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SS (Nepal) v Entry Clearance Officer [2013] EWCA Civ 1206

Case No.: C5/2012/2370 Neutral Citation Number: [2013] EWCA Civ 1206 IN THE COURT OF APPEAL (CIVIL DIVISION) Date of Hearing: 25/07/2013 Date of Ruling: 25/07/2013 Before: LORD JUSTICE MOORE-BICKLORD JUSTICE ELIASLORD JUSTICE LEWISON Between: SS (NEPAL) Appellant - and - ENTRY CLEARANCE OFFICER Respondent Judgment - - - - - - - - - - - - - - - - - - - - - (DAR Transcript of WordWave International Limited A Merrill Communications Company 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr Zane Malik and Mr Nazir Ahmed (instructed by Messrs Ash Norton) appeared on behalf of the Appellant. Mr Andrew Sharland (instructed by Treasury Solicitors) appeared on behalf of the Respondent. - - - - - - - - - - - - - - - - - - - - - Lord Justice Elias: 1.     The appellant, a citizen of Nepal, was born on 31 July 1994. He is the son of a Ms Pardhan(inaudible) who has a residence permit(inaudible) as a domestic worker allowing herhim to...

European Court of Justice rules directive on freedom of movement includes same-sex spouses

European Court of Justice rules directive on freedom of movement includes same-sex spouses Press and Information Court of Justice of the European Union PRESS RELEASE No 80/18 Luxembourg, 5 June 2018 Judgment in Case C-673/16 Relu Adrian Coman and Others v Inspectoratul General pentru Imigrӑri and Others The term 'spouse' within the meaning of the provisions of EU law on freedom of residence for EU citizens and their family members includes spouses of the same sex Although the Member States have the freedom whether or not to authorise marriage between persons of the same sex, they may not obstruct the freedom of residence of an EU citizen by refusing to grant his same-sex spouse, a national of a country that is not an EU Member State, a derived right of residence in their territory Mr Relu Adrian Coman, a Romanian national and Mr Robert Clabourn Hamilton, an American national, lived together in the United States for four years before getting married in Brussels in 2010. In December 2012, Mr Coman and his husband contacted the Romanian authorities to request information on the procedure and conditions under which Mr Hamilton, in his capacity as a member of Mr Coman's family, could...

Home Secretary says paragraph 322(5) refusals of highly skilled migrants have been put on hold pending review findings

In a letter to the Home Affairs Committee, the Home Secretary has said that applications for indefinite leave to remain (ILR) by highly skilled migrants that could face refusal under paragraph 322(5) of the Immigration Rules have been put on hold pending the findings of a Home Office review. For background on the controversy over highly skilled migrants being refused under paragraph 322(5) for minor and non-criminal tax discrepancies, see our earlier article here from last week. The Home Secretary, Sajid Javid, wrote a letter to the Home Affairs Committee Chair, Yvette Cooper, on Friday and gave the following further details on the matter: "As you are aware, I have asked the Immigration Minister to conduct a review of the cohort of cases who arrived under the Tier 1 General route and were refused due to discrepancies with their HMRC records. I expect the review of the initial cohort of applications identified to be completed by the end of May after which I will report back to the Committee "I can confirm that all applications potentially falling for refusal under the character and conduct provisions of paragraph 322(5) in the Tier 1 (General) ILR and 10-year Long Residency routes, where...

Offshore wind workers Immigration Rules concession 2017

The Home Secretary has introduced a concession to the immigration rules to allow the employment of non-European Economic Area nationals who are joining vessels engaged in the construction and maintenance of offshore wind projects in UK territorial waters. This concession will be time limited and leave to enter under the terms of the concession will no longer be granted to expire after 21 April 2019. The terms of the concession are set out below. The Home Office have agreed to grant a concession, outside of the Immigration Rules, to workers essential to the construction and maintenance of wind farms within UK territorial waters. The concession will allow workers leave to enter the UK until 21 April 2019 for the purpose of joining a vessel engaged in the construction and maintenance of a wind farm within UK territorial waters. Leave to enter under the terms of the concession will not be granted beyond 21 April 2019. During this period, firms involved in the construction or maintenance of wind farms within territorial waters should look to regularise the position of their workers. British and EEA (European Economic Area) nationals do not require leave to enter the UK. Those who require leave to...

Guidance for undocumented Commonwealth citizens

This information is for Commonwealth citizens (known as ‘Windrush’ cases) who are long-term residents of the UK and do not have documents to demonstrate their status. This page is not a substitute for immigration advice. To get legal advice, you can complete our free assessment form by clicking here.  When considering whether you come in within the policy, here are important key elements to consider: If you have lived in the UK permanently since before 1973 and have not been away for long periods in the last 30 years, you have the right to be here. If you came to the UK during the 1970s but after 1 January 1973 then you are not likely to have an automatic right to be here. However, you may be allowed to stay here permanently. Amber Rudd announced that the Home Office will: waive the citizenship fee for anyone in the Windrush generation who wishes to apply for citizenship – this applies to those who have no current documentation, and also to those who have it; waive the requirement to carry out a Knowledge of Language and Life in the UK test; waive the fee for the children of the Windrush generation who are in...

Supreme Court ruling on power to impose immigration bail conditions

Immigration bail is a complex matter in Immigration Law. Supreme Court judgement in B (Algeria) (Respondent) v Secretary of State for the Home Department (Appellant) [2018] UKSC 5 is a major new ruling on powers to restrict the liberty and freedoms of those who cannot lawfully be detained. The policy that sets out "immigration bail" including the power of arrest and re-detention of persons on bail under paragraphs 22 and 29 of Schedule 2 is provided for under paragraph 24 of Schedule 2 to the 1971 Act which provides: "24. - (1) An immigration officer or constable may arrest without warrant a person who has been released by virtue of paragraph 22 above - (a) if he has reasonable grounds for believing that that person is likely to break the condition of his recognizance or bail bond that he will appear at the time and place required or to break any other condition of it, or has reasonable ground to suspect that that person is breaking or has broken any such other condition; or (b) if, a recognizance with sureties having been taken, he is notified in writing by any surety of the surety's belief that that person is likely to break...

Leave outside the Immigration Rules

Leave outside the Immigration Rules (LOTR) is a new revised policy to grant leave to remain in the UK. The Home Policy on LOTR is being granted on the following basis: The circumstances in which someone may be granted leave LOTR are covered guidance relating to European Convention on Human Rights (ECHR) Article 3 medical, Discretionary Leave, or where there is an existing published concession. Applications relating to LOTR on Article 8 family and private life grounds must instead refer to the 5-year or 10-year partner, parent and private life guidance. Applications relating to Article 3 medical grounds must instead refer to the discretionary leave guidance. The Immigration Rules are designed to provide for the vast majority of those wishing to enter or remain in the UK however, the Secretary of State has the power to grant leave on a discretionary basis outside the Immigration Rules from the residual discretion under the Immigration Act 1971. From 1 April 2003 to 9 July 2012 the majority of applications which fell outside the Immigration Rules in the UK were considered within the discretionary leave (DL) criteria, which (along with humanitarian protection) replaced exceptional leave to enter or remain (ELTE or ELTR). This...

Appendix FM Immigration Rules Change

Appendix FM Immigration Rules Change is somewhat confusing even for the legal practitioners and the Home Office case working unit. In light of The Supreme Court judgment in MM (Lebanon) & Others v SSHD [2017] UKSC 10, which required that, in circumstances where refusal of the application could otherwise breach ECHR Article 8, Home Office must take into account other credible and reliable sources of earnings or finance available to a couple in considering whether they meet the minimum income requirement under Appendix FM. The test is applied whereby Appendix FM Immigration Rules change give “direct effect” to the Secretary of State’s existing duties under section 55 of the Borders, Citizenship and Immigration Act 2009 and Article 3 of UN Convention on the Rights of the Child, to take into account, as a primary consideration, the best interests of a child affected by an immigration decision. The Supreme Court judgment in Agyarko & Ikuga v SSHD [2017] UKSC 11, which upheld the Secretary of State’s approach in applying a test of “unjustifiably harsh consequences” for the applicant or their family in deciding (in a case falling for refusal under the Immigration Rules) whether exceptional circumstances existed such that refusal of leave...

Surrogacy and the Immigration Rules

Surrogacy and the Immigration Rules is an interesting relationship. Surrogacy is a word that covers a variety of situations where, for whatever reason, a woman carries and bears a child on behalf of someone else. The woman who carries and bears the child is the “surrogate mother”. However, she can do this without being genetically related to the child. The sperm and egg necessary to create the embryo can come from donors and the embryo can be implanted into her. In such circumstances any resulting child may have no genetic connection with the surrogate mother or her husband, (if she has one). This is a complex part of both family and immigration law, you should seek specialist legal advice. ICS Legal handles these applications, and our legal team can be contacted on 0207 237 3388 or you can email our team with your full matters on info@icslegal.com.  It is vital to remember that no matter what the genetic make-up of the child, UK law sees the woman who carries and bears the child as the legal mother. If she is married at the time of her artificial insemination or the implantation of an embryo, UK law will see her husband as the...

Applying for First-tier Tribunal bail

Applying for First-tier Tribunal bail Applying for the First-tier Tribunal bail process is different from the way in which the Home Office deals with the matter. An application for bail to the First-tier Tribunal should be made on the bail form. It should be sent by the applicant or their representative to the First-tier Tribunal hearing center nearest to where the applicant is detained. Getting legal advice is vital once a person is detained. You can contact our Immigration Lawyers on 0207 237 3388 or email us at info@icslegal.com. You can complete our call back service and one of our Lawyers will call you back immediately including weekends. Click here to complete our contact form.  The First-tier Tribunal is then responsible for listing a bail hearing when they have received an application for bail. They aim to list a bail hearing within 3 days of an application being received by them. If an application is received by them after 3.30 pm it is treated as having been received on the following working day. Bail summary The bail summary produced by the caseworker contains: the applicant’s personal details; the criteria considered for detention; details of any Financial Condition Supporter; full immigration history and...