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UK Immigration Law Blog

Welcome to my blog

 

My name is Sarah Rogers and I am the Director and Senior Lawyer with Immigration Advice Centre Ltd. My blog deals with all aspects of UK Immigration law and is aimed at individuals seeking to enter and remain in the UK.

By Sarah Rogers, Jan 20 2015 12:01PM

Following the decision of the Court of Appeal in the case of Gudanaviciene and other v DLAC [2014], legal aid, other than exceptional funding under S10 LASPO, is no longer available for family reunion matters. This sadly means that for those successful in claiming that they would face a risk of perscution if returned to their home country are going to be unable to access legal assistance with applications for their family members to join them in the UK unless they have the means to pay for legal advice and representation. This is a blow for those who have to leave loved ones behind in dangerous situations, as they will now have to see further delays in being re-united with their families until they can cover the costs of any legal assistance that may be required.


With the cost of legal aid in these cases on the standard fee scheme being £234 per case one wonders if the original decision to restrict access to legal aid is designed solely to save money, as these fees must be a small proportion of the legal aid budget, or is there also another benefit to restricting access to legal aid in that it delays or perhaps in some cases prevents refugees from being able to bring family members into the UK. Given the Governments current immigration policy perhaps the second benefit is not a coincidence.


If you are interested in seeking advice or assistance with Refugee Family Reunion applications please feel free to give us a call on 01642 219222 or email us for advice on advice@immigrationadvicecentre.com.

By Sarah Rogers, Jan 20 2015 11:30AM

The Home Office have announced that they are re-organising the process for making further submissions for those asylum seekers who have exhausted appeal rights. From the 26th January 2015 all further submissions will have to be made in Liverpool by appointment only. The letter to stakeholders setting out the reasons behind the changes suggests that the plans will improve customer service and improve decision making allowing the process to be faster and more efficient. If the past changes are anything to go by I doubt any of that will be realised and no doubt the process of making further submissions in Liverpool will mean lodging your fresh claim is harder and more costly. Cynically perhaps the Home Office is using this as a means to discourage fresh claims and in fact in some cases prevent people making them all together particularly those who do not have the means to travel to Liverpool.


I can't imagine that the decision making process will be faster or than customer service will be improved although they may have less cases to work on if the process does make it harder to make a fresh claim in the first place. What next one wonders, you can only claim asylum on a Friday!!!

By Sarah Rogers, Sep 19 2014 10:19PM

MARRIAGE IN THE PHILIPPINES


Explanatory Notice to British Nationals Contemplating Marriage in the Philippines

(courtesy of www.gov.uk)


The Consular Section now administers affirmations or affidavits to marry. Local authorities have confirmed that they will accept this document. This replaces the old-style Certificate of No Impediment (CNI).


You must prepare a type-written affirmation or affidavit of marital status. A template is available at the following link which can be retyped and taken to the Consular Section. British applicants are required to personally appear at the embassy. Documents must follow this template – Font size 12, Times New Roman, 1.5cm margin all around.


Note: An affidavit is an applicant’s written statement confirmed by taking his/her religious oath (e.g. oath on a Bible or Koran), whereas an affirmation is an applicant’s solemn, non-religious declaration of his/her facts. You should bring supporting documents relating to the facts indicated on your affirmation/affidavit. Please refer to the list below.


Please set an appointment with the Consular Section via the British Embassy Manila online appointment system – www.britishembassymanila.clickbook.net. Consular staff will not process applications of customers who come to the Embassy without a prepared affirmation or affidavit or without complete supporting documents. You will be asked to book another appointment once all documents are ready.


SUPPORTING DOCUMENTS (Please provide originals and corresponding photocopies)

 Original UK passport and original UK birth certificate

 If widow/widower, present original death certificate of deceased spouse, or a certified copy.

If spouse died in the Philippines, present:


death certificate of deceased spouse

Advisory on Marriage (CRS Form 5) in lieu of a CENOMAR from the National Statistics Office

Marriage certificate with proper annotation declaring, if applicable, the presumptive death of spouse


 If divorced/annulled, present original divorce decree absolute/annulment papers, or a certified copy.

If annulled in the Philippines, please present the following documents:


Advisory of Marriage Record (CRS Form 5) in lieu of a CENOMAR from the National Statistics Office

Certificate of Finality and full court documents, including decision

Marriage certificate, with proper annotation declaring the marriage null and void


 Please pay Fee 4, payable in Philippine pesos. You may refer to current peso exchange rate in this link: https://www.gov.uk/government/publications/philippines-consular-fees


 Please provide photocopies of all documents for our records.


IMPORTANT REMINDERS


 Under the Perjury Act (1911) it is a criminal offence to knowingly make a false declaration. Offenders face the possibility of a fine and/or a jail sentence.


 You should apply for a marriage licence from the Philippine local civil registrar once the affirmation/affidavit has been completed. The process normally takes 10 working days.


 Please fulfil all other requirements set by the Philippine authorities. If your fiancée/fiancé was previously married, you must ensure to submit their complete divorce/annulment documents.


 You may wish to seek legal advice to ensure the validity of your fiancée/ fiancé’s foreign divorce in the

Philippines. Certain restrictions may apply to Philippine nationals who were divorced overseas.


 An affidavit/affirmation does not make your marriage valid under UK or foreign law, or guarantee to

the local authorities that you are free to marry. You may wish to seek legal advice on this. Consular staff are not legally trained and are unable to comment on this matter.


Once marred would will need a visa for entry to the UK if you wish to bring your spouse with you. For further information and advice about visa and entry clearance requirements for spouses in the Philippines please contact Immigration Advice Centre on 01642 219222 or email us on advice@immigrationadvicecentre.com

By Sarah Rogers, Sep 19 2014 09:59PM

Information for British nationals intending to marry in Thailand


The British Embassy in Bangkok is not authorised to perform marriages. Any marriage in Thailand should be performed according to Thai law and detailed questions on the procedure should be addressed to the appropriate Thai authorities. Some guidance is provided on the website of the Royal Thai Embassy in London www.thaiembassyuk.org.uk


The Thai authorities require that any foreign national wishing to marry in Thailand must obtain an “affirmation of freedom to marry” document. The affirmation must be made in person at the Consular Section of the British Embassy in Bangkok or the British Consulate in Chiang Mai. It is not possible to obtain the affirmation from the United Kingdom in advance. For it to be valid in Thai law, the marriage must be registered with the Registrar at an Amphur office (District Office).


A religious ceremony on its own is not recognised as being valid under Thai law. In Thailand, wedding ceremonies/parties can be held separately from the marriage registration. The Thai marriage certificate will be in the Thai language only. You may wish to commission a sworn or certified translation of the marriage certificate from licensed translators. Please note the certificate is a legal document and should not be modified in any way e.g. by laminating.


A foreign national does not automatically acquire British nationality through marriage to a British national. The Embassy cannot advise you the visa requirements for the spouse of Thai citizen. Should you require advice and assistance regarding visa requirements for the UK contact the Immigration Advice Centre on 01642 219222. or email us on advice@immigrationadvicecentre.com



A step by step guide


1. Affirmation of Marital Status (Please be aware: Under the Perjury Act (1911) it is a criminal offence to knowingly make a false declaration. Offenders face the possibility of a fine and/ or a jail sentence.)


 you need to retype the affirmation on one page in the same format as the attached sample adding your details where required and take it in person to the Embassy to sign before a Consular Official


 The Embassy accept affirmations during consular public opening hours (8am - 11am on Monday to Friday). An appointment for this service is not necessary.


 The Embassy provides this service to British nationals only. A consular fee of Thai Baht 3,080 per affirmation is payable. Please note that fees can change without prior notice and are non-refundable.


 You are required to take with you to the Embassy, your passport, as proof of identity, and evidence that any previous marriages have been dissolved/terminated (you will need to show an original death certificate or divorce certificate, for the UK a decree absolute from the court). Certificates issued in a third country outside UK and Thailand must be certified by the relevant British Embassy/Consulate or its respective Embassy in Thailand. Only the original evidence or an official certified copy will be accepted – photocopies will not be accepted under any circumstances.


2. Have the affirmation translated into Thai - Once the affirmation has been signed, you will need to have it translated into Thai. The British Embassy does not undertake the preparation or translation of documents. Many reputable translation companies advertise on the internet as well as in the Thai local press, and there are a number of companies within a short walk of the Embassy.


3. Have the affirmation authenticated and the translation certified - All Thai Registrars will require authentication of the British Consular Official’s signature and certification of the Thai translation. This must be obtained from: The Legalisation Division, Ministry of Foreign Affairs www.consular.go.th 123 Chaeng Wattana Road, Laksi District, Bangkok 10210 Telephone: +66 (0)2 575 1057– 60, (0)2981 7171 (at 8:30am – 3:30pm) Fax : +66 (0)2 575 1054 Email: consular04@mfa.go.th


4. Submit the document to the Registrar – The affirmation and translation are then ready for submission to the Registrar, who, if satisfied, will register the marriage and issue.


Immigration Advice Centre provides legal advice and assistance to those applying for visas to enter the UK and we can assist with your application to enter the UK. Call us now on 01642 219222 or email is on advice@immigrationadvicecentre.com for advice and assistance.


(Information courtesy of www.gov.uk)

By Sarah Rogers, Jul 11 2014 12:19PM

Minimum income threshold
Minimum income threshold

The new decision in the minimum income threshold case has been released by the court of appeal and is helpfully set out by the excellent Freemovement website. If the issues in the case affect you please feel free to contact us for advice and assistance on 01642 219222 or email at advice@immigrationadvicecentre.com



Outcome of MM minimum income case in Court of Appeal

Colin Yeo — 11 July 2014 — 3 Comments


The judgment is now out in the long awaited case of MM v Secretary of State for the Home Department [2014] EWCA Civ 985, the test case challenging the minimum income threshold for spouses wishing to enter the United Kingdom. The Court of Appeal has allowed the Secretary of State’s appeal. This is terrible, heartbreaking news for those families forced apart by the rule. An appeal to the Supreme Court will be attempted, but it will be many months until any outcome is known.


For previous coverage here on Free Movement, including the previous judgment, see here.


What follows is just an initial reaction on reading the judgment. I will update if anything further occurs to me.


The judgment is a long one and it is only at paragraph 132 that Lord Justice Aitkens, giving the leading judgment, starts to answer the questions he has posed. In what many readers might be forgiven for thinking is a promising sign he holds that


the Secretary of State plainly is under a common law duty not to promulgate an [immigration rule] that is discriminatory, manifestly unjust, made in bad faith or involves “such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men”.


If such an immigration rule were to be made, the courts could strike it down. Further, an immigration rule must be formulated in such a way that if it does interfere with a relevant Convention right


it has to be capable of doing so in a manner which is not inherently disproportionate or inherently unfair. Otherwise it will not be “rational”, or it could be stigmatised as being “arbitrary” or objectionable”, or be characterised as being “arbitrary and unjust”


More ominously, he goes on to suggest that the test for striking down an immigration rule is whether it is “incapable of being proportionate and so is inherently unjustified”.


On the issue of the rights of British citizens, Aitkens LJ disagrees with the judgment of Blake J in the High Court and holds that


There is nothing in the 1971 Act or the common law that grants a “constitutional right” of British citizens to live in the UK with non-EEA partners who do not have the right of abode in the UK and who are currently living outside the UK.


For a time it seemed that the British citizenship our politicians sometimes claim is precious might indeed have some value, but the Court of Appeal thinks not. Aitkens LJ goes on to comment that the right to marry and found a family in the UK is not an absolute right. He accepts that the minimum income requirement is, like the minimum age requirement before it, a very significant interference with the right to private and family life and goes on to examine the question of whether it is justified in public law terms.


The policy aim behind the minimum income requirement was to safeguard the economic wellbeing of the country. What is the test for the court in assessing whether the measure in question (the minimum income requirement) is lawfully connected to the policy objective?


The Secretary of State does not have to have “irrefutable empirical evidence” that the individual features of the policy proposed will achieve the social aim intended. It is enough that she should have a rational belief that the policy will, overall, achieve the identified aim.


The argument has several strands to it, one of which is said to be social integration of new arrivals. During the hearing in March, the Home Office lawyers boldly suggested that the rich will integrate into society better than the poor. This is questionable on so many levels, particularly given the press coverage of London ghettos of abandoned properties owned by foreign nationals, questionable tax arrangements and the lack of an English language requirement for Investor visas. Aitkens LJ is not interested in those issues, though:


The conclusion that a family with more income would be more likely to be capable of integrating is not susceptible of empirical proof, but a belief in the link between higher income and the likelihood of better integration is rational.


The work done by the Migration Advisory Committee is found to be further evidence that the policy is rationally connected to the overall aim. The members of the MAC itself have argued that their brief was unconnected to the setting of a minimum income threshold: they were merely asked to assess at what level a family would have no recourse to public funds at all. Their naivety is exposed in the judgment: their work is an essential building block in the Home Office legal case and a cornerstone of the Court of Appeal’s judgment.


The most striking conclusion comes at paragraph 147, where Aitkens LJ to my mind rather tenuously distinguishes Quila and Baia, previous attempts to prevent entry by foreign national spouses:


Here, the non-EEA partner can enter the UK, provided the UK partner’s level of income, judged by the policy of the new MIR to be appropriate, is reached. Admittedly there is a total ban on the entry of non-EEA partners where the UK partner cannot reach the required minimum and I appreciate that this ban could be life-long. But there has always been a maintenance requirement at a certain level and if that level was not reached by the UK partner, then there was a total ban on the entry of the non-EEA partner unless, in an individual case, it would be disproportionate under Article 8(2) to refuse entry in that instance. Moreover, maintenance requirements are not unique to the UK and it does not set the highest minimum annual income; Norway does.


The problem with this approach in legal terms is that there has also always been a minimum marriage age. And several other European countries specify 21 or even older as a minimum age for sponsorship. A person can get married at 16 in the UK before Quila but was not able to sponsor a foreign spouse until 18. The Supreme Court found in Quila that the increase from 18 to 21 was unlawful. The analogy with the minimum income seems to me very strong and not so easily dismissed. Income is for some people as immutable as age: many people on the national minimum wage working all the hours there are simply cannot achieve the required income level and never will.


The coup de grâce comes at paragraph 150, where Aitkens LJ concludes that after all the work the Secretary of State and her dedicated officials put into setting the income threshold where they did, the judgment of the Secretary of State “cannot be impugned”.


There will be those who disagree, I imagine rather vehemently. The conclusion that as long as one has done one’s homework it does not matter that it was unreadable nonsense is certainly quite a striking one.


For the original post please visit www.freemovement.org.uk

By Sarah Rogers, Jun 4 2013 09:51AM

This is a frequent point we are asked to advise upon and there are many clients who fall to be refused by the Home Office and Entry Clearance Officers under the general grounds for refusal in the Immigration Rules. However all is not lost and there may be the possibility to challenge refusals even where S320 7a and 7b are applied and we have had success in these kinds of cases.


Also it is worth pointing out at this stage that refusals under these sections would not affect applications under family routes and this was contained in paragraph 320 7c. Whilst that section has been removed from the rules due to the changes made the family routes and the implimentation of Appendix FM (see our other posts on this) 320 7c has re-appeared in the rules A320 which states the following


Refusal of entry clearance or leave to enter the United Kingdom


A320. Paragraphs 320 (except subparagraph (3), (10) and (11)) and 322 do not apply to an application for entry clearance, leave to enter or leave to remain as a Family Member under Appendix FM, and Part 9 (except for paragraph 322(1)) does not apply to an application for leave to remain on the grounds of private life under paragraphs 276ADE-276DH.


So past refusals under paragraph 320 are not necassarily fatal to future applications under appendix FM however paragraph 320 (11) can still be applied but this relates only to the applicant and requires there to be aggrivating factors before it can be fatal to an application.


Back to 320 7A and 7B, the rules state the following:


(7A) where false representations have been made or false documents or information have been submitted (whether or not material to the application, and whether or not to the applicant's knowledge), or material facts have not been disclosed, in relation to the application or in order to obtain documents from the Secretary of State or a third party required in support of the application.


(7B) where the applicant has previously breached the UK's immigration laws (and was 18 or over at the time of his most recent breach)by:


(a) Overstaying;


(b) breaching a condition attached to his leave;


(c) being an Illegal Entrant;


(d) using Deception in an application for entry clearance, leave to enter or remain, or in order to obtain documents from the Secretary of State or a third party required in support of the application (whether successful or not);


unless the applicant:


(i) Overstayed for 90 days or less and left the UK voluntarily, not at the expense (directly or indirectly) of the Secretary of State;


(ii) used Deception in an application for entry clearance more than 10 years ago;


(iii) left the UK voluntarily, not at the expense (directly or indirectly) of the Secretary of State, more than 12 months ago;


(iv) left the UK voluntarily, at the expense (directly or indirectly) of the Secretary of State, more than 2 years ago; and the date the person left the UK was no more than 6 months after the date on which the person was given notice of the removal decision, or no more than 6 months after the date on which the person no longer had a pending appeal; whichever is the later;


(v) left the UK voluntarily, at the expense (directly or indirectly) of the Secretary of State, more than 5 years ago;


(vi) was removed or deported from the UK more than 10 years ago or;


(vii) left or was removed from the UK as a condition of a caution issued in accordance with s.134 Legal Aid, Sentencing and Punishment of Offenders Act 2012 more than 5 years ago.


Paragraph 320 7a requires dishonesty and there must be more that simply mistakes. It also does not solely relate to the applicant so even if a third party who provides documents uses a forged or false document the applicant can still be refused even if they were not aware of the forged document. The potentialy to challenge these decsions can lie where Entry Clearance officers make mistakes. If you have used a false or forged document or have made dishonest representations then the prospects of a successful challenge may be restricted to Article 8 and the proportionality of the decision. However where dishonesty has been knowingly employed it may be hard to argue that a decision is disproportionate. However, if there was a mistaken belief that a false document was used and you can prove this or if the failure to declare evidence deemed to be material was unfair then challenges can be successful.


All cases are different so a thorough assessment of the individual circumstances of each case would be required. If 320 7A has been applied in your case you also face future refusals under 320 7 b so it is worth considering taking advice to see if the refusal can be challenged given the consequences.


Contact us today by email or telephone and see if we can assist. We also welcome your comments



By Sarah Rogers, Feb 26 2013 02:22PM


Immigration law is complex and applications can be costly particularly if they go wrong. We understand that not all clients need detailed advice and assistance with their immigration matter and whilst we do help many clients with their full applicaitons we also provide a service that allows clients who are able to make their applicaiton themselves, get quick answers to questions and queries by telephone or email.


Our email and telephone immigration advice packages offer you the flexibility to get advice on the specific issues that you need addressing without having to attend a lawyers office and at a fraction of the cost.


For £15 we offer you up to 15 minutes advice over the phone or by email which will answer your questions and point you in the right direction so that you can be confident about your understanding of the requirements you have to meet for your applicaiton.


This service is not suitable for all queries but we are happy to speak to you to determine what your issue is before taking your payment and if we can we will provide you with the answers you need.


UKBA fees are set to rise again in April 2013 and with the cost of many applicaitons being several hundreds of pounds. By paying a small fee now you may find that you save hundreds down the line.


Contact us today on 01642 219222 or email us at advice@immigrationadvicecentre.com


We look forward to hearing from you.

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