Is “residence” the same as “presence” in the Immigration Rules?

Yes, “residence” is the same as “presence”, at least in paragraph 245AAA(a) of the Immigration Rules, says Upper Tribunal Judge Allen. Official headnote: (i) On a proper construction of paragraph 245AAA(a)(i) of HC 395, an absence from the United Kingdom for a period of more than 180 days in one of the relevant 12 month periods will entail a failure to satisfy the requirements of paragraph 245CD. (ii) The term ‘residence’ in paragraph 245AAA(a) is to be equated to presence. The decision is understood to be under appeal. The two words are different, after all, and if the meaning were intended to be the same then it is arguable the…

14th September 2017 By Colin Yeo

How complex are the UK immigration rules and is this a problem?

One of the fundamental principles of the rule of law is that the law “must be accessible and so far as possible intelligible, clear and predictable” (Tom Bingham, The Rule of Law, 2010). The reasons for this should be self evident. Just as it is impossible to play a sport fairly without knowing the rules, so it is impossible to live life fairly without knowing the law, or at least being able to find out what it is. Immigration law is anything but accessible, intelligible, clear and predictable. Accessibility: what does immigration law say? The first issue with immigration law is finding out what it says. Lord Neuberger, outgoing President of…

1st August 2017 By Colin Yeo

Overstaying and applying for further leave: end of the 28 day grace period

A new set of requirements for overstayers who apply for leave to enter or remain in the UK was introduced late last year. In short, the 28 day grace period for overstayers was abolished and replaced with a very limited 14 day limit, but only where a “good reason” was also given for a late application. The change is expected to lead to an increase in the number of refused applications. People applying for leave to remain after the expiry of a previous period of leave will have less time to apply, and may have more obstacles to overcome. The changes are introduced in Statement of Changes to the Immigration Rules HC…

6th February 2017 By Colin Yeo

Statement of Changes to the Immigration Rules HC667

Statement of Changes to the Immigration Rules HC667 was laid yesterday, 3 November 2016. The document weighs in at 90 pages but many of the changes are to language rather than effect. The more significant changes are to Tier 2 skilled workers, for whom the minimum salary level is increased, to Tier 4, the introduction of a new English language requirement for family immigration and the abolition of the 28 day grace period for making out of time immigration applications. Some of the main substantive changes are outlined in an accompanying press release: Tier 2 Implement the first of 2 phases of changes to Tier 2, announced by the government…

4th November 2016 By Colin Yeo

Section 3C does not apply to EU law residence applications

The question before us is whether a person who at one stage was the spouse of an EEA citizen with a right of abode in the United Kingdom but no longer has that status and right is to be treated as having leave either under the Immigration Act 1971 or otherwise after his application for permanent residence as the former spouse of an EEA citizen has been rejected. The answer is a firm “no”. Under the Immigration Act 1971 sections 3C and 4, someone applying for variation of leave under that Act — that is under UK immigration law, rather than the 2006 Immigration (EEA) Regulations — has their leave extended…

5th August 2016 By Paul Erdunast

Court of Appeal finds £22.15 annual shortfall does not qualify as de minimis

The extension application of a Tier 2 skilled worker whose annual salary was found to be £22.15 per year short of the specified requirement was refused. The First-tier and Upper Tribunal allowed her appeal on the basis that the shortfall was so small it should be disregarded under the de minimis principle. The Court of Appeal overturns these decisions on the basis that the rule is a “bright line” one that is either satisfied or not; it was not. The First-tier Tribunal judge may well have resorted to the de minimis principle, as the Upper Tribunal judge said, because of his view that the respondent’s application (though falling marginally short of…

27th May 2016 By Colin Yeo

De minimis principle does not apply to Immigration Rules, holds President

A student was for 20 days a total of £11.68 short of the required funds of £2,040, which were required to be held for 28 days continuously. In percentage terms, that would be a shortfall of 0.57%. Taking a hard line, President McCloskey holds: The de minimis principle is not engaged in the construction or application of the Immigration Rules. Properly analysed, it is a mere surrogate for the discredited “near miss” or “sliding scale” principle. The appeal is therefore dismissed and the student sent packing. The  case is Chau Le (Immigration Rules – de minimis principle) Vietnam [2016] UKUT 186 (IAC). How this squares with the judgment of the Court…

15th April 2016 By Colin Yeo

Can time spent under EU law count towards a 10 year residence application?

Someone recently asked me whether time spent under EU law can count towards a 10 year long residence application so I thought I would flag up the answer for others as well. In short, “yes”. I would have thought there would be relatively few people who find themselves in this situation but there will be some. What is a 10 year long residence application, you ask? It is an application under paragraph 276A of the Immigration Rules which allows a person who has resided in the UK continuously and lawfully for 10 years to apply for settlement (Indefinite Leave to Remain or ILR). There are further qualifying criteria and the word…

30th March 2016 By Colin Yeo

Home Office concedes its new rules risk abuse of overseas domestic workers

Just a quick catch up post to alert readers to the Government’s response to the damning report by James Ewins, published on 17 December 2015, and developments since then. The review concluded that the Coalition Government’s amendments to the Immigration Rules on overseas domestic workers exposed them to enhanced risk of abuse and modern slavery: Looking at the evidence of tied visas generally, it is the widely – near unanimously – held view that where immigration laws tie a migrant domestic worker’s status to a specific employer, the vulnerability of that worker to abuse, including to slavery and human trafficking, increases. The Government’s response is essentially to concede that this…

17th March 2016 By Colin Yeo

Statement of changes to the Immigration Rules: HC877

A new set of Immigration Rules has been laid in Statement of Changes HC877. The changes take effect on 6 April 2016. You can access the explanatory notes or the full rules or both together. There are a LOT of changes. Stand out features include: Those with a “litigation debt” to the Home Office (i.e. who were ordered to pay costs and who have not, including all those issued with unlawful costs orders by the Upper Tribunal) will be refused further UK visas. Decrease in the threshold for NHS debt being a bar to re-entry from £1000 to £500 Making it even harder for the self employed to produce the necessary evidence…

11th March 2016 By Colin Yeo

Home Office concessions for Syrians in the UK on extending their leave

The document entitled Guidance on how Syrian nationals in the UK can extend their visa based on the concessions to the Immigration Rules was updated on 29 February 2016. Essentially, it allows Syrians in the UK as Tier 4 or short term students, family members of Points-Bused System migrants, visitors or overseas domestic workers to extend their leave in their existing category or to switch categories within the UK without having to apply for entry clearance. It also includes a helpful waiver on producing certain specified documents: If the Secretary of State is satisfied that due to the civil unrest in Syria a required document under the immigration rules ……

8th March 2016 By Colin Yeo

Tribunal interprets spouse extension rule on overstay, required documents and language certificate

The Upper Tribunal interprets spouse extension rule paragraph 284 on overstay and valid applications, required documents and whether an old English language certificate is sufficient in a refreshingly realistic and enabling determination: (i) The correct construction of paragraph 284(iv) of the Immigration Rules is that the applicant has a period of 28 days within which to make an extension of stay application, measured from the date immediately following the last day of leave in the United Kingdom. (ii) The purported requirement in Form FLR(M) that an application for further leave to remain in the United Kingdom as a spouse be supported by certain correspondence in specified terms is unlawful. (iii) The requirement previously…

10th February 2016 By Colin Yeo

Presidential Guidance on the Boomerang of Proof

First of all, the official headnote to Muhandiramge (section S-LTR.1.7) [2015] UKUT 675 (IAC) (20 November 2015): Where an application for leave to remain in the United Kingdom is refused under Section S-LTR.1.7 of Appendix FM of the Immigration Rules on the ground of the Applicant’s failure without reasonable excuse to comply with a requirement to provide information, the burden of establishing a reasonable excuse rests on the applicant and the standard of proof is the balance of probabilities. This relates to the Jane Austen-esque “suitability” requirements of the new-style non-sequential immigration rules for family members and visitors. This issue prompts some deep musing on the part of President Bernard…

7th January 2016 By Colin Yeo

Statement of changes to the Immigration Rules HC535: analysis

Major changes to the Immigration Rules affecting refugees, Tiers 1, 2 and 5, EEA nationals sponsoring family members under the Immigration Rules, visitors, applications for Administrative Review and knowledge of language and life tests are being introduced with effect from tomorrow, 12 November 2015. The changes are wrought by Statement of Changes to the Immigration Rules: HC535. Refugees New cessation policy? It seems that Home Secretary Theresa May’s recent speech to the Conservative Party Conference is to be enacted, at least in part. The Explanatory Notes tell us: The UK has a proud tradition of providing protection to those who need it, for as long as it is needed, in…

11th November 2015 By Colin Yeo

Immigration rules now on normal web pages. Finally.

The Immigration Rules are now available, finally, as normal web pages in html format rather than as pdfs that have to be downloaded and searched. You can now navigate fairly easily between pages, thankfully. Still the same nonsense when you get there, sadly.

7th October 2015 By Colin Yeo

Statement of Changes to the Immigration Rules HC 437

Statement of Changes to the Immigration Rules HC 437 has been published. Most of the changes are fairly minor or technical but not all. From the explanatory notes: The purpose of these changes is to: implement section 53(1) of the Modern Slavery Act 2015 (“the 2015 Act”) which provides that the Immigration Rules must make provision for leave to remain in the United Kingdom to be granted to an overseas domestic worker who has been determined to be a victim of slavery or human trafficking. The changes also make a number of minor changes to the existing Immigration Rules applied to overseas domestic workers; make a minor change to the rules…

17th September 2015 By Colin Yeo

Immigration Rules archive

Following on from Court of Appeal level criticism of the arcane complexity of the Points Based System, the Home Office now has an online archive of the different versions of the Immigration Rules. Archived versions of policies would be useful too… Hat tip @squeakinglyjen.

16th June 2015 By Colin Yeo

High Court quashes refusal of settlement to highly skilled migrant family

From the main Garden Court Chambers website regarding the case of Granovski & Ors v Secretary of State for the Home Department [2015] EWHC 1478 (Admin): The High Court today handed down judgment on a judicial review challenging the Secretary of State’s rigid approach to calculating ‘continuous residence’  for settlement purposes. G had been admitted to the UK under the HSMP (Highly Skilled Migrant Programme) scheme in 2004 on the basis of economic activity as a specialist media advisor with clients all over the world.  Travel outside the UK for face to face meetings was always an essential part of his professional role which necessitated his regular absence form the UK….

9th June 2015 By Colin Yeo

Edgehill, Halumudeen, Singh and now Islam on commencement of rule changes

Case of R (On the Application Of Islam) v The Secretary of State for the Home Department [2015] EWCA Civ 312 (27 March 2015) on Edgehill, Halumudeen, Singh etc etc: More Edgehill, Halumudeen, Singh 9/7/12 hokey pokey bollocks. How does this stuff reach the Court of Appeal? Strewth. — Colin Yeo (@ColinYeo1) March 27, 2015

27th March 2015 By Colin Yeo

Court of Appeal condemns complexity of Points Based System

The Court of Appeal condemns the complexity of the Points Based System in the case of Hossain & Ors v Secretary of State for the Home Department [2015] EWCA Civ 207. Lord Justice Beatson says at paragraph 30: The detail, the number of documents that have to be consulted, the number of changes in rules and policy guidance, and the difficulty advisers face in ascertaining which previous version of the rule or guidance applies and obtaining it are real obstacles to achieving predictable consistency and restoring public trust in the system, particularly in an area of law that lay people and people whose first language is not English need to…

16th March 2015 By Colin Yeo

Out with the old, in with the new: Edgehill, Haleemudeen and now Singh

Where an application for leave to remain is made before 9 July 2012 but decided after that date, which Immigration Rules should apply to it? The answer, according to Court of Appeal in Singh v Secretary of State for the Home Department [2015] EWCA Civ 74, is the ‘old’ Rules, but only for decisions made between 9 July and 6 September 2012. Singh finally resolves a conflict in the case law between Edgehill v Secretary of State for the Home Department [2014] EWCA Civ 402 and Haleemudeen v Secretary of State for the Home Department [2014] EWCA Civ 558. The conflict arises from, in the words of Lord Justice Underhill…

23rd February 2015 By Helen Foot

Meaning of “false” document and the difference between visiting and inspecting

In Begum (false documents and false statements) [2015] UKUT 00041 (IAC) we are educated by the tribunal as to the difference between a “visit” and an “inspection” and the blameless appellant is refused entry and perhaps banned from further entry for 10 years. Some might think the case just a little harsh. An professional inspector of properties had visited a house in a private capacity. He later produced a letter in a professional capacity stating that he had “inspected” that house. The tribunal decided that this amounted to a false statement and therefore that the document was a false document and therefore that the application for entry clearance fell to…

3rd February 2015 By Colin Yeo

LexisPSL analysis of most recent Immigration Rule changes

Free, excellent and detailed analysis, highly recommended reading. The change to the definition of overstaying and the new invalid application provisions are particularly important in general casework, the administrative review process is explained and there is detailed analysis of changes to a significant number of immigration categories, including visitors, business visitors, Tier 1, Tier 2, Tier 4, Tier 5 long residence, family applications and more.

24th November 2014 By Colin Yeo

New long residence guidance from Home Office

Now in version 12, valid from 17 October 2014. The only major change seems to be removal of guidance on qualifying for ILR after 10 years through the private life route. Still includes the useful exception to requiring continuity of residence for those who overstay for 28 days or less.

21st October 2014 By Colin Yeo

Visa denied

This should be made mandatory reading for all Home Office immigration employees. Apparently it was trending on Twitter in Kenya it has struck such a chord. UPDATE: Mr Biko has been offered a meeting at the British High Commission.

18th September 2014 By Colin Yeo

Statement of Changes HC 532

This post is based on an earlier page I made available to Free Movement Members a couple of weeks ago, before Statement of Changes HC 532 took effect. The commencement date of 28 July 2014 has been and gone and we have also seen commencement of the overseas deportation appeals sections of the Immigration Act 2014 (see blog posts here and here), along with the controversial statutory human rights considerations. I will return to the statutory human rights considerations in another post and will also be updating the online course on the Act. They are already covered in some depth in my ebook on the Act. Forgive me for the post that follows…

7th August 2014 By Colin Yeo

Conditional discharge is not a conviction. Duh.

Omenma (Conditional discharge – not a conviction of an offence) [2014] UKUT 314 (IAC) is an interesting case for two reasons. Firstly, the Home Office accepted that the decision was wrong and withdrew it. Nevertheless, because the case had reached the Upper Tribunal, the withdrawal of decision did not automatically deprive the Upper Tribunal of jurisdiction, and it went on to determine the appeal anyway. The actual reason for it being reported is that the appellant had answered “no” to the standard visa application form question about previous convictions. In fact she had pleaded guilty to shoplifting some years previously and been given a conditional discharge. Was she dishonest in her…

18th July 2014 By Colin Yeo

Statement of Changes HC 532 analysis

I have put together a detailed run through of all the major changes wrought by Statement of Changes HC 532. You can read my analysis here if you are a Free Movement Member. There are some significant changes to Appendix FM, the private life, deportation and human rights rules and to the Entrepreneur requirements. You can read about the benefits of and sign up for membership here.

10th July 2014 By Colin Yeo

Anniversary of new immigration rules

Yesterday was the two year anniversary of the harsh new immigration rules introduced on 9 July 2012. Tomorrow comes the Court of Appeal decision in the challenge to the spouse minimum income threshold. The effects of these rules are really beginning to bite: much misery has been caused by family separation. Spouses are kept apart or exiled to another country, children are deprived of a parent and grandparents are left lonely, isolated and suffering while their children can only watch helplessly from afar. All from the government that David Cameron said he wanted to be the most family friendly in history. There were several events yesterday, including a demonstration outside…

10th July 2014 By Colin Yeo

3,641 families put on hold

The Home Office has updated its statistics on the number of families with pending applications separated by the £18,600 minimum income threshold for spouses. At the end of December 2013 it was 3,014. At the end of March it stood at 3,641. That is a LOT of separated families and an almost unimaginable amount of anguish. All caused by the Government David Cameron said in Opposition he wanted “to be the most family friendly Government we’ve ever had in this country and that is about everything we do to support families and it’s about supporting every sort of family.” Judgment in the MM case will be soon. But there will almost certainly be an appeal…

2nd July 2014 By Colin Yeo

MORE evidential flexibility cases

Having been overruled by the Court of Appeal in the case of Rodriguez [2014] EWCA Civ 2 (FM post here), Mr Justice McCloskey, President of the Immigration and Asylum Chamber of the Upper Tribunal, has returned to the vexed issue of ‘evidential flexibility’ in a trio of cases: Durrani (Entrepreneurs: bank letters; evidential flexibility) [2014] UKUT 295 (IAC) Akhter and another (paragraph 245AA: wrong format) [2014] UKUT 297 (IAC) Fayyaz (Entrepreneurs: paragraph 41-SD(a)(i) – “provided to”) [2014] UKUT 296 (IAC) This is an issue that the Supreme Court will be examining in the coming months, permission having been granted on 19 May 2014 in Rodriguez (now called Mandalia). These latest Upper…

27th June 2014 By Colin Yeo

Financial year for Appendix FM

In Hameed (Appendix FM – financial year) [2014] UKUT 00266 (IAC) the Upper Tribunal has no hesitation in finding that it is the tax year that applies when calculating income, not a business’ own accounting year. No actual reasons are discernible as such.

18th June 2014 By Colin Yeo

Useful case for partners of refugees seeking entry

In the fine case of Fetle (Partners: two year requirement) [2014] UKUT 00267 (IAC) the Upper Tribunal holds that the requirement in paragraph 352AA for partners of refugees seeking entry clearance for living together in a relationship akin to either a marriage or a civil partnership which has subsisted for two years or more is not the same as the two year cohabitation requirement in the main spouse and partner rules in Appendix FM. The official headnote reads:

11th June 2014 By Colin Yeo

Educational Testing Service officially dropped from Immigration Rules

A new Statement of Changes to the Immigration Rules (HC 198) corrects an earlier botched attempt to change the rules by fiat and remove discredited Educational Testing Services (ETS) as providers of the English language test needed for many modern immigration applications. ETS was the subject of a BBC Panorama investigation which claimed to have exposed “systematic fraud”. The removal of ETS from the rules takes effect on 1 July 2014. In the meantime I understand there is a policy in place that ETS certificates are not accepted, although the legal basis for that policy might be questionable. It will have taken the Home Office over four months properly to implement the change.

10th June 2014 By Colin Yeo

Two new cases on dishonesty in immigration applications

The first of these is a useful short case that came out while I was away called Shen (Paper appeals; proving dishonesty) [2014] UKUT 236 (IAC). It is another example of an applicant with a driving conviction who ticked the ‘no’ box to the question about previous convictions standard on all immigration application forms. As previously discussed, even Home Office policy guidance recognises that mandatory refusal is not necessarily justified on such facts. In this case the applicant’s evidence was that she did not realise she had been convicted because she had not received any further communication from the police about her case. As is standard in paper appeals, the Home Office…

10th June 2014 By Colin Yeo

When is a rule not a rule? Students and veracity checks

This post has been contributed by, Vijay Jagadesham, who represented the College in Global Vision College Ltd v SSHD[2014] EWCA Civ 659. Readers would be forgiven for thinking that this question was clearly answered by the Supreme Court in the case of Alvi v SSHD [2012] 1 WLR 2208, and the subsequent case of New London College Ltd v SSHD [2013] 1 WLR 2358. As Lord Dyson explained in Alvi (at [94]): “…any requirement which, if not satisfied by the migrant, will lead to an application for leave to enter or remain being refused is a rule…” Thus any requirement leading to a refusal of leave had to be contained in the…

6th June 2014 By Vijay Jagadesham

Adult dependent relatives: JCWI survey

When the Immigration Rules for families were changed in July 2012, it was the minimum income threshold that rightly attracted the most attention. It has caused huge misery and has divided many loving families, sometimes separating children from parents. It is particularly harsh because the income threshold is set so far in excess of the national minimum wage that many working families simply cannot afford to live together in the UK: no matter how many hours they work, they will never, ever qualify. It is heartbreaking. Less attention has been paid to an equally severe change to the rules on ‘adult dependent relatives’: normally, the foreign national elderly parents of…

15th April 2014 By Colin Yeo

New rules do not apply to old applications

The Court of Appeal has in the case of Edgehill & Anor v Secretary of State for the Home Department [2014] EWCA Civ 402 settled the question of whether the new human rights rules introduced on 9 July 2012 apply to applications made before that date: they do not. Specifically, it is unlawful to apply rule 276ADE on long residence to applications that were already outstanding at the date the new rule came into force.

9th April 2014 By Colin Yeo