Legal Q&A

Immigration Rules, Appendix ECAA: Extension Of Stay Pursuant to the current Immigration Rules ( Immigration Rules, Appendix ECAA: Extension Of Stay) and the applicable guidance ( Turkish ECAA guidance: Appendix ECAA extension of stay), holders of the Turkish Worker visa who have been lawfully employed in the UK for at least four years may, from that point, take up any role with any employer. This Appendix took effect at 11pm GMT on 31 December 2020, to encompass those who previously enjoyed rights under Decision 1/80 of the Association Council connected to the ECAA Association Agreement (concluded on 12 September 1963 in Ankara, and later supplemented on 23 November 1970 by the Brussels Protocol). See: Turkey- EEC Association Agreement: Macdonald’s Immigration Law and Practice [6.193]. Immigration Rules Appendix ECAA: Extension Of Stay, paragraphs ECAA 3.1– ECAA 3.2 set out, amongst other matters, that: ECAA 3.1......

Monitoring and reporting migrant activity Under the heading Monitoring and reporting migrant activity, Practice Note, Sponsor duties under Tiers 2 and 5 and adapting human resources systems, confirms that a report must be submitted via the SMS within ten working days whenever a sponsor holds any information indicating that a sponsored......

Refer to the relevant Practice Notes: Applying for a sponsor licence under Workers and Temporary Workers: eligibility and suitability (covering pre-revenue businesses) and Applying for a Workers and Temporary Workers sponsor licence: procedure (concerning licence re-application). Cooling off period and who it applies to If a sponsor licence application is refused, the Home Office will, in most cases, impose a cooling off period. This is typically six months, though in some situations it can be as long as five years. The Home Office may choose not to apply the cooling off period, for example where documents were provided late, or where a representative submitted the application. See Practice Note: Applying for a Workers and Temporary Workers sponsor licence: procedure/cooling-off periods......

This is a Q& A about whether it is necessary for dependants to apply to switch categories at the same time as their relevant points-based system ( PBS) migrants. The Points Based System ( Dependant) Guidance states, as a general rule, that where the principal migrant changes employer or education provider, receives a new certificate of sponsorship and applies for leave to remain to work or study with their new sponsor, their dependants are not obliged to apply for leave to remain at the same time......

Practice Note: Suitability grounds for refusal and cancellation of permission notes that, under the Immigration Rules, Part 9, para 320(7B): Unless an exemption applies, or the relevant re-entry ban has expired, any application made under a route within Parts 2–8, or under Appendix Armed Forces, must be refused where the person has previously breached UK immigration law by: overstaying, unless the overstay was 90 days or less (where it began before 6 April 2017) or 30 days or less (where it began on or after 6 April 2017) and, in either scenario, they left the UK of their own accord and not at public expense Where any of the above circumstances apply, any further application to re-enter the UK will be refused until the following re-entry ban has run: one year, if the individual departed the UK voluntarily and not at public...

A Tier 2 ( General) migrant (the applicant) must observe any conditions attached to their leave. Examples include no recourse to public funds and a requirement to work mainly for the Tier 2 ( General) sponsor named on their Certificate of Sponsorship ( Co S). Supplementary employment is allowed, but only in limited circumstances in practice. See Practice Notes: Applying under the Skilled Worker route and Conditions of permission to enter or stay in the UK. If the applicant will no longer work for the sponsor listed on their Co S, they will not continue to meet the requirements of a Tier 2 ( General) visa. This is a frequent basis for mandatory curtailment under the Immigration Rules, Part 9, para 323A(i)(2). Curtailment is the process by which the Secretary of State for the Home Department shortens the existing leave of persons already in the UK....

Practice Note: Applying under the Representative of an Overseas Business category Please see Practice Note: Applying under the Representative of an Overseas Business category, which sets out the eligibility criteria and process (including application form and fee details) for submitting an initial application or seeking an extension under the UK immigration route for Representatives of an Overseas Business. The note explains the eligibility criteria for Sole Representatives of an Overseas Business......

Resident Labour Market Test ( RLMT) When placing a vacancy under the resident labour market test ( RLMT), a sponsor must retain a screenshot of the website taken on the day the advert first goes live, unless the advert itself shows the date it was posted, in which case the screenshot can be produced at any point while the listing remains valid. See Practice Note: Resident Labour Market Test. If the wording of the advert is altered, the screenshot held by the sponsor to meet the above requirement will not match the actual particulars of the role (including the remuneration package). This inconsistency could lead, on audit, to a finding that the RLMT process was not followed. To minimise the risk of non-compliance on this matter, it is advisable to repost the advert, capture the requisite screenshots on the first day it appears as...

Our Practice Note: Applying for a Workers and Temporary Workers sponsor licence: key personnel and representatives Our Practice Note sets out that a sponsor licence application can, and in some instances will, be declined or, where applicable, the licence later revoked, if any of the Authorising Officer, Key Contact, Level 1 user, or any owner, director or other individual involved in the day-to-day running of the organisation: has any unspent convictions relating to immigration offences or a number of listed serious offences in Part 1 of the Sponsor Guidance at Annex L4 ( Part 1, para L4.3)—mandatory refusal of the application ( Part 1 Annex L1(b)) and/or mandatory revocation of the licence ( Part 3, Annex C1(b)) has previously been dishonest in their relationship with […] any other government department) […]—a licence application will normally be...

section 3C leave This answer proceeds on the basis that no request was submitted to the Home Office to cancel the application, nor to retrieve the passport prior to departing the UK. If someone makes an application from within the UK to extend their permission to stay before their existing leave runs out using the online route, the date on which the application is treated as lodged is the date the online form is submitted, not the enrolment of biometrics. When someone who already has leave to remain applies from inside the UK to extend it, their current leave, together with all attached conditions, continues automatically so long as a valid application is made before that leave expires (known as ‘section 3C leave’)......

A Sponsor may submit applications for multiple licence tiers concurrently; however, in the scenario raised in this Q& A it would be unwise, as approval of one would, by necessity, preclude success of the other. For a Skilled Worker licence (a Worker route), one of the criteria is that the company is lawfully operating or trading in the UK. The Home Office has, of late, taken a firm stance in rejecting Sponsor Licence applications under the Skilled Worker route where the business is not yet producing income—often described as ‘pre‑revenue’. Although limited cases exist in which a pre‑revenue enterprise might still obtain a licence, the prevailing position now is that such bids are typically declined. This reflects current Home Office practice today......

For the purposes of this Q& A, we have not taken into account the EU– UK Trade and Cooperation Agreement ( TCA), as it is not directly enforceable; it is for the UK to give effect to its terms (insofar as not already addressed by the European Union ( Future Relationship) Act 2020). For further detail, see News Analysis: Implementing the TCA—business immigration implications. As the EU citizen employees fall outside the EU Settlement Scheme and are not eligible for a frontier worker permit, the main immigration options to review are: Intra- Company Skilled Worker Visitor T5 International Agreement Worker Each category is discussed in more detail below. Intra- Company routes The Intra- Company routes allow organisations with connected overseas entities to transfer certain staff to their UK offices. From 1 January 2021, these routes cover EEA and Swiss citizens as well as non- EEA...

Long residence and private life resources—overview The ten-year long residence route set out in the Immigration Rules, Part 7, does not allow dependants to submit applications alongside the principal applicant. This means joint filing is not available under this route. Dependants may, however, apply independently where they satisfy the criteria of the relevant rule. By way of illustration, if a husband and wife have each been lawfully present in the UK for ten continuous years, they must each file their own separate applications under the long residence provisions. See Immigration Rules, Part 7, para 276B–276C. When a Tier 2 ( General) migrant secures indefinite leave to remain ( ILR) through the long residence rules, their spouse may have scope to seek leave to remain as the spouse of a settled person under Immigration Rules, Appendix FM (see Practice Note: Partners applying for limited leave to...

Who can be the guardian of a Child Student? The Immigration Rules, Introduction, para 6.2 ( Immigration Rules, Introduction, para 6.2(b)) sets out definitions for key terms such as ‘legal guardian’, ‘parent’ and ‘private foster care arrangement’. A ‘legal guardian’ is defined as ‘a person appointed according to local laws to take care of a child’. In the UK, questions of a child’s legal guardianship are typically decided by the family courts, or arise where parents have named a guardian to act if they die. That said, legal systems in other countries follow different procedures. Whether an individual has been duly appointed as a legal guardian ‘according to local laws’ in another jurisdiction is a matter of foreign law. Foreign law is treated as evidence and will usually need to be established by expert evidence ( Hussein ( Status of passports: foreign law) [2020] UKUT 00250 (...

Where an individual holds British citizenship as well as citizenship of an EU Member State and is arriving in the UK, the passport that should be used for entry is their British passport. This serves to confirm that they possess the right of abode in the UK in their capacity as a British national. See Q& A: What is the law that governs the entry of British citizens to the UK and in particular, what documentation they must provide to an immigration officer as evidence of their nationality? Comparable considerations are likely to arise for their admission to the EU Member State of which they are a national, subject to the domestic law of that state......