UKVI

Sudan crisis highlights why UKVI shouldn’t hold on to passports while processing applications

4th May 2023 By Diana Baxter

We were very proud this week to have helped a Sudanese father-to-be successfully evacuate to the UK despite his passport being held by the now closed UK Visa Application Centre in Khartoum. Sadly, many others have not been so fortunate as it is estimated that thousands of Sudanese nationals are trapped inside Sudan upon the outbreak of civil war with their passports retained by the UK and other visa authorities.

Such visa applicants are likely to be family members of British citizens, skilled workers and students resident in the UK, whose passports have been held by UKVI (or on its behalf, by the company TLScontact) for varying lengths of time. They may even include British citizens applying for Certificates of Entitlement to the Right of Abode or new passports. The last few years have seen significant delays in processing of UK visas overseas, first due to Covid (when visa offices abroad were also closed without notice, trapping applicants’ passports inside for months) and then following the Russian invasion of Ukraine. Throughout 2022, family settlement visa applications regularly took up to six months for a decision and, while the timing of these has improved recently, refugee family reunion applications are averaging 12 months or longer for a decision.

This week, we were contacted by a distraught refugee in the UK whose wife applied for refugee family reunion more than 12 months ago yet she still has no decision and her passport is still held at the VAC in Khartoum. Such delays are not unusual with refugee family reunion processing yet UKVI continues to insist that passports are retained for the decision making process, unless additional fees are paid (and not universally available) to the private contractor for a ‘keep my passport’ service. The continued logic for this is increasingly hard to justify as UKVI transitions to a digital only immigration status, where applicants’ identity can be determined through biometrics and a check of biometric passports and where visa applicants in the UK (as opposed to those applying from overseas) are, for the most part, no longer required to submit their passports for consideration.

We sincerely hope and encourage UKVI and TLScontact to assist those affected by their passport loss at the TLS VAC in Khartoum by:
• immediately sending each individual affected a formal and personalised (with the relevant passport details) confirmation of the loss of their passport;
• urgently considering their outstanding visa applications and, if successful, facilitating their entry to the UK despite the lack of passport (a FAV (‘form for affixing a visa’) can be used in these circumstances).

Home Office introduces two new private life routes to ILR

23rd June 2022 By Andrew Jones

On 20 June 2022, a large number of changes were made to the Immigration Rules. Included in those changes is the introduction of two new routes to indefinite leave to remain (‘ILR’) on the basis of private life, which benefit children and young adults in the UK.

ILR for a child born in the United Kingdom

A child who was born in the UK may now apply for indefinite leave to remain where:

- The child was born in the UK and can provide a full UK birth certificate.
- The child has lived in the UK continuously since their birth and for at least seven years at the date of application.
- It would not be reasonable to expect the applicant to leave the UK.

This rule closely mirrors provisions in the previous private life rules which allowed a child to apply for limited leave to remain in the UK if they have lived here for at least seven years and it would not be reasonable to expect them to leave the country. This ‘seven years rule’ also allowed the parents of such a child to make an application under the Parent route.

However, in light of these changes, the child can now apply for ILR at that stage if they were born in the UK.

Unfortunately, if the child was not born in the UK, then they will need to apply for limited leave to remain in the same way as before.

ILR for young adults in the United Kingdom

As we have covered in a previous blog in November 2021, the Home Office announced a concession to the private life rules to allow young adults aged between 18 and 25 years old who had spent more than half of their lives in the United Kingdom to apply for ILR after just five years.

The Home Office has now incorporated this concession into the Immigration Rules. Therefore, an applicant would be eligible for ILR where:

- They were last granted leave to remain on the basis of their private life as a child or on the basis that they are aged between 18 and 25 years old and have spent more than half of their lives in the UK.
- They have spent five years in the UK with leave to remain on the basis of private life, family life or outside of the Rules under Article 8. In limited circumstances, it can include time spent in the UK with different visas, so long as they had leave to remain on the basis of private life for at least one year before they apply.

This represents a far quicker route to ILR for young adults who, previously, had to wait 10 years until they were eligible.

If you would like more information or advice on how this may affect you or your children, we can help. Please contact us on 020 7401 6887 or by email at contact@gryklaw.com.

Long residence ILR: what are the rules on absences from the UK?

15th April 2021 By Andrew Jones

Where a migrant can show that they have lived in the United Kingdom for at least a continuous, lawful 10-year period, they may be eligible for apply for indefinite leave to remain (‘ILR’).

However, one potential sticking point is whether they have been outside of the United Kingdom for too long. That is because the Immigration Rules say that for the period to be “continuous”, the applicant cannot have spent more than 18 months in total outside of the country during those 10 years, or any single absence of six months or more.

The Home Office guidance states that six months is calculated as 180 days and 18 months is calculated as 540 days. The Home Office interprets this very strictly and will only make exceptions to these limits in “compelling or compassionate circumstances”. There have been several stories in the news where applicants have been refused ILR due to their excessive absences, despite having perfectly good reasons for being outside of the country for as long as they were. Unfortunately, in the eyes of the Home Office, the reasons were not compelling enough.

Recently, the Upper Tribunal (Immigration and Asylum Chamber) looked at how the Home Office should be interpreting this rule. In particular, it looked at whether the limit is, in fact, 540 days. The Rules state that the applicant must not have been absent for 18 months – but how long is 18 months? A month is not a fixed period of time. The Home Office argued that a month should be interpreted as being 30 days long, which is how they calculated the limit as being 540 days. The Upper Tribunal disagreed and ruled that 18 months is 548 days and that the Home Office guidance was wrong.

On the face of it, this is not a big difference. However, it did make a big difference to Mrs Chang, whose appeal was being considered by the Upper Tribunal. She had been absent from the United Kingdom for 543 days during the 10-year period she was relying upon. As an illustration of how strict the Home Office is on this issue, her application was refused for that reason. Happily, after the Upper Tribunal decision, she will now be granted ILR.

We have a lot of experience making ILR applications on this basis, including advising clients on how to deal with excessive absences. If you have spent more than 10 years lawfully resident in the United Kingdom and would like advice or assistance on applying for ILR, please feel free to contact us on 020 7401 6887 or by email at contact@gryklaw.com.

What measures could UKVI take now to help ‘flatten the curve’ while maintaining the immigration system?

17th March 2020 By Diana Baxter

Given the current Covid-19 crisis and need for us all to increase social distancing, the Home Office needs to issue clear and swift guidance to migrants in the UK on their position.

Such measures could include:

Temporary waiver on the need for biometric enrolment. By doing this, applicants could submit extension applications online and submit supporting documents, which can then be transmitted online to a Home Office caseworker, without the need for in-person interaction by the client, Sopra Steria employee or Home Office caseworker. A small number of appointments would need to be maintained for vulnerable clients who need scanning and online assistance.
Online temporary fee waiver application, that can be submitted at the same time as online visa application, to allow persons to remain lawfully present in the UK but who may not be able to afford the fees, especially in cases of redundancy / reduced hours as a result of Covid-19.
All NHS employees, paramedics and other essential service workers should be given automatic fee waivers.
Extension of automatic grant of leave to those currently in the UK but who cannot return overseas due to Covid-19.
End immigration detention to prevent the spread of Covid-19 throughout detention centres.

For now, the immigration tribunals remain operating as normal but with people advised to contact the tribunal if the appellant, sponsor, any witness or representative needs to self-isolate and so cannot attend.

Please contact us should you need advice at this time on your individual circumstances: contact@gryklaw.com