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

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

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

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

Is the UK Government selling British passports?

A few snippets from a recent debate in the House of Lords. An amendment to the current Immigration Bill currently wending its way through Parliament was tabled which would close the Tier 1 Investor route. This type of visa is obtained by making an investment of at least £2 million into certain specified investment vehicles. The scheme was recently criticised by Transparency International for facilitating large scale fraud. Lord Green of Migration Watch expressed his scepticism of the efficacy and morality of the Tier 1 Investor route: It is hardly too cynical to describe this as a scheme for selling British passports to the very wealthy. There is absolutely no justification for that…

24th February 2016 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

Statement of Changes in Immigration Rules HC 297

Statement of Changes in Immigration Rules HC 297 was published today, 13 July 2015, having been trailed in The Daily Mail over the weekend. It includes some significant changes, particularly for international students. I’m technically on holiday, so I’ve elected to do some heavy cutting and pasting from the ministerial announcement by James Broken-shire and the Explanatory Notes to the Statement of Changes itself (found at the end of the document). I’ve started with Tier 4 first as these are the most significant changes, and I’ve then followed the scheme of the Explanatory Notes.

13th July 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

Mistake by lawyers fatal to student’s immigration application

An application one day late by immigration lawyers proves fatal to success in the unfortunate case of R (on the application of Han) v Secretary of State for the Home Department [2014] EWHC 4606 (Admin) (04 November 2014). The lawyers, Overseas Student Service Centre Limited (the “OSSC”), had everything they needed in time but because the Tier 4 student application was made by them one day late, the applicant was deemed not to have an “established presence” and therefore to require more funds than she actually held in her bank account. A strict application of the rules by Cranston J leads the claim to fail. Foreign students, welcome to Britain!

3rd February 2015 By Colin Yeo

Minimum income requirement and specified evidence

The case of Sultana and Others (rules: waiver/further enquiry; discretion) [2014] UKUT 540 (IAC) (12 November 2014) involved refusals of entry clearance for a spouse and three children. The basis of refusal was that the sponsor was self employed, claimed to earn in excess of the minimum amount required — because of the three children the total earnings had to be at least £27,200 — but had failed to submit the required documents as set out in Appendix FM-SE of the Immigration Rules. This was in part because the sponsor worked partly cash in hand but it also seemed that some documents that were available had simply been omitted. The family succeeded…

8th December 2014 By Colin Yeo

Pankina and Beyond! Students and knowledge of English

I recently acted in an appeal concerning a Tier 4 Student application in which the sole reason for refusal concerned the appellant’s English language ability.  Since April 2011 all degree–level students have been required to show knowledge of English equivalent to the “B2” level of the Council of Europe’s Common European Framework for Language Learning (‘CEFR’) in all four components: reading, writing, speaking and listening. A similar issue was recently considered by the High Court in the case of Chapti & Ors v SSHD [2011] EWHC 3370 (Admin) where the position in respect of spouses and civil partners applying for entry clearance and the pre-entry entry requirement of A1 CEFR…

1st March 2012 By Sarah Pinder