Tier 2: is it Brexit ready?

Tier 2 is a fortress. Everything about the UK work permit system is designed to disincentivise employers importing migrant labour from outside of the EU. Like a teacher who has lost control of her class at school and exacts revenge on her own children at home, who are occasionally fed and kept in the basement, the Tier 2 system controls what it can. For the time being, this does not include the number of workers who may enter to work from Europe. At last count, 2.24 million European Economic Area (EEA) nationals are employed in the UK without let or hindrance, with no need to obtain permission from the Home Office…

12th June 2017 By Nick Nason

Tier 1 (Entrepreneur) visas: is Britain open for business?

Businesses large and small are the backbone of our economies, and enterprise is the engine of our prosperity. That is why Britain is – and will always be – open for business: open to investment in our companies, infrastructure, universities and entrepreneurs.   –  Theresa May, Davos, January 2017 Entrepreneurs are used to taking risks. And in applying for a Tier 1 (Entrepreneur) visa, they will certainly be taking one. While in the 3 years to December 2016 the UK issued entry clearance to 2,821 holders of entrepreneur visas, and granted in-country extensions of leave in 7,283 cases in the same category, the refusal rate for both applications has consistently…

17th May 2017 By Nick Nason

Home Office ‘abuse of power’ over English Language Testing student

The President of the Immigration and Asylum Chamber of the Upper Tribunal has found that the Home Office abused its power in forcing a college to expel a student and deliberately depriving him of a statutory right of appeal. The case has now been reported as R (on the application of Mohibullah ) v Secretary of State for the Home Department (TOEIC – ETS – judicial review principles) [2016] UKUT 561 (IAC). The most damning findings are at paragraph 73: What is the effect of this analysis? In our judgment, it adds a further, discrete dimension to the Applicant’s challenge. It invites the conclusion (to borrow the language of Elias LJ) that a reasonable public authority could…

11th January 2017 By Colin Yeo

Nine convicted over student visa English test plot: BBC News

Nine people are convicted of an immigration fraud linked to English language tests used for student visas. Source: Nine convicted over student visa English test plot – BBC News Meanwhile, Nick Armstrong of Matrix Chambers has been involved in an interesting judicial review case also involving the ETS language testing palaver in which the President of the Upper Tribunal Immigration and Asylum Chamber found that the Home Office had bullied a college into withdrawing a student from his course, which amounted to duress, manipulation of the system and an abuse of power. For more details see the Matrix website.

14th December 2016 By Colin Yeo

Court of Appeal has finally had it with the Points Based System

The Points Based System is notoriously complex and indecipherable. Initially I believe this was simply incompetence on the part of Home Office officials unable to communicate in plain English and ill equipped to design to and then adapt to the constantly shifting requirements of Ministers. My view is that the complexity of the system is now deliberate; an opportunity has been grasped and the Points Based System is now used as a barrier to all immigration rather than as a gateway to the “right” migrants. It was even extended to family migration in the form of Appendix FM with accompanying Appendix FM-SE with accompanying policies and guidance. There is in effect…

8th December 2016 By Colin Yeo

Court of Appeal judgment in ETS case of Qadir now available

This is the latest installment in the sorry ETS saga. For background see this series of blog posts. The Home Office actually conceded the appeal before the hearing, but the Court of Appeal gave judgment anyway because of the backlog of cases depending on the outcome. The short version is that things have moved on since the Upper Tribunal’s determination in Qadir; new and different evidence is now being adduced and relied on by the Home Office in new cases. In the existing cases pending before the Court of Appeal, the Secretary of State is proposing to abandon the cases or to seek agreement that they be remitted to the…

27th November 2016 By Colin Yeo

Tribunal finds student faked English test using proxy

The Upper Tribunal finds that an English speaking student faked the ETS English language test using a proxy. The official headnote: (i) The question of whether a person engaged in fraud in procuring a TOEIC English language proficiency qualification will invariably be intrinsically fact sensitive. (ii) Per curiam: where the voice data generated by TOEIC testing are those of a person other than the person claiming to have undergone the tests, there is no breach of EU or UK data protection laws. I’m not sure everyone got the Woolf memo about not using Latin. Sir E Ryder:Court Reform project must decode legal language for court users.A real challenge for applicants @CourtBasedPSU can help…

14th October 2016 By Colin Yeo

Upper Tribunal case on availability and intention to invest under Tier 1 Entrepreneur route

The official headnote: (i) The effect of the amendment of the regime in paragraph 41/SD of Appendix A to the Immigration Rules via HC628, dated 06 September 2013, is that any application for entry clearance or leave made before 01 October 2013 is to be decided in accordance with the Rules in force on 30 September 2013. (ii) Every applicant for Tier 1 Entrepreneurial status bears the onus of proving satisfaction of all of the material requirements of the Immigration Rules. (iii) The Rules stipulate that every Tier 1 Entrepreneurial applicant have available £50,000 to invest in the proposed business venture. “Available” in this context denotes that the applicant must…

15th July 2016 By Colin Yeo

Court of Appeal unhappy with Home Office position and submissions in student case

“Technical”, “deeply unattractive”, “disingenuous”, “singularly lacks merit”, “ridiculous”, “inappropriate”, “extraordinary”. All words used by Elias or Vos LLJ to describe the arguments advanced by the Home Office in the course of their judgments in the remarkable case of R (On the Application Of Ufot) v Secretary of State for the Home Department [2016] EWCA Civ 298. Vos LJ rounds off his criticism of the arguments thus: The background was striking. In short, a Nigerian student said he had made an application to extend his leave to study a BSc in Business Management at BPP University. With the application still pending, or so he thought, he began his studies. The Home…

16th May 2016 By Colin Yeo

*UPDATED* Tribunal rejects Home Office fraud allegation in ETS case but fails to report determination

President McCloskey has firmly rejected the Home Office case against students alleged to have fraudulently obtained English language test certificate from ETS (“Educational Testing Services Ltd”) in the case of SM and Ihsan Qadir v Secretary of State for the Home Department IA/31380/2014. The President finds that the Home Office evidence suffered from “multiple frailties and shortcomings” and that the two witnesses produced by the Home Office were unimpressive. In short, the Home Office failed by a significant margin to prove the alleged fraud.

13th May 2016 By Colin Yeo

Evidential flexibility policy is additional to the provisions of the Immigration Rules

In yet another case highlighting the absurdly hostile, bureaucratic and inflexible nature of the UK’s Points Based System the Court of Appeal has held that a Tier 1 Entrepreneur might benefit from a policy on evidential flexibility that was “much broader” than the rules themselves. The case is SH (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 426. The refusal arose because the claimant had to make his immigration application before his graduation certificate was issued; his leave was going to run out so an application had to be made. He needed the degree certificate to show that he met the English language requirement of the rules….

11th May 2016 By Colin Yeo

Calculating annual salary under Tier 2 when paid weekly

Case on calculating annual salary under Tier 2 when the applicant is paid weekly: The effect of paragraph 14 of Appendix J to the Immigration Rules is that other than where an applicant has contracted weekly hours or is paid an hourly rate, the appropriate salary for the purposes of paragraph 79 of Appendix A is an applicant’s gross annual salary paid by the sponsor employer, subject to the conditions set out in paragraphs 79(i)-(iii) of Appendix A. Source: Tukhas (para 245HD(f): “appropriate salary”) Russia [2016] UKUT 183 (IAC) (17 March 2016)

18th April 2016 By Colin Yeo

Time limit for degree level includes study below degree level

Periods of study for a qualification below degree level, are capable of being counted as time spent studying at degree level for the purpose of paragraph 245ZX(ha), if the period of study is taught at degree level, and when the qualification itself is added to other periods of study, resulting in the award of a degree. At first glance an apparently liberal decision from Mr Chaukley. But in this context the study being degree level is a Bad Thing. Source: Luu (Periods of study: degree level) [2016] UKUT 181(IAC)

14th April 2016 By Colin Yeo

Inspection report finds chaotic Home Office practices in student cases

A recent report by the Chief Inspector of Borders and Immigration, David Bolt, revealed that the management of curtailment decisions in Tier 4 cases is inconsistent and the Home Office is unable to deal with the thousands of curtailment cases and Sponsors notifications it receives every month. You can see the full report here: A Short Notice Inspection of the Tier 4 Curtailment Process. Although it identified some areas where things have improved since the last inspection in 2012, the report was critical of many current Home Office practices. Bolt identified several areas in need of improvement, for example: Caseworkers made legal and factual mistakes in their decision letters. In 20% of the…

29th March 2016 By Caterina Franchi

Immigration skills charge confirmed at £1,000 per year per migrant worker

The Government has confirmed that the Immigration Skills Charge will be set at £1,000 per year per migrant worker sponsored under Tier 2 of the Points Based System. A lower rate will apply for small businesses and charities. On 21 March 2016 in a House of Lords debate on the Immigration Bill Lord Bates said: The Government have considered advice from the Migration Advisory Committee and additional views from employers. Following careful consideration, I am able to announce that the immigration skills charge of £1,000 per migrant per year will be paid by employers who sponsor tier 2 migrants. The charge will be collected by the Home Office. A reduced…

23rd March 2016 By Colin Yeo

What rules does a Tier 4 student need to meet if college loses licence?

What requirements does a Tier 4 student need to meet if his or her college loses its sponsor licence whilst they wait for a decision on an application to extend their stay? In this case, the student received a letter telling him that the Home Office had suspended a decision on his application for 60 days and offering him an opportunity “to obtain a new CAS for a course of study at a fully licensed Tier 4 educational sponsor and then submit an application to vary the grounds of your original application.” This he did, and he submitted exactly such an application. It was refused by the Home Office because…

14th March 2016 By Colin Yeo

New Home Office guide to Tier 4 student applications

A welcome effort by the Home Office to explain and encourage Tier 4 student applications: The UK recognises the important contribution international students make, and welcomes those who wish to study at our world-class institutions. This leaflet is designed to provide you with some information about the Tier 4 visa routes for those wishing to study in the UK. It also provides information on the routes for short-term study. However, it has been pointed out that the Top Tips are perhaps misleading because they seem to imply that students can rely on funds held by relatives and others: @ColinYeo1 Concerned that Top Tips suggest that maintenance can be held in accts of other…

1st March 2016 By Colin Yeo

Employers facing talent poverty as skills shortages rise 130% in four years

New research shows that the modest economic growth of the past four years has been met by an unprecedented shortage of skills, leaving thousands of vacancies unfilled. Source: Employers facing talent poverty as skills shortages rise 130% in four years – Press releases – GOV.UK I couldn’t resist sharing this. It highlights the self harm the Government is committing on the economy by (a) failing to invest in education and training and (b) cutting skilled migration. The Youtube videos do a good job of going beyond the abstract notions of the UK’s low productivity and international competitiveness to translate this into real life: employers are losing business.

3rd February 2016 By Colin Yeo

Migration Advisory Committee proposes tightening of Tier 2 skilled migrant route

The Migration Advisory Commitee (MAC to its friends) has today published its report into how to tighten the Tier 2 skilled migrant route so as to reduce non EU migration. In 2014 there were 52,478 main applicants granted new visas to enter or remain in the UK under Tier 2. Of these, around one third were Tier 2 (General) visas which might potentially lead to settlement and around two thirds were Tier 2 (intra-Company Transfer) visas is a temporary type of visa which does not lead to settlement. Counting all dependants and extension applications for Tier 2 migrants already in the UK, there were 151,659 grants of visas assocated with Tier 2….

19th January 2016 By Colin Yeo

New report suggests Tier 1 Investor route used for large scale money laundering

A new report by Transparency International, Gold rush: Investment visas and corrupt capital flows into the UK, suggests that substantial amounts of corrupt wealth stolen from China and Russia are “highly likely” to have been laundered into the UK through the UK’s Tier 1 Investor “golden visa” programme. The report singles out £1.88bn of Chinese and Russian private investment, which has apparently been channelled into the UK. This amounts to 60% of the £3.15bn of total investment flows into the UK since the scheme began in 2008. These figures were calculated using the minimum investment amount for Tier 1 Investor visas, so the real sums are likely to be substantially higher.

22nd October 2015 By Colin Yeo

Supreme Court upholds evidential flexibility policy

The Supreme Court has given judgment in the case of Mandalia v Secretary of State for the Home Department [2015] UKSC 59 about the interpretation and application of the Home Office’s Points Based System evidential flexibility policy. Regular followers of the blog will be familiar with this policy, which was first published here on Free Movement courtesy of Jane Heybroek. This was in 2012, despite the policy being in operation since 2009. It was later also published to the Home Office website. For some reason the Supreme Court considered that the policy was withdrawn for applications made on or after 6 September 2012 but in fact it is still very…

19th October 2015 By Colin Yeo

Court of Appeal dismisses ETS challenges

Back in the day, One Direction enjoyed considerable success and dominated the reported charts. Without a picture in the attic, though, good fortune and good looks cannot last forever. Decline is inevitable. It can be embraced with dignity but this eludes some performers, who simply go on playing the same tired old tunes for too long, sadly. Rare is the David Bowie, able to reinvent and adapt to move with the times. One Direction chose the former course and recently went their separate ways, abandoning their vocation to spend and enjoy the fruits of their labours. It is a lesson worth heeding. In July this year the Court of Appeal…

29th September 2015 By Colin Yeo

Can new evidence be considered in Points Based System appeals?

The Court of Appeal considered section 85A of the Nationality, Immigration and Asylum Act 2002 in the case of Olatunde v Secretary of State for the Home Department [2015] EWCA Civ 670 and on the facts of the case holds that new evidence cannot be considered by the tribunal in a Points Based System appeal. The facts of the case look weak from the judgment and Appellant Counsel’s submissions rather extreme. The Court of Appeal does not go as far as endorsing the Upper Tribunal’s decision in Ahmed (PBS: admissible evidence) [2014] UKUT 00365 (IAC) (covered here on Free Movement: Genuineness test for entrepreneurs and new evidence on appeal, the…

6th July 2015 By Colin Yeo

Good news and bad for challenges to ETS fraud decisions

The Upper Tribunal has given judgment in a test case on ETS appeals and judicial reviews: R (on the application of Gazi) v Secretary of State for the Home Department (ETS – judicial review) IJR [2015] UKUT 327 (IAC). It is essential reading for anyone directly affected by the ongoing ETS saga and for their legal representatives.

18th June 2015 By Colin Yeo

“Print and send” Tier 4 student applications

Upper Tribunal determination on “print and send” Tier 4 student applications: R (on the application of Wasif) v Secretary of State for the Home Department (rule 34 – “print and send”) IRJ [2015] UKUT 270 (IAC). “Print and send” applications were withdrawn in August 2014 so the case is of limited interest.

27th May 2015 By Colin Yeo

Genuine students and ECO interviews

Having just finished drafting grounds for judicial review in a case involving a refusal of a Tier 4 study application on the grounds that the applicant was not a “genuine student” I was interested to see the new case of R (on the application of Mushtaq) v Entry Clearance Officer of Islamabad, Pakistan (ECO – procedural fairness) IJR [2015] UKUT 224 (IAC). The headnote is perhaps a bit of a distraction from the meat of the decision. It reads: (i) The common law principles of procedural fairness apply to the decision making processes of Entry Clearance Officers (“ECOs”). (ii) ECO interviews serve the basic twofold purpose of enabling applications to be probed and…

17th May 2015 By Colin Yeo

Consultation on Tier 1 Entrepreneur route

The Migration Advisory Committee has been asked to look at the Tier 1 Entrepreneur route again and are holding a consultation which closes on 12 June 2015. Details here. The issues to be examined are: the initial eligibility criteria of access to funds is sufficient and whether other criteria, for example, assessment of previous entrepreneurial activity and/or testing the purpose of the investment, should be applied the existing eligibility and extension criteria are aligned sufficiently with entrepreneurial and early stage business life-cycles, including consideration of the role angel investors and crowd-funding the route utilises international best practice. As part of this, the MAC is requested to consider route design and incentives…

25th March 2015 By Colin Yeo

High Court finds Tier 1 Entrepreneur landline requirement irrational

The High Court has found part of the Tier 1 Entrepreneur rules to be irrational in the case of R (on the application of Sabir & Ors) & Anor v The Secretary of State for the Home Department [2015] EWHC 264 (Admin). Despite succeeding on part of the challenge, though, the case ultimately failed because there were other parts of the rules that the claimant has also been refused under and which the claimant failed to convince the judge were unlawful. The case is instructive for non specialists on the arcane and bizarre bureaucratic requirements that entrepreneurs are required to establish in order to obtain a visa. Designed by civil servants who…

23rd 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

Genuineness test for entrepreneurs and new evidence on appeal

The case of Ahmed and Another (PBS: admissible evidence) [2014] UKUT 365 (IAC) concerns the ‘genuineness’ test that was introduced for entrepreneur applications as the final death knell for the original concept of the Points Based System as a tool for objective decision making. On appeal, the tribunal holds that s.85A of the Nationality, Immigration and Asylum Act 2002 prevents a judge from considering evidence that was not submitted with the original application to the Home Office because the genuineness test relates to the award of points under the Points Based System. This conclusion is itself questionable as the Home Office itself seems to consider that the genuineness part of the rules is ‘non…

12th August 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

Points Based System flexibility to be considered by Supreme Court

The case of Rodriguez, Mandalia and Patel [2014] EWCA Civ 2 is to be reconsidered by the Supreme Court, this months grants of permission reveals. The case concerns the ‘evidential flexibility’ policy that I think was first publicly revealed here on Free Movement. It is a chance for the Supreme Court to grapple with the insanely complex requirements of the PBS and consider whether the system is a fair and lawful one. Also going up to the Supreme Court is TN (Afghanistan) & Anor v Secretary of State for the Home Department [2013] EWCA Civ 1609 on the issue of whether judicial review is an adequate remedy for the purposes of EU law…

12th 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

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

Shebl (Entrepreneur: proof of contracts) [2014] UKUT 216 (IAC)

Official headnote: The requirement to prove the existence of “contracts” in paragraph 41-SD of Appendix A to the immigration rules does not itself require the contracts in question to be contained in documents. There is, however, a need for such contracts to be evidenced in documentary form. The Home Office attempted to argue that contracts have to be set out in a single document. The tribunal disagree, pointing out that many other forms of contract are legally effective. Nevertheless, the tribunal accepts that some sort of written evidence of contacts is required but that it might be spread out over several documents. Contracts are not required for all types of…

16th May 2014 By Colin Yeo

Evidential Inflexibility: SSHD v Rodriguez

In one of the earliest cases of the year, Secretary of State for the Home Department v Rodriguez [2014] EWCA Civ 2, the Court of Appeal has overturned the decision of the Upper Tribunal under the new president McCloskey J, Rodriguez (Flexibility Policy) [2013] UKUT 00042 (IAC).

29th January 2014 By Sonali Naik