December 12, 2018

Update on new services for UKVI customers

12 December 2018

Dear colleague,

We are writing to update you on UK Visas and Immigration’s (UKVI) new services for UK customers, including online application forms.

The first UK Visa and Citizenship Application Service Centre (UKVCAS), run by Sopra Steria, opened in Manchester on 09 November; followed by Birmingham, Belfast, Cardiff, Croydon and Glasgow, and the Premium Lounge in London.

In addition, 42 of the 50 enhanced service centres have opened for customers; the remaining 8 will all be open by early 2019. Please note, following sub-optimal customer experience at a small number of enhanced service centres, we have amended the roll-out to ensure we are able to address issues prior to further centres going live.

All core service centres that offer free appointments to customers are live and functioning well, and we are working with our partner Sopra Steria to ensure they are responding to demand including with increased capacity where appropriate. We are committed to ensuring all customers are offered an appointment within 5 days of submitting their application; and are working with Sopra Steria to ensure the service delivers for our customers. Customers have the choice to continue to use the current process of attending a Post Office to submit their biometrics during the transition.

Sopra Steria are offering a range of services for customers, including an On-Demand Pop-Up Clinic, to allow the UK VCAS to go to a University or Company; and an On-Demand VIP Service for individuals. Both services mean that customers do not have to travel to a core or local centre for their appointment and can submit their supporting evidence and biometrics at a location convenient to them.

Further details on the roll-out of UK VCAS.

Customer reaction

Customer feedback from live centres has been positive, with customers enjoying the speed and convenience of the new system, including being able to retain their passports and key documents; an easier online application form and the option to purchase added value services to tailor their application to their needs; and the ability to submit key evidence and personal information online, from home, before their appointment.

A recent customer said:

“Clear info. On the website I like the fact that you are accompanied / guided through the process.”

Service and Support Centres

In reviewing our services we recognised that some customers may require more support from UKVI, including during the application process itself. Therefore, in early 2019 we will be opening dedicated Service & Support Centres (SSCs) for customers whose applications or circumstances mean they need more assistance with their application.

We have communicated about this separately; please get in touch if you would like more information.

Applying online

From 13th December, the following paper forms will no longer be available for download from GOV.UK and customers will apply using the online service:

– Tier 1 Entrepreneur and Graduate Entrepreneur – applications to extend stay or switch from another visa category

– Dependants of Tier 1 customers in the above routes who are applying separately from the main applicant

– Form FLR(FP) – apply to your stay in the UK on the basis of family life as a partner, parent or dependent child or on the basis of your private life in the UK

– Form FLR(LR) – apply to extend your stay in the UK on the basis of long residence

– Form FLR(DL) – apply to extend your stay or for indefinite leave to remain in the UK if you were refused asylum but given another type of permission to stay in the UK

– Form FLR(HRO) – apply to extend your stay in the UK for human rights claims, leave outside the rules and other routes not covered by other forms

– Form FLR(M) – apply as a fee waiver customer to extend stay in the UK as the partner or dependent child of someone who is settled here or who is a refugee or under humanitarian protection

Customers who are eligible for fee waiver will be able use a new online form to ask UKVI to consider their circumstances. This service will assist customers who are destitute and cannot pay the fee to extend their stay on the basis of private/family life or other human rights grounds. Therefore, from 13th December, the paper fee waiver form ‘Appendix 1’ will no longer be available for download from GOV.UK.

Where the customer is in the process of completing one of the above paper forms, UKVI will accept the application up to the expiry date of 4 January 2019.

Assisted Digital Service

Further help and advice for customers making an application is available, including support to complete applications online for those who are unable to use the online application process. More information and contact details for the Assisted Digital Service.

Please find attached a Q&A. If you have any feedback on the new system, or any questions, please contact frontendservicesteam@homeoffice.gov.uk. Sponsors who have subscribed to the Premium Customer Service may contact their account manager.

UKVI and Sopra Steria look forward to working with you to deliver an improved customer service and application process.

Regards,

UK Visas and Immigration

November 21, 2018

UK visas | In-country applications – all change

The Home Office has announced the introduction of the new in-country visa application system from November 2018. These changes will see the Home Office unify the application process for in-country and out-of-country applications. The Home Office has not changed the way applications are submitted for some time (the only change over the last few years being the move to online submission forms) and those who are used to the current system should ensure they are ready for the changes.

If successful, this change could streamline the application process. However, as with all new systems, some “teething” problems are to be expected.

The new process will include the online application form with limited submission options (i.e. no premium service). Once submitted, an additional “account” would need to be set up on the new provider’s website.

An applicant would then need to attend one of the new UK Visa and Citizenship Application Service (UK VCAS) centres to submit their biometrics and documents.

UK VCAS centres

The first VCAS centres opened in the UK on the 5 November 2018. All current Premium Service Centres will close on 29 November 2018.

The applicants will have the choice to use one of 57 Service Points throughout the UK, which are opening in a phased programme:

Period (Week Commencing) Service Point Opening
12th November 2018 Aberdeen Birmingham Bradley Stoke Burnholme Burnley Cambridge Glasgow Hull Lancaster Liverpool Newcastle Nottingham Peterborough Stockport Wakefield Warrington Warwick
19th November 2018 Belfast Bristol Patchway Cardiff Coventry Croydon Dorchester Gloucester Ipswich Kensington (London) Llandudno Newport Salisbury Shepherds Bush (London) Swindon Taunton Truro Victoria (London) Wolverhampton
26th November 2018 Barbican (London) Bedford Bournemouth Brighton Canning Town (London) Canterbury East Ham (London) Eastbourne Grays Hemel Hempstead Norwich Portsmouth Preston Reading Shoe Lane (London) Stevenage Stratford (London) Swinton Watford Wimbledon (London)
Once the applicant submits their biometrics and documents, the information will be verified and the documents returned to the applicant.

It is important to note that even though an applicant will have their passport returned to them, they will NOT be allowed to travel out of the UK until a decision on the application has been made. It is therefore vital to ensure applications are made in sufficient time, taking into account any upcoming travel for the applicant.

Application Routes

Applicants in the UK seeking to remain in the UK or to settle permanently in the UK will be eligible to use the new service from 5 November 2018.

Some of the eligible routes are:

Tier 1 (Investor)
Tier 1 (Exceptional Talent)
Tier 1 (Entrepreneur)
Tier 2 (General)
Tier 2 (Intra-Company Transfer)
PBS Dependant – partner
PBS Dependant – child
Settle in the UK – long residence
Settle in the UK – child
Settle in the UK – partner of a person or parent of a child already settled in the UK
Registration certificate as an EEA or Swiss national
Document certifying permanent residence as an EEA or Swiss national
British citizenship by naturalisation
Register for British citizenship as a child under 18
Update, replace or transfer – biometric residence permit
Applicants on the remaining routes will continue to need to use the existing service until January 2019.

New UK Visa Application System Timeline:

2 November: appointment booking tool went live
5 November: new UK VCAS centres started to open around the UK; all locations will be open by 29 November 2018
5 – 29 November 2018: the majority of applicants can choose whether to enrol their biometrics and submit their documents via these new centres or use the existing processes.
29 November: Premium Service Centres will close
January 2019: Service and Support Centres will open.
What should businesses be doing now to prepare?

The new process promises to be streamlined and efficient. However, the removal of the Premium Service (as we currently have it) is worrying. A significant number of applicants are required to travel regularly for business and therefore need guaranteed timelines to work within. The current guidance published provides no service standards under the new system.

We would therefore suggest any applications made after 29 November 2018 are made in good time and applicants understand that there are no guaranteed timescales or precedents to work with at this stage.

In light of the new system and changes we strongly recommend you review all Tier 2 sponsored workers who will require an extension in the next six months.

November 21, 2018

Court of Appeal refuses permission to appeal in Article 3 case — Vanessa Long

In the recent judgement of MM (Malawi) & MK (Sri Lanka) v SSHD [2018] EWCA Civ 2482 the Court of Appeal declined to grant permission to appeal to the Supreme Court for consideration of whether the test under Article 3 for removal of foreign nationals in medical cases, as set out in Paposhvili v Belgium [2017] Imm AR 867 , was correctly interpreted by the Court of Appeal in AM (Zimbabwe) v SSHD [2018] EWCA Civ 64.

Background

The issue in this case was whether the removal of a foreign national from the UK would breach their rights under Article 3 not to be subject to inhumane or degrading treatment where they are in receipt of medical treatment in the UK which is not available in their home country.

In 1997 the European Court of Human Rights (ECtHR) determined in D v UK (Application no. 30240/96) that, as the applicant was in the advanced stages of AIDS to the extent that he was reliant upon palliative care in the UK and would receive no comfort or moral support in his home country, his removal would constitute a breach of Article 3. This was noted to be a ‘very exceptional’ case.

The current leading domestic authority is N v Secretary of State for the Home Department [2005] UKHL 31. N was also diagnosed with AIDS but owing to the availability of treatment in the UK she was expected to live for decades; however, if returned to Uganda, where such treatment was not available, she would die within one to two years. Lord Hope set out the test for ‘very exceptional’ as follows:

For the circumstances to be […] ‘very exceptional’ it would need to be shown that the applicant’s medical condition had reached such a critical stage that there were compelling humanitarian grounds for not removing him to a place which lacked the medical and social services which he would need to prevent acute suffering while he is dying …” [my emphasis]
Therefore, although N would die much faster in Uganda, as she would not be subject to ‘acute suffering’ whilst dying there was no breach of Article 3. This was held to be the case even though it was accepted that N’s life would be significantly shortened [see Lord Nicholls at para 15]. The issue was declared to be not whether her death would follow removal but whether “there is care available […] to enable [her] to meet that fate with dignity” [Baroness Hale, para. 69]. In N’s case it was considered that such care was available. The Grand Chamber of the ECtHR approved this reasoning in N v UK (Application no. 26565/05).

The ECtHR reconsidered this issue in Paposhvili v Belgium (Application no. 41738/10) setting out the test for these types of cases at paragraph 183:

The court considers that the ‘other very exceptional cases’ within the meaning of the judgment in [N]… which may raise an issue under article 3 should be understood to refer to situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy …
This test is clearly different to the wording of the test set out in N and it is accepted by the UK Courts that it has relaxed the test; the question is to what extent.

In AM (Zimbabwe) v SSHD [2018] EWCA Civ 64 Sales LJ considered the new test in Paposhvili and interpreted the change as follows [para 38]:

[T]he boundary of article 3 protection has been shifted from being defined by imminence of death in the removing state (even with the treatment available there) to being defined by the imminence (i.e. likely ‘rapid’ experience) of intense suffering or death in the receiving state, which may only occur because of the non- availability in that state of the treatment which had previously been available in the removing state.
Although it is not immediately obvious, this formulation of the test differs from the wording of the Paposhvili test in the important way. The difference and its implications have been argued succinctly on the Blog here.

However, in a very brief summary, Sales LJ has interpreted paragraph 183 of Paposhvili like this:

The applicant must face a real risk of being exposed to a serious, rapid and irreversible decline in his state of health resulting in:

intense suffering; or
to a significant reduction in life expectancy.
The alternative interpretation of paragraph 183 is this:

The applicant must face a real risk of being exposed:

to a serious, rapid and irreversible decline in his state of health resulting in intense suffering; or
to a significant reduction in life expectancy.
The difference being that in the latter interpretation the ‘significant reduction in life expectancy’ does not need to have been caused by a ‘serious, rapid and irreversible’ decline in the applicant’s health.

In AM (Zimbabwe) Sales LJ did consider whether the latter interpretation was correct, but concluded that such an interpretation would cast the net of Article 3 too widely, as there would be many circumstances in which the medical treatment in the removing state would be superior to that in the receiving state. Therefore, Sales LJ determined that such an interpretation of Paposhvili was untenable.

The Facts of this case

MM & MK

MM and MK came to the UK in 2002 and 2004 respectively and married whilst they were lawfully present. In 2010 MM was diagnosed as HIV positive and began receiving antiretroviral drugs (ARVs), which she was required to take in liquid form.

MM and MK made an application for leave to remain on human rights grounds which was refused by the Secretary of State. On appeal the First-tier Tribunal allowed the appeal on Article 3 grounds, however, this was overturned by the Upper Tribunal (UT). The Court of Appeal directed the UT to conduct a further fact-finding hearing at which it was determined, on the basis of expert evidence, that the ARVs would be available in liquid form in Malawi.

MV

MV arrived in the UK without leave in 2014 and, following a failed asylum claim, made an application to remain under Articles 3 and 8. The Article 3 claims was based on his forced recruitment by the Liberation of Tigers of Tamil Eelam (LTTE) and the PTSD he was suffering as a result.

MV relied on the evidence of a psychiatrist who considered he should receive drug therapy and psychotherapy (although he was at the time of his appeal only receiving drug therapy). It was accepted for the purposes of the appeal that the drug therapy would be available in Sri Lanka, but that the psychotherapy would not. MV therefore, argued that he was at an increased risk of suicide without access to the recommended psychotherapy.

The Issue in the case

It was common ground between the parties that none of the Appellants could satisfy the test from N (as explained in AM (Zimbabwe)) and that, as the Court of Appeal was bound by this decision, the appeals would inevitably fail. However, the Appellants argued that they satisfied the criteria under Paspohvili and therefore, permission to appeal to the Supreme Court should be granted to enable consideration of whether AM (Zimbabwe) had correctly interpreted Paposhvili.

The Court of Appeal’s decision

MM and MK’s appeals were largely sunk by the findings of the UT that the necessary medication (i.e. liquid ARVs) would be available in Malawi. Therefore, the appeals were dismissed on the basis that there was no real risk of a decline in MM’s health or a reduction in her life expectancy.

In relation the MV’s appeal the Court of Appeal noted at paragraph 55:

The real issue is again whether, because MV satisfies the criteria in Paposhvili, this case might be an appropriate vehicle for the Supreme Court to revisit the criteria in article 3 medical cases.
Unfortunately for the appellants, Hickenbottom LJ swiftly concluded in the subsequent paragraph that ‘it is my firm view that it is not’.

The judgment sets out the argument of MV’s counsel, Stephen Knafler QC, regarding the correct interpretation of paragraph 183 of Paposhvili in which he asserts that the AM (Zimbabwe) interpretation is incorrect for similar reasons as argued on this blog, i.e. that the ‘significant reduction in life expectancy’ does not need to result from expose to a ‘serious, rapid and irreversible’ decline in health.

At paragraph 58 Hickinbottom LJ expressed some concern about this:

Of course, I was a member of the constitution in AM (Zimbabwe), and I agreed with Sales LJ’s judgment. Like him, I see difficulties in the construction suggested by Mr Knafler, which appears to emasculate the alternative limb expounded in D and N and endorsed in Paposhvili, i.e. that there would be an imminent risk of dying. Nevertheless, I do not suggest that Mr Knafler’s favoured construction is fanciful or even unarguable.
But Hickinbottom LJ concluded that

the available evidence falls far short of showing any real risk that MV’s life expectancy will be significantly reduced (and/or reduced to one to two years) as a result of an increased risk of suicide on removal to Sri Lanka. [paragraph 63]

Conclusion

The Court of Appeal’s hands were tied in relation to the restrictive interpretation of Paposhvili in AM (Zimbabwe) and, as was accepted by all parties, this was fatal to the appeals. On the facts, it is also difficult to argue that the Court of Appeal was wrong to refuse permission to appeal to the Supreme Court; in MM and MK the evidence pointed to the treatment being available in Malawi and in MV there was insufficient evidence to establish a significant reduction in life expectancy.

However, in its determination on MV’s appeal the Court of Appeal perhaps gives some hope to appellants, that if their circumstances are such that they might satisfy the less restrictive interpretation of Paposhvili such a case might constitute the ‘appropriate vehicle’ for the Supreme Court to reconsider whether that decision has been given proper effect by our domestic courts.

Vanessa Long is a barrister at One Crown Office Row (Brighton).

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