The government has reaffirmed that free movement rules will continue if the UK leaves the EU without a deal on 31 October.
The paper sets out the immigration arrangements that will apply to EU citizens and their family members who are moving to the UK after Brexit on 31 October 2019 in the event that the UK leaves the EU without a deal. They replace those set out in the policy paper that was published on 28 January 2019.

Irish citizens’ rights are unaffected by these new arrangements. They can continue to come to the UK to live and work as now.

EU citizens and their family members living in the UK before the UK leaves the EU can apply to the EU Settlement Scheme to stay in the UK after 31 December 2020.
www.gov.uk/government/publications/no-deal-immigration-arrangements-for-eu-citizens-moving-to-the-uk-after-brexit

The date of implementation is not entirely clear yet, but the announcement suggests it will be available to students starting in the next academic year, September 2020. It is unknown whether current students already on courses in the UK will also benefit from the rule change.

www.gov.uk/government/news/worlds-largest-genetics-research-project-to-fight-deadly-diseases-and-offer-new-offer-for-international-students

In the case of Okedina v Chikale [2019] EWCA Civ 1393 Lord Justice Underhill pointed out that genuine mistakes over immigration status are not necessarily unreasonable:
"some aspects of the relevant rules are complicated or unclear, and wrong advice can be given, sometimes by the Home Office itself. In short, not all cases of illegal working involve culpability on the part of the employee".

This case shows that the overlap between immigration law and employment law is in no way clear cut. Lacking immigration status does not mean that an employment contract is unenforceable.

www.bailii.org/ew/cases/EWCA/Civ/2019/1393.html

The Home Office has updated its main guidance on family visas under Appendix FM of the Immigration Rules.
The new guidance is a one consolidated guidance document dealing with both the five and ten-year routes for partners, parents and private life applicants. The new guidance runs to 93 pages whereas the previous guidance for ten-year route applications was 104 pages alone.

www.gov.uk/government/publications/family-life-as-a-partner-or-parent-private-life-and-exceptional-circumstance

The Ministry of Justice’s self-congratulatory press release announcing the restoration of immigration legal aid for unaccompanied children comes over a year after the department first made this announcement.

Justice minister Paul Maynard said:

It is absolutely right that legal aid should be available to separated migrant children to resolve their immigration status, which is why this has always been available through the Exceptional Case Funding Scheme.

www.gov.uk/government/news/separated-migrant-children-to-access-legal-aid-more-easily

If a foreign criminal wins their deportation appeal, can the Home Office try and deport them again, even where there has been no further offending?

In MA (Pakistan) v Secretary of State for the Home Department [2019] EWCA Civ 1252, the Court of Appeal considered this question and held that the answer is YES

www.bailii.org/ew/cases/EWCA/Civ/2019/1252.html

The question of continuous and lawful residence was addressed by the Court of Appeal in R (Ahmed) v Secretary of State for the Home Department [2019] EWCA Civ 1070.

The Home Office has a policy of disregarding very short periods of overstaying however when the applicant came to apply for ILR under the long residence rules, the application was refused on the basis that his ‘continuous’ leave had been broken by gaps in his previous extensions.
Lord Justices Floyd and Haddon-Cave found for the Secretary of State. They explained that the component parts of 276B were drafted as free-standing provisions; made no reference to one another; and had their own self-contained meaning and on the Home Office guidance, the Court of Appeal simply said that it was wrong and should be changed.

www.bailii.org/ew/cases/EWCA/Civ/2019/1070.html

It has emerged that official government guidance claims that victims of human trafficking get rich from being sexually exploited in the UK and can be refused asylum.
A new Home Office policy document on women trafficked from Nigeria says that those who become “wealthy from prostitution” enjoy “high socio-economic status” and are “often held in high regard” when they return home. The passage appears in a newly updated Country Policy and Information Note used as a guide to whether asylum seekers face persecution or serious harm in their home country.
www.gov.uk/government/publications/nigeria-country-policy-and-information-notes

Since 20 May 2019, people from Australia, Canada, Japan, New Zealand, Singapore, South Korea and the USA have been able to enter the UK using ePassport gates (‘eGates’).
The Home Secretary, Sajid Javid, said at the time that this would improve “fluidity for passengers” and “the passenger experience”.
Short-term students are supposed to see an immigration officer, non visa nationals can come to the UK for short-term study (‘STS’) of up to six months and those entering under this route also do not need to be sponsored under Tier 4 of the Points Based System. Instead, they can get immigration permission to study a short course directly from the Border Force officer on arrival in the UK.
Recognising this issue, the Home Office has now published a short (seven-page) guidance note for education providers.

www.gov.uk/government/publications/short-term-students

The Court of Appeal has upheld the appeal against deportation of a man sentenced to five years’ imprisonment, in the process providing a good example of the kind of human rights arguments that will sway judges in this complex and difficult area of law.
The case is Secretary of State for the Home Department v JG (Jamaica) [2019] EWCA Civ 982. The First-tier Tribunal had allowed a Jamaican citizen’s appeal against deportation due to his “intense” bond with his British child.

Every case will ultimately depend on its own facts, this decision certainly suggests that medical evidence of a child suffering severe psychological damage if their parent is deported may be enough to meet the high threshold for resisting deportation.

www.bailii.org/ew/cases/EWCA/Civ/2019/982.htmldeportation.

The percentage of immigration decisions being reversed by judges is at its highest on record, new statistics show. Over 50% of appeals to the immigration tribunal mostly challenges to Home Office refusals to allow people to stay in the UK succeeded in the last financial year.
Human rights appeals were the most likely to be allowed, with a 58% success rate last year. The “EEA Free Movement” category were also above 50%, while appeals in the third category" asylum " are consistently less likely to succeed.

MOJ statisticians said the average immigration appeal now takes 40 weeks to be decided whereas it used to take a year in the past.

www.gov.uk/government/statistics/tribunal-statistics-quarterly-january-to-march-2019

Immigration judges must assess whether an asylum seeker had a reasonable opportunity to claim asylum in a safe third country before holding that a failure to do so should damage their credibility, the Court of Appeal has ruled.
KA (Afghanistan) v Secretary of State for the Home Department [2019] EWCA Civ 914 concerns an unaccompanied child from Afghanistan who fled to the UK via Hungary, amongst other EU countries. He was fingerprinted by the Hungarian authorities but continued travelling to the UK.

This case should serve as a reminder to the tribunals to be cautious when finding that appellants should have claimed asylum elsewhere.

www.bailii.org/ew/cases/EWCA/Civ/2019/914.html

Two out of three Lord Justices declared that the Home Office policy on assessing the age of asylum seekers is unlawful. The case is BF (Eritrea) v Secretary of State for the Home Department [2019] EWCA Civ 872.

Lord Justice Underhill gave the leading judgment. He held that “anyone claiming to be a child must be given the benefit of the doubt”.The issue was whether the guidance documents, even with their emphasis on someone looking “significantly” older than 18, properly reflected that notion. Underhill LJ found that they did not.

The judge said, the guidance should be more like the “Challenge 25” policy in off licences. Officials should be reminded that the wide margin for error in initial age assessments means that an asylum seeker who looks younger than 25 could well be under 18.
www.bailii.org/ew/cases/EWCA/Civ/2019/872.html

R (ERA) v Basildon And Thurrock Hospitals NHS Foundation Trust [2019] EWHC 1249 (Admin) is about whether someone who has applied for leave to remain in the UK on human rights grounds can get the same exemption from NHS charges as asylum seekers.

The National Health Service (Charges to Overseas Visitors) Regulations 2015 allow NHS hospitals to recover charges for services provided to overseas visitors. But they contain an exception for anyone who has applied for “temporary protection, asylum or humanitarian protection under the immigration rules”.

www.bailii.org/ew/cases/EWHC/Admin/2019/1249.html

The Court of Justice of the European Union has decided in joined cases C‑391/16, C‑77/17 and C‑78/17 M, X and X that recognised refugees who commit serious crimes can be lawfully deprived of their refugee status under EU law and that there is no incompatibility on this issue between EU law and the Refugee Convention itself.

curia.europa.eu/juris/document/document_print.jsf?docid=214042&text=&dir=&doclang=EN&part=1&occ=first&mode=req&pageIndex=0&cid=3386447

The Home Office has announced that councils will get more money to care for children who arrive in the UK alone to seek asylum.
Councils used to get between £71 and £114 per child per day, depending on the age of the child and when they arrived in the UK. From now on it will be £114 per child per day across the board, backdated to 1 April 2019.

www.parliament.uk/business/publications/written-questions-answers-statements/written-statement/Commons/2019-05-08/HCWS1543/

The judgment is R (NN) v Secretary of State for the Home Department [2019] EWHC 1003 (Admin).
Victims of human trafficking are entitled to £65 per week, accommodation at a safe house and a support worker. But this support ends 45 days after a “conclusive grounds decision” that they are definitely a victim.
Mr Justice Julian Knowles has ordered that support for all confirmed victims carry on beyond 45 days. The Home Office “shall not restrict support for victims of trafficking under the Victims of Modern Slavery Contract by reference to the date of a Conclusive Grounds decision or the length of time the support has been provided.
If the judicial review succeeds at full hearing, this temporary extension of support could become permanent.
www.bailii.org/ew/cases/EWHC/Admin/2019/1003.html

One of the requirements for Tier 1 (Entrepreneur) migrants extending their visas in the UK is to show they have invested £200,000. The important case of R (Sajjad) v SSHD [2019] EWCA Civ 720 is about the ways in which entrepreneur migrants can do this.
The Secretary of State argued that there were only two permissible methods of investing funds for Tier 1 (Entrepreneur) migrants that the investment has taken one of only two permissible forms: investment by way of a director’s loan, or investment by way of purchase of share capital which is a direct contradiction of the Tier 1 (Entrepreneur) guidance.
It is advisable for any Tier 1 (Entrepreneur) migrants who are considering injection of funds by way of ‘direct cash investment’ as permitted by the relevant guidance to instead invest by way of director’s loan or share issue.
www.bailii.org/ew/cases/EWCA/Civ/2019/720.html

Section 117B(6) of the Nationality, Immigration and Asylum Act 2002 requires a court or tribunal to hypothesise that the child in question would leave the United Kingdom,
Following an earlier judgement in case of JG (s 117B(6): “reasonable to leave” UK) Turkey [2019] UKUT 72 (IAC), It is endorsed by the Court of Appeal in Secretary of State for the Home Department v AB (Jamaica) & Anor [2019] EWCA Civ 661 and Lord Justice Singh, with whom King and Underhill LJJ agreed, held that “I respectfully agree with the interpretation given… to section 117B(6)(b) in JG“.
It is a hope, for the innocent children caught up in the immigration system and for their parents, that the Upper Tribunal’s child centred approach prevails.
www.bailii.org/ew/cases/EWCA/Civ/2019/661.html

Claims for compensation under the Scheme will be considered for two years until 2 April 2021, and then after this for six months if there are exceptional circumstances for missing the deadline.
Claims must be made on a prescribed form, and then sent by post or email. The Home Office has set up a free post option for submitting the form and evidence, and will reimburse reasonable expenses for sending in documents where this is not available.
Applications for compensation under the Scheme are free.
Eligible individuals can claim under a number of different categories and Successful claimants can expect (i) an apology and (ii) financial compensation.

www.gov.uk/guidance/windrush-compensation-scheme

The Court of Appeal has reiterated that a migrant can be regarded as a “persistent offender” for the purposes of deportation law even if he or she has not committed a crime for some time. The case is Binbuga (Turkey) v Secretary of State for the Home Department [2019] EWCA Civ 551.

Lord Justice Hamblen held that the “overall picture” is what counts when it comes to persistent offending, rather than the “current position”:

www.bailii.org/ew/cases/EWCA/Civ/2019/551.html

In R (SRI Lalithambika Foods Ltd) v Secretary of State for the Home Department [2019] EWHC 761 (Admin), Charles Bourne QC dismissed the claim and explained in detail precisely how the sponsor failed on every allegation. Most importantly, he provided a useful steer on how to save your sponsor licence:

1. Sponsors must keep records which are comprehensive, accurate and clear. Just as importantly, they must produce those records when asked to do so.

2. A response to a suspension letter is likely to be the last effective opportunity to deal with any concerns.

3. If it fails to do so, then disputing the facts in judicial review proceedings is inherently unlikely to remedy the omission, because the Court primarily reviews a decision on the basis of the information available to the decision-maker.

www.bailii.org/ew/cases/EWHC/Admin/2019/761.html

The Withdrawal Agreement, finalised by the UK and the EU is a deal,
grounded in reciprocity, which secures the rights of over three million EU
citizens in the UK and around one million UK nationals in the EU, so they can
carry on living their lives as before.

UK nationals, their children and other existing close family members can return to the UK under current rules until 29 March 2022.
After 29 March 2022, such family members will be able to return to the UK by applying through the applicable UK Immigration Rules.

assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/792675/Citizens__Rights_-_UK_nationals_in_the_EU.pdf

The Home Office UKVI have published policy guidance for innovator and start up visa categories.

www.gov.uk/government/publications/start-up-and-innovator-endorsing-bodies-guidance

The Home Office has announced that seven Service and Support Centres are now open to cater for particularly complex immigration cases. Appointments are free, and experienced UKVI staff will provide a face to face service and help people throughout their application.

The centres are located in Belfast, Cardiff, Croydon, Glasgow, Liverpool, Sheffield and Solihul

www.gov.uk/government/news/dedicated-support-centres-for-complex-cases--2

Home Office Right to Rent evictions exempt from the Equality Act
The High Court has found that enforcement of the “Right to Rent” scheme involves discrimination on the grounds of nationality, but it is lawful because of an exemption in the Equality Act 2010.
Nationality discrimination is an inherent part of immigration enforcement, so the Equality Act 2010 contains an exemption for discriminatory acts which are done by the Secretary of State for the Home Department or an authorised official.

This outcome is an unsurprising product of current equality legislation, which has minimal impact on how the Home Office exercises its immigration functions.

www.bailii.org/ew/cases/EWHC/Admin/2019/452.html

The Court of Appeal has rejected a challenge that the time limit for bringing an administrative review only starts when a decision is physically received by an applicant.
The Secretary of State would never know when the time limit for bringing an administrative review had come to an end. That would defeat the whole purpose of the tight 14-day time limit for making an administrative review application

The Court of Appeal held that the rules should be interpreted

"as including not only actual, physical receipt, but also receipt at the applicant’s correspondence address. Any other interpretation of the rule would be completely unworkable."


www.bailii.org/ew/cases/EWCA/Civ/2019/389.html

The High Court has suspended the Home Office’s removals policy with immediate effect. The decision means that the system of giving migrants “removal windows” within which they can be removed from the UK without warning will be halted for at least the next few weeks.
The claimant is a charity, which facilitates the provision of independent medical advice and representation to those detained in immigration removal centres as well as conducting research into issues affecting those in immigration detention
Medical Justice said in a press release that 69 removals have been cancelled with immediate effect as a result of the injunction. The substantive judicial review challenge will be heard in June or July.

www.bailii.org/ew/cases/EWHC/Admin/2010/1925.html

Section 117B(6) of the Nationality, Immigration and Asylum Act 2002 requires a court or tribunal to hypothesise that the child in question would leave the United Kingdom, even if this is not likely to be the case, and ask whether it would be reasonable to expect the child to do so.

The Upper Tribunal seems to be suggesting that the effect of the Supreme Court’s decision in KO (Nigeria) [2018] UKSC 53 is that the assessment under section 117B(6) does not have to take account of the parent’s immigration history.

www.bailii.org/uk/cases/UKUT/IAC/2019/72.html

The government has today (7 March 2019) brought forward a number of changes to the Immigration Rules, which further demonstrate its commitment to attracting leading talent, whilst also cracking down on abuse.

The rules will provide skilled business people access to two new visa routes to set up businesses in the UK. The Start-up visa route will be open to those starting a business for the first time in the UK, while the Innovator visa route will be for more experienced business people who have funds to invest in their business.

Both routes will see endorsing bodies and business experts – rather than the Home Office – assessing applicants’ business ideas. This will make sure that the routes are focussed on only the most innovative, viable and scalable businesses.

Alongside these new routes, the Home Office is also bringing forward reforms to the Tier 1 (Investor) route. The reformed route will better protect the UK from illegally obtained funds, whilst ensuring that genuine investors have access to a viable visa route. Applicants will be required to prove that they have had control of the required £2 million for at least two years, rather than 90 days, or provide evidence of the source of those funds.

The Home Office will also extend the salary exemption in the Tier 2 (General) visa so that the NHS and schools can continue to attract and hire experienced teachers, nurses and paramedics from overseas. The salary exemption applies to all nurses and paramedics, medical radiographers and secondary school teachers whose subjects are in maths, physics, chemistry, computer science and Mandarin.

A two-year scheme, which will allow up to 20 nurses from Jamaica to come to the UK to gain vital experience in NHS hospitals as part of an exchange scheme, has also been announced.

The government has already supported and relocated over 1,000 brave Afghan interpreters and their families, so they can rebuild their lives in the UK. However, in recognition of their support for the UK’s armed forces, the Home Office is bringing forward rules changes so that eligible partners and children of interpreters still in Afghanistan can relocate to the UK at a later date.

Commenting on the changes, Immigration Minister Caroline Nokes said:


“My priority is making sure that talented business people continue to see the UK as an attractive destination to develop their businesses. This will help create more jobs across the country and ensure our economy continues to thrive.

“In addition to welcoming those who wish to contribute to our economy, we also recognise our duty to support the vulnerable. That is why I am proud that we are extending our commitment to the brave Afghan interpreters and their families so that they can rebuild their lives here, together, in safety.

“However, what we will not tolerate is those who seek to abuse our system and that is why I am bringing forward new measures which will make sure that only genuine investors, who intend to support UK businesses, can benefit from our immigration system.”

Other changes to the rules include:

The list of countries which benefit from the streamlined documentary requirements, found in Appendix H, has been updated to include Brazil, Kazakhstan, Mauritius, Oman, Peru and Tunisia. This change will not only benefit students, who will be able to apply for visas through a more streamlined process, but also help to ensure that the UK’s world-leading education institutions remain competitive internationally.

We are increasing the initial period of leave granted to those who qualify for Stateless Leave from 30 months to 5 years, making it easier for those who are genuinely stateless and not able to live in any other country and cutting unnecessary bureaucracy. Also, to deter those who seek to abuse the system to benefit from stateless leave, changes are being made to the rules to make sure that only those who are genuinely entitled to stateless leave can qualify. This makes clearer that an individual is required to show that they have tried to obtain a nationality or right of residence in another country that they could reasonably expect to be entitled to, before benefitting from stateless leave. The government is clear that we will not tolerate those who seek to play the system to remain in the UK.

This government remains committed to bringing net migration down to sustainable levels, but also recognises the need to attract people who bring benefits to the UK and enable employers to have access to the skills they need.

www.gov.uk/government/publications/statement-of-changes-to-the-immigration-rules-hc-1919-7-march-2019