Mobility Partnership, signed in May 2021. The requirements are set out on a new guidance webpage......

Common fees For most UK work visa applications, statutory charges account for most of the overall outlay, typically far surpassing the professional fees paid to immigration specialists for guiding applicants through the process. Government fees may include: the visa application fee the Immigration Health Surcharge ( IHS) the Certificate of Sponsorship ( Co S) fee the Immigration Skills Charge ( ISC) optional services to streamline and expedite the visa process By law, the ISC is the only government charge that employers cannot pass on to the visa applicant. Other disbursements can include translation costs, tuberculosis screening, English language testing, or obtaining criminal record certificates. Many of these relate to mandatory stages of the visa process and can mount up quickly, so employers should take a holistic view before deciding who will be responsible for these extra costs. The level of cost assistance provided Some employers may already have...

The United Kingdom General Data Protection Regulation, Retained Regulation ( EU) 2016/679, and the Freedom of Information Act 2000 ( FIA 2000) oblige public and private bodies to reply to subject access requests within one to three months when people seek details of the personal data those organisations hold about them. Yet, on 28 September 2022, the ICO announced that an investigation had found Virgin Media, the Ministry of Defence, the Home Office, the London Borough of Croydon, Kent Police, the London Borough of Hackney and the London Borough of Lambeth had 'repeatedly failed' to meet this statutory deadline. Following these conclusions, the regulator issued reprimands to all seven organisations and, under the FIA 2000, practice recommendations to two of the London boroughs. The agency added that these bodies have three to six months to make improvements or 'further...

It is common for internationally based families planning a move to the UK to wish to accompany that transition with their existing nannies. There are sound reasons for this choice. Many such carers have supported the household for years and are regarded as loyal, dependable members of the team, something especially valuable for prominent families. Continuity of care can also be crucial for young children navigating a new country, giving them a familiar person to converse with, particularly where English is not their first language. As a result, advisers frequently face queries about whether any alternative immigration pathways exist to enable household staff, notably nannies, to live in the UK on a long-term footing. Up until changes to the UK Immigration Rules in December 2020, the response to that question was, in most cases, no. That position has typically left families with limited...

The All- Party Parliamentary Group ( APPG) on Democracy and the Constitution has released a report which sets out the findings from its investigation into how the actions of the executive have influenced the constitutional position of the independent judiciary since 2016. The publication was supported financially by the Joseph Rowntree Reform Trust and the Institute......

IHRAR report The IHRAR’s publication is an exceptionally comprehensive and highly impressive piece of analysis. It accepts as a fixed point the government’s commitment to remain a party to the European Convention on Human Rights ( ECHR). This includes the ability of individuals to petition the European Court of Human Rights ( ECt HR) in Strasbourg once domestic avenues of redress are exhausted. Throughout the IHRAR there is recognition that reforms restricting people’s capacity to enforce rights in the UK courts may prompt more cases going to Strasbourg, which would ‘run counter to the HRA’s original objective of bringing rights home’, rather than resolving matters within the domestic legal system. The IHRAR proposes only limited amendments to the HRA itself. They are notably restrained and incremental in nature overall. The principal ones are: a modification to the test in HRA 1998, s 2, which...

R (on the application of the FDA) v Prime Minister and Minister for the Civil Service [2021] EWHC 3279 ( Admin) What are the practical implications of this case? Lawyers often tend to believe that any dispute can be settled by judges ascertaining the facts and then applying the law. That belief is, inevitably, mistaken. Within public law there are matters that courts cannot adjudicate upon. Some are constitutionally out of bounds, for instance Parliament’s decision to pass an Act. Others are non-justiciable because they are fundamentally political, such as choices about how public money should be allocated. Yet the limits are not always sharp. A decision on whether to prorogue Parliament, and for how long, was regarded as plainly non-justiciable by the Lord Chief Justice ( Lord Burnett), the Master of the Rolls ( Sir Terence Etherton) and the President of the Queen’s Bench...

What are the practical implications of this case? As regards the substantive law, this ruling offers a clear and authoritative account of the principles to apply where an order appears, on its face, to be legally defective. In this instance, the order did not comply with a statutory provision; nevertheless, being an order of the court, it demanded obedience. Parties to, and bodies affected by, such an order can now be advised with confidence, given the certainty derived from Lord Reed’s analysis. The judgment strongly underscores the rule of law and the orderly administration of justice. A legally flawed order is not without legal effect. The court highlights the vital importance of certainty and finality, observing that the contrary stance would create administrative disorder and could expose third parties to legal liabilities. The decision is pertinent to those litigating with or against...

Introduction On 31 December 2020, the Withdrawal Agreement’s transition phase (discussed here) concluded. From 1 January 2021, relations between the UK and EU are currently regulated partly by the remaining Withdrawal Agreement (as further discussed in this Twitter thread) and partly by the Trade and Cooperation Agreement ( TCA) formally agreed between the EU and the UK themselves. ( There are also two other agreed treaties, on security information and nuclear cooperation, as well). Basic legal issues The EU and UK have agreed to apply the TCA provisionally and temporarily (a common practice in international law). This arrangement runs until 28 February 2021, though the parties may change that date via the Partnership Council (composed of representatives of both contracting parties). This is intended to give the European Parliament sufficient time to examine the treaty in detail before deciding whether to give its consent. By...

Applications submitted before this date will be determined under the Rules in effect on 30 November 2020. See: LNB News 22/10/2020 80. The Migration Advisory Committee ( MAC) has been asked to examine the Intra- Company Transfer route and to report on issues including salary and skill thresholds, whether separate arrangements should exist for high earners, and points of divergence from the Skilled Worker route. The MAC aims to provide its findings by the end of October 2021. Any adjustments to the route are expected to follow in 2022. See: LNB News 07/10/2020 76. Appendix Intra- Company Routes The Tier 2 ( Intra- Company Transfer) ( ICT) route will be retitled as the Intra- Company routes, as flagged in the Home Office’s July 2020 further details paper. The two strands are the core Intra- Company Transfer and the Intra- Company Graduate...

For much of the UK’s membership of the EU, the interaction between European law and the domestic system has sparked debate. To many observers, it operates as a limitation—practically, if not as a strict matter of doctrine—on the constitutional tenet that Parliament, acting with the Crown, is sovereign. In that context, the European Union ( Withdrawal Agreement) Bill ( WAB) sets out a number of measures with significant consequences for how sovereignty is to be understood in the United Kingdom. Current status of EU law At present, section 2(1) of the European Communities Act 1972 ( ECA 1972) stipulates that all rights, powers, liabilities, obligations and restrictions created by or under the Treaties, together with all remedies and procedures they provide, are to take legal effect in the United Kingdom without further legislation. Those rights must be recognised, available and enforced in UK law, and...

What, in summary, are the recent developments relating to the EU settlement scheme? Following earlier pilot phases, the scheme went live in full on 30 March 2019, making it accessible to every EU citizen and their family members. The caseworker guidance is extensive and divided into two texts: EU Settlement Scheme: EU, other EEA and Swiss citizens and their family members — a 104-page guide outlining eligibility, when an application is valid, what evidence to submit, the steps in the process, and particular rules for family members. EU Settlement Scheme: suitability requirements — a 22-page guide devoted to character and conduct considerations, and the ways these could affect an application under the EU settlement scheme. These materials assist applicants seeking a thorough grasp of the process and the paperwork they may require. Yet the breadth and depth of what is provided can feel daunting for...

Original news Re V (a child) (recognition of foreign adoption) [2017] EWHC 1733 ( Fam), [2017] All ER ( D) 59 ( Jul) The applicants, Nigerian citizens temporarily present in the UK, sought recognition of a Nigerian adoption order. Having reviewed the full range of criteria relevant to acknowledging adoptions made abroad, the Family Court granted the application. Why does this matter, and what should practitioners take from it? The decision engages the doctrine of comity in the context of recognising adoption orders from other jurisdictions. Where the order originates in a state that has ratified the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption, it is automatically recognised as a Chapter 4 ‘overseas adoption’ ( Adoption and Children Act 2002, ss 66, 87; Adoption ( Recognition of Overseas Adoptions) Order 2013, SI...