Hounslow Legal Services

We successfully obtained leave for our client who had been served with removal directions following the refusal of his indefinite leave to remain application under the UK ancestry rules. Our client did not meet the continuous leave requirements. We completed the ones stop notice with the grounds of appeal to argue that our client qualified for leave to remain as a Partner under the new rules and we also raised article 8 grounds. Our client’s appeal was allowed under the new rules and under article 8. He was subsequently issued a BRP.

We successfully challenged the ECO’s refusal under 320(11) of our client’s application for leave to enter as a spouse of a British Citizen. Our client was granted entry clearance 10 days after the appeal in the Upper Tribunal.

We got our client Permanent Residence card even though the five year residence card was due to expire in two year’s time. The Home Office had taken over two years to decide the initial application for residence card.

In summary, the main changes are:

• introducing a new minimum income threshold of £18,600 for sponsoring the settlement in the UK of a spouse or partner, or fiancé(e) or proposed civil partner of non-European Economic Area (EEA) nationality, with a higher threshold for any children also sponsored; £22,400 for one child and an additional £2,400 for each further child;
• extending the minimum probationary period for settlement for non-EEA spouses and partners from two years to five years;
• abolishing immediate settlement for the migrant spouses and partner where a couple have been living together overseas for at least 4 years, and requiring them to complete a 5 year probationary period;
• from October 2013, requiring all applicants for settlement to pass the Life in the UK Test and present an English language speaking and listening qualification at B1 level or above of the Common European Framework of Reference for Languages unless they are exempt;
• allowing adult and elderly dependants to settle in the UK only where they can demonstrate that, as a result of age, illness or disability, they require a level of long-term personal care that can only be provided by a relative in the UK, and requiring them to apply from overseas rather than switch in the UK from another category, for example as a visitor; and
• restricting family visit visa appeals, initially by narrowing the current definitions of family and sponsor for appeal purposes, and then, subject to the passage of the Crime and Courts Bill, which was published on 11 May 2012, removing the full right of appeal against refusal of a family visit visa.
• Abolishing the 14 year long residence rule.  It has been extended to 20 years residence before a person can qualify for Indefinite Leave to Remain where they have had periods of unlawful residence. 10 year LR rule remains.

The  Upper Tribunal (Immigration and Asylum Chamber) in Dauhoo (EEA Regulations – reg 8(2)) [2012] UKUT 79 (IAC)  ruled:

“Under the scheme set out in reg 8 (2) of the Immigration (European Economic Area) Regulations 2006, a person can succeed in establishing that he or she is an “extended family member”  in any one of four different ways, each of which requires proving a relevant connection both prior to arrival in the UK and in the UK:

i.          prior dependency and present dependency

ii.         prior membership of a household and present membership of a household

iii. prior dependency and present membership of a household;

iv.        prior membership of a household and present dependency

The Supreme Court held that refusing to grant marriage visas to the respondents in this case infringes their rights under article 8 of the ECHR. The age restriction of 21 was introduced in the immigration rules with the aim of preventing forced marriages. The court held the increase in the spouse visa age was a disproportionate means of achieving that purpose because although the foreign spouse can be denied entry clearance to the UK, the sponsor could be made to move abroad to the foreign spouse’s home country to live in a forced marriage.  The rules may not be changed in the near future in light of the Supreme Court’s judgment but a spouse application refused on age grounds will succeed at appeal.

In Moneke and others (EEA – OFMs) Nigeria [2011] UKUT 341 (IAC) (22 August 2011), the Upper Tribunal considered the relevant provisions of Directive 2004/38/EC and in particular Article 3(2) which deals with other family members (OFM’s). The court instructed that subject to any further guidance given by the higher courts, the following approach set out in the decision is to be applied by immigration judges:

“A person claiming to be an OFM under Article 3(2) of Directive 2004/38/EC may either be a dependant or a member of the household of the EEA national: there are alternative ways of qualifying as an OFM.

ii.               In either case the dependency or membership of the household must be on a person who is an EEA national at the material time. For this reason it is essential that tribunal judges establish when the sponsor acquired EEA nationality.

iii.             By contrast with Article 2(2) family members, an OFM must show qualification as such before arrival in the United Kingdom and the application to join the EEA national who is resident here.

iv.             Membership of a household has the meaning set out in KG (Sri Lanka) [2008] EWCA Civ 13 and Bigia & Ors [2009] EWCA Civ 79; that is to say it imports living for some period of time under the roof of a household that can be said to be that of the EEA national for a time when he or she had such nationality. That necessarily requires that whilst in possession of such nationality the family member has lived somewhere in the world in the same country as the EEA national, but not necessarily in an EEA state.

v.               By contrast the dependency on an EEA national can be dependency as a result of the material remittances sent by the EEA national to the family member, without the pair of them having lived in the same country at that time before making those remittances.

vi.             The country from which the OFM has come can be either the country from which he or she has come to the United Kingdom or his or her country of origin.

vii.           Notwithstanding the preliminary reference to the Court of Justice made by the Upper Tribunal in MR & Ors (EEA extended family members) Bangladesh [2010] UKUT 449 (IAC) tribunal judges can proceed to determine OFM appeals in accordance with the guidance given by the Upper Tribunal in this and related cases, making sure to make findings of fact based on a rigorous examination of the evidence.

viii.         Where relevant, findings need also to be made on whether it is appropriate to issue a residence card in accordance with the discretion afforded by regulation 17(4) of the Immigration (European Economic Area) Regulations 2006.

ix.             In deciding whether a person falls within the material scope of regulation 8 of the 2006 Regulations, policy considerations relating to such matters as the appellant’s immigration history, the impact of an adverse decision on the exercise by the EEA national of his or her Treaty rights, etc are irrelevant. Such policy considerations are relevant, however, to the exercise of regulation 17(4) discretion.”

See previous post for the case, EWHC 2894 (Admin).

The case concerns the withdrawal by SSHD of the DP 5/96, the seven year child concession policy.

The court held that if the withdrawal of DP 5/96 amounted to change in the Immigration Rules, then DP 5/96 should have been laid before the Parliament and because it wasn’t the policy itself was unlawful and therefore the its withdrawal was lawaful. Further, none of the appellants knew of the policy before it was withdrawn and therefore they cannot show that they reied on it not rely on it or show legitimate expectation. The Court stated that the policy could ‘operate as an inducement to enter this country fraudulently, with limited leave, and then to remain here until the seven years have expired. It would operate as an incentive to families not to seek to regularise their immigration status’. The Court concluded that MPs were entitled to review or change policy where it was in the public interests to do so. The Court rejected the argument that the decision to withdraw the policy was irrational or that the Secretary of State had not considered the interests of the children which could adequately be addressed by article 8 ECHR.  The Court allowed the Secretary of State’s appeal and none of the families were entitled to benefit from the policy.

On 19th May, the government announced,  that Section 19 of the UK Borders Act 2007, which relates to appeals against Points Based System application decisions, will come into force. This change will prevent PBS applicants who go to appeal from submitting fresh evidence to support their application at this stage.

From now on, applicants will need to make a fresh PBS application if they wish to submit additional evidence or information, or go to Judicial Review. Immigration Minister Damian Green stated that this is justified by the fact that around two-thirds of PBS appeals allowed by the Tribunal are due to submission of further evidence at appeal, and that this is neither cost-effective nor justifiable.

Section 19, came into force on 23 May 2011 is intended apply to all appeals heard from this date, including those which were lodged before the 23rd May.

The Court held that divorced spouses must establish that they have retained their rights of residence. Reference was made to Article 16.2 which applied to family members of EEA nationals who must have resided with the EEA national in the host Member State legally for a continuous period of five years. The word ‘legally’ meant in accordance with Community Law which essentially depends on the exercise of treaty rights.

Reference was made to the case of Diatta v Land Berlin ECR 567 in which the Court determined that family members of a migrant worker’s family are not necessarily required to permanently live with him in order to qualify for a right of residence under article 10. The Court stated that, following on from that case, ‘separation short of divorce does not affect that right of the non-national spouse under Article 16 of the Directive if both the EEA national and his or her non-national spouse continue to reside in the same Member State’.

The Court held that the appellants should not be required to show that their former partners were working for a continuous period of 5 years prior to their applications in order to establish a right of residence. It was held that the case of OA (Retained Rights of Residence) was incorrectly decided. The Court stated that ‘If, immediately before divorce, the requirements of Article 7.2 are satisfied, the non-national must then satisfy the requirements of Article 13.2’. Therefore, in order to qualify, the applicant must show that prior to the initiation of divorce (or annulment or termination of registered partnership), the marriage/registered partnership lasted for 3 years one of which was spent in the UK. This is subject to Article 13.2 which provides that the applicant can show that he or she is a worker, self-employed or that he or she has sufficient resources and that they will not become a burden on the host Member State.