September 10, 2019

Right of appeal against refusal of a residence card: the conclusion

The question of whether non-married partners and wider dependent relatives (e.g. grown-up children) of EEA nationals (known as ‘extended family members’) have a right of appeal against a decision by the Home Secretary to refuse them a residence card under the EEA Regulations has had a fraught recent history.

Now, as a result of the final decision of the Upper Tribunal in Banger (EEA: EFM – Right of Appeal) [2019] UKUT 194(IAC), full appeal rights have been restored to ‘extended family members’ whose applications are refused.

To give you the background in a nutshell, by Regulations promulgated in 2016 the Government took away this right of appeal (though it left it in place for spouses and direct descendents). Given that 50% of immigration appeals (across the board) are now successful, this deprived many individuals of a potentially very important right. For more detail on the background, see our previous articles here and here.

In its final decision, the Upper Tribunal noted that following the decision of the Court of Justice in this case, the Home Secretary had amended the 2016 Regulations to provide ‘extended family members’ with a right of appeal once again, by way of the Immigration (European Area Nationals) (EU Exit) Regulations 2019.

As such, future refusal decisions made under the 2016 Regulations will include a right of appeal in the normal way.

In addition, the Upper Tribunal stated that where a person has received a refusal decision made before this change (which states that there is no right of appeal), it is open to them to request a fresh decision from the Secretary of State in order to generate a right of appeal (para 38), or alternatively to invoke the doctrine of direct effect under EU law and apply under rule 20 of the Tribunal Procedure (First-tier Tribunal) Rules 2014 for an extension of time to provide a notice of appeal to that Tribunal (paras 39-43).

The result is that after a legal battle of several years, an ‘extended family member’ who is refused a residence card should always have a right of appeal to the First-tier Tribunal.

One final thing to note is that despite the fact that by the time of the final hearing the Home Secretary had accepted that the appellant should be granted a residence card, the Upper Tribunal decided to give a fully reasoned decision in light of the lengthy delay by the Home Office in resolving this case, which had led the appellant to suffer “ongoing uncertainty in connection with her immigration status” (para 29).

September 3, 2019

Multiple nationality and multiple citizenship (including dual nationality and dual citizenship)

British nationality law permits multiple nationality and multiple citizenship, including dual nationality and dual citizenship.

Multiple nationality and multiple citizenship explained

A British citizen who acquires citizenship of another country is not required to renounce their British nationality. Similarly, a foreign national who wishes to become a British citizen is not required to renounce their original nationality.

This means that a person can be a British citizen or national, and also be a citizen of other countries. They can hold dual nationality or dual citizenship.

Exceptions to multiple nationality and multiple citizenship

There are a few exceptions to the multiple nationality and multiple citizenship principle which depend on the type of British nationality held:

British subjects

Since 1 January 1983, a person loses their status as a British Subject if they acquire another citizenship or nationality. The exception to this is if the person is also a citizen of Ireland.

British protected persons

A British protected person will lose this status if they gain any other nationality or citizenship. This would generally be when the territory that was a Protected State became independent, and those with a connection to it acquired citizenship of that country.

British overseas citizens

A British Overseas citizen is only entitled to register as a British citizen if they do not hold any other citizenship or nationality.

Implications of multiple nationality and multiple citizenship

Not all countries permit multiple nationality or multiple citizenship, including dual nationality and dual citizenship.

If you are considering applying to naturalise as a British Citizen or applying to register as a British Citizen, it is important for to check whether this will have any impact on the nationality or citizenship(s) that you already hold.

If a British person holds citizenship of State A, which does not allow multiple citizenship, it may only recognise the person as holding citizenship of State A, ignoring the British citizenship. This has no impact on the person’s British citizenship in British nationality law.

Alternatively, if a person acquires British citizenship when they already hold citizenship of State A, State A may regard the person as having lost its citizenship.

A state that does not allow multiple citizenship may require a person to renounce all other citizenships before they can become its citizen. It is possible to apply to renounce British citizenship for this reason. This is an important decision and should not be taken without first seeking legal advice.

Holding multiple citizenship may come with a whole host of other consequences, such as tax liability, obligations relating to which passport to use, military service, and restrictions on holding public office. Under British nationality law, it also means that a person that acquired British citizenship otherwise than by naturalisation may be deprived of their British citizenship in certain circumstances as this would not render the person stateless.

The Master Nationality Rule

If a person holds multiple nationalities, the Master Nationality Rule governs the provision of diplomatic assistance in international law.

This rule means that the UK government will not provide diplomatic assistance to a person who is a British Citizen, when they are in a country whose citizenship the person also possesses. The UK government may decide to make informal representations but has no obligation to assist at all.

If the person is in a country whose citizenship they do not possess, the person can seek diplomatic assistance from the authorities of any other state they are a citizen of.

August 30, 2019

How to get married in the UK: Choosing the right visa for marriage

Choosing the right visa for marriage is a tricky question!

Making mistakes as to the visa application could cause the application to be refused or delayed, which could have an obviously devastating and expensive impact on your wedding.
Every year, thousands of people chose to get married in the UK, but have no intention of staying here

Whitin the Immigration Rules, there are a number of different options for individuals who are settled or British and who want to get married in the UK. But at a time when you are planning rings and venues, there is some sense in taking time to review the relevant immigration options to make sure that your dream day is possible. Therefore, while some administrative forms might be less interesting than a day of cake tasting, it is really important to make sure you get this part right.

Getting Married in the UK as a Visitor

. Whether or not one of the couple is British, it is important that anyone planning to get married in the UK does not do so when they have entered the UK as a visitor. This includes those who have a multi-entry visa or those who are non-visa nationals. The Immigration Rules state that someone who enters the UK as a visitor must not intend to marry, form a civil partnership or give notice to marry or form a civil partnership, unless they have entered in a specific Visitor for Marriage category. If you were to give notice to marry or even get married while in the UK as a standard visitor, there is a risk that the Home Office could find that you exercised deception on entering the UK by failing to disclose this intention. This could potentially therefore affect your ability to return to the UK again.

The ‘marriage or civil partnership visit visa’ specifically permits people to both get married or form a civil partnership, as well as giving notice to marry while they are in the UK. When assessing an application in this category, the Entry Clearance Officer must be satisfied that the person does not intend to be party to a sham marriage. This gives UKVI the opportunity to assess the genuineness of any relationship prior to granting someone entry to the UK, which they would not have if a person has entered as a visitor without the endorsement for marriage or civil partnership. Those who normally do not need a visa to enter the UK as a visitor (non-visa nationals) will need to apply in advance if they intend to marry.

Individuals who enter in this category can stay for up to six months, but cannot switch into any other category from within the UK, and must demonstrate that they intend to leave the UK at the end of their stay. Therefore, if you do want to stay in the UK longer, there may be other categories which are more appropriate for your circumstances. An early conversation with your Fiancee about where you want to get married and where you want to live after the wedding could help save making the wrong application.

Fiancee Visa

If your partner is British or holds Indefinite Leave to Remain in the UK (Settled), and you want to come to the UK to get married and then remain in the UK, the appropriate application is as a Fiancé(e) under Appendix FM.

This application will initially be granted for a period of six months to allow you to get married (and if for any reason you can’t get married in that time, it can be extended). After you are married you can switch into the Spouse category, without leaving the UK.

Unlike the visitor for marriage category, you don’t need to demonstrate that you intend to leave the UK at the end of your stay, instead, you need to show that you intend to settle permanently in the UK with your partner. The requirements, therefore, are a little stricter than for those just visiting. There are specified evidential requirements to demonstrate that you meet the financial requirements.

For most people this means demonstrating that your partner in the UK earns at least £18,600, either through salaried employment or self-employment. Alternatively you or your partner can show that you have savings of at least £62,500. The Immigration Rules also allow for earnings from shares, property or pensions, and in some cases you can combine different types of earnings together, in addition to savings to make up any shortfall.

One problem for those getting married in the UK is that they will effectively have to make two immigration applications within a very short space of time, and given that the Home Office fees are now over £1500 per application in addition to the Immigration Health Surcharge fee of £1000 you need to pay for the second application, this can add unwanted expense to an already expensive time.

While the requirements for Fiancée and Spouse are very similar, even if there is just a short time between making the two applications, because of the requirement for all evidence to be up to date at the time of the application, particularly the financial documents, there is likely to be a substantial amount of new documents necessary to make the Spouse applications, which can be frustrating for couples who would rather be organising their honeymoon rather than their UK visas.

Spouse Visa application

The Spouse Visa application is for individuals who are already married. Getting married outside of the UK and then applying to enter directly as a Spouse can save the money of making two visa applications. Applying in this category still has a financial requirement and you must prove that you intend to live together permanently in the UK. However, there is now no need to prove that you intend to get married within six months. This can provide couples with more flexibility over their wedding day, but does mean they can’t have their legal wedding ceremony in the UK. This does not, however, preclude a wedding party in the UK.

Partners of Points Based System Migrants and European Nationals

Neither the European regulations or the Immigration Rules for partners of Points Based System Migrants have specific provisions for Fiancé(e)s. People in this situation will need to consider alternative options.