As we move into 2018 it seems fitting to look back on the last year and recap on some of the major happenings in UK immigration law.
There has been a lot of goings – on over the past 12 months in UK immigration but for some nothing much has been happening at all. Many applicants who have applied on family life, long residence or what is known as “outside of the rules” have found that their applications are taking up to 12 months or more to be decided. This has caused a lot of stress and frustration and has particularly impacted people who have been working in the UK perfectly legally. Problems arise when employers trying to ensure they stay on the right side of their legal duties under Immigration law have found it in their best interests to simply stop their employees from working where there have been delays in Home Office decisions. For many the financial impact has been unbearable.
We would certainly look forward to seeing the Home Office find a way of dealing with both the delay in deciding applications and providing assurances to employers so that they do not feel forced to let their workers go.
There has been some very important law made in 2017. In February we saw a landmark decision of the Supreme Court in relation to spouse visas and the Minimum Income Requirement (MIR). The Minimum Income Requirement is the minimum amount that a husband or wife must earn in order to apply for a visa for their foreign spouse to join them to live in the UK permanently. The MIR does not apply to EEA nationals. The rule, then, had been strictly enforced by Entry Clearance staff who decide visa applications abroad. This has certainly caused much distress and heartache to families who were forced to live apart where the sponsor’s income did not meet the minimum amount.
The Home Office’s position was challenged in the Supreme Court and a decision was handed down on 22 February 2017. The Court decided that the rule was essentially fair and enforceable. However, the Court also decided that the rule should not be applied as rigidly as it had been in the past and other factors should be taken into consideration; such as the impact on any children of the family or the availability of third party financial support. Cases where the MIR was not met by the British spouse were put on hold whilst the Home Office decided how it would deal with the Court’s decision.
As a result of the Supreme Court decision the Home Office published changes to the Immigration Rules on 20 July 2017 which came into effect on 10 August 2017.
Amongst the changes to the rules is a provision that an applicant who does not meet the MIR for entry clearance can be granted a visa but put on the ten-year route to settlement – instead of the five-year route which would be the case if the threshold was met. Potentially, such changes could bring the rules for entry clearance in line with the rules which apply where an applicant is already in the UK and does not meet the MIR. Such an applicant who makes the initial application for leave to remain as a spouse from within the UK is put on the ten-year route to settlement. So, it’s more common sense all around really – but it is still early days so we will be keeping an eye on how this develops.
Another major development has been in the area of deportations for non-EEA nationals (European nationals). A person who is not British or an EEA-national and receives a prison sentence of at least twelve months will be subject to automatic deportation proceedings. It is notoriously extremely difficult to challenge a case where the Home Office have made a deportation order against someone. The new law centres around the controversial brainchild of the now Prime Minister, then Home Secretary, Theresa May and was dubbed “Deport now, appeal later”. Essentially, it was the intention of the UK government that a person who had a deportation order signed against them but had been given a right of appeal could still be forcibly removed from the UK even though appeal proceedings were pending. The power behind this policy was provided by the Immigration Act 2014 for deportees and was extended further by the Immigration Act 2016 to cover all other appellants except asylum-seekers.
The “Deport now, appeal later” policy was challenged by Mr Kiarie, a Kenyan national and Mr Byndloss, a Jamaican national. The case arrived at the Supreme Court and a decision was handed down on 14 June 2017. The Court found the policy to be unlawful and unfair. This was a big defeat for the UK government and following the judgement the Home Office response was to recall previous refusal decisions which had no in-country right of appeal and simply reissue them but with a right of appeal from within the UK.
A natural and fortunate off-shoot of this has been to save on the many inevitable judicial review applications that would have continued to clog up the High Court as people fought for the right to appeal from within the UK.
The Court decided that the rule and, it has to be said, the way the Home Office applied it, was unfair and unlawful. However, it also has to be said that although it is clearly better for an appellant to be in the UK and able to attend his own appeal – all this will not necessarily impact the way the Home Office and the courts deal with the appeal itself as deportation cases remain extremely difficult to challenge. Particularly, bearing in mind the hostile political climate in relation to foreign national criminals faced with deportation proceedings. Again one to watch.
With all that heavy stuff I’m trying to bring you something a little lighter to end on. Well, we have noticed that the Home Office have been open to romance and particularly we have had success with applications involving social media romances. It’s been nice to see that in this new age of internet there has been a respect by the Home Office for romances started and kindled online. With proper supporting evidence there is every possibility of convincing the Home Office that the relationship is genuine and subsisting. The world is certainly becoming a smaller place.
We were so proud and please to have been nominated by the public and to have won a Bex Live Award for Best Legal Advisor in November 2017. We work tirelessy to bring the best results for our clients and it is wonderful to have that recognition of our efforts. We extend our thanks to everyone that voted.
And that’s our rundown of the last twelve months through our eyes.
Have a great new year!
Rachel Okello is a UK based solicitor and immigration consultant with Rogols Solicitors in Birmingham UK. www.rogols.co.uk/contact
Categories: Immigration Review