December 13, 2019

Are You Keeping The Home Office Up To Date With Your Current Circumstances?

The Home Office require a migrant’s circumstances to be kept up-to-date at all times, regardless of whether the migrant holds a valid immigration status or they have an application that is under consideration. If a migrant’s circumstances are not kept-up-to-date, it could have a detrimental effect on the migrant’s UK immigration status.

What qualifies as ‘circumstances’?

For any migrant in the UK with a Biometric Residence Permit or an application which has been submitted to the Home Office but not yet decided, the Home Office advise that a report should be made if there are any changes to the following:

personal details;
contact details;
criminal convictions; and
separation from their partner or if any of their children stop living with them permanently.

Do you have a Police Registration certificate?

All of the above circumstances must be reported immediately if you are required to register with the police. The police may be unable to update any changes immediately and so an appointment should be made to do this as soon as possible.

Risk of curtailment

Curtailment occurs when the Home Office withdraw your right to remain in the UK. Many migrants underestimate the importance of updating the Home Office of changes to their circumstances whilst residing in the UK. A situation may arise where a migrant has moved address, not informed the Home Office and, for whatever reason, their leave is curtailed but they do not receive the curtailment notice as it was sent to an old address. This could lead to a migrant remaining in the UK illegally.

What do I do if I receive a driving penalty whilst my application is outstanding with the Home Office?

As with any change in circumstances, the Home Office should be updated so that their records are accurate and up-to-date. In the case of a driving offence, caution, conviction or other offence, it is imperative that the Home Office are advised as soon as these are received, even if the decision on an application already submitted to the Home Office has not yet been made. For example, if you have submitted an application to the Home Office and three months after submission (but before a decision is made) you commit an offence, you must inform the Home Office immediately. This type of update could have a negative impact on a decision if reported, but it could also have an effect on the migrant’s immigration status if it is not reported because the Home Office will likely find out and, as a result, will suspect the migrant of deception for not reporting it.

Deception forms part of the general grounds for refusal and so could cause an application to be refused or, if already decided, could result in the migrant’s leave being curtailed. Curtailment could result in the migrant being required to leave the UK.

Are you an employer and hold a sponsor licence?

Where a company sponsors a migrant worker and becomes aware of a change in the circumstances of a migrant in their employ, a report may need to be submitted to the Home Office, depending on the details, using the Sponsor Management System.

Companies holding sponsor licences have a number of duties and responsibilities and it is important that these are complied with. If you are concerned about any migrants you are sponsoring, please contact us to discuss the specific circumstances and we can advise accordingly.

How do I update my details?

How a migrant reports a change in circumstances depends on the nature of those changed circumstances and this may vary from one case to the next.

December 4, 2019

Supreme Court unanimously rules detention of asylum seekers pending removal was unlawful

supreme court

R (Hemmati and others) v Secretary of State for the Home Department [2019] UKSC 56

In a significant public law decision, the Supreme Court dismissed the Secretary of State’s appeal and held that the policy governing detention pending removal fails to comply with the Dublin III Regulation as it lacks adequate certainty and predictability.

The respondents were five individuals who had travelled to the UK illegally and made claims of asylum, having entered via at least one other member state of the European Union in which they had already claimed asylum. Relying on the procedure set out in the Dublin III Regulation (Parliament and Council Regulation (EU) No 604/2013 of 26 June 2013) (“Dublin III”), the Secretary of State requested those states to take responsibility for examining the asylum claims. Each such state agreed.

The respondents were then detained pending their removal pursuant to paragraph 16(2) of the Immigration Act 1971. Paragraph 1(3) of Schedule 2 to the 1971 Act provides that in exercising powers of detention, immigration officers must act in accordance with such instructions as may be given to them by the Secretary of State.

The policy in relation to detention to effect removal is set out in Chapter 55 of the Enforcement Instructions and Guidance (23 October 2015) (“the EIG”). The power to detain is also subject to the well-known Hardial Singh principles. The Supreme Court in R (Nouazli) v Secretary of State for the Home Department [2016] UKSC 16; [2016] 1 WLR 1565 (at §75) recently confirmed that the courts will monitor the compliance of immigration detention with those principles, which in summary require that: (i) there is an intention to deport the individual and that the power to detain is used for that purpose; (ii) the period of detention is reasonable; (iii) the power to detain is not sought if it becomes apparent that deportation cannot be effected within a reasonable period; (iv) reasonable diligence and expedition is exercised to effect removal.

The first issue for the Supreme Court was whether the respondent’s detention met the requirements of Dublin III. Article 28 of Dublin III permits detention where there is a “significant risk of absconding”, “risk of absconding” being defined in article 2(n) as the existence of reasons in an individual case, based on objective criteria defined by law, to believe that the person subject to a transfer procedure might abscond.

To answer this question, Lord Kitchin’s judgment considers in detail the decision of the Court of Justice of the European Union (“the CJEU”) in Policie ČR, Krajské ředitelství policie Ústeckého kraje, odbor cizinecké policie v Al Chodor (Case C-528/15) [2017] 4 WLR 125 (“Al Chodor”).

The CJEU held that articles 28(2) and 2(n) of Dublin III required Member States to ensure that detention was subject to strict safeguards of “legal basis, clarity, predictability, accessibility and protection against arbitrariness”. As such, Member States are required to establish, “in a binding provision of general application”, objective criteria underlying the reasons for believing that an applicant for international protection who is subject to a transfer procedure may abscond (§§37-38; 53; Al Chodor §§40 – 46). The necessary safeguards would then be in place in so far as the wording of the provision sets out the “limits of the flexibility of [the] authorities in the assessment of the circumstances of each specific case” in a manner which is “binding and known in advance.”

However, the CJEU did not go as far as the Opinion of Advocate General Saugmandsgaard Øe of 10 November 2016 EU:C:2016:865; [2017] 3 CMLR 24, who expressed the view that the concept of “law” required the criteria to be laid down in legislation (Opinion, §§42-45). This would have taken the EU standard further than the meaning of the concept of “law” in the ECHR case law (§§31-32; 39).

Before the Supreme Court, the Secretary of State accepted that Chapter 55 of the EIG was not legislation, but it was contended that it includes rules which decision-makers are obliged to follow as a result of settled case law, and that it constitutes a clear statement of the circumstances in which the statutory criteria will be exercised, which are objective and publicly accessible, and if necessary, subject to the interpretation of the courts.

The Supreme Court disagreed, holding that the relevant provisions of Chapter 55 contained

no more than general guidance as to how the power to detain is to be exercised and does not constitute a set of objective criteria against which the risk of absconding is to be assessed.

Nor, the Court held, did they set out the “limits of the flexibility of the authorities in the assessment of the particular circumstances of each case in a manner which is binding and known in advance” (§58).

The Hardial Singh principles require the power to detain to be exercised reasonably and for the prescribed purpose of facilitating deportation, but they

do not constitute objective criteria on the basis of which an assessment may be made as to the likelihood that a person who is subject to a transfer procedure may abscond (§§59 – 61).

The Supreme Court concluded that persons subject to a Dublin III procedure could not know in advance which criteria would be used for the basis of an assessment of whether they are likely to abscond, and that they would not be able to identify the limits of the flexibility of the relevant authorities in carrying out their evaluation (§65). It followed that Chapter 55 of the EIG could not satisfy the requirements of articles 28(2) and 2(n) of the Dublin III Regulation.

Though not strictly necessary, the next stage of the Court’s analysis considered whether Chapter 55 of the EIG constitutes a binding provision of general application which amounts to a defining “law” within the meaning of article 2(n).

Notwithstanding that the policy created significant legal effect and was enforceable before the courts, the Court held that a provision can only amount to a “law” within the meaning of article 2(n) if it has the “necessary quality of certainty”; something that Chapter 55 lacked. The Court held that “to ignore the need for certainty would be impermissibly to remove the word “law” from its context” (§72).

The second issue for the Supreme Court was whether damages were payable. The Court held that they were: as Chapter 55 did not comply with articles 28(2) and 2(n) of the Regulation, in the case of each of the respondents the decision to detain lay outside the scope of any legitimate exercise of the discretion conferred by Schedule 2 to the 1971 Act and the ingredients of the tort of wrongful imprisonment were present (§§89-105). The Court also rejected the Secretary of State’s submission that the respondents should only be entitled to nominal damages (§§106-112).

Comment

The judgment will mark a significant development in asylum law in practice, but it is also notable for its exposition of deeper issues of constitutional and public law theory. Bringing academic debate to life, Lord Kitchin questioned whether any policy could ever amount to a “law” within the meaning of article 2(n).

The respondents’ arguments, drawing on constitutional law theory and the decision in Al Chodor, were rehearsed by the Court but were ultimately left for a case where it was necessary to decide the issue. However, this passage makes for fascinating reading (see §§75-79). It is also significant that the Court’s judgment criticised Chapter 55 of the EIG in relatively severe and general terms, such that it is likely to have significant repercussions for the future of asylum detention regulation.

Secondly, Lord Kitchin was clear that

there is no reason to believe that the impact of loss of liberty is likely to be affected by whether lack of legal authority for the detention is the consequence of a failure to comply with European Union or domestic legislation, and in my judgement the source of the lack of legal authority does not justify treating those who have been wrongfully detained differently from one another (§91).

Rejecting the Secretary of State’s arguments, the Supreme Court was confident in awarding damages for unlawful detention under UK common law, such that the principles of EU law as articulated in Francovich v Italian Republic (Joined Cases C-6/90 and C-9/90) [1995] ICR 722 Brasserie du Pecheur SA v Germany; R v Transport Secretary; Ex p Factortame Ltd No 4 (Joined Cases C-46/93 and C-48/93) [1996] QB 404 did not constrain the claim by the respondents for false imprisonment.

December 3, 2019

Leave to remain application date: how to calculate it and why it is important

Being late with submission of an application to extend your visa?
You’ve left extending your visa until the last minute and are now in danger of missing the deadline.
Does this matter and is there anything you can do about it?

The answer to the first question is a resounding yes. Fortunately, in most cases, the answer to the second question can also be yes. For all of their issues, the introduction of online applications forms allows migrants in danger of running out of time to buy a little breathing space. The extension application can be made online, fixing that as the legal date of application, and the appointment needed to finalise things booked for a later date.

This post explains the concept of an application date in immigration law, how to calculate it, and why making an application online can help beat the deadline.
Why is the date of an application for leave to remain important?

Knowing the legal date that an immigration application has been made on is important for a number of reasons.

The most obvious one affects those who are applying to renew their leave. People in this situation must submit their application before the expiry of their current leave to avoid becoming overstayers, and therefore losing the right to work, the right to rent, and, these days, potentially their bank account or driving licence. If, on the other hand, they submit a valid application before the expiry of their leave, the terms and conditions of that leave will continue until a decision is made on the application (section 3C of the Immigration Act 1971).

The date of application is also important to those who want to rely on paragraph 39E of the Immigration Rules. This allows for a period of overstaying to be overlooked when:

(1) the application was made within 14 days of the applicant’s leave expiring and the Secretary of State considers that there was a good reason beyond the control of the applicant or their representative, provided in or with the application, why the application could not be made in-time; or

(2) the application was made:

(a) following the refusal of a previous application for leave which was made in-time; and

(b) within 14 days of:

(i) the refusal of the previous application for leave; or

(ii) the expiry of any leave extended by section 3C of the Immigration Act 1971; or

(iii) the expiry of the time-limit for making an in-time application for administrative review or appeal (where applicable); or

(iv) any administrative review or appeal being concluded, withdrawn or abandoned or lapsing.

For some types of applications, the date of application is also relevant in assessing whether the documents submitted in support of the application are up to date. For example, under Appendices FM and FM-SE of the Immigration Rules, which apply to partners of British citizens or those settled in the UK, bank statements and other financial documents must end no earlier than 28 days before the date of the application.
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Another reason relates to the specified forms that must be used for postal applications to be valid. Although very few applications are now submitted by post, those forms are regularly updated. Generally speaking, an application will only be valid if the form submitted is the one published on the gov.uk website at the date of the application. (There is an exception, found at paragraph 34(1)(c) of the Immigration Rules, which allows applicants to rely on a previous version of the form as long as “it is no more than 21 days out of date”.)

This is one reason why the introduction of online application forms has been useful — there is no danger of using an out of date application form as it is automatically updated online.
How to calculate the application date for a leave to remain application

The answer is found at paragraph 34G of the Immigration Rules. The date of an application for leave to remain submitted from inside the UK depends on how the application is made:

where the application form is sent by post by Royal Mail, the date of posting as shown on the tracking information provided by Royal Mail or, if not tracked, by the postmark date on the envelope; or
where the paper application form is sent by courier, or other postal services provider, the date on which it is delivered to the Home Office; or
where the application is made via the online application process, the date on which the online application is submitted; or
where an applicant has made a fee waiver request, the date of application for further leave to remain will be the date the fee waiver application was submitted, as long as the application for further leave was submitted within ten days of receiving the decision on the fee waiver application. This is to avoid applicants requesting a fee waiver from becoming overstayers while the fee waiver application is decided.

So for online applications, the situation is pretty straightforward: the legal date of application is the date the application was submitted online.

For applicants trying to identify a historical application date, it may still be worth knowing what the position was when Premium Service Centres — previously known as Public Enquiry Offices — existed. Where the application was completed on a paper form, the date of application was the date of the appointment at the Centre.
Case study: postal applications

David had leave to remain as a parent of British children. He completed the paper application form FLR(P) and sent it by Special Delivery on 22 May 2018. The date of application was 22 May 2018, as it was the date of posting as shown on the tracking information provided by Royal Mail.

If David had completed the paper application form FLR(P) and attended an appointment at the premium service centre on 22 May 2018, the date of application would have been 22 May 2018, when he attended his appointment with the paper application form.

If David completed the paper application form FLR(P) and sent it by courier on 22 May 2018, and the application was delivered on 23 May 2018, the date of application would have been 23 May 2018, when it was received by the Home Office.

If David submitted his application form online on 21 May 2018, that would be the date of the application, whether David then decided to book an appointment to submit his application at the premium service centre, sent the form by post or, nowadays, went on to enrol his biometric information at a Visa Application Centre or Service and Support Centre.

Finally, if David made a fee waiver request on 22 May 2018, and the Home Office agreed to waive the fee on 15 June 2018, he would then have ten days to submit the form. Let’s say he did that on 20 June 2018. The date of application will still be considered 22 May 2018, when he submitted the fee waiver request. If the date of application was considered to be 20 June 2018, David would become an overstayer despite taking action before the expiry of his leave, which would of course be grossly unfair.
The advantages of online applications

The overwhelming majority of applications for leave to remain in the UK can now only be made online. In fact, to the best of my knowledge, the only applications that remain paper applications are:

Form FLR(GT), for survivors of the Grenfell tower fire or others directly affected by the fire
Form FLR (P), for children of relatives who have leave as refugees or humanitarian protection
Form DDV, for those in the UK as partners of British or settled citizens, who need to access public funds before they can apply for indefinite leave to remain as victims of domestic abuse

The introduction of online applications has brought with it a number of advantages (besides avoiding illegibility for bad handwriting!). In particular, it gives the applicant more control over the date of the application.

Perhaps the point is best explained by way of example.
Case study: online applications

It is 20 May 2019. David’s leave is due to expire on 23 May 2019. David has a trip planned on 10 June. In addition, David must submit bank statements to show that he meets the financial requirement, but they are only due to reach him on 24 May.

Before online applications were introduced, David would have been in a difficult position. He would have needed to either post his application or attend a Premium Service Centre before 23 May. If posting the application, he would have needed to send his passport and it is unlikely his application would have been decided and his passport returned before 10 June. If attending a Premium Service Centre, David would have needed to submit his bank statements at the appointment and the application would have been refused without them.

Nowadays, David can apply online before the expiry of his leave. Let’s say he did that on 22 May 2019. That is the date of application and prevents him from becoming an overstayer.

After his application has been submitted, David must book an appointment at a UK Visa Application Centre, where he will enrol his biometric information and his passport and documents will be verified, before being handed back to him. David can book his appointment for, for example, 25 May 2019, when he will have received his bank statements. The date of application being the date he submitted his application online, and not the date of his appointment, David continues to have valid leave to remain in the UK.

If David does want to travel on 10 June, he would be well advised to pay for the Super Priority Service (an eye-watering £800!), which should mean that a decision is made by the end of the working day after his appointment.

Although the Visa Application Centre won’t retain David’s passport, if he travelled with it before a decision were made on his application, his application would be considered withdrawn, and he would not be able to re-enter the UK as he would no longer have valid leave.

In short, submitting applications online allows applicants like David to:

Ensure that they have submitted an application before the expiry of their leave, as the date of the application is the day they submitted the application online
Gain time to finalise required paperwork such as bank statements
Travel on a date that falls just after the expiry of their leave

Of course, the best advice remains to prepare and submit an application well in advance! But for those who let time get away from them for whatever reason, the introduction of online applications has allowed applicants to buy some breathing space.

This article was originally published in June 2018 and has been updated to take into account of the increase in online application routes since then. It is correct as of the revised publication date.

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