Nath Gbikpi

Extend your visa if you cannot leave the UK because of coronavirus

25th March 2020 By Nath Gbikpi

Yesterday, the Home Office published new guidance for migrants affected by the coronavirus pandemic.

If your visa expires between 24 January and 31 May 2020

If your visa expires between 24 January 2020 and 31 May 2020, and you cannot leave the UK because of travel restrictions or self-isolation related to coronavirus, you will be able to apply for an extension.

There are a couple of points to note, however:

Your visa will not be automatically extended. You must apply for your visa to be extended. You should contact the Coronavirus Immigration Team and provide your full name, date of birth, nationality, visa reference number and an explanation of why you cannot return to your home country. The Home Office should then confirm to you that your request has been received, and until when your visa has been extended.
The Home Office confirms that “Those who contact the Home Office for these visa extensions will be expected to return to their home countries as soon as possible once flight and border restrictions are lifted”. If you wish to remain in the UK long-term, see below.

If you wish to remain in the UK long-term

Some applications would usually need to be made from your country of origin. For example, if you are in the UK as a student and wish to apply under the Global Talent category, you would usually need to leave the UK and apply for a Global Talent visa from abroad. Similarly, if you are in the UK as a visitor and wish to apply to remain on the basis of a relationship with a British citizen, you would usually need to leave the UK and apply for a partner visa from your country of origin.

The Home Office guidance confirms that, if your visa expires between 24 January and 31 May 2020, you will be allowed to make such application from within the UK. You will still be expected to pay for your application and show that you meet the relevant immigration requirements. At the moment, such application must be made before 31 May 2020.

If you have reporting conditions

The Home Office has also updated their guidance for those who are required to sign at a Home Office reporting centre on a regular basis. It states that:

Following Public Health England’s advice on coronavirus (COVID-19), the Home Office has decided that reporting as a condition of immigration bail should be temporarily deferred while it reviews how frequently people should report. You will receive an SMS text message soon with details of your next reporting date.

Still many unanswered questions

Overall, this is good news for many migrants in the UK, however a lot of questions remain unanswered. For example, we know that some people are struggling to take English language tests or Life in the UK tests because the centres are closed. We also know that some are worried about losing their jobs and not being able to meet the Immigration Rules of their applications. Others are worried about losing their jobs but not being able to access benefits. We urge the Home Office to issue guidance on this as soon as possible.

In the meantime, if you are concerned about your immigration status in these uncertain and unprecedented times, please contact us on contact@gryklaw.com.

Global Talent Route

5th February 2020 By Nath Gbikpi

Last week, the government published a press release announcing a Global Talent route to replace the Tier 1 (Exceptional Talent) route, calling it “a new, fast-track visa scheme to attract the world’s top scientists, researchers and mathematicians”. Our firm assists with many Tier 1 (Exceptional Talent) applications for artists and those in the digital technology sector, and we would have been sad to see that option go.

Fortunately, it has not; artists and those in the digital technology sector can still apply for a visa on the basis of their talent, along with scientists, engineers, researchers and academics. In fact, there are almost no changes between the “old” Tier 1 (Exceptional Talent) route and the new Global Talent route for most applicants. The only changes are positive, in that more researchers and academics should now be able to benefit from this route.

What is the Global Talent Route?

Using the Home Office’s own words, the Global Talent Route is a route for

Talented and promising individuals in the fields of science, engineering, medicine, humanities, digital technologies and art and culture (including film and television, fashion design and architecture).

How does the route work?

There are two stages to the application:

Being endorsed by an endorsing body

The first step is for applicants to be endorsed by a body with expertise on their topic. The endorsing bodies are:

The Royal Society, for science and medicine
The Royal Academy of Engineering, for engineering
The British Academy, for humanities
UK Research and Innovation for other scientists and researchers working at specific organisation
Tech Nation, for digital technology
Arts Council England, for arts and culture

Endorsing bodies can endorse applicants under the Exceptional Promise category, for those who have the potential to be leaders in their field; or under the Exceptional Talent category, for those who are already leaders in their field.

The Home Office has specific rules on the criteria to be met to be endorsed, and which documents need to be submitted with the application for endorsement.

Applying for a visa or for leave to remain to the Home Office

Once they have been endorsed, applicants have 3 months to apply for a visa or for leave to remain to the Home Office. For the application to be successful, they will just need to show that they do not fall for refusal under the General Grounds for Refusal, which, broadly speaking, relate to a person’s immigration and criminal history.

Q&A

When will it be introduced?

The Tier 1 (Exceptional Talent) category which exists currently will continue until 20 February. The Global Talent Route will come into force on that date.

Can I take up any job I want?

You can take up any job except employment as a doctor or dentist in training; or as a professional sportsperson.

You should be aware, however, that when applying for indefinite leave to remain, you will need to show that you have earned money by working in your field of expertise.

How long will my visa be?

You can chose to get a visa valid for 1 year, 2 years, 3 years, 4 years or 5 years. If you are applying from outside the UK, you will be given 4 months on top of that (for example, if you apply for a visa for 2 years from outside the UK, you will be granted 2 years and 4 months).

In most cases, we would recommend that you chose at least 3 years; or 5 years, depending on when you will be eligible for indefinite leave to remain (see below).

How much does it cost?

Immigration fees tend to increase every year, in or around April. At the time of this post, the fees are:

Endorsement application: £456
Application for leave to enter or remain after endorsement: £152
Application for a dependant: £608
Immigration Health Surcharge: £400/year (for example, if you apply from abroad and ask for a visa valid for 2 years, you will be given a visa valid for 2 years and 4 months, and will need to pay £400×2.5 = £1,000)

Can I apply from within the UK?

You can only apply from within the UK if you are currently here on a Tier 1 visa, a Tier 2 visa, a Tier 5 (Temporary Worker- Government Authorised Exchange) visa for sponsored researchers; a Start-up visa or an Innovator visa.

Can I get Indefinite Leave to Remain?

Yes, applicants can get to indefinite leave to remain after 3 or 5 years, depending on their field of expertise and whether they are in the Exceptional Talent or Exceptional Promise category.

In short, those applying in the fields of science, engineering, humanities and medicine can all apply for indefinite leave to remain after 3 years.

Those applying in the fields of digital technology and arts and culture can apply after 3 years if they have been endorsed as Exceptional Talent; or 5 years if they have been endorsed as Exceptional Promise.

In some cases, you can combine the time you have spent in another category with the time spent under the Global Talent Visa.

You will also need to show that, during your time in the UK, you worked and earned money in your field; and that you have not been out of the UK for more than 180 days in any 12 months (but there are some exceptions for applicants in the fields of science, engineering, medicine and humanities who have been out of the UK for the purpose of research).

Can my family members join me?

Yes, your partner and children can come with you to the UK; or join you here. Your family members will also need to pay an application fee and the Immigration Health Surcharge.

If you require advice on this route, please contact us on contact@gryklaw.com or on +44 20 7401 6887.

The Immigration Rules do not (but should!) protect all victims of domestic abuse – the case of stranded spouses

15th November 2019 By Nath Gbikpi

Last week, I received a refusal on a visa application for a client, married to a British citizen, who was a victim of domestic abuse in the UK. The domestic abuse culminated in her being abandoned abroad. We call this phenomenon “transnational marriage abandonment”. Southall Black Sisters describe it as

the deliberate removal of vulnerable migrant women from the protections of this country by their husbands and in-laws who discard them abroad as if they were disposable commodities. It is an extreme form of psychological abuse since it denies women access to justice in the UK. It amounts to a gross violation of dignity and human rights.

Transnational marriage abandonment was recently recognised as a form of domestic abuse in the Family Procedure Rules 2010.

My client, as many others, had been told by her husband and in-laws that they would go to her country for a 3-month holiday. Once there, her spouse took her and her British citizen child’s passports and left. They were effectively stranded abroad with no means of returning to the UK.

We applied for a visa for my client asking that she is granted indefinite leave to enter as a victim of domestic abuse. The application was refused.

What are the provisions for victims of domestic violence, and why do we need them?

The Immigration Rules make provision for partners of British or settled citizens to apply for indefinite leave to remain if they are in the UK on the basis of their relationship, and the relationship breaks down as a result of domestic abuse.

Provisions for migrant domestic abuse victims were first introduced in 1999, following campaigning by Southall Black Sisters. When the issue was debated in the House of Commons back in June 1998, the then Parliamentary Under-Secretary of State for the Home Department stated

when the overseas spouse becomes the victim of domestic violence during her first year here, she faces the prospect either of staying within that violent relationship or of being refused settlement if she escapes from it, because the marriage would then no longer be subsisting

The idea was that those migrants whose right to reside in the UK depended on their relationship with their British or settled spouse should be allowed to remain in the UK even after the relationship broke down, if the reason for the breakdown was domestic violence. If not, they would be faced with the impossible choice of staying in an abusive relationship to be able to remain in the UK on the one hand; or leaving the UK on the other hand.

Why do the rules not work for victims of transnational marriage abandonment?

Unfortunately, one of the requirements to be granted indefinite leave to remain as a victim of domestic abuse is to be in the UK at the time of the application. This means that victims of transnational marriage abandonment, who have been recognised as victims of domestic abuse, cannot make use of these provisions.

There is no rational reason not to allow victims of domestic abuse to apply for indefinite leave from abroad. When the provisions were first introduced, the Home Office accepted that individuals who came to the UK as partners, with an expectation to settle in the UK, should be allowed to stay even if their relationship breaks down because of domestic violence. Domestic abuse victims who are stranded abroad had the same expectations.

Once it is accepted that transnational marriage abandonment is a form of domestic abuse, the requirement to be in the UK at the time of application creates a fundamentally flawed system which prevents victims of domestic abuse to apply for indefinite leave on the grounds that…they are victims of domestic abuse!

Not being able to return to the UK also often prevents these persons from initiating, let alone engaging effectively with, family and criminal law proceedings. They may be prevented from seeing their children; claiming financial maintenance; or bringing their perpetrator to justice. On return to their country, they may be stigmatised and discriminated against for having been abandoned. An excellent study by the University of Lincoln on this topic highlighted how:

In the case of transnational marriages, abandonment is embedded within a pattern of domestic violence and coercive control exercised over the woman. Additionally, by strategically abandoning their wives in their home country and then filing for divorce in foreign courts, transnationally mobile South Asian migrant men make it almost impossible for their wives to participate in legal proceedings. These actions by husbands deprive women of their financial rights such as an equitable settlement upon divorce, child custody and recovery of dowry. The impact of abandonment also creates contexts for further forms of violence against women due to the stigma associated with divorce, women’s vulnerability within natal families and issues related to inheritance and residence arrangements within the natal home after divorce. This research shows that beyond the various processes of control and individual acts of harm that lead to and outlast the act of abandonment in transnational marriages, abandonment itself constitutes a form of violence against women. It is rooted in and results in gendered devaluation of women and is enabled by gender-blind transnational formal-legal frameworks, which construct abandoned women as an inferior class of citizens and as a category of women who can be abused and exploited with impunity.

Not allowing victims to return to the UK perpetuates this cycle of abuse, preventing them from access to justice and reparation, effectively cooperating with the abuser and allowing British citizens who have sponsored their foreign spouses to come to the UK to abuse of their position of power and be perpetrators of domestic violence with impunity.

What can the Home Office do?

Credit where credit’s due, some sympathetic Home Office caseworkers have assisted us in bringing stranded spouses back to the UK by allowing us to make applications outside of the rules. Typically, our clients would be granted visas valid for 1 month, 3 months or 6 months and, once in the UK, we would apply for indefinite leave to remain relying on the domestic abuse provisions. Those applications have generally been successful.

This is, however, a fundamentally unfair system, where only those few privileged persons who manage to get hold of legal representatives who manage to get hold of sympathetic caseworkers have a chance to return to the UK. Anyone familiar with the current immigration system will know that only a handful of people will fall in this category.

Even then, the recent refusal of my client’s application shows that relying on the discretion of sympathetic caseworkers does not always work.

There is, however, a very simple solution: amending the one sentence in the rule that requires victims of domestic abuse to be in the UK. This will open up provisions which already exist to protect victims of transnational marriage abandonment, and will show that the Home Office and British government are serious about their commitment to protecting victims of domestic abuse.

Status of EU nationals and their family members after Brexit

22nd June 2018 By Nath Gbikpi

On 21 June 2018, the Home Office published a Statement of Intent, which gives more details regarding the status of EU nationals and their family members following the Brexit referendum. The Statement of Intent is not yet law, but it is unlikely things will change significantly between now and then.

From later this year, EU citizens and their family members living in the UK will be able to start applying for UK immigration status through the new EU Settlement Scheme.

Who can apply under the Scheme?

EU nationals and their family members who arrived in the UK before 31 December 2020 will be protected and allowed to continue living in the UK, working, accessing public funds, healthcare and pension, as they are currently entitled to.

Family members of EU nationals who are living overseas on 31 December 2020, but where the relationship existed before 31 December 2020, will be allowed to join their EU citizen resident in the UK even after 31 December 2020. Children born after 31 December 2020 of EU citizens living in the UK before then will also be protected.

The rights of citizens of Norway, Iceland, Liechtenstein and Switzerland are currently being negotiated, but the British government’s intention is that the settlement scheme will be open to them too.

Irish nationals will not need to apply under the new Scheme. Their non-Irish family members will need to.

How will I apply and what will the Home Office check for status to be granted?

The application will be made online, although the Home Office is looking at whether some applicants should be allowed to apply by completing a paper form. The government will also provide an assisted digital service for those who need support to make an online application.

The Home Office will check three things:

1. Proof of identity

Applicants will need to provide evidence of their identity, which they can do by submitting their passport details or, for EU citizens, their national ID, via an app. Those who do not have a biometric identity document will not be able to use the app, and will need to send the original document via post. This will be returned to them as soon as possible.

Applicants will also need to provide a passport-size photograph. EU nationals can upload it online. Non-EU nationals who have a biometric Residence Permit issued under current EU law will also be able to upload their photo online. Other non-EU nationals will need to attend an application centre to give their fingerprints and a photograph.

2. Confirmation of residence in the UK

Applicants will need to have been living in the UK before 31 December 2020. Applicants will not initially be asked to submit evidence of residence, and the Home Office will carry out their own checks through HMRC and DWP. Where HMRC and DWP do not hold evidence confirming the applicant’s residence, then applicants will have an opportunity to upload, online, evidence of residence, such as bank statements, letters from employers, P60s etc. A full list of suggested evidence will be published by the Home Office when the scheme is in force. A draft version of this list was included in the Statement of Intent as Annex A.

3. Criminality

Applicants will need to self-declare their criminal convictions. The Home Office will also carry out their own checks. Serious criminal convictions might lead to a refusal.

Family members will also need to show that they are related to the EU national.

How much will it cost?

Subject to approval by Parliament, the application will cost:

£32.50 for children under the age of 16
£0 for
- those who already have valid indefinite leave to remain, and have not been absent for two consecutive years since obtaining it
- those who already have a document certifying permanent residence, and have not been absent for more than five consecutive years or lost their right because a deportation order was made against them
- those who have been granted pre-settled status and are applying for settled status after April 2019
- children in local authority care
£65 for all other applicants

What will I be given?

Generally, EU nationals and their family members who have lived in the UK for 5 years will be given settled status. There are some categories of people who can qualify for settled status before 5 years, including, provided certain conditions are met, those who have had to stop working due to retirement or incapacity, or the family members of deceased EU nationals.

Children of EU nationals who have been granted settled status will also be given settled status, even if they have not themselves lived in the UK for 5 years.

Those who have not yet lived in the UK for 5 years will be granted pre-settled status for a period of 5 years. Once they have reached 5 years residence, they will be able to switch to settled status.

If you are an EU national, your new status will be issued in digital format only. You will not be issued with a physical document.

If you are a non-EU national, and do not have a Biometric Residence Permit, then you will be issued with one.

When can I apply?

The new system is expected to start later this year, and will be fully open from 30 March 2019.

You will need to submit an application no later than 30 June 2021. If you apply after this date, you will become an overstayer.

How long will it take?

Although exact timeframes have not been published, the Home Office suggested that most applications should be decided in “a few days”. Less straightforward ones might take longer. In the future, the Home Office intends to publish current waiting times so that people will have an idea of how long the wait will be.

If you have questions about your rights, or would like to book an initial consultation for tailored, individual advice, please do not hesitate to contact us.

Asylum claims by gay, lesbian and bisexual Bangladeshis: the changing Home Office position

5th December 2017 By Nath Gbikpi

The attitude of the Home Office towards asylum claims made by Bangladeshi nationals on the basis of their sexual identity has changed over the years.

Until approximately mid-2016, it seems that the Home Office accepted that gay, lesbian and bisexual people were at risk of harm in Bangladesh. This meant that many were granted asylum.

Since mid-2016, however, we have seen a lot of refusals on the basis that gay, lesbian and bisexual individuals are not at risk of harm in Bangladesh. The Home Office says that they are discriminated against, but they are not persecuted (seriously harmed), and that the state will protect them.

In December 2016, and again in September 2017, the Home Office published a Policy and Information Note on Bangladesh which made this clear. The Note from September said that:

in general the treatment of LGBT persons in Bangladesh, even when taken cumulatively, is not sufficiently serious by its nature and repetition as to amount to persecution or serious harm”;

and that

effective state protection against societal ill-treatment may be available depending on the facts of the case”.

A group of lawyers and other stakeholders, including myself, wrote to the Home Office to ask them to reconsider their Note. We explained that the evidence showed that LGBT persons in Bangladesh are at risk of serious harm.

As a result, in November 2017, a new Note was published. This time, the policy summary says that:

In general, an LGBT person who does not conceal their sexual orientation or gender identity may be at risk of treatment, which by its nature and repetition amounts to persecution or serious harm” and that “the state appears able but unwilling to offer effective protection”.

This new Note is a move in the right direction. We are hoping that decision makers will now find it harder to refuse asylum claims by gay, lesbian and bisexual Bangladeshi nationals who want to live an openly gay life in Bangladesh, but would not do so because they are scared of being harmed.

However, some points from the Policy and Information Note are still concerning and misleading. For example, the Note says that “the available evidence does not establish that LGBT persons are systematically targeted and subject to treatment amounting to persecution or serious harm by the state”. Whether there is systematic targeting is not the issue. The Home Office should look at whether, if they went back to Bangladesh, LGBT persons would be at risk of harm, and I would say they are.

Similarly, the notes have consistently stressed that the Bangladeshi police and government do not use section 377 of the Penal Code, which criminalises same-sex sexual acts, to arrest LGBT persons. This is true, however that is not the point. The rest of the evidence shows that LGBT persons are at risk of harm and the state will not protect them. That is the test to apply when deciding asylum claims.

I was at the Upper Tribunal on 28 November for a gay man from Bangladesh. The Home Office accepted that he was gay but they continued to say that the evidence on Bangladesh does not show that he will necessarily be at risk of harm. Therefore, the new Policy and Information Note is still used to argue that Bangladesh is safe. This is why we will continue to push the Home Office to review it.

Thankfully for my client, the Upper Tribunal judge agreed with us and he won his appeal. I have had two other successes at the First-Tier Tribunal for Bangladeshi gay men in the last year. However, we would like the Home Office to accept that Bangladeshi LGBT persons are at risk of harm, without them having to go to court.

In the meantime, if you are LGBT, from Bangladesh, currently in the UK, and you fear for your life were you to be returned to Bangladesh, you should get legal advice as you may have a good asylum claim. Please do contact us to arrange a consultation by phone or by email.