News and Updates

#Londonisopen – Reflections on four days of European outreach

10th April 2019 By Isaac Abraham

To mark the public launch of the EU Settlement Scheme and the Mayor of London’s EU Londoners Hub, our team of lawyers spent four days providing free immigration advice to Europeans across the capital as part of the Mayor’s #Londonisopen campaign

Working with Here for Good, the Mayor of London and Waterloo Action Centre, we spoke to hundreds of Londoners about their rights post-Brexit and the process of applying under the EU Settlement Scheme.

The four days provided a valuable snapshot of how the public have understood the EU Settlement Scheme and laid bare the sheer scale of the challenge facing the Home Office. What was clear was that there was a significant amount of confusion about the scheme: how people make an application, what they need to apply, and when they need to apply by. Here are three of the most common topics that came up:

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Home Office publishes new guidance on ‘Good Character’ in citizenship applications

12th February 2019 By Andrew Jones

When applying to naturalise or register as a British citizen, most applicants aged 10 years or older must show that they are “of good character”. On 14 January 2019, the Home Office published new guidance for its caseworkers to determine whether an applicant for British citizenship meets the good character requirement. This post will address the changes to the guidance, which generally apply to all applications made after 14 January 2019.

General approach

The overall approach in the guidance remains broadly the same. The Home Office will assess whether an applicant has engaged in any of the non-exhaustive list of behaviours contained within the guidance within the previous 10 years; if so, an applicant “will normally” be refused. The Home Office follows strict guidance for those who have criminal convictions. It remains the case that anyone sentenced to four or more years in prison will normally see any application for citizenship refused. Those sentenced to more than one but less than four years in prison will normally see any application refused within 15 years of the sentence and those sentenced to less than one year in prison will normally be refused within 10 years of the sentence. Various specified non-custodial sentences will normally see an application refused within three years from the date on which the sentence occurred. Those who are considered “persistent offenders”, who have committed offences causing serious harm or are recorded on the sex offenders register will similarly see their applications normally refused.

Applicability

This guidance applies to any applicant aged over 10 years old. In 2017, the Independent Chief Inspector of Borders and Immigration raised concerns that the existing good character guidance was being applied to adults and minors in the same manner without giving due regard to the best interests of children. The Home Office also faced criticism in the media by campaigning groups, such as the Project for the Registration of Children as British Citizens and the Runnymede Trust, who argued that it is cruel and inappropriate to subject adults and children to the same guidance.

After committing to amend the good character guidance by December 2017, the Home Office has belatedly made limited changes to highlight that caseworkers must treat the best interests of children as a primary consideration as well as consider any mitigation relevant when making a decision on whether a child is of good character. The limited scope of the amendments have led campaigners to describe them as “irresponsible” and “in complete disregard” to the duty to safeguard the best interests of children, noting that “evidence suggests that it is racially discriminatory and effects vulnerable BME children and adults disproportionately”.

Immigration issues

The guidance also spells out further “immigration related issues” which will normally see an application refused. Many of these remain the same from the previous guidance, including cheating or using deception in English language and life in the UK tests, prosecution for false statements in support of a citizenship application or prompting their referee to make a false statement, illegal entry to the UK, assisting illegal migration, hiring workers without permission to work in the UK and deprivation of UK citizenship previously granted.

The new guidance spells out additional grounds of refusal. The first, and likely most significant, change is the introduction of the ground of ‘overstaying’. Anyone who overstayed their leave to remain by 28 days prior to 24 November 2016, or 14 days after 24 November 2016, now will normally see their application refused unless they can show that the period was not their fault. This, in essence, sees the guidance incorporate the same restrictions as the qualifying residence test for determining eligibility for naturalisation, but counts back 10 years from the date of application.

The guidance also introduces a ground of refusal for “absconders”. Any applicant who, in the previous 10 years, failed to report to the Home Office when required to the extent that the Home Office did not know their whereabouts will normally see their application for citizenship refused on grounds of absconding. The guidance on working without permission has also been subtly changed. Previously, the ground was only satisfied if the Home Office had “detected” the applicant working without permission. The new guidance simply states that if “the person has worked” then their application will be refused, which may include circumstances where an applicant is refused on this ground even if they were not encountered working.

The guidance is not more restrictive across the board, however. It includes sensible guidance in the section on illegal entry for those who entered as asylum seekers. There is no lawful route of entry for those seeking to come to the UK to claim asylum. The Refugee Convention states that refugees should not be punished for entering unlawfully so long as they travelled here directly from their country of origin and presented themselves to the authorities without delay. This has been incorporated into the guidance. One cause for concern is that the Home Office has interpreted “without delay” as meaning that the asylum claim was made within four weeks of entry. This is more concerning because the Home Office generally treats the date of the screening interview as the date the asylum claim was made. Practitioners and applicants will know that it normally takes approximately two weeks between an asylum seeker contacting the Asylum Screening Unit by telephone to request a screening interview and the interview being arranged. Applicants who entered unlawfully and were granted asylum will have to show that they contacted the Home Office within four weeks of entry, and any further delay thereafter was on the part of the Home Office.

Criminality

The guidance remains broadly the same with respect to criminality. There is further sensible guidance regarding the assessment of criminal offences committed overseas for conduct which is not a criminal offence in the United Kingdom (such as offences regarding sexuality, membership of a trade union or political party, etc.). The guidance now confirms that such convictions will normally be disregarded.

New guidance was introduced regarding those who have disseminated extremist views, such as inciting terrorist violence or fostering inter-community hatred. These provisions apply to applications made before the new guidance was introduced and will, as you might expect, normally result in the application being refused.

Debts

Outstanding NHS debts of over £500.00 or a failure to pay the Home Office litigation costs will also normally see applications refused. The guidance appears to indicate that the applicant will be given the opportunity to settle the debt without the application being refused.

Genuine mistakes

Finally, the guidance takes a more generous and sensible approach to applicants who have made genuine mistakes, either in their application or in claiming to be entitled to something which they genuinely and reasonably believed they were entitled to. Whereas before such applicant “will not normally be refused” the new guidance confirms that the decision-maker “must not refuse” them.

Overall, the guidance represents greater intolerance to immigration breaches arising in an applicant’s past. Since significant amendments to the good character guidance in December 2014, the Home Office approach has generally become more restrictive, treating a wider range of immigration matters as presumptive of bad character. Indeed, they are treated as strictly as prison sentences of less than a year. That said, practitioners should remember that despite its prescriptive nature, this “guidance” is not hard and fast rules. While ensuring that potential applicants are given appropriate advice on the likelihood of refusal under the new guidance so that they can make informed decisions on whether to proceed with an application, it is essential to prepare strong mitigating evidence and representations, especially relating to children, in respect of any good character breaches.

Premium Service Centre appointments: the hottest ticket in town

24th August 2018 By Petar Lekarski

Many UKVI customers and immigration law practitioners will be aware that Premium Service Centre (PSC) appointments have become increasingly scarce in the last few months. We can only speculate about the cause, though many will wonder whether it has anything to do with the Government’s plan to roll out an entirely new in-country application process through its commercial partner Sopra Steria, who was awarded the £91m contract to provide the new services back in May (see press release here).

The new process could be implemented as soon as October this year, although the details are yet to be announced.

In the meantime, those looking to book a PSC appointment but facing the dreaded “no appointments available” barrier should not despair! Here are our top tips for securing an appointment:

1. Appointments are released approximately six weeks in advance and new appointments become available to book at midnight. If you need an appointment, this is the best time to log-in, although you should be prepared for some technical difficulties, as the website often struggles to cope with the increased traffic around this time.
2. Occasionally cancellations occur, which mean an appointment suddenly becomes available to book. Checking regularly at different times of the day is therefore recommended.
3. Consider attending an appointment at a regional PSC. The Croydon PSC appears to be the busiest, and you may have better luck elsewhere. Although for many this will likely involve additional travel, not all PSCs are far away – Solihull for example is a 1hr 45mins train journey from London Marylebone.

Of course, for many, the added hassle of getting an appointment will not be worth it, especially given the already high starting price. But for those who need an urgent decision on their application, we hope the above tips are helpful.

New First-tier Tribunal guidance on awarding costs for unreasonable behaviour

1st August 2018 By Elizabeth Ruddick

On 31 July 2018, the President of the First-tier Tribunal published a new Presidential Guidance Note setting out when the Home Office may be required to reimburse successful Appellants for their legal costs. This firm played a key role in helping develop this guidance. We hope it may eventually encourage the Home Office to make and defend fewer poor and unfair decisions, and in the meantime provide some compensation to migrants and their families when they do.

The Tribunal’s power to award costs when one party behaves unreasonably

When the Home Office wrongly refuses a migrant leave to enter or remain in the United Kingdom, the consequences for the individual and their family can be devastating. At the very least, they face months of stress and anxiety. In many cases, families are divided, and individuals face eviction, unemployment or denial of necessary medical care. In addition, forcing the Home Office to acknowledge and correct their mistake almost always requires specialised legal advice at a time when the migrant and their family can least afford it.

In most other kinds of litigation, the party who wins is normally entitled to be reimbursed for their reasonable legal costs by the other side. In appeals to the Immigration and Asylum Tribunal, however, costs can only be awarded when one party or their representative has behaved “unreasonably”.

The key question is: what does “unreasonable” mean? Many migrants, their families and their legal representatives will have had the experience of receiving deeply unfair or simply factually or legally incorrect refusal decisions. Is it unreasonable for the Home Office to make decisions that are clearly wrong? Is it unreasonable for them to defend those decision on appeal?

The test cases of Awuah and Others

In June 2017, a joint presidential panel of the presidents of the First-Tier and Upper Tribunals (Immigration and Asylum Chamber) selected four test cases in which the Appellants had won their appeals and then applied for an order that the Home Office pay their legal costs. The Presidential Panel listed the appeals to be heard jointly and invited the Appellants to make submissions not only about why they should be reimbursed for their own legal costs, but also about the more general principles that Immigration Judges should apply when deciding future costs applications. I represented two of the four appellants in the costs proceedings, TN and SJ (TN had been represented by Amy Bennett, now of Teacher Stern Solicitors, with regard to the substantive appeal). The other two, Awuah and Momoh, were represented by Paul Keeley of Sutovic and Hartigan and Kola Akomolede of Nathan Aaron Solicitors, respectively. The Appellants instructed Rebecca Chapman and Helen Foot of Garden Court Chambers.

The Joint Presidential Panel’s decisions in these appeals have now been incorporated into an official Presidential Guidance Note for Tribunal Judges, published on the Tribunal’s website.

The guidance does not establish a general principle that Appellants should always be compensated for their legal costs if they win an appeal. What it does do is set out unambiguously that the Home Office should concede appeals it is clearly going to lose, and do so at an early stage. Given that the Home Office now loses 50% of appeals that go to a full hearing, this guidance has the potential to benefit a large number of Appellants and their families.

Who should costs orders be made against?

The guidance has two parts, reflecting the two different hearings held in the test cases. The first part considers whether an application for costs could be made against individual representatives of the Home Office (Home Office Presenting Officers), or only against the Home Office as a department. The decision of the Presidential panel was that it was inappropriate to make an Order against an individual HOPO. Although this issue was naturally of great importance to HOPOs, it was of less significance for Appellants. If a HOPO has acted unreasonably in the course of an appeal, the important thing for Appellants is that there is some sanction to discourage such conduct in future and that they are compensated for any additional legal expenses they incur as a result. Whether that sanction and compensation technically takes the form of an application for costs against the individual HOPO or against the Home Office more generally may make little practical difference.

When is it unreasonable for the Home Office to defend a wrong decision?

The second part of the guidance considers the wider question of the factors a Judge should consider when deciding if conduct has been unreasonable enough to justify an award of costs. It briefly addresses issues such as the period the costs award might cover, the latitude to be afforded to unrepresented litigants, and the need for Judges to give reasons for their decisions.

The most significant part of the guidance sets out when it is unreasonable for the Home Office to defend an appeal at all. The Home Office’s published policy is to refuse to reconsider a decision, no matter how flawed, if there is a right of appeal to the Tribunal. During the appeal proceedings, Home Office practice has been not to consider the merits of their refusal decision until, at the very earliest, 24 to 48 hours before the full hearing, when the is file assigned to a Home Office Presenting Officer to prepare for the hearing. In some cases, it is only at this point that a conscientious HOPO would recognise that the decision was simply wrong and could not be defended – although even in many such cases, individual HOPOs were unable to get permission to withdraw the decision prior to the hearing and had to appear in court to defend what they knew was an indefensible decision. In cases where the Home Office did not send a representative to court, or where they instructed outside Counsel, there was simply no opportunity for the Home Office to withdraw even those most egregiously incorrect decisions.

The decision of the Presidential Panel on this issue was that this behaviour was unlawful. The new Presidential Guidance makes it clear that it is unreasonable and may be grounds for an Appellant to be awarded their costs. The guidance sets out the following general principles:

1. It will “as a strong general rule, be unreasonable to defend – or continue to defend – an appeal which is, objectively assessed, irresistible or obviously meritorious.”

2. The Home Office should assess every refusal decision within six weeks of being notified that the appeal has been lodged. If the appeal is obviously meritorious, it is unreasonable for the Home Office not to make appropriate concessions or even withdraw the appeal at that point.

3. The Home Office should assess the decision again whenever there is any significant development in the law or the evidence. This means that Appellants whose applications may have been refused because of inadequate or missing evidence have a right to expect that the Home Office will review the refusal decision and withdraw it if appropriate after new evidence has been served. This could be shortly before the hearing, but it could be many months earlier.

4. These assessments must be carried out by a “reasonably competent civil servant”, presumed to be “properly qualified and sufficiently trained so as to adequately discharge the important function of representing a high-profile Government Minister in the self-evidently important sphere of immigration and asylum legal proceedings in a society governed by the rule of law.” This may give some encouragement to the many Home Office employees who work hard to do the right thing, but sometimes without the training or support they need. It also means that Appellants do have the right to expect that refusal decisions will be reviewed carefully, fairly, and in accordance with the law and the evidence, which has not always been the case in the past.

This guidance is essential reading for anyone who feels that their application to the Home Office has been unfairly refused. As long as they have a right of appeal, they can now point to this guidance and urge the Home Office to reconsider the decisions that are clearly wrong, even long before the hearing.

If the Home Office fails to respond, maintains the refusal decision for inadequate reasons, or only withdraws the decision at a very late stage, the Appellant should consider applying to the Tribunal for an order that the Home Office pay their costs in the appeal.

The full case on which the guidance is based is unreported, but Appellants can nonetheless apply to the Tribunal to be allowed to rely on it. It contains helpful discussions of the reasoning behind the principles set out above, as well as applying these principles to the facts of the four individual cases. It can be accessed and downloaded here.

How is a costs application made?

Applications for costs must be made to the Tribunal that heard the appeal and served on the Home Office. They must be made within 28 days of when an appeal is concluded. This could be within 28 days of when the Tribunal decides that the appeal should be treated as withdrawn (because the Home Office has withdrawn its refusal decision), or 28 days after the decision allowing the appeal is sent to the Appellant. There is no specific form or fee for this application. Because the law on when Appellants should be awarded their costs is new and still developing, it may be advisable for Appellants to seek legal advice and assistance before making a costs application.

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.