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Latest UK & International Legal News

Reducing common errors in Tier 1 (Entrepreneur) applications

Providing the right specified documents Use the policy guidance to find out which documents you should send to support your application. At the back of the application form is a list to help you check that you have sent us everything we need. The Immigration Rules and the policy guidance that we publish explain which documents we will accept. We will not consider any documents other than those specified in the guidance. This is clear, open and transparent but also means that we do not accept alternative documents, even if you feel that they mean the same thing. Switching into the Entrepreneur route from Post Study Work If you are switching into the Entrepreneur route from the Post Study Work route, you must provide evidence such as contracts and advertising to show you are already operating a business. You must also show that that the service your business offers relates to an occupation equivalent to level 4 or above of the National Qualification Framework (NQF). Providing proof of funds already invested If you have already invested funds into the business in the 12 months before you apply, you must provide business accounts (audited or unaudited) when submitting your completed application form....

Visiting professors – meeting the strict Immigration Rules

Students from overseas academic institutions come to the UK on study abroad programmes and can be accompanied by professors and teachers who are overseeing their studies. Such professors and teachers may undertake a small amount of teaching, limited to the institution hosting the students they are supervising but must be employed and paid by the overseas academic institution and must not intend to base themselves or seek employment in the UK. If you are thinking of applying for a visa, then please contact us on info@icslegal.com or call us today on 0207 237 3388. 

Article 8 of the ECHR

Article 8 is a qualified right and any interference is permissible only so long as it is proportionate and justifiable. In the immigration context, Article 8 has assumed a distinctive role as it is frequently relied upon by foreign nationals who challenge their removal. These challenges have generated an enormous volume of case-law on the legal test to be applied as regards the balance to be struck between family life on the one hand and immigration policy on the other. But, to summarise, the key issue is this: should the courts accept that in most cases the balance between family life and immigration control has been laid down in the Immigration Rules – or should decision-makers themselves determine in each individual case where the proportionate balance lies? In Huang, the Court of Appeal held that the Immigration Rules represented the appropriate balance between public policy and private right: individuals who did not qualify under the ordinary immigration rules would only succeed under Article 8 grounds if their case was truly exceptional. However, when the same case went to the House of Lords, it held that there was no test of exceptionality: the ultimate question is whether the refusal of leave to enter or remain,...

ILR applications – relaxed UK absence limits

Until December 2012, those applying for Indefinite leave to remain (ILR) on account of 5 years residence in the UK as a work permit holder, Tier 1 or Tier 2 General holder would have to show that they had had less than 6 months absences from the UK during their 5 years residence unless there were compelling circumstances. This rule led to a lot of uncertainty for applicants and seemed also to lead to inconsistent decision-making (see my article below). Fortunately, some degree of sense has been brought to this part of the Rules. From 13 December 2012, the UKBA relaxed the absence requirements for these categories among others, allowing for up to 6 months absences per year (each year will be counted back as a period of 12 months prior to the date of application). This change is likely to come as a relief to many people to whom regularly leaving the UK on business trips is essential for their work. The change may also allow some people who were previously refused to re-apply under the new rules. It is worth noting that some categories such as Tier 2 require specified evidence that absences are work-related and/or in accordance...

Appealing against unfair decisions – Tribunal update

The recent ground-breaking decision of the Upper Tribunal of the Immigration and Asylum Chamber in Naved (Student – fairness – notice of points) [2012] UKUT 14 (IAC) has confirmed that the Tribunal considers itself to have the jurisdiction to allow immigration appeals on public law principles of general unfairness. This comes a time when the Immigration Rules, policies and application forms are being constantly updated sometimes causing applicants justified confusion. These decisions are therefore very welcome as they promise to open the door for Tribunal Judges to right some of the wrongs that are done whenapplications are refused. The case concerns a Tier 4 applicant who was refused leave to remain on maintenance grounds. He was not considered to have an “established presence” in the UK as he did not provide evidence to show that he completed his previous course of studies. The arguments concerned the issue of whether evidence of the Appellant’s evidence of having completed the course was admissible at the appeal and if not, whether it was unfair to refuse the application given that the application form did not require the appellant to provide proof of having completed the course. Upper Tribunal Judge Freeman, sitting with Justice Blake, President...

No obligation enforceable within the UK to oblige government to comply with Strasbourg

Navarathnam v Secretary of State for the Home Department [2013] EWHC 2383 (QB) There was no unfairness in the Secretary of State for the Home Department refusing a Sri Lankan asylum seeker leave to remain in the United Kingdom, despite the ruling from the Strasbourg court that to return him would violate his rights under Article 3 of the European Convention on Human Rights 1950. A decision had been made to grant the applicant six months discretionary leave to remain but he had absconded before it could be implemented, and by the time he resurfaced the secretary of state had been entitled to review the case and determine that the circumstances in Sri Lanka had changed so that he was no longer at risk if returned. The concept of conspicuous unfairness amounting to abuse of power was encapsulated by Simon Brown LJ in R v. Inland Revenue Commissioner, ex parte Unilever plc [1996] STC 681 at p. 695a: Unfairness amounting to an abuse of power … is unlawful not because it involves conduct such as would offend some equivalent private law principle, not principally indeed because it breaches a legitimate expectation that some different substantive decision will be taken, but rather because it...

STATELESSNESS

A stateless person is one who is not regarded as a national by any state under the operation of its law.  As a result of the United Kingdom's obligations under the United Nations Convention on Statelessness 1961 (Cmnd 1825), the British Nationality Act 1981 contains a number of provisions relating to stateless persons. The principal statelessness provisions are contained in Schedule 2 to the Act but the point does arise elsewhere too. The following paragraphs provide a brief summary of the statelessness provisions - for a more detailed description, see the appropriate chapters in Volume 1 (as indicated). Under s.50(7) (and, since 21 May 2002, s.50(7A) and (7B)), a child born on a British ship or aircraft neither of whose parents is a BC (or BOTC, as the case may be) at the time of the birth will only acquire that citizenship if the child would otherwise be stateless. If you would like to get legal advice on complex British Nationality cases, please contact us today on 0207 237 3388 or e-mail us your query to info@icslegal.com. You may want to speak with one of our specialist lawyers, so please click here to book a consultation: https://icslegal.com/book_consultation.php. 

Overstayers

An overstayer is a person who was granted limited leave to enter or remain in the United Kingdom, but who neither left the country on the date indicated nor asked for the leave to be extended. Overstaying is an offence, contrary to s.24(1)(b)(i) of the Immigration Act 1971. Section 24(1A) of the 1971 Act, which was inserted by s.6(1) of the Immigration Act 1988, provides that a person commits the offence on the day when he or she first knows that leave to enter or remain has expired, and continues to commit it until such time as his or her position is regularised, for example through a further grant of leave. An overstayer is here 'in breach of the immigration laws' and, as such, does not meet the residence requirement for naturalisation in paragraph 1(2)(d) of Schedule 1 to the British Nationality Act 1981 (see Annex C to Chapter 18). When it is found or suspected that an applicant is still an overstayer the file should be sent in the first instance to the relevant immigration caseworking group for consideration to be given to the applicant's status under the Immigration Rules. Call us today on 0207 237 3388 or e-mail us...

Switzerland introduces segregation for asylum seekers

News media report that a number of towns in Switzerland have introduced draconian restrictions on asylum seekers. According to the Independent, officials from the Swiss town of Bremgarten said refugees would not be allowed to "loiter" in school playgrounds and would be banned from visiting public swimming pools, playing fields and a church. "We have decided on security grounds not to allow access to these areas, to prevent conflict and guard against possible drug use," the town's mayor was quoted as saying. BBC News reports today that the mayor of the town of Menzingen said asylum seekers should be banned from "sensitive areas" such as the vicinity of a school. "This is certainly a very difficult area, because here asylum-seekers could meet our schoolchildren - young girls or young boys," he said. The Daily Telegraph reported that similar restrictions have also been introduced in the town of Nottwil. According to the Independent, the head of Switzerland's Federal Office of Immigration endorsed the restrictions, saying the country needs rules to ensure a peaceful and orderly coexistence of residents and asylum seekers. The Independent called the restrictions "apartheid-style". The Daily Telegraph reported that the restrictions have provoked anger, with the charity Swiss Refugee Aid describing the segregation...

Overseas divorces

The Recognition of Divorces and Legal Separations Act 1971 set out the criteria for the recognition in the United Kingdom of overseas divorces. The Family Law Act 1986 instituted new provisions for the recognition of overseas divorces which took place on or after 4 April 1988. An overseas divorce is one which has been obtained by means of judicial or other proceedings, or other than by means of proceedings, in any country outside the UK and which is effective under the laws of that country. An overseas divorce which took place before 4 April 1988 is recognised in the United Kingdom under the 1971 Act if, at the date the proceedings started, either spouse was habitually resident in, or was a national of, the country where the divorce was obtained. The Domicile and Matrimonial Proceedings Act 1973 added provisions which came into effect on 1 January 1974. These provisions covered forms of divorce which the courts had ruled were not by means of judicial or other proceedings for example, bare talaqs (see subsection below). Such forms of divorce could be recognised if both parties were domiciled in a country or countries which recognised such divorce. If, however, one party was domiciled in...