MM (lebanon) & Others 2017 – New Rules Extending 10 years Route to cover a Spouse Abroad

Statement of changes to the Immigration Rules: HC290, 20 July 2017

After a long winded court battle that finally ended in the high court of Britain (see the article …here and here...), the outcry and sacrifices of thousands of families have finally yielded some results. Yesterday, through a new  ‘Statement of Change in Immigration Rules,’ published on the GOV.UK website on the 20th of July 2017, the government laid bare the new changes which have been made in order to comply with the Supreme Court judgment in MM (Lebanon) & Others, which was handed down on the 22nd of February 2017 (see Article Here). Continue Reading →

Using Cash Savings to Meet Income Threshold for UK Spouse Visa

I have been getting a lot of enquirers lately about relying on cash savings for spouse/child or family dependent visas.

Basic UK Spouse Visa Income Threshold:

Under the current Immigration Rules, in order to qualify for any family settlement visa (spouse, fiance, family dependent etc.) you must meet the financial requirements – by earning above what is referred to as the Income Threshold. Normally, you can do this in two ways: Continue Reading →

New Immigration (European Economic Area) Regulations 2016

If you have been keeping up to date with my previous posts about the government introducing a significant amount of changes to Immigration procedures and rules under national law, you will probably not be surprised to learn that recently the government has chosen to implement changes that affect EEA nationals and families under the New Immigration (European Economic Area) Regulations 2016, which was laid in parliament on the 3rd of November 2016.

Continue Reading →

New Immigration Rules Changes – November 2016

For those who have not noticed, on the 3rd of November the UK Government introduced changes to the UK Immigration rules . These changes come into effect from the 24th of November. This is due to affect those who are going to be making a UK Immigration visa application on or after the 24th of November; these rules may affect you application. For those who have pending applications worry not, as these rules do not affect your application. Continue Reading →

Serious and irreversible harm: Deport First Appeal Later

Serious and irreversible harm

This Article follow my previous Article on the New Immigration Act 2016 removal of ‘in country right of appeal’ for most cases, save for a few exceptions where there would be ‘Serious and Irreversible harm’.  The phrase ‘serious and irreversible harm’ comes from the test used by the European Court of Human Rights (ECtHR) to determine whether to issue a Rule 39 injunction. Nunez v Norway (App no. 55597/09)[2011] ECHR 1047. Continue Reading →

Whats New with the Immigration Act 2016?

For those who may have missed it (I would not blame you as this kicked in just a few weeks before the EU referendum in the UK), the government has passed yet another legislative Act of Parliament on Immigration in a bid to reduce immigration and especially come down hard on those in the UK without legal status. The Immigration Minister’s statement when the Immigration 2016 bill was introduced last year sets the tone of what the government hopes to achieve with the new immigration legislation. Immigration Minister James Brokenshire said:

“The message is clear — if you are here illegally, you shouldn’t be entitled to receive the everyday benefits and services available to hard-working UK families and people who have come to this country legitimately to contribute.

Whether it is working, renting a flat, having a bank account or driving a car, the new Immigration Bill will help us to take tougher action than ever before on those who flout the law.

This Bill will build on the government’s work since 2010 to crack down on abuse and build an immigration system that truly benefits Britain – by deterring illegal migrants from coming and making it harder for those already here to live and work in the UK.”

Continue Reading →

Brexit: Answers to Frequently Asked Questions

Further to my previous Article about Brexit and the Possible Effect on UK immigration and European Migrants, I have complied a list of questions that I have been frequently asked and hope to answer them here for the sake of those who might be wondering the same

i.Are we part of the EU?

The UK is still part of the EU, and no formal legal process of leaving the EU will start until the UK decides to invoke Article 50 of the Lisbon Treaty, which can only be done by either David Cameron or his successor. This means that the UK is still bound by EU Treaties and Laws, and will continue to be so up to two years from the formal notice to the EU. Continue Reading →

Brexit: What happens to EU Nationals after the EU Referendum?

I know a lot of people are worried about the EU referendum result and I am overwhelmed with calls from people asking what happens now that we have left the EU – please stay calm!

UK Still Part Of European Union

We are still in the EU and all the laws remain the same for now; the earliest that we will be out of the EU is two years from the time that the government gives formal notice to the EU of our intention to divorce.

I will be writing an article shortly on the options available for EU nationals, but please note that most of the legal implications remain unknown and subject to the UK negotiations with the EU. It is highly unlikely that EU nationals or their families will be ‘kicked-out’ as a result of the referendum result. Continue Reading →

EU Referendum – Possible UK Immigration Impact

The upcoming referendum may be causing concern for some, especially if the outcome leaves them unsure of their visa status.

I have received a fair number of emails recently regarding the changes in UK Immigration Law that might take place and I thought it would be useful to address them with an article.

What happens after the referendum?

Continue Reading →

Applying British Nationality : Good Character Requirement

According to Part I, Chapter 18 of the British Nationality Act 1981, a person is entitled to naturalisation as British citizen if at the time of the consideration meets some requirements, such as being of good character. However, the Act itself does not provide with a definition of good character.

In absence of a statutory definition as to how this requirement should be interpreted or applied, it is the Secretary of State who should be satisfied that an applicant is of good character. In order for the Secretary of State to make an assessment on good character, Annex D of Chapter 18 of BNA contains a guidance with information on how to assess if the applicant is of good character. This guidance also applies to minors above the age of ten. Continue Reading →

Tier 2 Migrant Worker Must Earn £35,000 to Settle in the UK

Latest Immigration Rules changes:

Anyone who has been keeping an eye on UK immigration law will have now become accustomed to the regular Immigration Rules changes, which seem to always bear bad news for migrants.

The Immigration Rules are published by the Home Office. The last statement of change is from the New Immigration Rules Change, and is no exception to the general tradition. It brings some changes which mainly affect Tier 2 work permit holders. Continue Reading →

New Immigration Bill – 2015

New Immigration Bill

As some of you will be aware, the latest Immigration Act 2014, which has just been fully implemented in April 2015, brought with it numerous changes, including the right of appeals for Point Based applications, as well as an attempt to define the application of human rights by the Court. The Government seems to be very impressed by the outcome of the changes in the last bill, so much so that they have decided to go even further with the new Immigration Bill, which is currently in the House of Commons. As a UK Immigration Solicitor specialized in Human Rights many of my clients are affected by this, therefore I wish to highlight some of the changes that should expected if the new Bill becomes an Act. Continue Reading →

Immigration Health Surcharge

Immigration Health Surcharge

The Immigration Health Surcharge is one of the key reforms within the Immigration Act 2014 which both Human Rights Solicitors and migrants must get to grips with. In addition to a new higher fee that has just kicked in, an additional NHS Immigration Health Surcharge is payable as of the 6th April 2015 by all non-EEA migrants coming to the UK for more than six months.

The UK Government has stated that the purpose of this surcharge is to ensure that non-EEA migrants contribute to the cost of the NHS. However, given the timing it could perhaps appear as an election stunt as some of the best immigration lawyers in the UK observe – the policy began a week after Parliament is expected to dissolve and during a national election campaign… Continue Reading →

Curtailment Of UK Immigration Appeal Rights – Immigration Act 2014

Changes on Appeal Right – Government gives with one hand takes with the other

Some of you may have missed it but from this week, as of the 2nd March 2015, the government further rolled out the curtailment of immigration appeal rights.

One of the major features in the new Immigration Act 2014, in the latest bid of the government to crack down on immigration, is the way that Immigration Appeals will be dealt with. Through the Act, the parliament not only tries to dictate how Immigration Tribunal Judges Should deal with Appeals, especially under Human Rights Grounds (Paragraph 117B), but also reduces the grounds on which a challenge can be brought. Continue Reading →

Article 8 ECHR and Outside the Rules Applications

Your Protected Right to Family Life

As many of you will know, everyone has the Right to Family, and these rights are protected under the EU Convention on Human Rights. However, and to the great discomfort of many couples,  as any UK Immigration Lawyer will tell you, Right to family is right is a qualified right, and does not necessarily give the couple the right to choose where they would exercise their right to family.

Ordinarily, a British citizen is allowed by law to sponsor their foreign spouse to come to the UK on a Spouse Visa. This type of application, as many of you have seen on  previous blog post here  has recently been severely restricted, with strict income requirements for the sponsoring spouse. In effect, this has resulted in thousands of couples being separated, as they do not meet the government requirements. Continue Reading →

UK Spouse Visa Financial Requirement – Savings Calculator

 UK Spouse Visa Financial Requirement and Supplement Savings Calculator

As most of you may know by now, since 2012 the government has introduced a new income requirement for a British and settled person wishing to sponsor their Non-EU Spouse / partner. This brought the requirement for the British national (sponsor) up to an earning of at least £18,600 per annum, with no third party sponsorship allowed (you can’t get your rich uncle to stand in for you like old times).

These rules have had a disastrous  effect on Brits who are not earning a high income but never the less play very important roles contributing to this nation; people such as teaching assistants, care workers e.t.c, who would not be able to meet this threshold; in fact it is reported that up to 40% of the UK population do not earn this level of money. Continue Reading →

EEA Self-Employed Mother Who Gives Up Work Temporary to Give Birth Is Still Worker -EU Court Rules

Definition Of “Worker” under EU Law – Self Employed and Agency worker Mothers on maternity

Following a lengthy court battle the Supreme Court of the United Kingdom requested a preliminary ruling under Article 267 TFEU by a decision dated the 31st October 2012;

see case Saint Prix v Secretary of Sate for Work and Pension 2013 UKSC and the YouTube video below.

Continue Reading →

MM & Ors v Secretary of State for the Home Department(2013) decision?- the Waiting Continues!

So, most of you would have heard about the Court of Appeal hearing (MM & Ors v Secretary of State for the Home Department (2013)) which is challenging the Income Threshold requirements for the family visas. For those who haven’t, please see my previous posts here and here .

Lots of people celebrated the high court’s recommendations that, among other things, the Income Threshold should be reduced to around £13,000, that third party sponsorship should be allowed, and that special consideration should be taken for certain groups who could not relocate and exercise right to family in another country; e.g.. refugees. Continue Reading →

EU Family Surinder Singh Route: The Government Narrowing the Options?

Most of you will have seen my previous post EU Family Route: what is the Surinder Singh Route (see post here...). Some time has lapsed since then and I apologise for the delay in writing the second part of the post, which I hope to tackle here. For obvious reasons this route has grown in popularity and as one can imagine, the Government does not like it.

The Current Position:

In a nutshell, this route currently allows UK citizens to LEGALLY circumvent the UK Immigration rules on spouse and family members from non-EU countries. The UK citizen may purposefully travel to another EU country, work for a few weeks and then return to the UK with his or her non-EU spouse. This route has become increasingly popular as one can avoid the stringent requirements of the spouse visa including the income threshold, which is out of the reach of many ordinary citizens. It also avoids the cost of the application, as this route is free, and the time granted under the EU laws on entry is normally longer; a 5 year residence card as opposed to the 2 and a half years on spouse visa. Continue Reading →

EU Family Route: What is Surinder Singh route?

Those of you that have kept up-to-date with the recent immigration news or are  in the process of trying to bring their foreign Non-EU Spouse into the UK , would have possibly heard of the so called EU Family Route or ‘Surinder Singh’ route. This is a route that is becoming an increasingly popular (or necessary) option for Britons who seek to reunite with their spouse having fallen foul of the current immigration rules.

Why EU Route?

In case you haven’t been in the loop on what is happening; say you are a British national and have just gotten engaged to a non-EEA national. Well… congratulations first of all, and second,  I hope you have a very good job, as you will need one. Continue Reading →

AA (Nigeria) v. Secretary of State (2017) – Extending the Surinder Singh Requirements – “Genuine and Effective” Residence

Background

Since 2012, the UK government has put strict conditions, such as financial requirements, on spouses of British Nationals who wish to move to the UK. However, Surinder Singh (see previous blog posts here and here) has effectively opened up an alternative route for those British Nationals and their spouses who do not meet the strict requirements for a Spouse Visa but are willing to relocate to live in another EEA country, with the option of coming back to the UK in the future.

If you (a British National) lived in another EEA country with your family e.g. spouse, the non-EU family member has the right to apply for a Residence Card upon their return to the UK, meaning they can rely on EU law and in essence avoid the stricter UK national legal requirements.

For a British National family member to qualify for a visa under EU law, the UK EU regulations law requires that they must be:

  • The British National spouse or Family Member must be a qualified person i.e. is residing in an EEA State (apart from the UK)as a worker, self-employed person, self-sufficient person or a student, or so resided immediately before returning to the United Kingdom
  • The non-EU spouse must have lived with their British spouse in that EEA country
  • The British National must have moved the “centre of their life” to be in that EEA country (Regulation 9 of the Immigration (EEA) Regulations 2013)
  • The non-EU spouse cannot use the relocation simply as a way of circumventing UK national law (Immigration (EEA) Regulations 2016)

This case specifically scrutinising the last and most recent requirement listed above i.e. if the Home Office are allowed to consider the applicant’s motivation for moving countries, as detailed in the EEA regulation 2016, in considering the application for the UK Residence Card under UK law.

The Legal Challenge

In this case, the Home Office refused a Surinder Singh application on the basis of the applicant’s motivations for moving to Germany. The applicant was removed from the UK and then decided to relocate to Germany, before returning to the UK and applying for a Residence Card. It was the obvious conclusion for the Home Office that the only reason for the applicant’s decision to relocate was in order to utilise the Surinder Singh route and return to the UK.

But, in court, it was argued by the appellant’s lawyer that the motivations of the applicant should not be considered, in line with the jurisprudence of the European Union Court (Secretary of State for the Home Department v. Akrich).

The Decision

The court held that it was wrong to only consider the applicant’s motivations in their decision to move to Germany. However, the court did not particularly agree with the applicants position neither that motivation was irrelevant, instead highlighting that the EU legislation does require an “effective and genuine activity” in that EEA state, in order to prevent abuses of EU law with the intention of overcoming UK law (O and B v. Minister voor Immigrantie, Intergratie en Asiel).

The court held that the Home Office cannot base their decision solely on what motivated the applicant to live in an EEA country, but they can consider the applicant’s motivations for relocation to the EEA country when assessing the “effective and genuine” nature of their stay. Leaving the question, what is meant by “effective and genuine”?

“Effective and Genuine”

The court held that the “genuineness” of a residence is subjective. It should be assessed through looking at a variety of factors in each individual case and such factors could include motivation.

The court ruled that what is most important is that an applicant creates or strengthens family life in that EEA state, as this should be the basis for the Home Office’s assessment. So, learning the language, registering at a school, doing activities and generally embracing local life would be a positive indication of an effective and genuineness residence under EU law.

The court allowed the Home Office to consider other factors such as the duration of an applicant’s stay in the EEA state, as well as anything of an “irregular nature”, meaning things like immigration history and employment history can be considered.

For example:

If the Home Office suspects that the reason for the move to another EEA state is for the purpose of using the Surinder Singh route based on previous UK visa rejections, the Home Office are likely to sucessfully reject a UK residanece applicantion on conclusion that a stay in the EEA state was not “effective and genuine”. However, as a result of this case, the Home Office cannot come to this conclusion based on motivation alone without considering the other factors as well.

What does it all mean?

Effectively the Scottish Court of Session seems to have validated to a certain extent the recent regulations published by the Home Office (see article). These regulations did on the face of it seem to go against EU jurisprudence as laid down in Secretary of State for the Home Department v. Akrich. As now the Home Office can use motive as a way of considering if someone is genuinely and effectively residing in another country. It should be noted that although the UK court has deemed this to be compatible with the EU law, it has not be put before the EU courts yet, whose judgement would overrule the UK courts and give the final say on this matter.

Of course proving motive can itself be problematic for the Home Office, especially where a migrant does not have an adverse immigration history. But, for those with adverse immigration history, the Home Office does have a better chance of succeeding to use this new regulation to refuse an application for a Residence Card where the conduct of the migrant can indicate to a particular motive. At the moment, however, the Home Office seems to be pretty much rejecting, in a wholesale manner, EEA Residence Card applications under Surinder Singh route, and then expecting the applicants to fight it in court.

As a UK immigration solicitor, my advice would be if you are looking to apply for a Residence Card after under Surinder Singh route make sure you use a UK immigration solicitor to guide you in the preparation. For those who application has already been rejected, get yourself a competent UK immigration solicitor to fight your case in court. All the cases that we have so far represented in court under these regulations have been successful. But, what makes the difference is how the facts are presented to the judge on the day, as the judge has to make the judicial decision on if the stay was genuine and effective.

If you have been affected by any UK immigration matter, please contact Solicitor Tito, a UK Immigration and Human Rights Solicitor, for a free initial consultation about your legal options. Call 07544 669131/01163800744 or on Skype: tito.mbaritiCross Border Legal Ltd is a UK Solicitor law firm regulated by the under the Solicitor Regulations Authority and is Headed by Mr Tito Mbariti, a UK Immigration and Human Rights Solicitor who is a practising lawyer and member of the Law Society Of England and Wales.

Home Office Visa and Nationality Fee Increase from 6th April 2017

For those people who have been following UK immigration, this should not come as a surprise but the government has just this week announced it will carry on with its annual tradition of increasing application fee – Well! this year they don’t intend to disappoint and the new fees which were announced, or rather published on their website, on Monday the 3rd April 2017 will kick in on 6th April 2017. Continue Reading →

A Glimmer of Hope on the Income Threshold Requirement – MM (Lebanon) v SSHD 2017

R (on the application of MM (Lebanon)) (Appellant) v Secretary of State for the Home Department [2017] UKSC 10

The long winded battle to challenge the Home Office’s UK Immigration Rules with regards to income requirements for settlement visas, initiated in June 2012, has finally found its final destination – the Supreme Court – in February 2017. The long awaited judgment is somewhat disappointing but does give a glimmer of hope in certain circumstances. Continue Reading →