** Please note that some of the information in this blog post is now out of date due to further changes in the Immigration Rules and Home Office Guidance which came into force on 6 July 2018.  You can read about the changes of 6 July 2018 here.  We would urge readers always to check the current legal position before making an application to the Home Office. **

 

In order to be eligible for indefinite leave to remain (ILR) in certain categories, applicants are required to demonstrate that they have spent a “continuous” period of 5 years’ residence in the UK. So what is continuous residence, and when is it broken?

A recent change in the Immigration Rules has redefined continuous residence for ILR in work categories, including Tier 1, Tier 2, UK Ancestry, and Representatives of an Overseas Business.

Prior to 11 January 2018, continuous residence was considered unbroken where:

“the applicant has been absent from the UK for a period of 180 days or less in any of the five consecutive 12 month periods preceding the date of the application for leave to remain, except that any absence from the UK for the purpose of assisting with the Ebola crisis which began in West Africa in 2014 shall not count towards the 180 days…”

Since 11 January 2018, however, continuous residence is considered unbroken where:

“the applicant has not been absent from the UK for more than 180 days during any 12 month period in the continuous period, except that any absence from the UK for the purpose of assisting with a national or international humanitarian or environmental crisis overseas shall not count towards the 180 days…”

Although the change is a difference of just a few words, its effects can be far-reaching.

Under the old rules, for example, if an application was being submitted on 10 January 2018, the Home Office would consider whether the absences amounted to over 180 days in each of the five consecutive 12-month periods before that date, i.e. between 11 January 2017 and 10 January 2018, 11 January 2016 and 10 January 2017, etc.

This meant that where a person had a long absence from the UK, in our example, say, between 1 September 2016 and 11 March 2017 (a total of 190 days), they would have been able to split this long absence between two separate years, and therefore stay within the 180 day limit in each consecutive 12-month period.

Under the new rules, however, this is no longer possible. Absences of more than 180 days in any 12-month period will now mean that continuous residence is considered to have been broken.

The new rule came into force on 11 January 2018 with immediate effect and with no ‘grandfather clause’ or transitional provisions for people who had been relying on the previous rule, believing that it would continue to apply to them. This means that people who expected shortly to be eligible for ILR may have to apply for an extension of leave instead.  This issue is being raised with Home Office officials by the Immigration Law Practitioners’ Association and, if no amendments are made, then the retroactivity of this provision may end up the subject of legal challenge on the basis that applicants under the old rules had a legitimate expectation that they would be eligible for ILR.  Such legal challenges have been successful in the past, although in the meantime, applicants will need to consider their options carefully.

The Home Office’s new guidance suggests that ILR may be granted “outside the Rules” on a discretionary basis where the excess absences were due to “serious or compelling reasons”, such as serious illness, conflict, or a natural disaster. Unfortunately, it also specifically states that absences “for employment or economic activity reasons” will not be considered exceptional, which may be difficult for those required to travel for business.

It also states that the Home Office may grant ILR outside the Rules where an applicant can provide a letter explaining how this recent change to the law will cause them “exceptionally harsh consequences”, such as if they would not be able to qualify for ILR in future because of being unable to apply for further extensions. This may be helpful for people who have a high number of absences under the Tier 2 (General) route, where there is a 6-year limit on extensions.  In addition, the guidance states that a relevant factor in deciding whether to grant ILR outside the Rules is when the periods of leave relied upon were granted in relation to the changes of 11 January 2018.

A further significant change in relation to absences applies to dependants of Points Based System (PBS) migrants, including dependants of Tier 1, Tier 2, Tier 4 (General) and Tier 5 (Temporary Worker) migrants. Historically, PBS dependants have not been subject to absence limits for the purpose of obtaining ILR.  However, they will now be subject to the 180 day cap on absences from the UK in any 12 month period for leave granted on or after 11 January 2018.  In this case, the Rules do, at least, make clear that the new provisions for PBS dependants will not apply retroactively, so that absences from the UK for leave granted prior to 11 January 2018 will not count towards the 180 day cap. This is confirmed in the latest version of the SET(O) form, which only requires dependants to list absences for leave granted after this date.

However, while these changes apply to dependants of PBS migrants, they do not apply to dependants of migrants in the other work categories under “Part 5” of the Immigration Rules, which relates to, among others, those of UK Ancestry, Representatives of an Overseas Businesses and Overseas Government Employees (which are commonly referred to as “Part 5 migrants”). Dependants of Part 5 migrants do not have any residence requirements in order to be eligible for ILR.

It is worth noting that the Home Office’s guidance for dependants of Part 5 migrants, available here, on page 15, erroneously suggests that partners of Part 5 migrants must comply with residence requirements in order to be eligible for ILR. However, we have had direct correspondence with the policy team at the Home Office responsible for this document who have confirmed there are no residence requirements for dependants of Part 5 migrants and that the changes that now apply to dependants of PBS migrants do not apply to dependants of Part 5 migrants. We are happy to share this correspondence if you contact us at the email address below.

For tailored advice on how these new changes may affect your eligibility for indefinite leave to remain, and your options for moving forward, contact us by phone on 020 7401 6887 or by e-mail on contact@gryklaw.com.

 

As immigration lawyers, we frequently need to make subject access requests to the Home Office for the release of our clients’ files. These files often provide crucial information about our clients’ immigration histories. We cannot rely on the Home Office to provide this information without such a request, and they frequently do not check their own records properly when making life-changing decisions.

 

We are, therefore, very concerned about the immigration control exemption in the Data Protection Bill. Schedule 2 of the Bill sets out exemptions from the General Data Protection Regulation (GDPR). Paragraph 4 states:

 

Immigration

 

4 (1) The listed GDPR provisions do not apply to personal data processed for any

of the following purposes—

(a) the maintenance of effective immigration control, or

(b) the investigation or detection of activities that would undermine the

maintenance of effective immigration control,

to the extent that the application of those provisions would be likely to

prejudice any of the matters mentioned in paragraphs (a) and (b).

 

We believe that the Home Office will use this provision to limit our access to Home Office files through subject access requests. The Information Commissioner has published reports on the Bill, and this paragraph acknowledges this issue:

 

“20. The majority of data protection complaints to the Information Commissioner about the Home Office relate to requests for access to personal data to UK Visas and Immigration, mostly by solicitors acting on behalf of those seeking asylum. This exemption could potentially render personal data unobtainable to the data subject and this could be detrimental to individuals who are appealing asylum decisions for example. If the exemption is applied, individuals will not be able to access their personal data to identify any factual inaccuracies and it will mean that the system lacks transparency and is fundamentally unfair.”

 

We have put a call out for examples of when crucial information has been discovered through subject access requests. We have had a very good response so far. One example concerns a client who the Home Office denied was a British Citizen and detained for 17 months. When his lawyers applied for the Home Office file through a subject access request, they discovered that the evidence that the client was British had been held by the Home Office all along.

 

Solicitors need the facts in order to represent their clients. This exemption could deny access to justice, reduce our ability to best represent our clients, and allow the Home Office to misrepresent facts without us having the means to be able to hold them to account. If you have further examples of the importance of subject access requests, please send them to barry@gryklaw.com.

 

The recently published Statement of Changes in Immigration Rules HC309 contains some very good news for applicants considering the Tier 1 (Exceptional Talent) route. From 11 January 2018, when the changes are due to come into force, the number of Exceptional Talent visas will double from 1000 to 2000. What’s more, those endorsed under the Exceptional Talent sub-category will be eligible to apply for indefinite leave to remain after only three years’ residence in the UK.

The Explanatory Memorandum also mentions there are “minor changes to the criteria for endorsement by Arts Council England,” but does not set these out. While many of the changes are indeed minor – making pronouns gender neutral, for instance – there is a change to the specified evidence which might be bad news for some applicants. The requirement for evidence to be dated within the last five years has been extended from the ‘proof of appearance’ category of supporting documents to the other two categories, ‘media recognition’ and ‘international awards’. Those applying should therefore ensure any awards, prizes, articles, reviews and other evidence they provide are dated within five years of their application.

For tailored, individual advice about Tier 1 (Exceptional Talent), contact us for a consultation.

Following the end of phase one of the Brexit negotiations, a joint report from the negotiators of the European Union and the United Kingdom was published on Friday 8 December 2017. Amongst other things, it indicates what agreements have been reached in respect of European citizens and their family members residing in the UK after Brexit.

We have known since June that European citizens and their family members who have been residing in the UK for five years will have to apply for ‘settled status’. ‘Settled status’ will give people the right to reside in the UK indefinitely, to access public funds and to go on to apply for British citizenship if they wish to. However, the process and timings to acquire ‘settled status’ were not clear.

Since the report, European citizens and their family members finally have some indication as to how the application process for ‘settled status’ is going to be implemented, although the procedure is far from finalised.

In summary, it has been agreed that European citizens and their family members who have been living in the UK lawfully for a full five year period before 29 March 2019 will be able to apply for ‘settled status’.

It has also been agreed that all citizens who have a permanent residence document under European Law must have that document converted into a new ‘settled status’ document. The process will be free of charge, however, anyone who does not have their document converted by a deadline yet to be announced may make themselves unlawfully present.

European citizens and their family members who arrive by 29 March 2019 but who will not have been in the UK lawfully for five years when the UK leaves the EU will be able to apply for a temporary residence permit until they have reached five years. They will then be able to apply for ‘settled status’. Neither the report, nor the updated Home Office guidance define the term ‘lawfully’.

Certain ‘close’ family members will be able to apply to join their EU family members after the exit date, but only where the family member had an existing relationship with the EU national before 29 March 2019. This relationship must continue to exist when the family member wishes to come to the UK. Children who are born or adopted after the exit date will also be able to apply. All other family members will have to meet UK immigration law if they wish to enter the UK.

‘Settled status’ will be lost if a person is absent from the UK for a continuous period of five years, and they will then also be subject to UK immigration law.

A decision has still not been reached on the application process for European citizens who arrive in the UK after 29 March 2019.

The UK has also said that they expect their offer to be extended to citizens of Norway, Iceland, Lichtenstein and Switzerland, although that has not yet been confirmed. Irish citizens will not need to apply for the new status.

Please bear in mind that all of the above could still change as the negotiations continue. Also be aware that it is not yet possible to make an application for ‘settled status’; the new application system is expected to go live sometime in 2018.

It is possible to make an application for a permanent residence document under the current system, and we are assisting many European citizens and their family members with these applications. Please contact us for a consultation if you would like advice on permanent residence, or any other aspect of European Law.

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.