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UKVI able to remove immigrants even when judicial review is pending

The great disappointment for many of those involved in immigration law with regard to the Immigration Act 2014 was its devastating cutting of appeal rights, with the Government proudly declaring a reduction in appeal rights from 17 to three.

The headline news is that from now on, there will only be a right of appeal against a Home Office decision to refuse a protection or human rights claim, or to revoke a protection status – all other Home Office immigration decisions no longer attracting a right of appeal.

Although there is still the remedy in the latter situation of an administrative review and/or judicial review, even here, protections are not what they were. There is much focus here on sections 3C and 3D of the Immigration Act, with 3C and 3D leave serving the purpose of preventing an individual from becoming an overstayer in the UK through no fault of their own while awaiting or appealing an immigration decision.

If a person remains in the UK beyond the period of their leave, they become an overstayer, which is a criminal offence under section 24 of the Immigration Act 1971 – hence, the presence in the current Immigration Act of 3C and 3D leave. Section 3C was added to the Immigration Act 1971 by Section 118 of the Nationality, Immigration and Asylum Act 2002 to extend the leave of an applicant while they awaited a decision on an in-time application or exercised a right of appeal against the refusal of such an application.

Section 3D, meanwhile, was added to the Immigration Act 1971 by the Immigration, Asylum and Nationality Act 2006. This was to ensure that a migrant did not become an overstayer while they exercised a right of appeal against a decision to curtail or to revoke leave to enter or remain, where that decision would leave them with no leave.

Unfortunately, many of those dependent on 3C leave who we advise do not realise that it is still possible for UK Visas and Immigration (UKVI) to remove them from the country while a judicial review is pending, for the simple reason that this pending period is not covered by section 3C. With regard to variation decisions, section 3C can only keep recipients of such decisions lawfully in the UK while they seek, or could seek, an administrative review.

Talk to Farani Taylor today for appropriate advice relating to your own ongoing or prospective immigration appeal, so that you can take every opportunity to maximise your chances of a positive outcome in your dealings with UKVI.

‘Good character’ citizenship criteria made stricter

Even those who consider themselves fairly abreast of the latest developments in UK immigration law may have missed the quiet tightening up of the criteria for granting British citizenship with regard to ‘good character’, applicable to decisions taken on or after 11th December 2014.

Although the British naturalisation requirements are stated in Schedule 1 to the British Nationality Act 1981, with one of the stipulations being that the applicant is of good character, the Act itself does not define ‘good character’, this instead being left to Home Office guidance.

It is such guidance that appears to have been updated towards the end of 2014 – with almost zero fanfare – to incorporate a longer list of disqualifying behaviours. The most obvious indicator in the previous guidance of a person not being of good character was a history of criminal convictions, with other factors ranging from notoriety, financial unsoundness and a history of deception or dishonesty to suspected criminal activity, war crimes and terrorism.

The extended list of undesirable behaviours, however, also includes illegal entry, assisting illegal migration and the evasion of immigration control. The detailed changes have been criticised as preventing almost all refugees from qualifying for British citizenship for at least 10 years from the date they entered Britain, as opposed to the six years outlined in the previous guidance.

The changes follow the old Chief Inspector of Borders and Immigration, John Vine’s publication of a report in late 2014 in which he criticised the way the good character test was applied. In the words of barrister Colin Yeo, this criticism amounted to him having “single handedly rewritten decades of policy on the meaning of ‘good character’ in nationality law so as to include immigration history.”
It is Section 9 of the guidance that specifically addresses issues around immigration, with the previous guidance having counted among such issues cheating in the English Language and/or Knowledge of Life tests; participating in a marriage of convenience; hiring illegal workers; relying upon false statements in applications; and previous deprivation of citizenship. These factors remain present in the modified guidance.

However, Section 9 the new guidance adds further criteria for the refusal of applications on good character grounds, stating on the subject of illegal entry that “in circumstances where an applicant entered the UK illegally, an application for citizenship should normally be refused for a period of 10 years from the date of entry, if it is known. If it is not known, the period of 10 years starts from the date on which the person first brought themselves to or came to the attention of the Home Office.”

Meanwhile, under the clause entitled “Evasion of immigration control”, the Section 9 guidance states: “The decision maker will normally refuse an application if within the 10 years preceding the application the person has not been compliant with immigration requirements, including but not limited to having: (a) failed to report; (b) failed to comply with any conditions imposed under the Immigration Acts; or (c) been detected working in the UK without permission.”

The potentially draconian implications of these changes to the good character criteria – which tests for the last 10 years – will concern many solicitors in immigration law, including not only those serving refugees, but also such other parties as students who may have worked over hours and therefore be subject to HMRC scrutiny in the determination of what constitutes good character.

Steep Rise in Commercial Property Demand

Many clients of the commercial property services of Farani Taylor will note with interest the latest RICS commercial market survey, which indicates an increase in demand for this category of property at almost its fastest pace since 1998, leading to significantly heightened investment in new projects.

Nor was the recovery in demand restricted to London, the statistics showed. Nonetheless, when surveyors looked ahead, they anticipated that the office sector would be strongest, with the capital playing the leading role, despite prime property valuations in the city having brought increasing concern.

Particularly notable is the increasing confidence that secondary space will also see the benefit of the more positive mood in the market, with rents and capital projections making pleasant reading everywhere. The survey documented the first part of 2015, and saw accelerating demand for commercial properties for the 10th quarter in a row, as 46% more respondents saw heightened interest.

There was also a notable rise in enquiries in the investment market. 49% more surveyors reported seeing a greater number of budding investors, continuing a trend of increasing demand that can be traced back to late 2012. Interest from overseas buyers was also up on the last quarter, the 34% more respondents who experienced more enquiries from international investors comparing to the previous survey’s 17%.

Coinciding with this was a fall in available space, helping to place rental expectations at a level not seen since 1998. It was in the industrial and office sectors where this trend was especially evident, with retail rental expectations remaining somewhat lower.

RICS Chief Economist, Simon Rubinsohn, commented: “The strength of the latest commercial property survey suggests that the underlying momentum of the economy will continue to accelerate through the course of this year.”

He described “a better tone to the results” as “particularly encouraging”, adding that it was discernible in every area of the country and more and more in secondary, not just prime space. He concluded: “Given that these indicators have historically provided a strong steer as to the performance of the economy two to three quarters out, it is hard not to be encouraged by the conclusions of this report.”

Investment strategies are being impacted by insufficient supply, with the long-viewed ‘alternative’ asset class of student accommodation becoming progressively mainstream and such other alternative property sectors as service apartments and retirement living seeing consolidation due to the healthy yields that they promise.

Amid shifting market trends, prospective purchasers will need to stay agile in their search for the best opportunities, which they can be helped to do with the right commercial property solicitors – like those of Farani Taylor – by their side.

Divorce petition mistakes can cost valuable time and money

In an era in which more and more people are seemingly filing their own divorce papers, there also appears to be a greater epidemic of people completing such forms incorrectly – losing valuable time in the process. Even one minor error in a divorce petition can result in it being refused, so it is recommended that you work with a family solicitor who is accustomed to filling in and submitting such forms both quickly and accurately.

Divorce petitions can be costlier than many would-be divorcees realise. You might be in a situation where you and your former partner amicably agree to a divorce, with agreement having been reached on both finances and the children. You may decide, instead of hiring a lawyer, to download a free D8 form online from the government website, followed by the swift completion and printing off of the divorce papers.

Completing a divorce petition may appear to be a simple task, merely entailing the disclosure of such obvious details as you and your partner’s names, addresses and location of marriage. You may indicate a certain period of time for which you have been separated, before finally filing the form with the appropriate court fee. A few weeks later, your ex-partner calls you, confirming that they have received the divorce petition, filled it in and sent it back.

This may seem like the end of the process, but it can actually be just the start of a highly frustrating one for many prospective divorcees. Instead of the expected letter from the court declaring that your seemingly straightforward divorce has been reviewed and processed, you may receive one that highlights several errors in your divorce petition, precluding the divorce from being granted.

The judge may fault you on the basis of not listing your middle names or giving the correct answer for your place of marriage. The court may also request to know whether your wife adopted your surname on marrying you, or may suggest that you seemed to be living together for a certain period of time after your claimed separation.

Such errors lead to the judge ordering you to answer these queries and file an amended petition, with the associated amendment fee. To make your life harder, your erstwhile partner may have momentarily left the country and be difficult to trace. More serious mistakes on your divorce petition may even impact on your financial rights and ability to make or prevent future claims.

It is also worth remembering that the judge will stop at the first error on the divorce petition, so even if you amend it, further mistakes may be pointed out following the second submission.

With the right divorce solicitor by your side such as those in our capable family law team here at Farani Taylor, you can complete your D8 form successfully first time out – and avoid any nasty surprises that could cost you both time and money.

Home Office visiting Tier 2 licensed businesses

Those holding or applying for Tier 2 visas should take note that most of the sponsorship licences are due for renewal, and coinciding with this, the Home Office is visiting all businesses that are currently Tier 2 licensed. Changes affecting Tier 2 and other UK visas were announced to take effect from 6th April 2015, including a new healthcare surcharge that significantly adds to the expense for Tier 2 visa applicants and many other migrants.

5th April saw an across-the-board increase in Home Office fees, with many who wish to stay in the UK beyond six months finding that a healthcare surcharge had been added to their immigration application, amounting to £200 per year – or £150 per year for students. Applicants’ dependents are also charged the same amount.

An immigration application cannot now be submitted without the full payment of the health surcharge. This means that a person applying for a three year Tier 2 visa is required to pay £600 upfront, with the same charge applying to their spouse and dependents. Whether or not the applicant has private healthcare makes no difference to the charge. There are, however, some exemptions from the surcharge, such as for Tier 2 ICT visa applicants, EU citizens and their dependents and those on visas valid for as long as six months.

Other minor changes have also been introduced for Tier 2 visas. These include amendments to the minimum salary thresholds, which in the case of Tier 2 General employees, has risen from £20,500 to £20,800. This and other changes apply to applications made after 6th April 2015, with some minor alterations to the Shortage Occupations List having also been implemented.

Paramedics have been added to the list of graduate occupations in the UK health sector, for example, alongside such other additions in the medical field as radiology consultants and training roles in emergency medicine. Nor will there now be a ‘cooling off’ period for short-term Tier 2 visas, which will benefit firms wishing to transfer employees to the UK for a period of three months or less.

In January, the government announced a crackdown on bogus Tier 2 visa sponsorships, which was predicted to lead to the enforced exit from the country of as many as 2,500 migrants. In this climate, it is all the more important for prospective applicants for or current holders of Tier 2 visas to seek the most appropriate advice from informed immigration solicitors, including seeking a health check as the health surcharge comes into force.

Extended family members of EEA nationals

In European cases, it is now possible for Europeans settled in the UK to sponsor non-European Union (EU) family members from countries outside the European Economic Area (EEA), such as Pakistan or India. The rules on visa applications to bring extended family to live in the UK vary depending on the family member’s country of origin and the nature of the relationship.

There is a general right to live and work in the UK for nationals of countries in the EU, EEA and Switzerland, dependent on the European national showing that they will be working in the UK or will otherwise be able to support themselves and their family without the need for public funds.

For the purposes of Regulation 8, ‘extended family members’ are defined as more distant family members of the EEA national or of his spouse/civil partner who can demonstrate their dependence on their aforementioned relatives. ‘Extended family members’ may also be partners who, while not being in a civil partnership with the EEA national, can nonetheless show that they are in a “durable relationship” with them.

There are certain conditions that extended family members must fulfil with regard to dependency. First of all, his or her dependency on the EEA national must have been established in the country from which the EEA national moved to the UK, in accordance with the wording of Article 3(2) of the Directive.

That dependency must have been present either immediately or very recently prior to the EEA national’s arrival in the UK, and the extended family member must have also come to the UK simultaneously with the EEA national, just before or very recently thereafter.

Within the Free Movement Directive’s Article 3(2) is provision for Member States to facilitate entry and residence for other family members who, on serious health grounds, strictly require personal care by the Union citizen.

Four types of extended family member are covered by Regulation 8. The person may be related to the EEA national or his/her spouse and be financially dependent on the EEA national or be a member of his/her household. Such a person may be accompanying the EEA national to the UK or wish to join them there, or they may have already arrived with them in the UK and remain dependent on them or a member of their household.

Other kinds of extended family member include relatives of the EEA national or their spouse or civil partner who are in strict need of personal care from the aforementioned parties. A person may also qualify if they are related to the EEA national and would meet the Immigration Rules requirements, as well as if they are a partner of the EEA national and can prove a durable relationship with them.

Those seeking to apply for a residence card as an EEA national’s extended family member are advised to contact the seasoned and knowledgeable immigration solicitors of Farani Taylor for suitably tailored advice.

“Genuine entrepreneur test” means tougher requirements for Tier 1 entrepreneur visa

The UK government has proudly claimed that “Britain is open for business”, but are also eager to ensure that entrepreneurs attracted from abroad are well-positioned to make a positive lasting contribution to the national economy. This explains why the government has recently toughened up the requirements for obtaining a Tier 1 entrepreneur visa.

This type of visa is mandatory for foreign businesspeople to acquire before they can set up or invest in a business that they will have active involvement in operating in the UK. To qualify for it, the candidate must demonstrate that they have access to a minimum of £50,000 of capital from a government department, registered venture capital firm or seed funding competition. Alternatively, they can show that they have, optionally including third party support, personal wealth of at least £200,000.

Statistics show that a high number of applications for the Tier 1 entrepreneur visa have been unsuccessful. This has been partly as a result of the government’s introduction of a “genuine entrepreneur test”, an attempt to crack down on abuse in corporate immigration.

From 6 April, this test will also be carried out for businesspeople applying for visas permitting extensions and indefinite leave to remain. It is expected that, from this date, each of these applicants will be interviewed by an immigration officer and have to supply further evidence that the business they are running in the UK is “genuine” and credible.

This change is intended to help the government to discern businesspeople who have good business acumen and sufficient relevant experience. The requirements for a Tier 1 entrepreneur visa may seem high for entrepreneurs applying for extension or settlement visas, but the future for those whose applications succeed seems promising. Furthermore, Farani Taylor can provide suitable legal advice to entrepreneurs who are eager to make successful applications.

Full Immigration Appeal rights under the Points Based System now abolished

The Immigration Act 2014 has brought in many crucial changes to UK immigration law. One of these changes came into force from 2 March as full appeal rights for immigration applications under the Points Based System, or PBS, were ended.

Under the terms of the Immigration Act 2014, appeal rights for such applications under Tier 4 had already ceased from 20 October 2014, and the same change has since been enacted to rights for applications under Tiers 1, 2 or 5. This situation means that migrants making initial PBS applications should be meticulous to ensure that these applications are as perfect as possible – and they will need help from immigration lawyers to do so.

It is technically still possible for migrants affected by this law change to appeal on human rights or refugee grounds. It has been argued that if human rights are engaged in some manner, a human rights appeal will remain “in accordance with the law”.

However, such an appeal will often not even be an option, as human rights are unlikely to be engaged in the majority of PBS cases. For most migrants affected by the law change, the only realistic option for seeking an independent legal remedy will be applying for judicial review.

The abolition of appeal rights for PBS migrants has been carried out under Article 7 of the Immigration Act 2014 (Commencement No. 4, Transitional and Saving Provisions and Amendment) Order 2015 (SI 2015/317). This Article 7 has amended the Immigration Act 2014 (Commencement No. 3, Transitional and Saving Provisions) Order 2014 and revoked the Immigration Act 2014 (Transitional and Saving Provisions) Order 2014.

Migrants affected by this abolition are advised to seek advice from immigration lawyers. Farani Taylor can inform such migrants about what legal options are currently available to them.

Medical organisations set to pay up to £75,000 to diagnose whiplash injuries

Many medical businesses are preparing to register to offer services of diagnosing whiplash injuries for solicitors tackling soft tissue injury claims. However, under plans recently revealed by the Ministry of Justice, they could have to pay as much as £75,000 to do so – and this has provoked concerns that it could lead to an insufficient number of registered doctors and organisations.

The Ministry has announced that medical reporting organisations – or MROs – will, from 6 April, have to be registered with MedCo Registration Solutions before they can provide a solicitor with an initial fixed cost medical report for them to use as evidence in a soft tissue injury claim.

However, a major cause for concern is that, whichever of two tiers they are assigned to as part of a random allocation scheme, organisations will have to pay five-figure yearly fees – of £75,000 for top tier businesses and £15,000 for the second tier. Also, each MRO will have to pay a security bond – of £100,000 for the top tier and £20,000 for the second – and each initial diagnosis report will cost the MRO in question a fixed fee of £180.

These fees have prompted worries that doctors and organisations could choose to depart the claimant sector and leave, by 6 April, a lack of whiplash diagnosis experts on the register. A Motor Accident Solicitors Society spokesperson has warned about the potentially adverse consequences of the “short timescales for MROs to consider the implications, understand how they will be affected and what the scheme will cost, and decide whether to proceed to register”.

Nonetheless, the Ministry of Justice has reported a “significant” response to a survey of pre-registration interest in the scheme and expressed its belief that there will not be a shortage of doctors to offer services of whiplash injury diagnosis to solicitors.

Big surge in claims to beat introduction of higher civil court fee

Lawyers have reportedly recently rushed to file civil claims to beat the introduction of a new, more costly charging regime for civil courts. The new fees, which came into force on 9 March, were announced just weeks earlier and have been roundly criticised by the legal profession.

The court service now levies a fee of 5% on every civil claim that is worth over £10,000. Though this fee is capped at no higher than £10,000, it apparently led many lawyers to quickly file claims ahead of 9 March, prompted by fears that failing to file under the older, lower fees could mean that they were breaching their duty to their clients.

During the seven-week period between the announcement of the new fees and their enactment, many legal groups, including judiciary and representative groups for defendant and claimant lawyers, have reacted in condemnation.

According to the Ministry of Justice, civil courts have been suitably prepared for the new fees. A spokesperson claimed that there have been alterations “to HM Courts & Tribunals Service’s computer systems and relevant public-facing leaflets”, adding that court staff have also been briefed.

Though these charges are predicted to raise £120m annually to assist in paying for the courts service, they also mean that fees have multiplied by more than seven for claims worth £200,000.

The Law Society has launched a legal challenge to the new fees system, but this challenge is ongoing. Therefore, practitioners will, at least for the time being, have to turn to litigation funders, after-the-event insurers, or their own financial reserves to fund fresh civil claims.

Keith Etherington, Law Society council member for civil litigation, has warned that law firms are already “working in overdraft” and that costs of the new fees will ultimately be incurred by the NHS and local authorities.

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