July 2, 2019

UK Visas and Immigration’s (UKVI) New services

1 July 2019

Dear colleague,

We are writing to update you on UK Visas and Immigration’s (UKVI) front end services for UK customers. We’d like to inform you of Sopra Steria’s plans to introduce assisted scanning charges at their core service points.

As you will already be aware, the UK Visa and Citizenship Application Service (UKVCAS) run by Sopra Steria, was launched in November 2018. UKVCAS currently provides six core service points, where free appointments are available to customers during core hours (10:00-16:00), with payable slots available outside of these hours. Demand is currently very high for free appointments and we appreciate your patience whilst we work closely with Sopra Steria to ensure that the capacity for free appointments is maximised.

In additional to the six core sites, there are 50 enhanced service points that customers can use for a fee, plus a premium lounge offering superior comfort and privacy.

Since the launch of UKVCAS, customers visiting a core service point have been able to conveniently self-upload supporting documentation before they visit the service point. They have also had access to the assisted scanning service offered by Sopra Steria free of charge.

From 22 July, customers who book an appointment at one of the 6 core sites who do not wish to use the self-upload function may utilise the assisted scanning service but at a cost of £45. This is a flat rate, regardless of the number of documents to be scanned and must be paid before the customer attends their appointment at the core service point. The self-upload option remains free to customers and recent changes to this service will allow customers to preview their documents before uploading to their account. The fee for document scanning is in addition to the appointment booking charge if a customer choses an out of hours appointment.

If a customer chooses not to self-upload their supporting evidence ahead of the visit to a core service point, the £45 charge must be paid before they attend their appointment. If a customer has not made a payment prior to their appointment they risk being turned away and having to rebook their appointment.

The premium lounge and enhanced service points continue to offer document scanning during the appointment as part of the overall service. This £45 fee is only for those wishing to use the assisted scanning service at one of the 6 core sites.

For any further information or if you have any questions, please contact Sopra Steria directly. In the meantime, we hope this clarifies Sopra Steria’s plans to introduce assisted scanning charges at their core service points.

UK Visas and Immigration

May 28, 2019

UK Immigration and Brexit: 10 questions to ask

So, is the Brexit really coming soon, woudl it really to happen on 31st October 2019? Or the UK can still leave on 1 July with a deal?
Hopefully not! But be ready,as some essential changes with regard to the rights of EEA nationals and their family members could or will happen!

What is the legal position?

As things stand, the UK’s departure date from the EU has been extended to 31 October 2019. Although the political landscape remains uncertain, we set out 10 key questions which should provide some legal certainty and direction, and simplify the jargon as much as possible.

1. What rights do I have as an EU national in the UK at present? Until the UK’s date of departure from the EU, all EU/EEA nationals will continue to benefit from freedom of movement. The Government, however, is encouraging all EU nationals to register under its EU Settlement Scheme (“the scheme”) now.

2. What is the EU Settlement Scheme? How do I apply for the Settlement Scheme and do I need an Android device?

The scheme has been introduced by the Government to enable EU nationals to register their status in the UK. Those EU nationals who have resided in the UK for five years or more will be granted ‘Settled Status’ i.e. the right to reside permanently in the UK. Those EU nationals who have resided in the UK for less than five years will be granted ‘Pre-Settled Status’. This will be valid for five years and will enable individuals to apply for Settled Status once they have completed five years of residence in the UK.

Applicants must apply to the Settlement Scheme online. If you have access to an Android mobile phone (it can be yours or you can borrow one to make the application), you will be able to scan your passport using the Android device. If you do not have access to an Android device, you can either post your ID document to the Home Office or attend one of the ‘ID Document Scanner Locations’, (see here) where you can scan your passport.

It is free to apply under the scheme. The Government has said that it will consider applications with a view to approving them, rather than refusing them.

3. Can I become a British citizen? If you hold Indefinite Leave to Remain, Permanent Residence or Settled Status, or are eligible for these, you may also be eligible to apply for British citizenship.

If you wish to obtain British citizenship, you should seek legal advice on whether you are eligible and what options are available to you.

4. Do I need to be sponsored by a UK employer to work here? EEU/EEA nationals will not need to be sponsored by their employer and can pursue employment opportunities here in their own right, regardless of whether the UK leaves the EU with a deal or without a deal. However different legal provisions may apply in a deal or a no-deal scenario.

5. What do I need to think about and do, as an employer of EU nationals in the UK? What are my legal obligations now and when the UK leaves the EU? Should I actively support staff through this process?

In legal terms as an employer of EU nationals you are not required to do anything at present. However, it would be good practice to provide employees with information regarding the Settlement Scheme and how to apply under it. Right to work checks should be carried out normally.

Workforce planning should be conducted to cover all eventualities. It would be prudent to introduce a policy on what your business would do, especially in case of a no-deal Brexit and taking account of its effects on bringing new members of your workforce/new employees to the UK from the EU. You should also update the nationality and immigration status details of your employees so that you have up to date records. Active management now will mean not only that your business will be well prepared when the scheme closes, but your business will also be able to adapt should there be any unexpected developments.

Understandably the current uncertainty is a cause of concern and anxiety to all EU nationals. Although these individuals can also apply under the scheme, it would be helpful to have a policy in place on how your business would support family members.

You should also consider whether to send internal updates on Brexit so that staff are up to date and feel reassured. Although the soundbites might sound confusing, in reality there are several options available. From our experience clear communication with staff will provide reassurance.

6. When and how will non-EU nationals be affected by changes to the UK immigration system? Non-EU nationals at present remain unaffected.

The Government has published its White Paper for a post-Brexit single immigration system due to come into effect from 1 January 2021. Please see here for a summary of these changes.

These proposals should in theory make it easier for businesses to hire and sponsor skilled workers from outside the UK. However, it should be noted that these are proposals set out by the Government and are subject to changes after debate and consideration in Parliament.

7. What if there is a further extension beyond 31 October 2019? Until the UK’s date of departure from the EU, all EU/EEA nationals will continue to benefit from freedom of movement. It is however worth noting that although freedom of movement would continue to apply, the end of the transition period after (if) the UK leaves with a deal remains 31 December 2020.

8. What happens if the UK leaves without a deal? If the UK leaves the EU without a deal, then an individual will need to have been living in the UK before the exit date and will have until 31 December 2020 to apply under the Settlement Scheme.

If an individual arrives after the UK leaves without a deal, then they will be able to visit the UK for up to three months for work or study. They will however need to apply for a three-year European Union Temporary Leave to Remain visa if they wish to remain in the UK beyond three months. Please see here for further details.

9. What happens if Article 50 is revoked? If the UK decided to revoke its notification under Article 50 of the Lisbon Treaty, then the UK will remain a member of the EU. The two-year exit process will end. The UK will have to serve another notice under Article 50 of the Treaty for a subsequent two-year exit process to restart.

10. What happens next? Although it is unlikely that the UK will leave the EU without a deal given that Parliament has voted against it, please see below for key dates and how they have an impact on the Brexit process.

Potential change in withdrawal date If the UK and the EU ratify the Withdrawal Agreement at any time before 31 October, then the withdrawal will take place on the first day of the following month.

Brexit key dates

23 May UK takes part in EU elections.

Early June

A vote in Parliament is expected in early June. As we explained above, if for example the Withdrawal Agreement is ratified at any time in June, then the UK can still leave on 1 July with a deal.

New EU Commission/next five-year political cycle in Brussels begins on 1 November 2019.

20 – 21 June Brussels EU Summit where leaders will take stock of Brexit Progress.

If the Withdrawal Agreement is ratified in June, the UK can leave on 1 July. Although the UK will have taken part in EU elections, the 5-year political cycle in Brussels does not begin until 1 November.

August and September

f the UK and the EU ratify the treaty at any time before 31 October, then the withdrawal will take place on the first day of the following month, i.e. on 1 September or 1 October.

UK party conference season is between August and September. If there is a change in leadership, it might be that they are in place by the time Conservative party conference starts on 29 September.

17 – 18 October, Brussels

EU Summit. If the UK has not left the EU by this date and if a deal is not in place, this will be the crucial summit. If there is a change in leadership, this might mean a change in direction.

31 October

This is the new Brexit date if the UK and EU do not reach a deal. EU insisting that by this point the UK must choose to either ratify the exit, opt for a no-deal or cancel departure. However further delay cannot be excluded.

April 23, 2019

Disciplinary hearings in the High Court

In the short but landmark judgment of R (Hamid) v Secretary of State for the Home Department [2012] EWHC 3070 (Admin), the High Court affirmed that it has the power to oversee the conduct of lawyers in immigration cases. Judges have regularly used the disciplinary process that has evolved out of the Hamid case to scrutinise the work of lawyers and refer some to the regulator for formal investigation. This post traces the evolution and formalisation of what is now an established feature of the UK immigration system.

The Hamid jurisdiction

Hamid was decided against the backdrop of what the courts considered a flood of last-minute applications to stay removal from the UK. Many of these applications, the High Court charged, were deliberately filed at the end of the last working day before a removal flight and were totally without merit — merely a device to prevent a migrant’s removal in the short term.

An exasperated Sir John Thomas declared:

These late, meritless applications by people who face removal or deportation are an intolerable waste of public money, a great strain on the resources of this court and an abuse of a service this court offers. The court therefore intends to take the most vigorous action against any legal representatives who fail to comply with its rules. If people persist in failing to follow the procedural requirements, they must realise that this court will not hesitate to refer those concerned to the Solicitors Regulation Authority.

This “vigorous action” tends to be a Divisional Court hearing in which the lawyer is asked to explain themselves. In R (Butt) v SSHD [2014] EWHC 264 (Admin), the practitioners involved were instructed to write to the High Court within six weeks of the hearing to show how they were putting their practice in order. In Awuku (No 2) v SSHD [2012] EWHC 3690 (Admin), the firms were not told to take remedial action, but were named and shamed. And in R (B & J) v SSHD [2012] EWHC 3770 (Admin), the court accepted the firms’ apologies and did not name them.

The High Court says that it has the power to police lawyers in this way because of the “inherent jurisdiction to govern its own procedure”. The Upper Tribunal — which unlike the High Court is an all-UK body — claimed the same authority in R (Shrestha) v SSHD (Hamid jurisdiction: nature and purposes) [2018] UKUT 242 (IAC).

This power has become known as the Hamid jurisdiction, and the procedure a Hamid hearing, after Sir John Thomas’s original warning shot.

Evolution of the Hamid procedure

Where the misconduct is egregious, the explanations insufficient and/or the firm has form, the Divisional Court or Upper Tribunal will formally refer the matter to the Solicitors Regulation Authority. This is what happened in Shrestha, in R (Akram) v SSHD [2015] EWHC 1359 (Admin) and in what is now the leading case on the Hamid jurisdiction, R (Sathivel) v SSHD [2018] EWHC 913 (Admin).

The Sathivel judgment describes the procedure as follows:

When a Judge concludes that a lawyer has acted improperly that may be recorded in a court order. The papers are then referred to the High Court Judge having responsibility for this jurisdiction [more on this below]. A “Show Cause” letter may then be sent to the lawyers concerned who are invited to respond addressing the matters of concern raised in the Show Cause letter. If the Judge in charge considers the response to be inadequate the case may be referred to the Divisional Court. In the event that the Court finds that the conduct in question falls below proper standards the Court can admonish a practitioner. Alternatively, the Court can refer the file to the relevant regulatory authority, usually the Solicitors Regulation Authority (“SRA”), for further investigation and if appropriate the imposition of sanctions.

It concluded by modifying the procedure in future cases:

(iii) In future the Court will not necessarily refer the matter to a Divisional Court before deciding to pass the file to the SRA as a complaint. A complaint might be made to the SRA upon receipt of the response to the Show Cause letter, if that is considered to be an appropriate course to adopt.

(iv) The Court will in future consider referring a case to the SRA on the first occasion that the lawyer falls below the relevant standards.

Indeed, in the subsequent case of Jetly v Secretary of State for the Home Department [2019] EWHC 204 (Admin), Mrs Justice Andrews did not convene a Divisional Court before making an SRA reference. Nor is there explicit reference to a Show Cause letter — although there had been repeated failures to comply with the judge’s instructions throughout the case.

Jetly also shows that misconduct other than hopeless/last minute judicial review applications can trigger the Hamid jurisdiction. The nationality litigation in question was shambolic, but not tactically so. The judgment confirms that:

Although concerns about the behaviour of legal representatives instructed in immigration cases most often arise in the context of last-minute attempts to resist removal from the UK, the Hamid jurisdiction is not confined to that situation, nor is it confined to the situation in which the underlying claim is utterly without merit.

The Upper Tribunal broke further new ground in R (Hoxha & Ors) v SSHD [2019] UKUT 124 (IAC). In this case, for what appears to be the first time, the Office of the Immigration Services Commissioner rather than the SRA was the regulator called in. The lawyer involved was an OISC-regulated adviser rather than a solicitor, but the process operated in the same way.

The regulatory investigations, in turn, can lead to disciplinary proceedings. In 2017, solicitor Vay Sui Ip was struck off by order of the Solicitors Disciplinary Tribunal following a Hamid referral. The referral was reported as Re Sandbrook Solicitors [2015] EWHC 2473 (Admin).

The Hamid judge

Mr Justice Green was on the bench in many of the cases just mentioned. We know now that this was no coincidence: the Hamid jurisdiction is sufficiently formalised that there is a “Hamid judge” in charge of the whole business. Since October 2018 this has been Andrews J (which is why she took over the Jetly case just mentioned). Before that it was Mr Justice Green, since promoted to the Court of Appeal.

The role of the Hamid judge is to review files sent her way by judges who consider that a lawyer has fallen far below adequate standards and to issue the Show Cause letter. If the response to this is not considered good enough, the Hamid judge can then convene a Hamid hearing.

The Judicial Office told us:

The job of the judge responsible for this area comprises: keeping colleagues informed of developments in the area in particular by reporting at each start of term High Court meeting; reviewing cases referred by other judges; liaising with the ACO staff and with the President of UTIAC; deciding whether to refer a case to the Divisional Court or make an immediate reference/complaint to the relevant regulatory body; sitting on Divisional Court cases on references.

It added that “the issues arising are interesting and constitutionally important. It deals with the inherent jurisdiction of the Court to regulate its own procedure and involves the working out of the duties of legal professionals and the standards to be expected from those appearing before the court”.

Not just for immigration lawyers

Most, perhaps all, Hamid cases so far have been about immigration. Asked whether the Hamid jurisdiction can be exercised in any case or is reserved for immigration and asylum only, the Judicial Office told us that “in principle, the jurisdiction applies across the entirety of the Court system”.

This is a recent development, recorded in the November 2018 minutes of the Administrative Court user group:

The Hamid Jurisdiction traditionally dealt with immigration cases but the PQBD [President of the Queen’s Bench Division, Sir Brian Leveson] has directed that the jurisdiction will now be extended to all types of cases that are dealt with at the Administrative Court Office.

The minutes also record the court’s increasing concern about urgent judicial review applications being filed where the issue is not, in fact, urgent. Court officials has stressed that this can be a Hamid matter. Again, I understand that this concern is not limited to immigration and asylum cases.

We may, therefore, expect that the next major development in the Hamid jurisdiction will be a lawyer in a different area of practice experiencing its rigours.