WP_Post Object ( [ID] => 50169 [post_author] => 23 [post_date] => 2017-04-26 15:06:12 [post_date_gmt] => 2017-04-26 14:06:12 [post_content] => The most important point to note about the text of paragraph 320 is that the paragraph is divided into what are often referred to as the "discretionary grounds" and the "mandatory grounds".There is a discretion not to refuse entry for the discretionary grounds, which are subparagraphs 320(1) to (7D). Where one of these paragraphs applies, the application "should normally" be refused.There is no discretion not to refuse entry where one of the mandatory grounds applies. These are subparagraphs 320(8) to (23). However, it is true that it is not always completely clear when some of the mandatory grounds might apply, particularly in the case of paragraph 320(11), and there is some leeway to argue that the ground does not in truth apply and therefore refusal is not mandatory.The text of paragraph 320 of the Immigration Rules is as set out below.
320. In addition to the grounds of refusal of entry clearance or leave to enter set out in Parts 2-8 of these Rules, and subject to paragraph 321 below, the following grounds for the refusal of entry clearance or leave to enter apply:Grounds on which entry clearance or leave to enter the United Kingdom is to be refused(1) the fact that entry is being sought for a purpose not covered by these Rules;(2) the fact that the person seeking entry to the United Kingdom:

(a) is currently the subject of a deportation order; or (b) has been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years; or (c) has been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 12 months but less than 4 years, unless a period of 10 years has passed since the end of the sentence; or (d) has been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 12 months, unless a period of 5 years has passed since the end of the sentence.

Where this paragraph applies, unless refusal would be contrary to the Human Rights Convention or the Convention and Protocol Relating to the Status of Refugees, it will only be in exceptional circumstances that the public interest in maintaining refusal will be outweighed by compelling factors.(2A) DELETED(3) failure by the person seeking entry to the United Kingdom to produce to the Immigration Officer a valid national passport or other document satisfactorily establishing his identity and nationality save that the document does not need to establish nationality where it was issued by the national authority of a state of which the person is not a national and the person’s statelessness or other status prevents the person from obtaining a document satisfactorily establishing the person’s nationality;(4) failure to satisfy the Immigration Officer, in the case of a person arriving in the United Kingdom or seeking entry through the Channel Tunnel with the intention of entering any other part of the common travel area, that he is acceptable to the immigration authorities there;(5) failure, in the case of a visa national, to produce to the Immigration Officer a passport or other identity document endorsed with a valid and current United Kingdom entry clearance issued for the purpose for which entry is sought;(6) where the Secretary of State has personally directed that the exclusion of a person from the United Kingdom is conducive to the public good;(7) save in relation to a person settled in the United Kingdom or where the Immigration Officer is satisfied that there are strong compassionate reasons justifying admission, confirmation from the Medical Inspector that, for medical reasons, it is undesirable to admit a person seeking leave to enter the United Kingdom.(7A) where false representations have been made or false documents or information have been submitted (whether or not material to the application, and whether or not to the applicant’s knowledge), or material facts have not been disclosed, in relation to the application or in order to obtain documents from the Secretary of State or a third party required in support of the application.(7B) where the applicant has previously breached the UK’s immigration laws (and was 18 or over at the time of his most recent breach) by:(a) Overstaying; (b) breaching a condition attached to his leave; (c) being an Illegal Entrant; (d) using Deception in an application for entry clearance, leave to enter or remain, or in order to obtain documents from the Secretary of State or a third party required in support of the application (whether successful or not);unless the applicant:(i) overstayed for-(a) 90 days or less, where the overstaying began before 6 April 2017: or (b) 30 days or less, where the overstaying began on or after 6 April 2017 and in either case, left the UK voluntarily, not at the expense (directly or indirectly) of the Secretary of State;(ii) used Deception in an application for entry clearance more than 10 years ago; (iii) left the UK voluntarily, not at the expense (directly or indirectly) of the Secretary of State, more than 12 months ago; (iv) left the UK voluntarily, at the expense (directly or indirectly) of the Secretary of State, more than 2 years ago; and the date the person left the UK was no more than 6 months after the date on which the person was given notice of liability for removal, or no more than 6 months after the date on which the person no longer had a pending appeal or administrative review; whichever is the later; (v) left the UK voluntarily, at the expense (directly or indirectly) of the Secretary of State, more than 5 years ago; (vi) was removed or deported from the UK more than 10 years ago or; (vii) left or was removed from the UK as a condition of a caution issued in accordance with section 22 of the Criminal Justice Act 2003 more than 5 years ago.Where more than one breach of the UK’s immigration laws has occurred, only the breach which leads to the longest period of absence from the UK will be relevant under this paragraph.320(7BB) for the purposes of calculating the period of overstaying in paragraph 320(7B)(i), the following will be disregarded:(a) overstaying of up to 28 days, where, prior to 24 November 2016, an application for leave to remain was made during that time, together with any period of overstaying pending the determination of that application and any related appeal or administrative review; (b) overstaying in relation to which paragraph 39E of the Immigration Rules (concerning out of time applications made on or after 24 November 2016) applied, together with any period of overstaying pending the determination of any related appeal or administrative review; (c) overstaying arising from a decision of the Secretary of State which is subsequently withdrawn, quashed, or which the Court or Tribunal has required the Secretary of State to reconsider in whole or in part, unless the challenge to the decision was brought more than three months from the date of the decision.(7D) failure, without providing a reasonable explanation, to comply with a request made on behalf of the Entry Clearance Officer to attend for interview.Grounds on which entry clearance or leave to enter the United Kingdom should normally be refused(8) failure by a person arriving in the United Kingdom to furnish the Immigration Officer with such information as may be required for the purpose of deciding whether he requires leave to enter and, if so, whether and on what terms leave should be given;(8A) where the person seeking leave is outside the United Kingdom, failure by him to supply any information, documents, copy documents or medical report requested by an Immigration Officer;(9) failure by a person seeking leave to enter as a returning resident to satisfy the Immigration Officer that he meets the requirements of paragraph 18 of these Rules, or that he seeks leave to enter for the same purpose as that for which his earlier leave was granted;(10) production by the person seeking leave to enter the United Kingdom of a national passport or travel document issued by a territorial entity or authority which is not recognised by Her Majesty’s Government as a state or is not dealt with as a government by them, or which does not accept valid United Kingdom passports for the purpose of its own immigration control; or a passport or travel document which does not comply with international passport practice;(11) where the applicant has previously contrived in a significant way to frustrate the intentions of the Rules by:(i) overstaying; or (ii) breaching a condition attached to his leave; or (iii) being an illegal entrant; or (iv) using deception in an application for entry clearance, leave to enter or remain or in order to obtain documents from the Secretary of State or a third party required in support of the application (whether successful or not);and there are other aggravating circumstances, such as absconding, not meeting temporary admission/reporting restrictions or bail conditions, using an assumed identity or multiple identities, switching nationality, making frivolous applications or not complying with the re-documentation process.(12) DELETED(13) failure, except by a person eligible for admission to the United Kingdom for settlement, to satisfy the Immigration Officer that he will be admitted to another country after a stay in the United Kingdom;(14) refusal by a sponsor of a person seeking leave to enter the United Kingdom to give, if requested to do so, an undertaking in writing to be responsible for that person’s maintenance and accommodation for the period of any leave granted;(16) failure, in the case of a child under the age of 18 years seeking leave to enter the United Kingdom otherwise than in conjunction with an application made by his parent(s) or legal guardian to provide the Immigration Officer, if required to do so, with written consent to the application from his parent(s) or legal guardian; save that the requirement as to written consent does not apply in the case of a child seeking admission to the United Kingdom as an asylum seeker;(17) save in relation to a person settled in the United Kingdom, refusal to undergo a medical examination when required to do so by the Immigration Officer;(18) DELETED(18A) within the 12 months prior to the date on which the application is decided, the person has been convicted of or admitted an offence for which they received a non-custodial sentence or other out of court disposal that is recorded on their criminal record;(18B) in the view of the Secretary of State:(a) the person’s offending has caused serious harm; or (b) the person is a persistent offender who shows a particular disregard for the law.(19) The immigration officer deems the exclusion of the person from the United Kingdom to be conducive to the public good. For example, because the person’s conduct (including convictions which do not fall within paragraph 320(2)), character, associations, or other reasons, make it undesirable to grant them leave to enter.(20) failure by a person seeking entry into the United Kingdom to comply with a requirement relating to the provision of physical data to which he is subject by regulations made under section 126 of the Nationality, Immigration and Asylum Act 2002.(21) DELETED(22) where one or more relevant NHS body has notified the Secretary of State that the person seeking entry or leave to enter has failed to pay a charge or charges with a total value of at least £500 in accordance with the relevant NHS regulations on charges to overseas visitors.(23) where the applicant has failed to pay litigation costs awarded to the Home Office.
  [post_title] => Refusal of entry clearance or leave to enter the United Kingdom [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => refusal-entry-clearance-leave-enter-united-kingdo [to_ping] => [pinged] => [post_modified] => 2017-04-26 15:06:24 [post_modified_gmt] => 2017-04-26 14:06:24 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=50169 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 50168 [post_author] => 23 [post_date] => 2017-04-26 14:54:57 [post_date_gmt] => 2017-04-26 13:54:57 [post_content] => The general grounds for refusal enable or even require the refusal of an immigration application which otherwise meets the criteria for success. So, for example, a person who meets all of the requirements for entry as a spouse might still potentially be refused entry if one of the general grounds for refusal is found to apply in his or her case. [post_title] => Introduction [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => introduction-10 [to_ping] => [pinged] => [post_modified] => 2017-04-26 14:54:57 [post_modified_gmt] => 2017-04-26 13:54:57 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=50168 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 49790 [post_author] => 23 [post_date] => 2017-04-20 11:38:37 [post_date_gmt] => 2017-04-20 10:38:37 [post_content] => Feedback always welcome![gravityform id="1" title="true" description="true" ajax="true"] [post_title] => Feedback [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => feedback-6 [to_ping] => [pinged] => [post_modified] => 2017-04-20 11:38:37 [post_modified_gmt] => 2017-04-20 10:38:37 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=49790 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 49789 [post_author] => 23 [post_date] => 2017-04-20 11:37:59 [post_date_gmt] => 2017-04-20 10:37:59 [post_content] => This month I start with a few EU law issues, including whether the Home Office can force EU citizens and family members to use the official application forms and the position of EU citizen spouses of British citizens, cover a few Home Office policy issues and then end by reviewing the most important cases for the month.The material is all drawn from the January 2017 blog posts on Free Movement.If you listen to podcasts on your mobile phone, you can subscribe for free via iTunes here, Stitcher here or point your podcast player to podcast feed for Free Movement. Using a mobile device and subscribing has the advantage that each new podcast can be automatically downloaded for listening to on the go.To access previous Free Movement immigration update podcasts click here.The downloadable 25 minute audio podcast follows the (non chronological) order of content below: [audio mp3="https://www.freemovement.org.uk/wp-content/uploads/2017/04/FM-podcast-January-2017.mp3"][/audio] [post_title] => January 2017 immigration update [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => january-2017-immigration-update [to_ping] => [pinged] => [post_modified] => 2017-04-20 11:37:59 [post_modified_gmt] => 2017-04-20 10:37:59 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=49789 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 49787 [post_author] => 23 [post_date] => 2017-04-20 11:20:57 [post_date_gmt] => 2017-04-20 10:20:57 [post_content] => Feedback always welcome![gravityform id="1" title="true" description="true" ajax="true"] [post_title] => Feedback [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => feedback-5 [to_ping] => [pinged] => [post_modified] => 2017-04-20 11:20:57 [post_modified_gmt] => 2017-04-20 10:20:57 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=49787 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 49786 [post_author] => 23 [post_date] => 2017-04-20 11:19:30 [post_date_gmt] => 2017-04-20 10:19:30 [post_content] =>

This month I start with the some material on asylum and human rights issues, including perhaps the most important human rights case of 2016, talk about a few family immigration issues, cover two interesting reports on the future status of EU citizens and family members, which give us two very different possible ways forward, run through a number of cases and then end with a couple of procedural updates, including on the commencement of “deport first, appeal later” provisions of the Immigration Act 2016.

The material is all drawn from the December 2016 blog posts on Free Movement.

If you listen to podcasts on your mobile phone, you can subscribe for free via iTunes here, Stitcher here or point your podcast player to podcast feed for Free Movement. Using a mobile device and subscribing has the advantage that each new podcast can be automatically downloaded for listening to on the go.

The downloadable 25 minute audio podcast follows the (non chronological) order of content below:

Asylum and human rights Family immigration EU law Other cases Procedural updates [audio mp3="https://www.freemovement.org.uk/wp-content/uploads/2017/03/FM-podcast-December-2016.mp3"][/audio] [post_title] => December 2016 immigration update [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => december-2016-immigration-update [to_ping] => [pinged] => [post_modified] => 2017-04-20 11:20:04 [post_modified_gmt] => 2017-04-20 10:20:04 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=49786 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 48944 [post_author] => 23 [post_date] => 2017-04-03 19:44:31 [post_date_gmt] => 2017-04-03 18:44:31 [post_content] =>

Sending the original documents

The bundle of documents needs to be sent to the applicants so that they can take them to the embassy and hand them in. DO NOT send them directly to the embassy. Make sure that the documents arrive in time for the applicants to take them to the embassy with them for their appointment (see below).It is vital not to lose the documents or for them to be lost in the post. DO NOT send them in the normal post, send them by courier. The cost of sending the bundle will depend on its size and weight.

Attending the embassy

As part of the online application process an appointment is made at the relevant embassy. The family members applying have to attend at the right time and place. They must bring with them all the documents on which they rely for their application  and hand them in at the embassy.The family members will not meet actual embassy staff because applications are processed by a commercial organisation.

Interview

The applying family members may be interviewed at the embassy, although this is not standard practice.They could be asked to discuss their relationship with the sponsor, and when they last saw each other and similar questions. It is important that the family members understand in advance that this could happen and are prepared.The interview can, of course, be a good opportunity for them to explain in their own words why they want to join the sponsor in the UK and the background to the application.

Changing the appointment time

If the appointment needs to be changed, you can normally do this by logging into the online visa4uk website. Go to the ‘Book appointment’ section for each family member.You can then chose to either change your appointment (if you need to move the date) or cancel the appointment (if you no longer wish to attend the embassy to make the application).Follow these steps:

> Update appointment

> Select embassy venue

> Standard appointment

> Select a new date and time

> Confirm

> Print off new appointment details.

Making changes to appointments may not be possible immediately before the appointment is due to occur. Also, the Home Office periodically suspends the ability to do this if (for example if they are making changes to the visa4uk website). If you do need to change your appointment, try to do it as far in advance as possible.

Getting the decision

The decision will not be made at the appointment. Instead, the family members will be notified by post after a few days or weeks. Family reunion applications can take months to be decided where the Entry Clearance Officer refers the case back to the Home Office in the UK for checks, for example to establish whether the sponsor named family members in the original asylum application.
If the application is granted, some embassies are issuing visas which are valid for only 30 days. If so, the applicant family must be able to enter the UK within these 30 days. If they do not enter within the 30 day period on their visa they will have to re-apply for another visa.If the application is refused, see the later course units on potential ways forward to reapply or appeal.
[post_title] => Submitting documents and attending the embassy [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => submitting-documents-attending-embassy [to_ping] => [pinged] => [post_modified] => 2017-04-03 19:49:56 [post_modified_gmt] => 2017-04-03 18:49:56 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=48944 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 48544 [post_author] => 23 [post_date] => 2017-03-28 15:27:42 [post_date_gmt] => 2017-03-28 14:27:42 [post_content] => [toc]It is critically important to put forward as good an application as possible. Once an application has been refused once it can be difficult to persuade a visa official to change his or her mind and pursuing an appeal is very time consuming and there is generally no legal aid available, making it a very difficult process for refugees.A good application need not be one that includes hundreds of documents but it does not to include evidence to prove the key assertions and meet potential objections by the visa official who will look at the application.[su_icon_text icon="icon: graduation-cap" icon_size="50"]Top tipIt is always for the applicant to prove that they meet the rules. Even where there might be good reasons for an applicant struggling to produce original official documents such as a marriage or birth certificate (for example it was left at home when the refugee fled or none was issued in the first place) it is still going to be for the applicant to produce some reliable evidence to prove the case. That will almost always require production of reliable documentary evidence.Entry Clearance Officers and Home Office officials are generally very suspicious individuals, seem to start from the perspective that the applicant is lying unless he or she can prove otherwise and will refuse any application where there is no good evidence to support key assertions such as family relationship.[/su_icon_text]The components of a good quality refugee family reunion application are:

1. Evidence of the sponsor's eligibility, such as a copy of their refugee status documents

2. Very strong evidence of the family relationship between the sponsor and the applying family member or members. This can be difficult for refugees to provide because, understandably, they may not have originals of marriage or birth certificates. The best evidence is a copy of the parts of the original asylum application in which reference is made to the spouse, partner and/or children, usually the screening interview notes or part of the full asylum interview papers.

3. Good evidence of a subsisting relationship is needed, usually in the form of evidence of visits to a third country by sponsor and family member and evidence of contacts such as telephone and internet chat records.

4. Good evidence of identity of the applicant. If a passport is not available then some other very reliable documents will be needed or a passport application will need to be made.

5. Translated documents. All documents not written in English will need to be accompanied by a certified translation. Any qualified translator can certify a document as an accurate translation.

6. Well organised bundle. It is helpful for the evidence to be clearly and well presented in an organised bundle of documents with a contents page.

Some of the most common and recurring reasons for refusal are addressed in the sections of the course which follow.

Covering letter

It is a very good idea to include a covering letter with the bundle of documents. This letter can explain the circumstances of the application and also list the reasons why the application should succeed and set out a list of the documents and why they are included.

Organising the bundle

A well organised bundle is very important; it is very useful to present the evidence and documents in a clear and coherent way so that the decision maker can quickly understand what evidence is included and find the relevant evidence. Entry Clearance Officers and Home Office officials are human beings and will feel pained or even annoyed if presented with a terrible mess of documents with no guide as to what is what.Grouping the documents together is sensible, for example so that evidence of status and identity is together, evidence of ongoing relationship is grouped together, and original documents can be placed in labeled plastic envelopes.

Sending the original documents

The bundle of documents needs to be sent to the applicants so that they can take them to the embassy and hand them in. DO NOT send them directly to the embassy. Make sure that the documents arrive in time for the applicants to take them to the embassy with them for their appointment (see below).It is vital not to lose the documents or for them to be lost in the post. DO NOT send them in the normal post, send them by courier. The cost of sending the bundle will depend on its size and weight.

[post_title] => Preparing a good quality application with good evidence [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => preparing-good-quality-application-good-evidence [to_ping] => [pinged] => [post_modified] => 2017-04-03 19:50:13 [post_modified_gmt] => 2017-04-03 18:50:13 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=48544 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 48356 [post_author] => 23 [post_date] => 2017-03-27 13:55:40 [post_date_gmt] => 2017-03-27 12:55:40 [post_content] => [caption id="attachment_26045" align="alignnone" width="1024"] Image credit: Takver[/caption]We have so far covered the family members who can be sponsored under the Immigration Rules for refugee family reunion. To recap, thee family members are:
  • Spouses and partners of the refugee
  • Children of the refugee under the age of 18
  • Some other children under 18 related to the refugee
We have also seen that there are additional requirements, such as in the case of an unmarried partner that the couple had lived together for at least two years before the refugee fled and that children have not formed an independent life.What happens where a family member falls outside these relationships? If a child seeking entry under the family reunion rules is over 18 at the date of application, or the application is by a parent or grandparent of a refugee, the application is very likely to be refused. These relationships fall outside the Immigration Rules on refugee family reunion.There are three possible ways forward:
  1. Apply under the main Immigration Rules, if there are any that might apply
  2. Give up
  3. Apply outside the Immigration Rules, where possible relying on the exceptional circumstances policy.
An application under the main Immigration Rules and Appendix FM as an Adult Dependent Relative faces additional hurdles, has to be paid for, is extremely expensive and very few such applications succeed.Even though the rules make no provision for this category of family members, in 2016 the Home Office introduced an improved refugee family reunion policy. This may benefit some family members, in particular some children over the age of 18.

Children over 18

The policy states that children over the 18 at the date of application should be refused under the Immigration Rules. However, the policy goes on:
The caseworker must go on in every case to consider whether there are exceptional or compassionate circumstances, including the best interests of other children in the family, which warrant a grant of leave to enter or remain outside the Immigration Rules on Article 8 grounds. These could be that the applicant would be left in a conflict zone or dangerous situation and become destitute on their own; have no other relatives that they could live with or turn to for support in their country; are not leading an independent life and the rest of the family intend to travel to the UK. See Exceptional circumstances or compassionate factors for further information.
Under the section on exceptional circumstances or compassionate factors, the policy starts by stating that the test is essentially whether the impact of refusal will be "unduly harsh" but then goes on to outline some cases that might potentially be suitable for grants of visas outside the rules:
It is for the applicant to demonstrate as part of their application what the exceptional circumstances or compassionate factors are in their case. Each case must be decided on its individual merits. Entry clearance or a grant of leave outside the Immigration Rules is likely to be appropriate only rarely and consideration should be given to interviewing both the applicant and sponsor where further information is needed to make an informed decision. The following examples may lead to a grant of leave outside the rules:
  •  an applicant who cannot qualify to join parents under the rules because they are over 18 but all the following apply:
    • their immediate family, including siblings under 18 qualify for family reunion and intend to travel, or have already travelled, to the UK
    • they would be left alone in a conflict zone or dangerous situation
    • they are dependent on immediate family in the country of origin and are not leading an independent life
    • there are no other relatives to turn to and would therefore have no means of support and would likely become destitute on their own
There will be few who benefit from this policy but there will be some.[su_box title="Example"]David's father fled to the UK and successfully claimed asylum. David was 17 at the time his father left but has since then turned 18. He cannot succeed under the refugee family reunion rules. If he is to join his father in the UK he would somehow need to succeed under the policy for other family members, under the virtually impossible Adult Dependant Relative rules, on human rights arguments (also unlikely), under the policy on exceptional or compassionate factors or apply in his own right as a student or similar.[/su_box]

De facto adoptions

The Home Office policy on children who have in effect been adopted by a person now recognises as a refugee is as follows:
A de facto adoption is one where a child has been incorporated into another family than the one into which they were born, and has been cared for in that family. Unlike formal adoptions which can be established on the basis of documentary evidence, de facto adoptions are likely to require an assessment of the overall picture of the circumstances surrounding the ‘adoption’, often with little or no documentary evidence. The onus to establish a de facto adoption is on the applicant.There is no provision in the Immigration Rules to consider a sponsor who has requested family reunion for a child who is the subject of a de facto adoption. Applications involving de-facto adoptions must be refused under the rules and caseworkers must then go on to consider the family exceptional circumstances guidance or whether there are any compassionate factors which my warrant a grant of leave outside the Immigration Rules. Also see: Other applications for those not eligible for family reunion.

Partners

The family reunion policy also states that where partners do not meet the requirements of the rules they should be admitted outside the rules:
  • where an applicant is an unmarried or same-sex partner and they meet all the requirements of paragraph 352AA with the exception that the sponsor was granted refugee status or humanitarian protection status before 9 October 2006
  • where an applicant is an unmarried or same-sex partner and they meet all the requirements of paragraph 352AA except the requirement to live together and the caseworker is satisfied that they have evidenced that this would have put them in danger

Parents and siblings

Home Office policy on parents and siblings of a recognised refugee is as follows:
The parents and siblings of a child who have been recognised as refugees are not entitled to family reunion under the Immigration Rules. Where an application does not meet the requirements of the Immigration Rules, the caseworker must consider the family exceptional circumstances guidance or consider whether there are any compassionate factors which may warrant a grant of leave outside the rules. Each case must be considered on its individual merits and include consideration of the best interests of the child in the UK. As the Immigration Rules are specifically designed to meet our obligations under the European Convention on Human Rights (ECHR) in respect of family or private life, it is not expected there will be significant numbers granted outside the rules. However, it is important that evidence relating to exceptional circumstances is carefully considered on its individual merits.
It seems unlikely that any such application would be successful but applications under the refugee family reunion rules are free, it is worth trying and it may be possible to win on appeal in strong compassionate cases.If these requirements cannot be satisfied the only other possibility is to rely on human rights arguments. However, very few human rights arguments outside the Immigration Rules ever succeed.  [post_title] => Family members outside the rules [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => family-members-outside-rules [to_ping] => [pinged] => [post_modified] => 2017-03-27 14:42:33 [post_modified_gmt] => 2017-03-27 13:42:33 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=48356 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 48332 [post_author] => 23 [post_date] => 2017-03-27 08:58:59 [post_date_gmt] => 2017-03-27 07:58:59 [post_content] => We are grateful for any feedback on the course, thank you![gravityform id="1" title="true" description="true" ajax="true"] [post_title] => Feedback [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => feedback-4 [to_ping] => [pinged] => [post_modified] => 2017-03-27 08:58:59 [post_modified_gmt] => 2017-03-27 07:58:59 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=48332 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 47647 [post_author] => 23 [post_date] => 2017-03-19 18:31:32 [post_date_gmt] => 2017-03-19 18:31:32 [post_content] => [post_title] => Quiz [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => quiz-and-feedback-2 [to_ping] => [pinged] => [post_modified] => 2017-03-27 08:58:48 [post_modified_gmt] => 2017-03-27 07:58:48 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=47647 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 47645 [post_author] => 23 [post_date] => 2017-03-19 17:05:04 [post_date_gmt] => 2017-03-19 17:05:04 [post_content] => Where a family member is not adjudged to have retained rights of residence under Directive 2004/38 then it may in some cases be possible to fall back on derived rights of residence. These do not lead to the acquisition of permanent residence in EU law but something may be better than nothing.Derivative rights of residence are rights of residence for non-EEA nationals who derive a right to reside in the EEA from an EEA citizen outside the terms of Directive 2004/38. These rights have been developed in a series of judgments of the CJEU: The rights fall broadly into three categories:
  1. Parent of a self sufficient child (Chen)
  2. Parent of a child in education (BaumbastIbrahim and Teixeira)
  3. Parent of a child who is an EU or British citizen (Zambrano, McCarthy, Dereci, Iida)
In the UK, the first port of call for assessing derivative rights of residence is regulation 16 of the Immigration (European Economic Area) Regulations 2016:
Derivative right to reside16.—(1) A person has a derivative right to reside during any period in which the person—

(a) is not an exempt person; and

(b) satisfies each of the criteria in one or more of paragraphs (2) to (6).

(2) The criteria in this paragraph are that—

(a) the person is the primary carer of an EEA national; and

(b) the EEA national—

(i) is under the age of 18;

(ii) resides in the United Kingdom as a self-sufficient person; and

(iii) would be unable to remain in the United Kingdom if the person left the United Kingdom for an indefinite period.

(3) The criteria in this paragraph are that—

(a) any of the person’s parents (“PP”) is an EEA national who resides or has resided in the United Kingdom;

(b) both the person and PP reside or have resided in the United Kingdom at the same time, and during such a period of residence, PP has been a worker in the United Kingdom; and

(c) the person is in education in the United Kingdom.

(4) The criteria in this paragraph are that—

(a) the person is the primary carer of a person satisfying the criteria in paragraph (3) (“PPP”); and

(b) PPP would be unable to continue to be educated in the United Kingdom if the person left the United Kingdom for an indefinite period.

(5) The criteria in this paragraph are that—

(a) the person is the primary carer of a British citizen (“BC”);

(b) BC is residing in the United Kingdom; and

(c) BC would be unable to reside in the United Kingdom or in another EEA State if the person left the United Kingdom for an indefinite period.

(6) The criteria in this paragraph are that—

(a) the person is under the age of 18;

(b) the person does not have leave to enter, or remain in, the United Kingdom under the 1971 Act;

(c) the person’s primary carer is entitled to a derivative right to reside in the United Kingdom under paragraph (2), (4) or (5); and

(d) the primary carer would be prevented from residing in the United Kingdom if the person left the United Kingdom for an indefinite period.

(7) In this regulation—

(a) “education” excludes nursery education but does not exclude education received before the compulsory school age where that education is equivalent to the education received at or after the compulsory school age;

(b) “worker” does not include a jobseeker or a person treated as a worker under regulation 6(2);

(c) an “exempt person” is a person—

(i) who has a right to reside under another provision of these Regulations;

(ii) who has the right of abode under section 2 of the 1971 Act(1);

(iii) to whom section 8 of the 1971 Act(2), or an order made under subsection (2) of that section(3), applies; or

(iv) who has indefinite leave to enter or remain in the United Kingdom.

(8) A person is the “primary carer” of another person (“AP”) if—

(a) the person is a direct relative or a legal guardian of AP; and

(b) either—

(i) the person has primary responsibility for AP’s care; or

(ii) shares equally the responsibility for AP’s care with one other person who is not an exempt person.

(9) In paragraph (2)(b)(iii), (4)(b) or (5)(c), if the role of primary carer is shared with another person in accordance with paragraph (8)(b)(ii), the words “the person” are to be read as “both primary carers”.(10) Paragraph (9) does not apply if the person with whom care responsibility is shared acquired a derivative right to reside in the United Kingdom as a result of this regulation prior to the other person’s assumption of equal care responsibility.(11) A person is not be regarded as having responsibility for another person’s care for the purpose of paragraph (8) on the sole basis of a financial contribution towards that person’s care.(12) A person does not have a derivative right to reside where the Secretary of State or an immigration officer has made a decision under regulation 23(6)(b), 24(1), 25(1), 26(3) or 31(1), unless that decision is set aside or otherwise no longer has effect.
As well as the regulations, which largely reflect CJEU case law, there have been several UK cases on derivatives of rights of residence, particularly on Zambrano rights.In Harrison (Jamaica) v Secretary of State for the Home Department [2012] EWCA Civ 1736 the Court of Appeal reviewed the position following Zambrano, McCarthy, Dereci and Iida.The parties agreed that the application of the Zambrano test requires a court to focus on the question whether as a matter of reality the EU citizen would be obliged to give up residence in the EU if the non EU national were to be removed from the EU. Where the parties disagreed was over whether the Zambrano principle can apply where an EU citizen is not forced, as a matter of substance, to follow the non EU national out of the EU, but where their continuing residence in the EU is affected in some sense because, for example, the quality of life is diminished. The Secretary of State maintained that the case law indicates that nothing short of forcing departure will satisfy the Zambrano test and the appellants argued that diminution in quality of life by deprivation of a parent would suffice.Lord Justice Elias gives the leading judgment and prefers the arguments of the Secretary of State while recognising that EU law may develop to give greater protection to a citizen’s right of residence than it does at present.The position following Harrison therefore seems to be that a situation in which the EU citizen will be forced to leave the country of residence will succeed under Zambrano (such as where the sole carer or both parents of an EU citizen child face removal) but where there is an element of choice in whether the EU citizen leaves such a situation will fail. [post_title] => Derived rights of residence: quick overview [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => derived-rights-residence-quick-overview [to_ping] => [pinged] => [post_modified] => 2017-03-19 17:05:04 [post_modified_gmt] => 2017-03-19 17:05:04 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=47645 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 47639 [post_author] => 23 [post_date] => 2017-03-19 16:49:17 [post_date_gmt] => 2017-03-19 16:49:17 [post_content] =>

Maternity and paternity leave

Where a pregnant worker ceases employment for maternity related reasons and then recommences work within 12 months of giving birth, she will retain the status of worker. This was established in the case of St Prix (Case C-507/12) and is reflected now in UK case law as well: see SSWP v SSF and others [2015] UKUT 0502 (AAC) and Weldemichael and another (St Prix C-507/12; effect) [2015] UKUT 540 (IAC).See further Free Movement blog post: How long do pregnant women retain EU worker status?Despite St Prix and the Upper Tribunal cases, Home Office policy remains that a "reasonable period" within which a woman must return to work in order to retain worker status is 15 weeks from childbirth: European Economic Area nationals: qualified persons.There is no direct case law on paternity or adoption leave but similar arguments could be employed. Given that the UK Government fought St Prix and the domestic UK cases, such arguments might well have to be fought in court, unfortunately.

Other gaps in qualifying residence

The usual understanding of "absence" in this context is "absence from the UK", i.e. abroad. However, it is strongly arguable that the same approach should be applied to periods of residence in the UK but without a right of residence. This might apply, for example, a person who ceases being a worker, job seeker and so on, or who has a gap in their comprehensive sickness insurance coverage.There is no case law directly on this issue but the case of Dias C-325/09 seems very helpful by analogy. In that case, a period of two years of living in the UK but not as a qualified person was held to be equivalent to absence from the UK which therefore disqualified a person from retaining what would otherwise have been their right of permanent residence, acquired before the commencement of Directive 2004/38. [post_title] => Gaps in qualifying residence within UK [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => gaps-qualifying-residence-within-uk [to_ping] => [pinged] => [post_modified] => 2017-03-19 16:56:08 [post_modified_gmt] => 2017-03-19 16:56:08 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=47639 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 47640 [post_author] => 23 [post_date] => 2017-03-19 16:44:03 [post_date_gmt] => 2017-03-19 16:44:03 [post_content] => Until now, Irish citizens have broadly been treated as if they were simply EEA nationals. The only obvious special treatment in immigration status terms was that Irish citizens are considered to have no restrictions on their leave as soon as they have “ordinary residence”. This qualifies them for British citizenship more rapidly than for EEA nationals and has nationality implications for their children, who may automatically be born British.This also means there is really no point at all in Irish citizens applying for permanent residence under EU law, even though they would qualify providing they are not dual national British citizens.The basis for this treatment is legally unclear, however; in fact there seems to be no clear legal basis for it. The basic provision concerning the status of Irish citizens in Britain is the Ireland Act 1949, which was passed when the Irish state withdrew definitively from the Commonwealth. Section 2(1) of the 1949 Act declares that
‘notwithstanding that the Republic of Ireland is not part of [Her] Majesty’s dominions, the Republic of Ireland is not a foreign country for the purposes of any law in force in any part of the UK.’
It goes on to provide that
‘references in any Act of Parliament, other enactment or instrument whatsoever … to foreigners, aliens [etc..] … shall be construed accordingly.’
However, this is not interpreted as meaning that Irish citizens are entirely exempt from immigration law. Professor Bernard Ryan takes the view that Irish citizens have been subject to UK immigration laws since the Commonwealth Immigrants Act 1962 and are now potentially subject to the Immigration Act 1971, for example the deportation regime.In addition, under section 1(3) of the Immigration Act 1971 and the Immigration (Control of Entry through Republic of Ireland) Order 1972, Irish citizens are exempt from immigration control when entering from Ireland.The Nationality Instructions (Chapter 18, Annex B) say this regarding residence of Irish citizens in breach of immigration laws for the purpose of naturalisation:
The following persons are not regarded as being in breach of the immigration laws for the purposes of the BNA 1981 just because they do not have the right of abode or leave to enter or remain: People who:(a) are citizens of the Republic of Ireland, and(b) last arrived in the UK on a local journey from the Republic of Ireland, entitled to enter without leave by virtue of section 1(3) of the Immigration Act 1971...
  [post_title] => Status of the Irish [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => status-of-the-irish [to_ping] => [pinged] => [post_modified] => 2017-04-07 12:13:12 [post_modified_gmt] => 2017-04-07 11:13:12 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=47640 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 47638 [post_author] => 23 [post_date] => 2017-03-19 16:42:01 [post_date_gmt] => 2017-03-19 16:42:01 [post_content] => plane airport british airwaysFor a person to acquire the EU right of permanent residence he or she must reside lawfully and continuously in a Member State for five years. Some "absences" are allowed, however: up to six months in a 12 month period with no condition and up to 12 months on a single occasion in certain circumstances.

The Directive

The right of permanent residence is acquired after a continuous period of five years of legal residence. See Article 16:

Right of permanent residence

Section I

Eligibility

Article 16

General rule for Union citizens and their family members1. Union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there. This right shall not be subject to the conditions provided for in Chapter III.2. Paragraph 1 shall apply also to family members who are not nationals of a Member State and have legally resided with the Union citizen in the host Member State for a continuous period of five years.3. Continuity of residence shall not be affected by temporary absences not exceeding a total of six months a year, or by absences of a longer duration for compulsory military service, or by one absence of a maximum of twelve consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country.4. Once acquired, the right of permanent residence shall be lost only through absence from the host Member State for a period exceeding two consecutive years.
The conditions for acquiring permanent residence are therefore:
  1. Legal residence
  2. For five continuous years
  3. Absences of up to six months in a year are permitted, or longer in certain circumstances
In addition, permanent residence can be (not must be) lost through an absence of two consecutive years.There are some issues which are not clear on the face of the Directive:
  1. Does legal residence have to be in conformity with the Directive itself or would lawful residence under Article 20/21 or even domestic law be sufficient? In the joined cases of Ziolkowski C-424/10 and Szeja C-425/10 the CJEU held that the residence must be in conformity with the Directive.
  2. The “six month rule” is not expressed in mandatory terms; it does not state that continuity is broken by absences in excess of 6 months. Member States could be more generous if they wished as discretion is afforded by the wording of the Directive.
  3. The mechanism for calculating absences is not clear. The reference to year probably means a 12 month period rather than a calendar year but the Directive does not state how to set which rolling 12 month period is assessed for absences, i.e. the start and finish date.
  4. Longer absences must not count against the person where the absences were for reasons of military service.
  5. A single absence of up to 12 months must not count against the person where it was for “important reasons”. Examples are given but these are illustrative not exhaustive. The examples are “pregnancy and childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country”.

UK regulations

The Immigration (European Economic Area) Regulations 2016 address the acquisition of permanent residence in two places. A relatively simple and straightforward piece of EU law is mangled almost beyond immediate recognition.Firstly, regulation sets out the criteria:
Right of permanent residence15.—(1) The following persons acquire the right to reside in the United Kingdom permanently—

(a) an EEA national who has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years;

(b) a family member of an EEA national who is not an EEA national but who has resided in the United Kingdom with the EEA national in accordance with these Regulations for a continuous period of five years;

(c) a worker or self-employed person who has ceased activity;

(d) the family member of a worker or self-employed person who has ceased activity, provided—

(i) the person was the family member of the worker or self-employed person at the point the worker or self-employed person ceased activity; and

(ii) at that point, the family member enjoyed a right to reside on the basis of being the family member of that worker or self-employed person;

(e) a person who was the family member of a worker or self-employed person where—

(i) the worker or self-employed person has died;

(ii) the family member resided with the worker or self-employed person immediately before the death; and

(iii) the worker or self-employed person had resided continuously in the United Kingdom for at least two years immediately before dying or the death was the result of an accident at work or an occupational disease;

(f) a person who—

(i) has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years; and

(ii) was, at the end of the period, a family member who has retained the right of residence.

(2) Residence in the United Kingdom as a result of a derivative right to reside does not constitute residence for the purpose of this regulation.(3) The right of permanent residence under this regulation is lost through absence from the United Kingdom for a period exceeding two years.(4) A person who satisfies the criteria in this regulation is not entitled to a right to permanent residence in the United Kingdom where the Secretary of State or an immigration officer has made a decision under regulation 23(6)(b), 24(1), 25(1), 26(3) or 31(1), unless that decision is set aside or otherwise no longer has effect.
Secondly, regulation 3 defines what is meant by continuous residence:
Continuity of residence3.—(1) This regulation applies for the purpose of calculating periods of continuous residence in the United Kingdom under these Regulations.(2) Continuity of residence is not affected by—(a) periods of absence from the United Kingdom which do not exceed six months in total in any year;(b) periods of absence from the United Kingdom on compulsory military service; or(c) one absence from the United Kingdom not exceeding twelve months for an important reason such as pregnancy and childbirth, serious illness, study or vocational training or an overseas posting.(3) Continuity of residence is broken when—(a) a person serves a sentence of imprisonment;(b) a deportation or exclusion order is made in relation to a person; or(c) a person is removed from the United Kingdom under these Regulations.(4) Paragraph (3)(a) applies, in principle, to an EEA national who has resided in the United Kingdom for at least ten years, but it does not apply where the Secretary of State considers that—(a) prior to serving a sentence of imprisonment, the EEA national had forged integrating links with the United Kingdom;(b) the effect of the sentence of imprisonment was not such as to break those integrating links; and(c) taking into account an overall assessment of the EEA national’s situation, it would not be appropriate to apply paragraph (3)(a) to the assessment of that EEA national’s continuity of residence.
We can see that the UK regulations are broadly faithful to the Directive. However, excess absences automatically disqualify the person under the UK regulations and there is no real discretion permitted, other than in assessing “important reasons” for the purpose of a single absence of up to 12 months.

Home Office policy

The principle policy document setting out Home Office policy on permanent residence and absences is European Economic Area nationals: qualified persons. This includes a section on assessing continuous residence.The policy makes clear that the Home Office will only recognise a right of permanent residence where the person can prove with evidence they have been physically resident in the UK for five continuous years. Evidence might include:
  • tenancy agreements
  • utility bills
  • bank statements
  • school or nursery letters or immunisation records in support of applications for children
The online application process will accept five consecutive years of P60s for a worker as evidence of residence, however, which simplifies the documents in such cases.Absences from the UK are said to be calculated “on the period of time the applicant claims to have resided in the UK in line with the regulations”. The Home Office appears to mean that the 12 month period in which a 6 month absence is calculated is based on the period of residence claimed by the applicant. This potentially allows the applicant to select their own dates to attempt to split any absence between two 12 month periods.The example given by the Home Office in the policy document is as follows:
For example, if an EEA national claims they have resided in the UK from October 2005 to October 2010 you will begin each of the years in October. If they lived and worked in the UK from October 2005 until February 2008, resigned from their job to work in another EEA state for 10 months before returning to live and work in the UK in December 2008 their continuity of residence was broken. This is because in the year October 2007 to October 2008 they were absent from the UK for more than 6 months, and it was not for an important reason.
Imagine another scenario in which selecting the dates might eliminate a gap of over six months:[su_box title="Example"]Martin is a German national. He was absent from the UK backpacking around the world for 8 months between 10 May 2015 and 10 January 2016. Other than that he has been self employed continuously in the UK since February 2011 and has no other major absences of over 2 months. He plans to make his application based on a 5 year period starting in 2011 or 2012.If Martin's 12 month "cycle" starts on 1 May 2011 then he probably will not qualify for permanent residence. This is because the 8 month period would fall into the 12 month period of May 2015 to May 2016, thus breaking his continuous residence.If Martin instead starts his 12 month "cycle" on 1 September 2011 he probably will qualify for permanent residence. This is because his 8 month gap will be divided between two 12 month periods:
  • 1 September 2014 to 1 September 2015 will include approximately a 5 month period (10 May 2015 to 1 September 2015)
  • 1 September 2015 to 1 September 2016 will include approximately a 4 month period
Martin's application for permanent residence should therefore specify a specific start date and the documents should be provided accordingly. This maximises the chances that he will be granted permanent residence despite the 8 month absence.[/su_box]  [post_title] => Absences from UK since 2006 [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => absences-uk-since-2006 [to_ping] => [pinged] => [post_modified] => 2017-03-19 16:42:01 [post_modified_gmt] => 2017-03-19 16:42:01 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=47638 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw )