How We Can Help

Issues

Spouses, civil partners, fiancees, proposed civil partners, unmarried partners, children and dependants
There have been a lot of changes to the immigration rules in respect of the above. Notable examples include:

  • Changes to the probationary period for spouses, civil partners and unmarried partners;
  • In certain cases, spouses whose relationship has subsisted for at least four years, but who have been living together outside the UK are entitled to obtain indefinite leave to enter without the probationary period. However this is subject to a new provision in the Immigration Rules that the applicant must have sufficient knowledge of the English language and life in the UK;
  • From 1st February 2005, those who are subject to immigration control are required to obtain a certificate of approval before they are entitled to marry. In order to qualify for a certificate of approval, an applicant must have
    •  Leave granted for over six months; and
    • At least three months of leave remaining at the time of making the application.

 The scheme was declared unlawful in the Court of Appeal decision of SSHD v Baiai  and Trzcinska (2007) EWCA Civ 478. This is a developing area of the law, and 
the government has appealed this decision to the House of Lords;

  • Changes to the previous policy of granting indefinite leave to remain to all parents, grandparents and dependent relatives over the age of 65 years;
  • Withdrawal of the under 12 concession; and
  • From 2 April 2007, all adults applying for indefinite leave to remain will need to demonstrate knowledge of language and ‘life in the UK’.

Applications in this area can therefore be complex, as the law and policies are constantly changing.

Our firm undertakes applications on behalf of spouses, civil partners, unmarried partners, fiancées, proposed civil partners, children and dependent relatives in respect of the following:

    • Entry clearance applications;
    • Applications for further leave to remain; and
    • Applications for indefinite leave to remain;

Thorough instructions will be taken in order to determine the approach and the strength of each application. Detailed representations, in accordance with existing law and policies will always be made. This is likely to increase the chance of success of an application and any appeal (if necessary). Applications of this nature will often involve human rights issues. This will always be considered and put forward as part of the application to the Home Office.

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EEA Nationals, family members and Association Agreements
This is a fast developing and complex area of the law, which often involves interpreting and challenging the UK's implementation of European provisions and case law, involving non-EEA National children, parents and dependant relatives of EEA Nationals, as well as spouses of British citizens who have exercised their free movement rights. It also involves interpreting whether an EEA National is a qualified person for the purpose of the right of residence under EU law.

The Citizens’ Directive and the accession of A2 and A8 nationals added another layer of complexity to EEA applications. Possible controversial areas include the application of UK immigration law to non-EEA national family members seeking entry from outside the EU to join EEA nationals who have exercised their free movement rights, and the requirement of lawful residence of those seeking entry from within, arguably contrary to the caselaw of the European Court of Justice.

Unless exempt, A2 and A8 nationals from new accession states such as Poland, Bulgaria and Romania, wishing to take up employment are required to obtain work authorisation before they can engage in employment in the UK for the first 12 months of their residence. For Bulgarian and Romanian nationals, accession worker cards will only be issued to employment in specific occupations.  If the employment does not fall into one of the specified categories, an accession worker card will only be issued if the employer has obtained approval of the employment through the existing work permit arrangements. This means obtaining a work permit.

Potential areas of complications may involve:

  • Whether an A2 or A8 National is exempt from work authorisation;
  • Whether the resident labour test is fulfilled for the purpose of work permit applications from A2 nationals; and
  • Whether 12 months continuously legal employment is fulfilled for the purpose of applications for registration certificates.

 

In addition to the above, the Association Agreements with Bulgaria and Romania allow their nationals to establish themselves in the UK as business persons.

Although Turkey is not part of the EU, the Association Agreement with Turkey gives Turkish workers important rights after they have been admitted to the UK to work. The Turkish Association Agreement also gives Turkish nationals who wish to establish themselves in business the right to have their applications determined in accordance with older and more generous immigration rules. Unless fraud or deception have been practised, a recent European Court of Justice decision determined that Turkish nationals wishing to establish themselves in business in member states do not have to enter the state lawfully before they can rely on the standstill clause in the Agreement.

Our firm deals with all aspects of EEA Applications and applications under the Association Agreements, to include:

  • Applications for Certificates of Registration by EEA nationals;
  • Applications for residence cards by EEA national and non EEA national family members;
  • Applications for family permits by non-EEA national spouses, children and other dependent relatives of EEA nationals;
  • Applications for entry clearance, and further leave to remain under the Association Agreements;
  • Applications for registration under the Worker Registration Scheme by A8 nationals and their A8 family members;
  • Applications for family member residence stamp by non-A8 family members of A8 nationals;
  • Applications for Accession Worker Cards by A2 nationals and their family members;
  • Applications for family member residence stamp by non-A2 family members of A2 nationals; and
  • Applications for Certificates of Permanent Residence.

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Student Applications: Applications for Student Visas and Further Leave to Remain
From 1 September 2007, it is mandatory for all visa and non-visa nationals (with the exception of some British nationals) who are seeking entry into the UK as students or prospective students to have obtained prior entry clearance on this basis.  In view of the importance of visas in the student category, it is important that applications are done properly, in order to minimise the risk of rejections, which could damage an applicant's immigration history.  With any entry clearance application, we will carry out a full assessment of a client's case, including taking detailed instructions and making thorough representations in support of the application in accordance with caselaw and policy guidance.  We will track the progress of an application, and will ensure that relevant documentations in support of the application are submitted. 

With regards to applications for further leave to remain as a student in the UK, we will carry out a full assessment of the client's case, in order to determine whether an extension of stay, or in country switching into the student category is possible.  In support of each application, full instructions will be taken and detailed representations will be made to address any contentious issues.

We also advise on students’ entitlement to work, policy changes and relevant transitional arrangements.

Our firm undertakes:

  • All aspects of student applications
  • Applications by dependants of students
  • Postgraduate doctors and dentists
  • Student nurses and other medical studies related applications
  • Switching applications into other immigration categories

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Visitors
Our firm deals with entry clearance and leave to enter applications for visitors, to include:

  • Business visits;
  • Visitors for medical purposes;
  • Visitors exercising their right to have access to a child resident in the UK;
  • Visits for marriage or civil partnerships;
  • Family visits; and
  • Visits by parents of a child attending an independent fee-paying school.

We also deal with applications for leave to remain as carers outside the immigration rules, applications for an extension of leave to remain and  ‘switching’ applications from visitor to another immigration status.

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Indefinite Leave to Remain, Applications for Discretionary Leave, or Leave Outside the Immigration Rules:
We deal with all aspects of non-asylum applications for indefinite leave to remain, and discretionary leave, both within and outside the immigration rules, and under the Human Rights Act 1998. Examples of applications which we undertake include:

  • Applications by members of the armed forces and their families.
  • Applications under the long residence rules on the basis of 10 years continuous lawful residents, or 14 years continuous residence.
  • Applications under the Home Office policies on enforcement against families with children who have long residence in the UK
  • Applications by victims of domestic violence.
  • Applications by spouses, unmarried partners, same-sex partners, dependent children and parents.
  • Applications by work permit holders.
  • Applications under the transitional provisions of the points system
  • Applications by investors and business persons
  • Applications under the Human Rights Act 1998.

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Nationality
Our firm undertakes all aspects of nationality applications, to include:

  • Advice on who is entitled to British citizenship;
  • Applications for registration or naturalisation as British citizens;
  • Advice on who is entitled to the right of abode under the British Nationality Act 1981; and
  • Applications for a Certificate of Entitlement to the right of abode.

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Points-Based System, Work, Business, Investment and Retirement related Applications
The immigration system is undergoing the biggest shake-up in its history with the introduction of an Australian style points system. Many immigration categories will be abolished and incorporated into a 5 tier framework:

  • Tier 1: highly skilled individuals;
  • Tier 2: skilled workers with job offers to fill gaps in the UK labour force;
  • Tier 3: low skilled workers to fill specific temporary labour shortages;
  • Tier 4: students; and
  • Tier 5: youth mobility and temporary workers.

Apart from Tier 1, all employers or colleges, who wish to employ or teach migrants will have to apply for a licence from the Border and Immigration Agency (BIA). Once licensed, sponsors will be able to indicate the migrants they wish to admit, by issuing certificates of sponsorship. As a condition of keeping their licence, sponsors will need to comply with certain duties and will be periodically audited. For example, they are obliged to ensure that certificates are probably issued, and will need to alert the BIA if migrants disappear, or do not turn up for their job or course. Along side the Points-Based System, Section 15 of the Immigration, Asylum and Nationality Act 2006 imposes a maximum civil penalty of up to £10,000 for each illegal migrant worker found to be employed. Section 21 further imposes a criminal liability, with a maximum sentence of two years imprisonment.

Migrants who fall within the ambit of Tier 2 include:

  • Intra-company transfers;
  • Skilled workers; and
  • religious workers.

The Sponsor Register for Tier 2 Intra-company transfers and skilled-workers went live on 29 February 2007, and is now open for applications. It is anticipated that Tier 2, as a whole, will be implemented in or around September 2008.

Tier 1 of the Points Based System is divided into the following subcategories, namely:

  • General;
  • Entrepreneurs;
  • Investors;
  • Post-study work.

These replace the following immigration categories:

    • Highly skilled migrant programme (HSMP);
    • Investors;
    • Self-employed lawyers;
    • Business persons;
    • Writers, composers and artists;
    • International graduate scheme;
    • Innovators; and
    • Fresh Talent: Working in Scotland Scheme.

Tier 1 General was implemented on 29 February 2008. This is a continuation of the criteria used by the HSMP since December 2006.

The other Tier 1 sub categories are yet to be implemented. The statement of intent issued in December 2007 states that people with leave in the following categories which are going to be abolished will be able to apply for an extension before the categories are removed, and will be granted a period of leave to take them up to the threshold for being eligible to apply for settlement. This transitional provision cover:

  • Self-employed lawyers;
  • Writer, composers and artists; and
  • Innovators.

There will be no transitional provisions for investors, businesspersons and the International Graduate Scheme, as the extension tests are broadly the same under the Tier 1 sub – categories.

Retired persons of independent means and persons with UK ancestry will remain as separate immigration categories outside the Points Based System. There are no plans to implement Tier 3, and it is anticipated that Tier 4 and 5 will be implemented in 2009.

Our firm can provide the following services:

  • Applications for Sponsor’s licence;
  • Advice on the issue of Certificates of Sponsorship;
  • Advice on immigration status of employees;
  • Advice on entitlement to work;
  • Work permit applications before the implementation of Tier 2;
  • Applications for an extension of stay under the transitional arrangements for self-employed lawyers, writers, composers, artists, and innovators;
  • Applications as investors, business persons, IGS graduates (International Graduate Scheme), and under the Tier 1 sub categories which are to replace them;
  • Applications under Tier 1: General;
  • Applications as retired persons of independent means; and
  • Applications as persons with UK ancestry.

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Human Rights Applications
In AB (Jamaica) v SSHD (2007) EWCA Civ 1302, the appellant was an overstayer and had been in a genuine marriage to a person settled here for over two years before enforcement action was initiated. The Court of Appeal held that removal was disproportionate and a breach of Article 8 of the European Convention of Human Rights.

In the court's view, when a spouse is being removed as an overstayer or as an illegal entrant, the effect of removal on the settled spouse must form part of the assessment of the proportionality of removal. From the point of view of Article 8 of the European Convention of Human Rights, the settled spouse’s Convention rights are as fully engaged as the spouse who is being removed, and this is critical in the assessment of proportionality under Article 8.

The above is an example of how human rights law is being applied to immigration cases. Human rights law will be part of the assessment of any immigration application which we undertake. It will form part of any application (if applicable) under the Immigration Rules, or any individual application under the Human Rights Act 1998. It will also be considered in any appeal that we undertake.

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Appeals, Judicial Reviews and Administrative Reviews
The appeal system under the Nationality, Immigration and Asylum Act 2002 is a complex one. It involves determining whether there is a right of appeal against an immigration decision, and if so, whether the right can be exercised in the UK, or only from abroad. Certain refusals of entry clearance do not carry any right of appeal and can only be challenged by way of administrative reviews or judicial reviews.

Section 4 of the Immigration and Asylum Act 2006 removes the full right of appeal for those applying from abroad to come to the UK under the Points Base System, unless the appeal is on the basis of human rights or race discrimination.  This means that administrative reviews and judicial reviews will become more common.

We undertake appeals, judicial reviews and administrative reviews, to include:

  • First instance appeals before the AIT;
  • Bail applications
  • Family visit appeals;
  • Applying to the AIT for an order for first re-consideration;
  • Applying to the High Court for an order for a review of the AIT decision;
  • Appealing to the Court of Appeal following the re-consideration decision;
  • Judicial reviews; and
  • Administrative reviews

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Fees

Most of the work we undertake will be charged on the basis of our hourly rate, which currently is £150.00 per hour. An added benefit to our clients is that we do not charge VAT, which is a practical saving of 17.5% on our fees. However, some disbursements will attract VAT.

We are often asked to estimate the cost of an application or appeal, and this can be difficult without having had an opportunity to consider the complexities of an individual case.

Accordingly, we will often agree to conduct the initial interview at the lower rate of £75.00 per hour to enable you to discuss your case in detail with us, and for us to consider the merits of the case and to provide you with an estimate of future costs.