November 29, 2019

Why has my UK visit visa been refused?

What is a ‘genuine visitor’?

A prospective visitor to the UK must satisfy the entry clearance officer that they are a ‘genuine visitor’, and will meet the immigration rules governing visits to the UK. The following (from the Home Office Guidance) are the questions which will be asked in assessing whether the applicant is a ‘genuine visitor’:-

“if the applicant is a genuine visitor:

do they intend to undertake permitted activities and leave at the end of their stay
are you satisfied they will not be living in the UK or making the UK their home through frequent and successive visits
will they be doing any prohibited activities
do they have sufficient funds, maintenance and accommodation for the duration of their stay”

Common reasons for refusal of a UK visit visa application

The following sets out common reasons for refusal based on assessing whether the applicant is a ‘genuine visitor’ based on the above criteria:-

“Do they intend to undertake permitted activities/will they be doing any prohibited activities …?”

Purpose of the visit

Lack of detail about the purpose of the visit may lead to reasons for refusal which either question the length of the visit or the plans which have been made for the visit, including arrangements made for accommodation. If the reason for the visit is not clear, there may be an assumption that the applicant is not being candid about wishing to come to the UK just to visit. The permitted/prohibited activities referred to generally mean taking up employment (paid or voluntary).

Finances

Reasons for refusal which question the applicant’s finances are likely to be rooted in the concern that the applicant may not be intending to visit but rather is intending to work – working is prohibited for visitors except in very limited circumstances.

The reasons for refusal may challenge why an applicant’s employer has agreed to the length of the visit (is the employment at home real, or will the job be lost after such a long absence?), or why an applicant would spend the whole of their savings or so much of their income for the visit, or whether or not the funds belong to the applicant. The origin of funds deposited in a bank account may come into question, and entries on bank statements in particular may be queried. It is therefore important to give straightforward and thorough information about all the financial elements of the visit, both in respect of how the visit will be financed (see below) and about the applicant’s financial affairs in their home country.

“(Do they intend to) leave at the end of their stay?”

“Are you satisfied they will not be living in the UK or making the UK their home through frequent and successive visits?”

The essence of a visit visa is that it is a visit – and that the applicant will return to their home country at the end of the visit. Frequent and successive visits will lead to considerations of broader questions about the applicant’s life in their home country and their travel history.

Ties to their home country

If an applicant has not indicated that they have active involvement with family and community in their home country, this may lead to an assumption that the applicant has nothing to return to and thus intends to remain in the UK, and a refusal for this reason.

Travel and immigration history

Considerations about whether the applicant has a ‘track record’ of visiting other countries, and the extent to which they have complied with the requirements of the visas issued for those countries (including during previous visits to the UK), may feature as part of the reasons for refusal. This reflects a concern that the applicant wishes to come to the UK for more than a visit, and will not leave at the end of the visit. The Home Office guidance clearly sets out what will be taken into account, and why:-

“A pattern of travel that shows the applicant has previously complied with UK immigration law may indicate the applicant is a genuine visitor. As might travel to other countries, especially the USA, Canada, Australia, New Zealand, Ireland, Schengen countries or Switzerland.”

Reasons for refusal from previous applications also are often repeated where there has been no reference to a change in the circumstances which led to the refusal.

Too many visits to the UK

These refusals generally concern longer-term multiple visit visa holders, but will be attracted by applicants who have not provided evidence of the reason/s for visiting the UK for successive or lengthy periods within one year or successive years.

“Do they have sufficient funds, maintenance and accommodation for the duration of their stay?”

Such refusals can include questions about a sponsor’s ability to provide sponsorship for the visit. Refusals may occur where straightforward and detailed evidence has not been provided about the funding for the visit, the costs of the visit (food, accommodation, travel within the UK etc) and what funds are available to the applicant from his or her own resources to meet these costs. If detailed information about the finances available for the visit is not provided, a conclusion that the applicant intends to work in the UK or seek access to public funds may be drawn.

Can previous visit visa refusals be overcome?

A fresh application following a visit visa refusal must deal with the concerns raised in the previous reasons for refusal, as discussed above. In addition, providing straightforward evidence with the fresh visit visa application using the visit visa rules, should satisfy an entry clearance officer or border official that the applicant is a ‘genuine visitor’ notwithstanding previous refusals.

November 28, 2019

Long Residence ILR: Continuous Lawful Residence

This is a case law on overstaying and applying for settlement, also known as indefinite leave to remain (‘ILR’), on the basis of 10 years of residence in the United Kingdom. This post will summarise the current landscape of case law addressing the continuous lawful residence requirement, before moving on to consider the updated Home Office Guidance on Long Residence.

The Immigration Rules on Continuous Lawful Residence

The key requirements regarding lawful residence in the UK can be found in the following paragraphs of 276B of the Immigration Rules:

276B. The requirements to be met by an applicant for indefinite leave to remain on the ground of long residence in the United Kingdom are that:

(i)

(a) he has had at least 10 years continuous lawful residence in the United Kingdom.

[…]

(v) the applicant must not be in the UK in breach of immigration laws, except that, where paragraph 39E of these Rules applies, any current period of overstaying will be disregarded. Any previous period of overstaying between periods of leave will also be disregarded where –

(a) the previous application was made before 24 November 2016 and within 28 days of the expiry of leave; or

(b) the further application was made on or after 24 November 2016 and paragraph 39E of these Rules applied.

For most applications, what is relevant is that paragraph 276A(b) defines lawful residence as residence which is continuous and pursuant to existing leave to enter or remain. Therefore, it is important to determine when you actually had leave to enter or remain. This becomes particularly tricky in periods when you had a pending application, appeal or administrative review. In my previous post, I considered the circumstances in which section 3C could extend leave, or paragraph 39E applied if an application was made out of time.

The First Ahmed Case – Disregarding current overstaying doesn’t mean you’ve accrued 10 years

In the case of R (on the application of Juned Ahmed) v Secretary of State for the Home Department (para 276B – ten years lawful residence) [2019] UKUT 00010 (IAC) considered in depth here by my colleague Alex Papasotiriou, the Upper Tribunal held 276B(v) to be freestanding and additional to paragraph 276B(i)(a). This means you must have at least 10 years of continuous lawful residence in the UK without counting any periods overstaying.

Essentially, this case affects people who tried to apply for ILR after their leave had expired; this could be the expiry of their visa, after their appeal rights are exhausted, or following a refusal or unsuccessful administrative review. They are overstayers at the date of application.

In Juned Ahmed, it was said that if you have accrued 10 years of continuous and lawful residence prior to your application, and if 39E applies to you, you can rely on 276B(v) and your application will not be refused. However, if you apply before you have accrued 10 years of continuous lawful residence, the period of overstaying (unlawful residence) while your ILR application is pending, will not be added to your prior period of lawful residence to assist you in reaching 10 continuous lawful years.

For example, you entered the UK on 1 January 2009 and you always applied for extensions before your leave expired, but your application was refused on 1 December 2017 with an in-country right of appeal. You appealed in-time and throughout the pending appeal your leave was extended by virtue of section 3C. On 1 January 2019, if your appeal was not finally determined, you had acquired 10 years of continuous lawful residence. However, if your section 3C came to an end on 1 December 2018 when you became appeal rights exhausted, applying for ILR on the basis of long residence on 14 December 2018 would not mean you had acquired 10 years of continuous lawful residence. The current overstaying will not be disregarded in the sense that it makes the period in which you are currently overstaying lawful. You would still be several weeks short of 10 years.

This was the first case in which the courts’ interpretation of paragraph 276B made long residence applications more difficult.

The Second Ahmed Case – any prior overstaying will break lawful residence

The Court of Appeal in a decision on permission to appeal, decided to further narrow paragraph 276B with their interpretation. Unfortuitous as it may seem, this case also related to an appellant with the surname Ahmed: R (on the application of Masum Ahmed) v Secretary of State for the Home Department [2019] EWCA Civ 1070. We consider this case in depth here.

In summary, it was considered that although previous periods of overstaying were excepted (where 39E applied, or prior to 24 November 2016 where the application was made within 28 days), the application of the 14-day or 28-day grace period did not convert these periods into lawful leave to remain.

Continuing our example above, if you entered the UK on 1 January 2009, and at one point in 2014 made an application 20 days after your leave expired, which was subsequently granted, those 20 days of overstaying would break your lawful residence, regardless of the fact that making it 28 days out of time was then permitted by the Rules, and you were subsequently granted further leave to remain.

In Masum Ahmed, the Court of Appeal indicated that the Home Office’s Guidance which then stated on page 16 that, “gaps in lawful residence” can be disregarded because ‘the rules allow for a period of overstaying of 28 days or less when that period ends before 24 November 2016’ was far more generous than their interpretation of 276B and that the ‘SSHD may wish to look again at the Guidance to ensure that it does not go any further than a statement of policy’.

However, their interpretation was said to have been based on ‘applying ordinary rules of statutory construction and the presumption of ideal, rational legislation’, and therefore ‘differences in drafting should not be read as accidental or unintended’. This did not sit well with many immigration practitioners who struggle on a daily basis with inconsistent drafting within the Immigration Rules, which are far from a tightly drafted statute.

Home Office Guidance on continuous lawful residence

In light of all of the above (still good) case law, it may come as a temporary relief to note that despite the warning from the Court of Appeal, the new Long Residence Guidance published for Home Office staff on 28 October 2019 maintains the long-standing application of paragraph 276B. For example, on page 16 it states under ‘Gaps in lawful residence’:

You may grant the application if an applicant:

has short gaps in lawful residence through making previous applications out of time by no more than 28 calendar days where those gaps end before 24 November 2016
has short gaps in lawful residence on or after 24 November 2016 but leave was granted in accordance with paragraph 39E of the Immigration Rules
meets all the other requirements for lawful residence

The examples of gaps in lawful residence are also helpful:

Example 1

An applicant has a single gap in their lawful residence due to submitting an application 17 days out of time. All other applications have been submitted in time, throughout the 10 years period.

Question Would you grant the application in this case?

Answer Grant the application as the rules allow for a period of overstaying of 28 days or less when that period ends before 24 November 2016

Example 2

An applicant has 3 gaps in their lawful residence due to submitting 3 separate applications out of time. These were 9, 17 and 24 days out of time. Question Would you grant the application in this case?

Answer Yes. Grant the application as the rules allow for periods of overstaying of 28 days or less when that period ends before 24 November 2016.

For now, if the Home Office apply their own guidance, gaps of overstaying where applications were made no more than 28 days out of time pre-24 November 2016, or 14 days after that date if 39E applies, should not break the lawfulness of the continuous residence.

However, watch this space for further developments in case law or guidance.

November 5, 2019

The new graduate immigration route for students

New rules and policy again!

The Tier 1 (Post Study Work) visa category (PSW) was axed on 5 April 2012. In order to attract the “best and the brightest” to the UK, a new Tier 1 (Graduate Entrepreneur) visa scheme was devised to replace the older PSW category. The PSW was a popular visa category allowing those holding UK degrees to work in the UK for two years without any formal job offer or potential employment. However, after seven years, on 11 September 2019 the government announced the creation of a new Graduate Immigration Route with a view to enabling international students to remain in the UK for two years after they have completed their studies. I once had a PSW which enabled me to obtain Indefinite Leave to Remain (ILR) and then ultimately I was granted British citizenship. When I attempted to switch to Tier 2 (General) the application was refused because the extremely nasty Conservative party came to power on 6 May 2010 and entered into a coalition with the Liberal Democrats. Together they made changes to the system to reduce net migration to the hundreds of thousands. All this had meant that my Tier 2 (General) application was refused. But on appeal I won on article 8 of the ECHR outside the Immigration Rules. The Immigration Judge, a Sikh, initially resisted my submissions but then became attracted to my arguments and announced that he would allow my appeal.

To my surprise, afterwards in the corridor he congratulated me in Punjabi “well done, well done, Good Luck to you.” Ironically the Immigration Judge in question is infamous for dismissing human rights appeals. Boris Johnson has reportedly axed the Conservative’s net migration target and his spokesman confirmed that Johnson did not want to play “a numbers game”. Instead Johnson and his cabal wish to enter into a game built around the Australian style points-based system. Whatever the real intentions behind such changes, I can say that if the PSW and cat-style article 8 worked for me then there is every possibility that it will work for other people who possess the right credentials to win. The Graduate Immigration Route, the reinvented version of the PSW, will be available to international students who have completed a degree at undergraduate level or above at a UK Higher Education Provider with a track record of compliance and who have a valid Tier 4 visa at the time of application. Successful applicants will be able to stay and work, or look for work, in the UK at any skill level for a maximum period of two years. Graduates will be able to switch into skilled work once they have found a suitable job.

The statistics show that in the year ending June 2019, the number of sponsored student visa applications rose 9% to 236,679 and this included an 11% increase for the higher education sector to 201,919.

Unsurprisingly there were numerous clashes in Cameron’s Cabinet between Theresa May (the Home Secretary at that time) and George Osborne (the former Chancellor) since the latter wished to have an open immigration policy for skilled persons so as to service the UK’s migrant driven economy. Indeed, during her time as Prime Minister, Theresa May snubbed calls for relaxing the rules in 2016 because of her big obsession with reducing migration to the tens of thousands.

When does the route open?

The Graduate Immigration Route will be launched in the summer of 2021. The laugh date means that any eligible student who graduates in the summer of 2021 or after will be able to apply, including those students who have already started their courses and universities will also be able attract students starting in the 2020/21 academic year on the basis that they will benefit. The closure of the PSW resulted in the UK looking less student friendly and damaged its reputation.

The government thus claims that the relaunch of the route shows its support for UK’s education sector, and its ongoing commitment to the International Education Strategy aiming to increase education exports to £35 billion and the number of international students in higher education to 600,000 by 2030. The graduate immigration route will require a new application. It will include the payment of a visa fee and the Immigration Health Surcharge. The exact fee will be set out in due course. Those who graduate and whose Tier 4 leave expires before the route is introduced will not be eligible, however, most of these students will have had no expectation of benefitting from such a route when they applied to study in the UK.

Prospects of early implementation?

The Home Office takes its time over everything and devising a new immigration route is no different. This is so despite the fact that the PSW was a part of the rules for many years in the past.

The Home Office has explained that the route will be introduced in the summer of 2021. This will mean that all students who graduate in the summer of 2021 or after will benefit, regardless of when they started their course. The Graduate Immigration Route route aims to ensure that universities and stakeholders could promote the route when attracting prospective students. The Home Office claims that it will enable students to decide where to study, knowing they have the option of staying in the UK to work after completing their studies.

Who can benefit?

The Home Office has explained that any student who successfully completes their degree-level course at a qualifying institution in the summer of 2021 or after will be eligible. This includes students who are already studying in the UK.

Students whose Tier 4 leave expires before the route is introduced will not be eligible for it, however, most of these students will have had no expectation of benefitting from such a route when they applied to study in the UK. These students can still benefit from the generous provisions which allow them to switch in the skilled work route on favourable terms.

Is sponsorship necessary?

Eager foreign students will ask whether universities will be expected to act as sponsors for those students on the graduate immigration visa after they have graduated?

The answer is no and no sponsorship is necessary because the route is freestanding and students applying for the Graduate Immigration Route will not need a sponsor. Moreover, Tier 4 sponsors will not need to fulfil any sponsorship duties for their students if they switch onto the route. Students will not need a Certificate of Sponsorship (CoS) to apply under this route. Tier 4 sponsors will continue to be responsible for their students while they are studying.

Is it possible to apply for settlement?

The new Graduate Immigration Route will be non-extendable. It will not count towards settlement but holders who can find an appropriate job and meet the requirements will be in a position to switch into skilled work, which is a route to settlement.

Equally, those who can extend their stay for 10 years will also be able to apply for ILR under the long residence rules for settlement. After nine years of very strict numbers on visas Priti Patel ironically introduced the new student work route by stating that:

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