Introduction of New rules in autumn 2010

In a UK Border Agency publication dated the 9th of June 2010, it was announced that from autumn 2010 compulsory English Language tests will be introduced for non-European migrants applying for a visa as the spouse, civil partner, unmarried partner, fiancé (e) or prospective civil partner of a UK citizen or a person settled in the UK.

Migrants will need to demonstrate a basic command over the English language before they are granted a two - year period of temporary residence. This requirement is being introduced to assist migrants to cope with everyday life in the UK. Applicants will need to demonstrate Basic English at A1 level which is the same level required for skilled workers admitted under Tier 2 of the points based system.

The changes will be applicable to people making an application from within the UK and overseas. Evidence of the above will be required at the visa application stage. The Home Secretary Theresa May has indicated that being able to speak English should be a prerequisite for anyone who wants to settle in the UK. She has also indicated that she is committed to raising the bar for migrants and ensuring that those who benefit from being in Britain contribute to the British Society.

Theresa May further stated that; "Today's announcement is one of a wide range of measures the new government is taking to ensure that immigration is properly controlled for the benefit of the UK, alongside a limit on work visas and an effective system for regulating the students who come here."

Currently, an application made under any of the above immigration categories has to meet a range of criteria before a visa is granted. These include the criteria to show that a marriage or partnership is genuine and that an applicant can maintain and accommodate himself without recourse to public funds.

A successful applicant is granted a two-year probationary period and at the end of the two years, may apply for settlement. It is important to note that before an application for Indefinite Leave to remain is submitted, an applicant should be able to show that he or she has sufficient knowledge of the language and life in the UK.

Case Scenario:

Ama a Ghanaian, marries Kofi a British Citizen. Ama wants to come and live with her husband who is residing in UK. Ama makes her entry clearance application after the new changes have been introduced. Apart from satisfying the criteria in relation to maintenance, accommodation and the genuineness of the marriage, she will have to satisfy the new Basic English language requirement. If her application is successful she will be granted a two year visa. After entering and spending two years in the UK, Ama may apply for Indefinite Leave to Remain. She will have to submit with her application evidence to show that she has either passed the life in the UK test or has completed an ESOL (English for Speakers of Other Languages) with Citizenship context course.

The new government is anxious to be seen as placing more restrictions on immigration to reduce the number of migrants coming to the UK. It is important for migrants to note that human rights are governed by International Law. In addition, the government has little control over free movement of European nationals. Invariably the new government can marginally control only non human right applications and applications from non-European nationals applying for leave to enter or remain in the UK under the points based system and the immigration rules.

It is important for migrants to assess their situation before making an application to ensure that any human right claims amongst others are not overlooked.

Disclaimer: This article only provides general information and guidance on UK immigration law. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. The writer will not accept any liability for any claims or inconvenience as a result of the use of this information.

Points Based System and Article 8 ECHR

The points based system is well known for its inflexibility and rigidity. Under the points based system, if you are unable to obtain the requisite points under a specific category, you will not qualify for leave to enter or further leave to remain in the UK. It becomes more difficult to argue your case in court especially when you do not meet some specific criteria or you do not have the evidence to prove that you satisfy the rules.

This has caused a lot of inconvenience for some immigrants who have lived in the UK for a considerable period of time and have formed a private or family life in the UK. It is important when making an initial application or when submitting an appeal notice to briefly add a statement in relation to your private or/and family life if a private or family life has been formed in the UK.

The European Convention on Human Rights (ECHR) deals with private and family life. Article 8 ECHR specifically provides that;

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others"

In applying Article 8 ECHR, a five stage test set out by Lord Bingham of Cornhill, in the case of R (Razgar) V SSHD [2004] UKHL 27 is used. A decision making body has to consider the following when applying Article 8;

• Whether the removal of an applicant from the UK would amount to interference with the exercise of an applicant's right to respect for his private or family life;
• Whether such interference has such gravity to engage the operation of Article 8;
• Whether the proposed interference will be in accordance with the law;
• Whether the interference complies with the legitimate aim of a democratic society; and
• Whether such interference would be proportionate to the legitimate public end sought to be achieved by the public authority.

In the case of OA (Nigeria) V SSHD [2008] EWCA Civ. 82, the Court of Appeal held that the Tribunal had been correct to conclude that a Nigerian college student had established a breach of her Article 8 right to respect for her private life if she were to be removed to Nigeria in the middle of an academic year.

In SZ (Zimbabwe) V SSHD [2009] EWCA Civ 590, the Court of Appeal accepted that a Zimbabwean student had established a private life in the UK but her removal would be proportionate to the legitimate public end sought to be achieved by the UK Border Agency. She had lived in the UK for 6 years during which time she had formed some social ties and had studied for 4 out of the six years. By the time her appeal was heard she had been enrolled on a diploma course in psychology. Although she argued that her removal would interfere with her studies as she would be unable to pursue her education in Zimbabwe, the Court of Appeal concluded that, on the facts of her case, the only proper conclusion open to the Tribunal was that her removal was proportionate and her Article 8 rights will not be breached.

In the case of KBO V SSHD {2009} ScotCS CSIH, in the opinion of the Court delivered by Lord Reid, the Court ordered that the original determination of the appeal should stand. KBO, a Ghanaian, had spent his formative years in the UK. He lived in UK from age 1-6, 12-17 and 22 years onwards. He was following a music career and was in a relationship with a lady with settled status in the UK. He expressed the fear that he would lose his home, his opportunity to pursue a career in the music industry and his relationship with the woman he wishes to marry, if he was forced to leave the United Kingdom. The Tribunal ruled that his Article 8 rights will be breached if forced to return to Ghana. The Court above agreed with the Tribunal's determination.

The courts have reached different conclusions in relation to private and family life claims under Article 8 ECHR. It can be noted from the above that the Courts make a decision based on a person's individual circumstances. Invariably it is important to put together relevant evidence to support the assertion that your Article 8 right will be breached.

Case Scenario:

A, a Ghanaian, entered the UK as a student in October 2001. A has successfully completed his studies. He has been living in the UK with his wife and two kids who were all born in the UK. A's first child is 7 years old and his second child is 5 years old. Before A married he had a child with a lady settled in the UK. A has a close relationship with that child and the child spends time with A, his wife and two children. A's two children mentioned above are both in school and have lived in UK since their birth. A applied for further leave to remain under the points based system and was refused on maintenance grounds as he did not have the requisite funds at the time of application. He has been notified that he either has to appeal the decision or leave the UK.

Probable Solution to case scenario:

On appeal, A can rely on Article 8 and assert that his removal will breach his Article 8 rights. His reasons can include the following;

• He has lived in the UK since 2001 and has formed some social ties with the UK;
• His children have lived in UK through out their formative years; and
• He has another child who can not reasonably be expected to live with him in Ghana.

Initial applications made under the points based system and appeals in relation to the above can be complex. It is important to seek appropriate legal advice before you make an initial application and especially when your initial application has been refused

Disclaimer: This article only provides general information and guidance on UK immigration law. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. The writer will not accept any liability for any claims or inconvenience as a result of the use of this information.

Students and the Immigration Courts: UK

In the last article I indicated that I shall further deal with how the courts have dealt with students' issues in the UK. Anyone aggrieved with a decision from the UK Border Agency has a right to seek recourse in the courts. Students so aggrieved would also do likewise. I shall endeavour to outline by way of examples common issues which cause a misery to many students.

The approach by the courts to students' appeals has hitherto been harsh. This can be demonstrated by the Tribunal requiring students to prove at the time of the variation request, written consent by the Secretary of State to change courses earlier in time, when at the relevant time the Secretary of State had been willing to permit such changes so long as a letter was written to the specified department of the Home Office. A good example to such an approach is the case of TB (student application - variation of course -effect) Jamaica 2006 UKAIT 00034. This is a typical matter whereby a student changed her course without receiving a consent or decision from the Home Office. The court ruled that the nature of the change was such that the appellant could not comply with the requirements of the Immigration Rules in relation to the course for which she had initially applied. The court even rejected post decision evidence in relation to an application entirely different in nature from that for which the appellant had applied. In that case the first Immigration judge was criticised and found to have erred in considering that the provisions of section 85 (4) of the Nationality, Immigration and Asylum Act 2002 as explained in the case of LS Gambia (Post decision evidence, direction; applicability) were to be taken into account.

This decision caused considerable hardship. Furthermore the courts took a stern approach to the failing of courses, with regards to its interpretation of rule 60v, Immigration Rules, namely "satisfactory progress" In the case of SW and others (Paragraph 60 (V): Jamaica 2006 UKAIT 00054 the court ruled that satisfactory progress may be shown without examinations if there have been no examinations : but if there have been examinations, satisfactory progress has to be shown by evidence including evidence that the exams have been taken and passed. There are also specific provisions which make it possible to apply for further leave to remain to re-sit exams.

The other significant feature about students is regular attendance. In the case of JJ and SS (student ; regular attendance; which course) the court ruled that regular attendance may still be established despite some justifiable absences, for example on account of illness or, perhaps a student has to return home because of family or personal circumstances such as the death of a close family relative.

The approaches outlined above have since been significantly reviewed by the Court of Appeal. The Court of Appeal has clearly established that the grant of entry clearance to enter the UK as a student does not confine the entrant to a single course of study, and failing an examination did not always mean negate the making of satisfactory progress in a course of study within the meaning of Rule 60 (v) Immigration rules. This is dealt with in the matter of Obed and others v Secretary of State for the Home Department [2008] EWCA Civ 747 which is also known as (the case of Goo v Secretary for the Home Department) In that matter the appellants had each been given leave to enter or remain in the United Kingdom as students. They appealed against the decision of the Asylum and Immigration Tribunal refusing to renew their leave. Leave had been refused because in each case the students had failed examinations or changed courses. The students had been found not to have made satisfactory progress in their courses of study within the meaning of rule 60 (v) of the Immigration rules. The court of appeal had to consider the legal position of a situation in which foreign students who had obtained leave to enter or remain in order to follow a named course embarked on a different course of failed examinations. In essence the Court of Appeal allowed the appeals.

The court held that a student who abandoned or was excluded from his course or who enrolled at an unrecognised institution could succeed in lawfully remaining in the UK for the duration of his leave provided he continued to comply with restrictions on any employment he took, and provided the leave was not in the meantime revoked. The court also ruled that rule 60 (v) was ambiguous. It is also significant to note that in that case the court observed that section 3 of the Immigration Act 1971 made general provision for the regulation or control of Immigration but gave the Secretary of State no authority to impose conditions on a student entrant to the course he was to follow.

A failure to sit or pass relevant examinations would always be material to the evaluation of the student's progress, but whether it was decisive would depend on the reason for it. If the reason was not consistent with satisfactory progress, rule 60 (v) would be satisfied. The approach of Woolf J in R v Immigration Appeal Tribunal, exparte Bahman Geramin (1981) Imm AR 187 namely that lack of exam success went to the discretion rather than being a condition precedent to a successful application, made such sense. In essence if a student attended all lectures and seminars and produces excellent course work then should such a student fail exams as a result of illness, it would have to be properly examined as parliament might not have intended such harshness; to terminate a career in the bud, where the student had invested so much in terms of resources.

A word of advice is that students should be very careful when registering for courses at colleges. It is absolutely important to ensure that the course for which you have registered is actually offered by the college which has agreed to enrol you. In the matter of NA and others (Cambridge College of learning) Pakistan, Cambridge of learning (CCOL) never ran a Postgraduate diploma in business management course or a postgraduate diploma in IT course. In those premises a person applying for leave to remain under tier 1 (Post Study Work) scheme to rely on a certificate of an award of such a diploma following a course will amount to false representation and so will fall foul of paragraph 322 (1A), HC395. Such a person would also be unable to meet the requirement of Para 245Z because he or she could never have undertaken such a course.

The case of OA Nigeria v The secretary of State is also helpful as the court of appeal ruled that it was not open for a senior Immigration judge to dismiss an appeal by a Nigerian student seeking leave to remain on the basis that funding received in the past was not likely to be available in the future. Issues of funding and sponsorship are vital in student matters. In all the premises it is significant to note that the Immigration rules should not be construed with all the strictness applicable to the construction of a statute or Statutory instrument. They must be construed sensibly according to the natural meaning of the language that is employed. See the case of The queen on the app. Of De Oliveira v SSHD [2009} EWHC 47. Always with the help of appropriate legal advice try try try again!

Disclaimer: This article only provides general information and guidance on immigration law. It is not intended to replace the advice or services of a solicitor. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. The writer will not accept any liability for any claims or inconvenience as a result of the use of this information.

Asylum Changes: Fresh claims/further submissions in the UK

It is important to understand the effect of the recent changes to people seeking asylum in the UK. The essence of this article is to clarify the position and to help those who may be caught up with the new changes. On the 13th October 2009 the UK Border agency announced that with effect from the 14th October those who wish to make further submissions (fresh claims and applications as further submissions ), have to make them at Liverpool and those who wish to claim asylum for the first time in the UK should make them at Croydon. Nothing much has changed with regards to those who are claiming asylum for the first time as people have always been required to claim in person at Croydon. The only change in this regard is that people are no longer expected to attend at the offices of the Liverpool UK Border Agency office for the first time seeking asylum. Those seeking asylum for the first time should attend in person at Croydon and it becomes more prudent to make an appointment before one sets off.

The major effect regarding the recent changes by the UK Border Agency relates to the aspect of further submissions after an asylum claim was made and determined. People who have been in the UK after their claims for asylum had been refused by the Home Office and the courts then a person with new significant developments which have since taken place could make a fresh claim at the Home Office. The term a fresh claim, could be somehow confusing as people tend to confuse it with an initial claim of asylum. A fresh claim is basically a second phase in the process of asylum seeking. The instructive rule dealing with fresh claims is rule 353 of the immigration rules.

The rule states that, "when a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:

1. Had not already been considered and
2. Taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection

New material to be advanced in a fresh claim may assert a human rights or asylum claim in a different category from what was claimed the first time (for example, a claim under ECHR article 3 where only article 8 had been earlier advanced, or a claim based on fear of religious persecution where political persecution had been advanced before). The same category of claim may be persisted in, but new facts asserted to support it. At all times it becomes necessary to assess as to whether there would be a realistic prospect of success in the fresh claim.

With the new changes there is a basic form which is provided or your solicitor should be able to bring it to your attention and you need to ensure that full issues are addressed covering new developments which have to be significant and relevant to you. The details should not have been previously available and to gain appeal rights any such new details should be submitted without delay. You should also bear in mind that you need to submit the old reasons for refusal, appeal determination and any other submissions which you may have already made. In my view people should seek legal advice as issues have to be properly articulated to highlight all relevant matters. In as much as a person has to attend at Liverpool in person, the fact remains that legal representation remains crucial in the way the further submissions are outlined and prepared.

It is important to note that the procedures for people who claimed asylum after the 5th March 2007, a different because they have to contact the case owners who dealt with their matters in the first place. These are normally places where people report. Further submissions can be made by asylum seekers if their personal circumstances or circumstances in their home countries have changed. Legal representatives may also help you with regards to guidance on the changing case law and country guidance cases to support any such claims. I urge people to seek legal advice. Once bitten twice shy!

Disclaimer: This article only provides general information and guidance on immigration law. It is not intended to replace the advice or services of a solicitor. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. The writer will not accept any liability for any claims or inconvenience as a result of the use of this information.

The Right to Work for failed asylum seekers
Revisiting Tekle v Secretary of State for the Home Department [2008] EWHC 3064 (Admin)

In the Tekle judgement, Mr Justice Blake made a finding that the UK's current rules which prevented the asylum seeker from taking employment are incompatible with the European Convention on Human Rights. He further said that any policy to refuse permission to work should be proportionate.

He concluded at paragraph 47 that. "....denying a claimant an ability to seek employment for some prolonged and indefinite period is capable of being a detriment in circumstances where it can be said to be an interference with the right to respect for private life." He went on to add that he expected the policy to be reviewed and reformulated in the light of this judgement within approximately three months.(This judgement was on the 11th December 2008)

Work can be defined as, the physical or mental effort or activity directed toward the production or accomplishment of something. It is purposeful application of mental or physical effort. In this regard the engagement in work brings human dignity as an individual is able to rely on himself for survival as work is paid for by corresponding wages. However, currently in the UK, asylum seekers are not allowed to work, unless a decision in their claim is not made within twelve months and also the delay was not of their making.

The most worrying factor is that when someone has had their asylum application refused, and having exhausted all appeal rights, but still un-removed from the UK, one is still not allowed to work. In respect of Zimbabwean nationals, there have not been any forced removals since November 2004 and the policy of no removals to Zimbabwe remains.

The question which bothers many Zimbabwean failed asylum seekers is why they are not allowed to work in the meantime whilst their removal to Zimbabwe has been put on hold. The UK Border Agency maintains that a distinction must be drawn between entering the country for economic reasons and seeking asylum so that those whose applications to stay in the UK as refugees has been refused should not be seen to benefit economically through engagement in paid work.

However it is arguable that those whose applications for asylum have failed and are not subject to imminent removals to their countries of origin should not unnecessarily overburden the tax payer by claiming asylum support benefits when they are capable of earning a living from their own labour.

A case can be made for allowing failed asylum seekers to work pending their removal from the UK. It is argued that this can be an incentive for those who have remained under ground to come out in the open. Can the UK Border Agency's continued denial of failed asylum seekers' right to work be brought under review in the High Court?

Article 3 European Convention on Human Rights

Provides that, "no one shall be subjected to torture or to inhuman or degrading treatment or punishment"

Article 8 European Convention on Human Rights

Provides that, "Everyone has the right to respect for his private and family life, his home and his correspondence"

What I want to argue is that denial of right to work by the UK authorities, apart from engaging the UK's obligations under the right to private life Article 8 of the European Convention on Human Rights (as recognised in the Tekle case), may also arguably amount to inhuman or degrading treatment as reliance on hand outs may amount to deprivation of human dignity. (Accommodation and vouchers from the Home Office)

It may be appropriate to make an assessment of a number of applications for permission to work from failed asylum seekers including those who have filed fresh applications for asylum. The current process involves faxing your application to the UK Border Agency and waiting for a response. Following this assessment process an application for judicial review can then be made to the High Court with a view of determining whether it is now an opportune time to revise this policy framework.

It is also pertinent in this regard to remember the following observations made by the UK Prime Minister: "I can confirm also that we are actively looking at what we can do to support in this country Zimbabweans who are failed asylum seekers, who cannot work and prevented from leaving the UK through no fault of their own. They are provided with accommodation and vouchers to ensure that they are not destitute, but we are looking at what we can do to support Zimbabweans in that situation and we will report back to the House in due course. However I repeat to the right hon. Gentleman that no one is being forced to return to Zimbabwe at the present time."

This was in response to Mr Nick Clegg (LD)'s questioning that: "nearly three weeks ago I asked the Prime Minister to allow Zimbabwean asylum seekers to have the right to stay in the UK and to work to support themselves before they return home. He said he would think about it. What has he actually decided? What is he actually going to do?"

It would appear that whilst there has been a recognition that something needs to be done about the right to work for failed asylum seekers, the evidence on the ground suggests that the UK Border Agency continues to deny them the right of work. In view of the period of review set by the High Court and also the Prime Minister's observations in the House of Commons this should be an opportune time to seek a judicial pronouncement in respect of the right to work for failed asylum seekers.

Disclaimer: This article only provides general information on immigration law. It is not intended to replace the advice or services of a Solicitor. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. The writer will not accept any liability for any claims or inconvenience as a result of use of this information.

Your Immigration Status: The Points Based System

The current changes taking place in the Immigration system in the UK are a cause for concern for people seeking to regularise their status in the UK. This is a brief discussion about important issues which have really taken many people by surprise particularly where the changes have not been anticipated by those who are obliged to regularise their immigration status in the UK. There are some key issues arising in practice with the implementation of the Points Based System (PBS) and how some of the issues could affect would be applicants. Some issues about this system rob applicants of the benefit of discretion and flexibility by the courts unless properly guided.

Five tiers have been developed. The writer shall deal with issues affecting these various tiers in a series of different articles. Highly skilled people who do not require sponsors fall into this category. This tier too has been broken down into various categories which are General, Entrepreneurs, Investors and Post study.

The Immigration rules set out the criteria and specify the evidence to be submitted. Documentary evidence is outlined in rule 245AA. The guidance is too specific. In post study applications one has to provide personal bank statements covering the three consecutive months prior to the application date. The most recent statement must be dated no more than one calendar month before the date of the application.

In almost all the categories, the maintenance (funds) requirement has caused much headache to applicants. Individuals seeking to regularise their stay have lost the crucial ten points required under this category solely because they have not been able to maintain the requisite £800 of funds in their bank accounts and have not been able to provide the specified documents as evidence.

Appeals which have come before the courts involve applicants for the tier 1 (post study Work) category who have been unable to produce evidence in the specified documentary form that they had at least £800 in the bank for a continuous period of three months prior to their application. There are times whereby an appellant has to acknowledge the absence of the £800 for the entire three months before the application, but one might have to show that one has now had the necessary £800 in his account for at least three months at the date of the hearing which would be relevant date for the judge to consider whether the appellant meets the requirements of the Immigration rules. This is in terms of section 85 (4) of the 2002 Act, as discussed in the case of (LS Gambia.)

It has also been argued that whilst an appellant acknowledges that the appellant did not have £800 in his account for the whole three months before the application, but argue that he was short of £800 by a small margin or for a few days and if one considers the circumstances as a whole it would become clear that he can maintain himself adequately. The courts would be implored to exercise their discretion sensibly by allowing the appeals of graduates who by and large fulfil the purpose of the rules. However, the rule is deemed substantive and inflexible, albeit arguable.

For those individuals seeking entry clearance they should show that they have £2800 in funds and provide the specified evidence. It is important to maintain the level of the required funds for at least three months prior to the date of application. Where the minimum bank balance has dipped below the required level on some occasions, an application will be refused. A number of people have been caught unaware of this requirement such that by the time they seek to submit an application, it is usually too late to rectify the account as required.

Ancillary to the maintenance (funds) issue, are the earnings of an individual particularly when dealing with a Tier 1 (General) applicant. Please note that earnings would not be taken into account if the applicant was in breach of the UK's immigration laws at the time those earnings were made. Furthermore, earnings should not include unearned sources of income such as allowances, expenses, dividends, interest, inheritance. The guidance has to be followed closely in this regard.

It is also an important requirement that an applicant must provide at least two different types of supporting documents for each source of earnings claimed. Each piece of supporting evidence must be from a separate source and support all the other evidence so that together they clearly prove the earnings. This is in terms of paragraph 139 of the tier 1 (General) of the points based system-policy Guidance.

Please note that there is important case law where the court has considered the impact of the Points based system. Of significance, is the case of NA and others (Tier 1 Post- Study Work Funds) [2009] UKAIT 00025. The court ruled that:

the requisite amount of £800 or over can be shown in the form of a personal or joint account and may be shown in the form of personal savings held in overseas accounts. The court ruled that because the provisions require applicants to show that they had the requisite amount of £800 during a three month period of time immediately before their application, it is not possible to apply s 85 (4) of the nationality, Immigration and Asylum Act 2002 so as to enable them to succeed on appeal by proving funds for a period of time (wholly of partly) subsequent to the date of the application.

The court in the case of NA further made it clear that :

until s85A of the 2002 Act is brought into force (presumably by section 19 of the Borders Act ) subsection 85 (4) (a) of which stipulates that in respect of appeals in points based System cases the Tribunal may consider evidence adduced by the appellant only if it was submitted at the time of applying, it remains possible for appellants to satisfy the requirements of para 245Z (e) by providing on appeal evidence in specified form showing that they had £800 or over in personal savings for the period of three months immediately prior to the date of application.

The above cited decision is proving useful in dealing with a number of appeals which have since arisen with respect to the points based system which is yet to be fully grasped with both applicants and those doing Immigration matters. It is an area which is yet to be fully tested in courts as different scenarios arise with the implementation of the points based system.

Disclaimer: This article only provides general information and guidance on immigration law. It is not intended to replace the advice or services of a solicitor. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. The writer will not accept any liability for any claims or inconvenience as a result of the use of this information.

IMPORTANT CHANGES TO THE CERTIFICATE OF APPROVAL SCHEME (UK)

In R(Baiai) V. Secretary of State for the Home Department (The Baiai Case), the House Of Lords considered the compatibility of the Certificate of Approval Scheme (COA) set up under section 19 of the Asylum and Immigration (Treatment of Claimants) Act 2004, with Article 12 ECHR (Right to marry and establish a family).

The scheme required certain persons not settled in the UK and subject to immigration control to get the permission of the Secretary of State before they marry in the UK. Alternatively, they had to obtain entry clearance for this purpose. Those who wanted to get married in the Church of England were exempted.

This was deemed discriminatory by many groups who campaigned against the COA. The scheme, according to them, purported to label persons who did not satisfy the requisite leave to remain criterion, as persons who wanted to marry to circumvent immigration rules.

The original policy, denied permission to:

1. All those who are in the UK without leave ;
2. Those whose grant of leave to enter or remain in the UK was less than six months in total; and
3. Those who did not have at least 3 months’ leave to remain at the time of their application.

The UK Border Agency (UKBA) has changed the scheme to give effect to the judgement in the Baiai Case. The changes apply to you if you fall within any of the categories listed below;

1. Your current leave to enter or remain in the UK was not granted for more than 6 months and you do not have at least three months of your permitted stay remaining;
2. You do not have valid leave to enter or remain (illegal entrants, those who have overstayed their leave to remain) and have until now been refused unless there are exceptional compassionate circumstances for granting a certificate of approval;
3. You applied under the original scheme, and at the time of your application you had limited, but insufficient leave to enter or remain to qualify and were refused a certificate of approval (you may submit a request for reconsideration of your application).

If you fall within the above category, the UKBA may write to you requesting for further information in support of your application. Their request for further information is to assist them in determining whether an applicant’s proposed marriage or civil partnership is genuine. The answers to these questions need to be provided in an affidavit, clearly signed and dated by the applicant.

Case Scenario:

A and B courted for six months in Ghana. They were planning their wedding when B, a Belgian citizen had to travel back to Belgium. A’s efforts to join B were not successful so they separated. A travels to UK and was given six months leave to enter. A meets B after staying in UK for four months. They decide to get married in UK.

A may apply for the COA so that they get married in the UK. In so far as they are able to get married, A may successfully apply for leave to remain in the UK as the spouse of an EEA citizen whether she has current leave to remain or not (Metock & Others).

In addition, the UKBA has given effect to the House of Lords decision by suspending the application fees for a COA. They suspended the fees on the 9th of April 2009. Invariably, an applicant will not pay an application fee on or after the 9th of April 2009.

Indeed you may be entitled to a refund of your application fee if you applied for a certificate of Approval between 1st February 2005 and 8th of April 2009 under current UK Border Agency policy for the return of application fees. You can apply for a refund if you can demonstrate that the payment of the fee caused you real financial hardship. The deadline to request for a refund is 31st July 2010.

It is important to note that the grant of a COA does not mean that you will automatically be granted further leave to remain following the marriage ceremony.

Disclaimer: This article only provides general information and guidance on immigration law. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. The writer will not accept any liability for any claims or inconvenience as a result of the use of this information.

Key issues: post study work scheme

THE Tier 1 Post Study Work (PSW) scheme is one part of a 5 Tier system introduced in August 2007 by the UK Home Office. Its stated aim is to attract skilled and talented people to contribute to the UK’s economy.

The scheme is very popular because it allows foreign students to stay in the UK for a further 2 years after completion of their degree or PGCE studies (or Scottish HND), and more importantly, to do any type of work for unlimited hours, including running a business.

At the end of the 2 years, it is possible to switch to the sponsored work visa, the Highly Skilled visa, or back to the student visa, from inside the UK.

The PSW scheme replaced the International Graduate Scheme (IGS) and the Scottish Fresh Talent Scheme. Those currently on a valid IGS visa can apply on the PSW scheme for an extra 1 year.

Because this is a points system, a number of attributes are mandatory. There are 3 categories in which the applicant must score points, most of which are fairly straight-forward.

The one category, however, where a lot of applicants under the scheme have come to grief is the rigid requirement that applicants applying from within the UK should demonstrate that they can maintain themselves adequately by producing proof that they have maintained a minimum amount of £800 in their bank account continuously for a period of three months prior to the date of application.

The amount goes up by an extra £533 for each dependant that the applicant may have. The balance should not have fallen below the required minimum at any time during the relevant period.

For those applying from abroad, they must demonstrate that they have a whopping £2,800 available to them. A further £1,600 will be needed for each dependant accompanying the applicant.

For in-country applications specifically, the Home Office can, and have indeed been refusing applications, even where the amount of £800 may be in the applicant’s bank account, but was not held for the required 3 months, or where the amount fell below that threshold.

To demonstrate how absolutely ridiculous this requirement is, if the balance falls even £1 below £800, even for 1 day during the relevant period, that would be enough for the Home Office to refuse the application. There is no discretion, and therefore a common sense approach, under the scheme.

The other ridiculous requirement is that the £800 held for 3 months must be in the applicant’s personal bank account, not another’s. Not even the applicant’s family account.

To make matters worse, those that have been appealing these ridiculous Home Office refusals, have been met with a Tribunal which has no clear guidance on the matter. This is because the scheme is still new, and the Tribunal has not yet come up with a guidance case on this issue.

Decisions have therefore been very varied. Some Immigration Judges have been open to persuasion and have interpreted the requirements of the rules liberally. The more conservative ones, and there is a frightening number of them across the breadth and width of the UK, have toed the line and agreed with the Home Office that there is no room for discretion where Points Based System applications are concerned.

The most attractive argument to deploy in a PSW appeal is as follows:

The Act that addresses this point directly is the UK Borders Act of 2007. Section 19 of the Act in particular states that in allPoints-based applications, no new evidence will be allowed on appeal. This means for instance, that under this section, it will no longer be possible to argue that an appeal should be allowed on the basis that the applicant can at the time of his appeal hearing demonstrate that he now has access to £800 which he did not have at the time of the application.

Section 19 will, therefore, close the argument that generally in in-country appeals, the appeal Tribunal may consider evidence about any matter which is relevant to the substance of the decision, including evidence that arises after the date of the decision.

The key thing to emphasise, however, is that this very section has not yet come into force. Until it does, it should be open to allow new evidence of the availability of funds that may not have been available at the time of the initial application to the Home Office.

In an appeal, it should also be possible to deploy the argument that it would be a breach of the right to a private and family life under Article 8 to remove someone whose application under the Post-Study Work Scheme fails. Indeed, there are decisions in which the Tribunal have recognised that the right to develop full potential through a good education arguably comes within the right to private life.

Perhaps what is more heartening is that there may be light at the end of the tunnel on this issue. The Home Office recently conceded at a Judicial Review hearing that with respect to the maintenance requirements under the Points Based System (PBS), there should be discretion in certain circumstances.

That decision is likely to lead to new guidance, either by the Home Office, or the courts, as to when and in what circumstances that discretion should be exercised.

I am more hopeful that the courts will come out in favour of a more liberal interpretation of the rules on this one. I am especially emboldened by the remarks of Mr Justice Sullivan in a recent High Court decision where he said with regards to another equally rigid Home Office policy:

“This is a classic example of a thoroughly unreasonable and disproportionate, inflexible, application of a policy, without the slightest regard for the facts of the case, or indeed elementary common sense and humanity. Such an approach diminishes, rather than encourages, respect for the policy in question.”

What now?

Where PSW applications have been refused by the Home Office on these points, and the appeals dismissed by the Tribunal, it is important that a further appeal, called a reconsideration appeal, is lodged in time to preserve appeal rights. The Tribunal has been granting orders for reconsideration in most of these appeals, mainly because this is new territory and guidance is inevitable.

A point that may typically be raised could be that the appellant may have failed to meet the requirements at the time of application, but he currently has a good and regular income and has not previously claimed public funds. The Judicial Review decision referred to above was won on that point.

Emphasis should also be placed on the spirit of the PSW scheme which is to encourage international graduates who have studied in the UK to stay on and do skilled work.

I suspect that it may also be conceivable that a race-related argument could be made, especially in entry-clearance appeals, on the basis that the strict requirement to have such high amounts in a personal bank account is perhaps an unintended return to schemes that can only attract applicants from certain countries and not others.

Without a doubt, certain nationalities will be disproportionately under-represented in the scheme, and this will certainly be confirmed by the Independent Monitor’s report which should be available in a year’s time.