Immigration Law Archives - Page 7 of 7 - ICS Legal Blog

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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...

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...

High Court finds family immigration rules are not unlawful but the earnings threshold amounts to a disproportionate interference with family life

The High Court has today handed down judgment in a judicial review challenge to changes to the Immigration Rules introduced by the addition of Appendix FM last year. If your leave to enter or further leave to remain was refused based on maintenance, please contact us on 0207 237 3388 or e-mail us on info@icslegal.com.  BBC News notes that under the Immigration Rules only British citizens, or those with refugee status, who earn at least £18,600 a year can sponsor their non-European spouse's visa. The three appeals before the High Court challenged the rules on the basis that they are discriminatory and interfere with the right to a private and family life. In the judgment, BBC News reports that Justice Blake concluded that the rules were not unlawful, however, he did find that the earnings threshold would amount to a disproportionate interference with family life if combined with one of the four other requirements in the rules - for example, an inability to supplement a shortfall in income with savings, unless the savings were over £16,000. According to BBC News, Justice Blake said the court would not strike down the rules, but urged the Home Secretary to adjust them, saying they were onerous...

Deportation cases

The new rules on family and private life set out clear criminality thresholds beyond which an offender will normally be deported. The framework is as follows: 1.      Where an offender is convicted of an offence and sentenced to at least 48 months‟ imprisonment, their deportation will be the proper course except in "exceptional circumstances‟; 2.      Where a person is convicted of an offence and sentenced to between 12 and 48 months‟ imprisonment, their deportation will be the proper course unless they fall within the family life or private life exceptions below. If they do not, deportation will be the proper course except in "exceptional circumstances‟; 3.     Where a person’s deportation is deemed conducive to the public good because their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law, their deportation will be the proper course unless they fall within the family life or private life provisions below. If they do not, deportation will be the proper course save in "exceptional circumstances‟.   If you have been served removal directions or you are subject to deportation, please contact ICS Legal on 0207 237 3388 or e-mail us on info@icslegal.com.   

7 years concession for under 18

Section 55 of the Borders, Citizenship and Immigration Act 2009 requires the UK Border Agency to carry out its existing functions in a way that takes into account the need to safeguard and promote the welfare of children in the UK. It does not impose any new functions, or override existing functions.The changes to the policy from 9th July 2012, brought a new legislation under Appendix FM of the Immigration Rules. It states the following: Where a person asserts that they have family life with children, the decision maker must ensure that the person can satisfy all of the factors listed at (a) to (e) below: (a) They have a genuine and subsisting parental relationship with a child who is under 18. (b) The child is in the UK. (c) The child either 1. is British; or 2. has lived in the UK for at least 7 years preceding the date of the immigration decision. (d) It would not be reasonable to expect the child to leave the UK. (e) There is no other family member who is able to care for the child in the UK. If you believe your case can benefit from this policy, then please speak to ICS...

New discretionary leave policy – Appendix FM & Paragraph 276ADE

The introduction of the new policy under Appendix FM and Paragraph 276ADE of the Immigration Rules HC395 are part of the Home Office “Human Rights” Application. Family life with children Where a person asserts that they have family life with children, the decision maker must ensure that the person can satisfy all of the factors listed at (a) to (e) below: (a) They have a genuine and subsisting parental relationship with a child who is under 18. (b) The child is in the UK. (c) The child either 1. is British; or 2. has lived in the UK for at least 7 years preceding the date of the immigration decision. (d) It would not be reasonable to expect the child to leave the UK. (e) There is no other family member who is able to care for the child in the UK. Family life with a partner Where a person asserts that they have family life with a partner, the decision maker must ensure that the person can satisfy all of the factors listed at (a) to (e) below: (a) They have a genuine and subsisting parental relationship with a partner. (b) The partner is in the UK. (c) The...