Surprise UK student visa announcement – students no longer able to switch to a work visa while studying!

We recently brought you news about the changes the Home Office are making to the UK Student Visa. Well, the Home Office have now surprised us all by implementing some of these changes with immediate effect!

Understandably, overseas students in the UK may be anxious about what this will mean for them, as well as when the changes will take effect. Let’s take a look at the student visa aspect of the Statement of Changes to the immigration rules, how they might impact you, and when they come into effect.

Changes to student visa rules around dependents

The good news for those who have already brought their dependents with them on a student visa is that these changes will not impact them. Dependents already in the UK continue to be able to extend their leave.

However, students who start courses after January 2024 will now only be able to bring dependents with them if they are studying a research-based postgraduate degree, a PHD or other doctoral qualification, or if they are government sponsored. As a result, those who are due to start their courses in the autumn of 2023, as many are, will not be affected by the changes to bringing dependents.

Changes to switching from student visa to other types of visas

The other major change to the student visa comes in the form of restricting students from switching to a work visa before their studies have been completed. This change is officially in force from now, following an announcement in the latest Home Office Statement of Changes.

As of 15:00 on 17^th July 2023, students will no longer be able to switch out of the student route into work routes before their studies have been completed. However, it is worth pointing out that students on courses at degree level or above will be able to apply to switch to sponsored work routes as long as their course finishes before their employment start date. In addition to this, PHD students will be able to switch after 24 months of study.

Usually, the convention is that changes take effect 21 days after the Home Office presents new rules before Parliament, however this particular change departs from that convention. The Home Office’s justification for this is that the changes were initially announced on 23^rd May, and that sufficient notice has therefore been given.

Additionally, the Home Office does not wish for there to be a surge in applications for switching to be made in the 21 day period between the changes being presented before Parliament and when they come into effect.

These changes are bound to have a major impact on overseas students already in the UK, however their true impact will probably only be felt in the years to come in terms of whether they bring down the number of overseas students in the UK.

We will cover the remaining changes outlined in the latest Statement of Changes in a later article. For now though, if you have any questions about the changes to the Student Visa route, please do not hesitate to contact us. As previously mentioned, for those starting a course in Autumn 2023, you will still be able to bring dependents with you on a student visa. Get in touch with us today, we would be delighted to help you.

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UK Government announces huge increase in immigration fees

The UK government has announced a substantial increase in visa fees across a range of immigration and nationality routes, including the immigration health surcharge. The Prime Minister, Rishi Sunak, has framed this increase as necessary to fund a 6% rise in doctor’s wages.

Following a recommended pay rise for public sector workers of between 6% and 6.5% by independent public sector pay review bodies, the government has decided to accept these suggestions – despite previously warning that they would make inflation worse. Nevertheless, with strikes blighting his premiership since he became Britain’s third prime minister in 2022 last year, Sunak was under pressure to allow some concessions towards public sector workers.

With the next general election likely coming in just over a year, the Conservative Party are currently between a rock and a hard place when it comes to wanting to reduce record migration figures and improving a stagnating economy. This particular decision to increase immigration fees is likely an attempt to look tougher on immigration, but may risk detracting immigrants who make an invaluable contribution to the UK economy.

But what immigration fees will be affected? Keep reading to find out.

Immigration health surcharge to increase by 66%

Perhaps the headline increase is that of the immigration health surcharge. While the current fee for the immigration health surcharge is £624 per year, this is set to increase to £1,035 per year, a 66% increase.

Meanwhile, the discounted rate for students, under 18s and youth mobility visa holders will be increased from £470 to £776 per year. For someone on the 10 year settlement route, this totals £10,350 in health surcharge fees alone.

Part of the government’s justification for the rise is that it has been frozen for the past three years, “despite high inflation and wider pressures facing the economy and the system in general.” While the UK has certainly faced inflationary pressure, especially since 2022, inflation currently stands at 8.7%. Clearly there are political factors behind the increase beyond inflationary pressure.

What other immigration and nationality fees will increase?

In addition to the immigration health surcharge rise, immigration and nationality fees will also see a substantial increase.

Work and visit visas are set to rise by 15%, taking the cheapest skilled worker visa from £625 to £718.75. The cheapest standard visit visa will now be £115 for a maximum of 6 months.

Meanwhile, study visas, certificates of sponsorship, settlement, citizenship, entry clearance and leave to remain and priority visas will rise by “at least 20%” according to the economic secretary, John Glen.

This will mean that the cost of a settlement application will rise to at least £2,885 per person. Those who are in the process of settlement will find their costs have risen substantially, despite the costs being considerably lower when they began the process.

While the majority of immigration and nationality fees will increase, certain administrative charges will be removed. For example, smaller charges such as: biometric enrolment, physical document amendments, transfer of conditions, as well as identical replacements of biometric resident permits which have expired will all see their fees abolished.

The £161 charge for in-country for a transfer of conditions for those with limited leave to remain is largely obsolete given that all new applicants applying in-country will now be issued with a biometric residence permit or a digital status.

Furthermore, the cost of student and priority service applications will be equalised for those outside and inside the UK. It is currently £363 to apply for a student visa from outside the UK, and £490 to extend or switch to a student visa from inside the UK. The changes would mean that while applicants can currently only be charged a maximum of £490, this will be increased to a maximum fee of £600. Combined with measures which have previously been introduced to reduce the number of student dependents, it remains to be seen what impact this will have on overall international student figures.

There has been no announcement regarding when these changes will come in, however we will be sure to update you once further details are released.

Our thoughts

Funding an increase in doctor’s wages through the huge rise in the immigration health surcharge is not one which seems justified, particularly for immigrants who are already living in the UK. For many, these new fees will be unaffordable, particularly as immigrants are among the most affected by the cost-of-living crisis. Families will be among the most impacted given that the increases will also affect under 18s.

As there has currently been no announcement regarding when the fee increases will be introduced, we would advise applicants thinking of apply to contact us as soon as possible. At Lisa’s Law, we specialise in all aspects of immigration, nationality and asylum law, from applications, appeals to judicial review claims.

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What is the threshold for ethical veganism as a protected characteristic under the Equality Act 2010?

The Equality Act 2010 affords protections against discrimination to a wide range of people based on a range of characteristics including: age, disability, gender reassignment, marriage or civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.

The word “belief” within the Equality Act is rather broad, leaving room for interpretation. There are a wide range of beliefs which have been covered under the Equality Act since the legislation was introduced, including the topic of today’s case, ethical veganism. The case we will be discussing today (Owen V Willow Tower), considered to what extent ethical veganism was sufficient to be considered a protected belief under the Equality Act 2010, and therefore offer the individual protection from discrimination.

Why is ethical veganism a protected belief under the Equality Act 2010?

In Section 10 of the Equality Act 2010, belief is defined as “any religious or philosophical belief and a reference to belief includes a reference to a lack of belief.” The leading case for establishing whether a belief amounts to a philosophical belief is Grainger plc and others v Nicholson [2010]. A belief only amounts to being a philosophical belief eligible for protection if it:

is genuinely held

is not simply an opinion or view point based on the present state of information available

concerns a weighty and substantial aspect of human life and behaviour

attains a certain level of cogency, seriousness, cohesion and importance, and

is worthy of respect in a democratic society

As a result, vegetarians or white nationalists, for example, would not qualify as having a philosophical belief protected under the Act.

There has recently been an expansion of beliefs covered under the philosophical belief characteristic, including gender critical views, climate change, and indeed even ethical veganism.

Ethical veganism meets the criteria as unlike vegetarianism, it is not simply about choice of diet. Veganism goes further than that, extending into aspects such as their clothes, hobbies, and also personal care and medicine. It is therefore a protected belief.

Background

The claimant in this case, Ms Owen, worked as bank staff in a care home where it was decided that all staff should be vaccinated. The claimant believed that she should be exempt from having to have a COVID-19 vaccine due to the fact she followed a vegan diet. This is because the vaccine may contain animal products or be tested on animals, hence why she believed she should not have to take it. Furthermore, Ms Owen was also sceptical of the vaccine, and had concerns over both its side effects and its efficacy.

After raising a grievance with her employer, she was then dismissed for failing to comply with the legal requirement for care home staff to be vaccinated. Following her dismissal, she brought claims for both unfair dismissal and discrimination on religious or belief grounds.

Ethical veganism has previously been found to be a protected philosophical belief under the Equality Act 2010, however the Employment Tribunal had to decide whether the claimant genuinely held a belief in ethical veganism. Keep reading to find out what they decided in this particular case.

What did the Employment Tribunal decide?

The Employment Tribunal decided that there was insufficient evidence to suggest that the claimant held a genuine belief in ethical veganism. Despite following a vegan diet, as well as avoiding some non-vegan products, there were a number of reasons why her beliefs meant she did not qualify for protection under the Equality Act 2010:

She could not confirm when she started having a belief in ethical veganism
The claimant repeatedly stated that to her, following a vegan diet was the same as ethical veganism
She was unable to say how her life was modified or structured to follow her belief other than her vegan diet, and some products (which she failed to provide evidence for)
The claimant also accepted that she used products during her employment which were not vegan, however she claimed that she would always use gloves
She gave no examples of how her life was structured to adhere to her belief in ethical veganism
While the most significant reference to veganism was her diet, this doesn’t fulfil the criteria of ethical veganism. She did not explain how she would ensure that she was following a vegan diet or how she checked products to ensure they were vegan
Furthermore, the claimant’s main criticisms of the vaccine were her belief that it was experimental and unsafe, rather than being connected to her veganism

Our thoughts

Employers should be mindful of employees’ religious and philosophical beliefs, and ensure that these are accommodated where possible. However, while ethical veganism is a protected belief under the Equality Act 2010, if an employee claims to hold a protected belief but it is not genuinely held (as in this case), then this can naturally lead to complications.

While for some, Ms Owen’s belief in veganism would have been self-evident through her choice to observe a vegan diet, the distinction between ethical veganism and simply following a vegan diet is an important one. For it to be a philosophical belief, and therefore eligible to be a protected characteristic, the claimant would have had to demonstrate other areas where her alleged belief in ethical veganism was apparent.

Simply following a vegan diet was not enough to be found to hold a belief in ethical veganism, a principle which would be supported by the vast majority of the vegan community, most of whom apply their beliefs beyond their diet.

Where there is concern by an employer that a belief is not genuinely held, or doesn’t meet the requirements for protections under the Equality Act 2010, employers can check this against the qualifications outlined in the Grainger criteria above.

Lisa’s Law are specialists when it comes to employment law, and can assist your business with employment advice in such situations. Have a question about employment law? Get in touch with us today.

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If a couple who own UK properties got married in a foreign country, is it better to divorce there or in the UK?

The UK is a country which is home to many immigrants from across the world. Like a lot of immigrants to the UK today, the individuals in this case decided to settle after coming here to study, meeting at work and eventually getting married. However, the situation is complicated by the fact that the couple got married in China and later got divorced.

This raises the question of what happens with divorce procedure in this situation, especially given the number of assets involved. For instance, should the couple initiate divorce proceedings in the UK? Or return to China for divorce where they married? Keep reading to find out what happened.

The name of this case, “AW v AH”, refers to the unnamed husband and wife who sought to divorce each other. They first came to the UK to study and later settled there. Unfortunately, AW was subjected to domestic violence many times by her husband during their marriage.

In desperation, AW felt she had no choice but to apply for a divorce in the British court and get a financial arrangement that was beneficial to herself. However, because the British divorce court had not issued a decree nisi (provisional decree of divorce), the divorce was not properly handled. The husband, AH, obtained divorce approval in China. The English court had to revoke their divorce application, and the original financial judgment was invalidated.

Background of case

In 2003, AH came to the UK to study at the University of East Anglia. After graduation, AH successfully stayed in the UK and settled in East Anglia. In 2014, he bought a local property worth 330,000 pounds. He also started some small businesses in England.

In 2017, AW also came to the UK to study. During her studies, AW was eager to experience working life straight away, and started applying for jobs while she was still at university. She later ended up working as a part-time assistant in a company. Coincidentally, her future husband, AH also happened to work for this company. In 2017, AH asked AW to move in with him, and the two began to live together. In 2018, they returned to China to get married, and then returned to the UK. AW gave birth to a son in 2019.

It is worth bearing in mind that AH is ten years older than AW, more financially stable than her, and bore the brunt of the financial expenses during the relationship as this will be relevant later on.

During their marriage, the assets in their marriage pool increased, and the main economic contribution came from AH. In 2018, AH purchased a property in his own name and rented it out to students. They later also purchased a larger family home which they moved in to.

Domestic violence and downfall of the marriage

Sadly, their marriage does not seem to have been a happy one.

According to AW’s testimony, AH has a bad temper and often physically abused her during the relationship. The first domestic violence occurred in 2019, when AH attacked her at night. In February 2020, the domestic violence escalated and AW was beaten harder by her husband. Due to this second serious act of domestic violence, she left the family home and moved into temporary housing provided by the government. Since then, she has been living in a house provided by the housing association and does not dare to go home.

In February 2020, the two officially separated. At the same time, she also obtained a restraining order to prevent AH from approaching her. Under these circumstances, AH left the UK and returned to live in China.

In May 2020, AH filed divorce proceedings in China. In the same month, AW filed for divorce in the UK. On July 21, AW issued a ‘Form A’ seeking financial relief from the court. In June 2020, AH personally went through the divorce and financial relief procedures back in China.

On July 21, 2020, AW issued an application for a financial order in relation to the UK divorce proceedings, hoping to obtain fair assets. The court decided that the first meeting would be held on November 18, 2020. However, AH failed to attend. The application had a final hearing on October 12, 2021. AH neither provided the court with his financial disclosures, nor attended.

According to the evidence provided by AW, AH sold the property they owned. These assets include properties purchased during their marriage: Property A (the family home before October 2019), Property B (the student rental property) and Property C (the family home the couple last moved into). In total, the combined selling value of the properties was £512,000.

Aftermath of the separation

Since the divorce, AW’s financial situation has been poor and she has been in receipt of credit and child benefits, as well as housing benefits.

The court held that the assets involved in this case mainly came from AH, and the two had only been married for more than 3 years. However, considering AW’s housing needs and the welfare of the children, the court decided that she should receive a one-off fee of £300,000 and the transfer of one of the properties from AH to his ex-wife, AW.

Furthermore, the Judge held that AH’s wilful abstention from the proceedings and his failure to give any financial disclosures was a contempt of court.

Complications of divorce proceedings

However, the process of going through the divorce process in the UK is a bit complicated. From applying for divorce to actually rescinding the legal relationship, there needs to be “customs clearance” in the middle. After one party files an application for divorce to the court, the court needs to issue an interim divorce order or conditional order (new marriage law after 2022).

This order serves as a formal confirmation that you have the right to a divorce. The judge can then make a binding order on the property arrangements for the divorce. However, this doesn’t really dissolve the legal relationship.

Once a temporary divorce order or conditional order has been successfully obtained, the couple must wait at least six weeks and one day before applying for a Decree Absolute or a Final Order. Before the introduction of the new marriage law in 2022, known as “no fault divorce”, the “absolute decree” was the decisive decree of divorce, which will completely dissolve the marriage of both parties. Once approved, the couple is truly divorced.

At this stage, AH and AW were stuck at the point of “temporary divorce order”. Since the court has not issued an interim divorce order for AW’s case, the financial judgment awarded by the judge to AW could not be stamped. Usually, the property court’s financial settlement plan cannot be approved until the divorce court issues an interim order.

On March 29, 2022, AH divorced AW in China. Seeing as divorce in China is relatively simple, AH got the divorce approval before the trial in the British court began. However, getting the divorce approval in China means that the British court could not announce the divorce judgment. The British Family Law Divorce Tribunal therefore directly cancelled AW’s divorce application. As a result, AW’s previous financial claims in the English court and any financial rulings made by the Property Tribunal were made invalid.

Since almost all of AH’s property is in the UK, in AH’s Chinese lawsuit, the Chinese judge suggested that after the divorce the two parties could file another lawsuit on the marital property outside China to deal with property disputes. AW felt helpless in her situation, so applied to the court for financial compensation for overseas divorce (the provisions of Part III of the Marriage and Family Litigation Act 1984).

How does divorce work in the UK courts?

Under the laws of England and Wales, if you divorce overseas, you can, in certain circumstances, make a claim for financial relief in the courts of England and Wales. In many cases, not all countries allow divorced couples to obtain a reasonable financial arrangement. Sometimes, one spouse may not receive financial compensation in a divorce, or the compensation may be entirely insufficient. As a result of this, Part III of the Matrimonial and Family Proceedings Act 1984, the legislation for financial claims after overseas divorce, was created to help remedy these situations.

Even if divorced couples obtain financial results in foreign courts, they can apply for financial orders under the Act after a foreign divorce. The courts of England and Wales will judge whether the parties are eligible to apply for economic relief in the UK and make a reasonable financial order according to the relevant rules.

On 24 May 2022, the judge granted AW’s application under Part III of the Matrimonial and Family Proceedings Act 1984 relating to “financial claims following an overseas divorce”, as the judge considered that the parties had strong ties to England and Wales , and there were currently no conflicting property judgments from Chinese courts. The court also directed that previous financial order files be linked to new cases for financial relief following overseas divorce filings. The judge also noted in bold that AH must be present at that hearing and that if he did not, the court may make a final order in his absence.

In the Financial Relief Case After an Overseas Divorce, AW asked the court to enforce the judge’s judgment that she should receive a lump sum of £300,000. AW’s application was successful. At the hearing on 11 August 2022, AW received a one-time payment of £300,000 and ordered the sale of AH’s property to realize the payment of the arrears.

Our thoughts

This story is a case worth thinking about, even though it can be said that AW’s application was successful in the end. However, not only did the case dragged on for up to two years, but AW may have incurred high legal fees as a result.

Xinlei Zhang, a Family Law Solicitor at Lisa’s Law, points out that although the divorce procedure and the division of property are different procedures, the property court needs the divorce court to agree to the divorce judgment before it can make an effective judgment on the division of property. With AW, she became stuck when it came to the divorce step.

We suggest that once the divorce is initiated in the courts of England or Wales, if the spouse does not cooperate, evidence can be collected, such as through messaging apps or any email information. In addition to this, private investigators can be hired to go to the other party’s address to serve the court’s divorce papers. This way, you are able to come to the court to apply for exemption from the other party’s reply in order to continue the divorce process.

In addition, if you have already started divorce proceedings in the UK, once you find that your ex-partner has also applied in other countries you would be better off filing with the local court immediately. Generally, as long as you start the divorce process in one place (country), the divorce judges in other countries are in principle reluctant to intervene.

Furthermore, regarding marital property matters, it is generally recommended to file a property lawsuit with the court where the marital property is located. For example, in this case, even if the other party fails to cooperate at all, the British court can still enter the judgment in absentia and dispose of the British property. This cannot be achieved by Chinese courts. This case acts as a reminder that even if AH did not participate in the proceedings at all and refused to disclose his property, he still faced possible legal punishment from the court.

If you have similar needs, you can contact Lisa Law Firm further, and our family law lawyers will be able to provide you with advice.

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Another successful private life application after 13 years of no status in the UK

By Lorraine Hon

We are pleased to have been successful in another private life route case where our client came to the UK as a teenager after fleeing the Taliban in Afghanistan.

One of the private life route requirements is where the applicant is aged 18 or above but below 25 at the date of the application. The applicant must also have arrived before the age of 18 and must have spent at least half their life continuously resident in the UK.

The other requirement for people who do not qualify for the requirement mentioned above is that where the applicant is aged 18 or over at the date of application, the applicant must have been continuously in the UK for more than 20 years. Or, where the applicant has not been continuously resident in the UK for more than 20 years, the Home Office has to be satisfied that there would be significant obstacles to the applicant’s integration into the country where they would have to live if required to leave the UK.

The case

Our client and his brother came to the UK to flee the Taliban. He initially claimed asylum but was refused. After that, he appealed the case but it was dismissed. However, he had been living in the UK for almost 13 years.

Our client was advised by alternative solicitors to claim for asylum, however he did not wish to proceed with this as he did not remember much from his time in Afghanistan. We advised the client that he had strong grounds for a potential private life case as he came to the UK as a child. We felt that there would be significant obstacles if he were to return to Afghanistan so we applied for leave to remain for him on the basis of his private life.

Our client changed his name after he moved to the UK. He has also had two dates of birth through no fault of his own.

What did we do to ensure a successful application?

Our application was successful because we were able to show the following:

1. We proved that our client’s date of birth was changed by the Home Office due to a previous application not made by our client. It was not clear whether our client was 12 or 13 at the time of entry. If it was the former, then the client would qualify for leave. When his date of birth was recorded by the Home Office, our client accepted it as he did not understand English.

2. We showed evidence that our client received different awards and merits in school. He was committed to succeeding in school.

3. We stated that with all our client’s education being in the UK, it would be extremely difficult for him to reintegrate into Afghanistan. We provided articles about Afghan returnees facing difficulties.

4. We showed that our client has made significant contributions to British society by representing the UK in sport. We provided all the awards that he won.

5. We showed that our client has no ties to Afghanistan. The only family member that he had was his brother who came to the UK with him. It would be cruel to separate our client from his brother. Our client was also in a relationship with a British national and the relationship would not be able to continue in Afghanistan as inter-religion/nationality relationships were not permitted in Afghanistan.

We received a decision 3 weeks after submitting the application and are pleased that our client will now be able to live in the UK.

Should you wish to make a private life route application, we would be happy to help. Contact us today.

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Court of Appeal rules that Removal of Asylum Seekers to Rwanda is unlawful

Today (29/06/2023), the Court of Appeal reversed the High Court decision in AAA v Secretary of State for the Home Department (SSHD) on 19th December 2023 where it was held that removal of asylum seekers to Rwanda was lawful.

In today’s ruling, the Court of Appeal confirmed that any removals of asylum seekers to Rwanda is unlawful.

Background

On 14^th April 2022, the UK government announced that they have an agreement with the Republic of Rwanda, whereby asylum seekers will be sent to the Rwanda for processing. The UK published the Memorandum of Understanding highlighting the agreement.

This decision has been a cause for huge controversy and outrage. We had concerns as to whether such removals would breach an asylum seekers fundamental right under the European Convention of Human Rights, and whether the UK would be breaching their international obligations under the Refugee Convention.

AAA v Secretary of State for the Home Department (SSHD)

Many were eagerly awaiting the decision in AAA v Secretary of State for the Home Department (SSHD) on 19^th December 2023, where the Court made a judgement as to whether expulsion of asylum seekers to Rwanda to process their asylum claims was deemed lawful.

This case concerned the legality of removal of 11 claimants. During the hearing a large number of grounds and arguments was presented before the court against the government plans to remove asylum seekers to Rwanda.

The court did not agree and found that Rwanda was sufficiently safe country and the inadmissibility and removal notification process undertaken by the Home Office in identifying and removing asylum seekers to Rwanda was found to be sufficiently fair.

In our previous article on this topic, we commented that the findings in AAA v Secretary of State for the Home Department (SSHD) that Rwanda is a safe country, and that the admissibility process is procedurally fair, will have a huge impact on asylum seekers in the future. Of course, we also stated that this would be the case unless those findings were successfully challenged on appeal or on the basis of fresh evidence.

Fortunately, the decision made by the High Court was appealed to the Court of Appeal.

Court of Appeal

Lord Burnett, the Lord Chief Justice, told the court that two of the three judges concluded that deficiencies in the asylum system in Rwanda meant there was a “real risk” that asylum seekers could be returned to their home country – and then face persecution or other inhumane treatment there. He said the two judges found that: “In that sense Rwanda is not a ‘safe third country”.

Lord Burnett was the only dissenting voice, with the Master of the Rolls, Sir Geoffrey Vos, and Lord Justice Underhill finding that Rwanda was not a safe third country. Lord Burnett went on to emphasise that the decision by the Court of Appeal was not political, and that “The court’s concern is only whether the policy complies with the law as laid down by Parliament”.

All other grounds, other than Rwanda’s status as a safe third country were dismissed by the Court of Appeal.

Our comments

This is a much-welcomed decision by the Court of Appeal. We were unable to see how the UK could meet their obligations in dealing with asylum claims overseas.

The Prime Minister has revealed the government’s intention to appeal to the Supreme Court, stating “I strongly believe the Rwandan government has provided the assurances necessary to ensure there is no real risk that asylum-seekers relocated under the Rwanda policy would be wrongly returned to third countries – something that the Lord Chief Justice agrees with”. However, in order to appeal to the Supreme Court, the government will need permission from the Court of Appeal. We must all wait to see if they do so.

Of course, the nuclear option would be for the government to withdraw the UK from the European Convention on Human Rights, something they have previously ruled out.

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Home Office re-commences deport now, appeal later certification

By Victor Falcon Mmegwa

Recently, the Home Secretary, Suella Braverman MP, confirmed in a letter to the Chair of the Home Affairs Select Committee that the Home Office have suggested the use of certification under section 94B of the Nationality, Immigration and Asylum Act 2002 from 5 June 2023. This means that any appeal against the refusal of a human rights claim can only be made or continued while the person is outside the UK. It also means that the person can be removed before their appeal is heard.

A human rights claim can only be certified under section 94B if the person seeking any appeal from outside the UK would not be unlawful under section 6 of the Human Rights Act 1998. This would mean that the person being removed from the UK must not face a real risk of serious and irreversible harm before the appeal process is exhausted. However, in the case of Kiarie and Byndloss [2017] UKSC 42, it was considered that it would be a breach of section 6 Human Rights Act 1998 to certify human rights claims where the claimant wished to give oral evidence in their appeal, but were not able to do so from outside the UK.

The Home Secretary stated in her letter that in order to comply with the judgment in Kiarie and Byndloss, any appeal from outside the UK following a section 94B certification will require facilities for any person to give evidence should they wish. This includes a room which is sufficiently private and has sufficient internet speeds to support high quality video calls for the necessary duration of the hearing.

The Foreign, Commonwealth & Development Office will confirm that the authorities in the countries from where video evidence is going to be given will have no objections to the use of a video link by their citizens or residents to provide evidence. Furthermore, they will ensure that the local law in that country does not prohibit it. The Home Secretary also stated that the Home Office is looking to initially focus on appeals of foreign national offenders and will only use section 94B certification where relevant assurances have been provided to the Foreign, Commonwealth & Development Office and where the necessary facilities are in place.

The Home Office have given their caseworkers instructions that they should not certify a claim where it is not possible for the claimant to give evidence at their appeal by video link. Following Kiarie and Byndloss, use of section 94B was paused while steps were taken to put in place measures to allow for video link facilities that would enable people to give evidence from overseas at their appeal. This means that a video link facility is available but also that the country has given consent for evidence to be given via a video link. The Home Office caseworkers are advised to check with the Overseas Video Team to confirm whether or not a video link can be arranged for the appeal and whether consent for the use of a video link has been agreed by the country. If the use of a video link is not possible then certification under section 94B will not be appropriate.

Our comments

In our opinion, the judgment of Kiarie and Byndloss does protect the person’s Article 6 of Human Rights Act 1998 with regards to ‘Right to a fair trial’. However, with the measures of giving evidence via video link, I am not convinced that that this will achieve a ‘Right to a fair trial’ under Article 6 of Human Rights Act 1998.

We believe that the primary reason to re-commences ‘deport now, appeal later’ is to deter unfounded claims. This is done by preventing appeals that cannot succeed, where protection and human rights claims are clearly unfounded. Enabling any person to be removed once a decision is made and certified.

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Confirmed – Proposed Bill of Rights abandoned by the UK Government

In June 2022, the UK Government proposed a Bill of Rights which was intended to replace the Human Rights Act 1998. The Human Rights Act affords us all with fundamental rights and freedoms by enshrining the rights contained in the European Convention on Human Rights (ECHR).

The introduction of the Bill of Rights would have been to repeal the Human Rights Act 1998 and therefore render that any breaches of the ECHR would no longer be enforceable in the UK. However, the government have now announced that this piece of legislation will no longer be going ahead.

What were the proposed changes in the Bill of Rights legislation?

The intention to replace this with the Bill of Rights can only be viewed as a measure to substantially decrease the number of human rights claims being considered by the UK Courts. This can be seen in the form of some of the following proposed changes:

prohibiting courts from finding a public body owes a positive obligation.
removing the duty of courts to consider how the European Court on Human Rights (ECtHR) has interpreted a right.
introducing a new permission stage, requiring claimants to prove they have (or would) suffer significant disadvantage as a result of a breach of their rights before they can take their claim to court.
higher threshold for challenges to deportation for foreign national offenders based on the right to private and family life.

Our comments

One would think that the Bill of Rights’ purpose should be to strengthen the fundamental rights that we all enjoy, thanks to the Human Rights Act, and the substantial case law developed over the years. Instead, it appeared the purpose of this was to limit and restrict.

The proposal received widespread criticism, with a number of organizations calling for the plans to be scrapped. Today, the government has announced that they will no longer proceed with the Bill of Rights. The Justice Secretary Alex Chalk has confirmed that after ‘having carefully considered the Government’s legislative program in the round’ they will no longer be proceeding with his predecessor, Dominic Raab’s proposed Bill of Rights.

The decision was inevitable, and we welcome confirmation that such plans have been scrapped. The Human Rights Act affords all with protection and long may it continue.

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High Court case could open floodgates to thousands of COVID business interruption claims

A recent High Court case could pave the way for thousands of insurance claims by small to medium sized businesses in the UK. The fallout of the Covid-19 pandemic continues to have an impact on businesses, with the latest high-profile case involving the ExCel conference centre in London and their insurers, Royal & Sun Alliance.

The High Court test case relates to insurance policyholders which had to close their sites due to cases of Covid-19 “at the premises”. This follows a Supreme Court test case from 2021 which found that policyholders could claim if there had been a case of Covid-19 in the “vicinity” of their premises.

Keep reading to learn more about this particular case and whether it could impact your business.

Background

The precursor to this ruling was a test case brought in a £16m claim by the FCA (Financial Conduct Authority) on behalf of roughly 370,000 companies across the country. The case was brought on behalf of these companies after they alleged that they had been denied cover under their business interruption policies following the UK government’s Covid-19 lockdowns in 2020.

While the coronavirus pandemic forced many businesses to temporarily close their doors, many insurers refused to pay out on claims after the first lockdown in March 2020. Their reasoning for this was that they argued the policies were not intended to cover global pandemics.

This test case concluded in January 2021 and saw the Supreme Court rule in favour of policyholders. They found that policies related to non-damage business interruption policies did in fact offer cover. This remained the case even if only a single case of coronavirus occurred within the insured vicinity.

What are the implications of the latest test case?

Fast-forward to 2023, and the High Court has ruled in favour of a range of business including the London ExCel venue and Pizza Express. While the previous Supreme Court ruling found that businesses with relevant policies could claim if there had been a Covid case within the “vicinity of their premises”, the recent judgement extended this wording to a closure of their sites due to the occurrence of Covid “at the premises”.

Insurers had sought to argue that the Supreme Court’s test case ruling did not apply to insurance policies with “at the premises” wording.

According to the Judge, without this ruling by the High Court, the wide variety of policies across businesses could facilitate a scenario where a restaurant owner who caught Covid may not be able to claim due to his “at the premises” policy. On the other hand, a neighbour could simply use that case of Covid to claim based on an infection in the “vicinity”, as ruled in the 2021 Supreme Court test case. The Judge opined that the anomalies which would arise without this ruling would be hard to rationalise for a small or medium sized business.

Following the Supreme Court test case, a total of at least £1.7bn has been paid out to businesses in the UK, either in the form of partial or final settlements. How much will be paid out in claims following this High Court case remains to be seen. However, the law firm who acted on behalf of London ExCel stated their belief that there are at least as many policies with “at the premises” wording as there are with vicinity/radius clauses.

The insurers have not yet confirmed whether they wish to appeal the ruling.

Our thoughts

It seems very likely that this test case in favour of policyholders will open the door to hundreds of thousands of Covid business interruption claims. Small and medium sized businesses in particular suffered during the pandemic as they were often less able to adapt to the new working environment induced by enforced lockdowns, especially in retail and hospitality. The energy crisis has further harmed many of those same businesses.

As a result, it seems highly likely that these businesses will seek indemnity for lost earnings following this ruling.

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Successful application for UK visitor visa despite previous refusals

By Yang Peng

We recently managed to help a client gain a UK Visitor Visa, despite them receiving two previous UK refusals. Keep reading to learn more about why these refusals occurred, and how Lisa’s Law can help you with similar applications.

Introduction to the case

Our client instructed us to apply for a visitor visa to visit her daughter in the UK. However, she had previously faced three refusals: two for UK visitor visas and one for an Irish visa. The two UK visitor visa refusals were mainly due to insufficient evidence and explanations provided, particularly regarding her financial circumstances and her daughter’s immigration status in the UK. On the other hand, the Irish authorities advised her to apply directly to the UKVI since her aim was to visit her daughter in the UK.

Additionally, the client’s sponsor for this trip, her daughter, had refugee settlement. The client missed her daughter, son-in-law and grandchildren in the UK deeply. However, the previous refusals and her daughter’s immigration status have caused her worries regarding the current application.

We were subsequently instructed by the client to submit a visitor visa application.

Normal requirements for a UK Visitor Visa case

Usually, to be successful in a visit visa application, you must explain the reasons that you are coming to the UK to visit, provide financial evidence that you can support yourself in the UK, and also evidence that you will return to your home country following the visit.

In this case, the client had a history of multiple visa refusals and was questioned about her financial situation, which undoubtedly added to the complexity of the application.

Additionally, the client’s daughter, who is sponsoring her visit, has a previous asylum record, which means she claimed international protection in the UK. This may sometimes cause the Home Office to suspect that the client might have similar intentions as daughter. That is to say, apply for asylum after arriving in the UK.

What we did for the client

On the basis of submitting the necessary materials, we focused on explaining the reasons for the client’s first three visa refusals and the immigration status of her daughter, emphasizing these factors to prove that the client is not a high-risk applicant.

We chose not to simply ignore the refusals, but instead to deal with each of them.

We clarified that the previous rejections occurred due to the client’s previous applications being submitted by unprofessional agencies and friends, resulting in the lack of verification of the applicant’s information. In addition, we also provided the client’s previous travel history abroad and her current job description to demonstrate that the client has no intention of overstaying and had plenty reasons to return home.

Since the officers previously questioned the client’s financial status and source of income, we needed to address this. The Home Office are not always familiar with payment schemes in China and transfer methods such as use of the online platform, WeChat. Through clear explanations, we have successfully established that her funds are obtained legally.

Regarding the sponsor’s previous asylum records, we clarified that the daughter arrived in the UK legally as a student and has never claimed asylum in her own right. The only reason for the record was because she was included in her partner’s asylum application. We made it very clear that the daughter’s intention was never to travel to the UK and seek international protection.

Our solicitors also highlighted that due to the daughter’s refugee indefinite leave to remain status, her entry into China as a visitor would raise questions and could potentially lead to detention. This situation creates a barrier that hinders the mother and daughter from reuniting. It would be extremely harsh and inconsiderate to stop the client from visiting her daughter if the application was refused.

Furthermore, we explained that the Applicant’s daughter’s financial circumstances to prove the funds from the sponsor are sufficient. Additionally, we emphasized the strong connections the applicant has in China, as her husband and unmarried son still reside there. This evidence supports the claim that there is no indication the client would not return to China at the conclusion of her UK visit.

The conclusion / grant

We were elated to have recently received the decision confirming that the client’s visitor visa application has been granted. Now the client finally has her 2-year visitor visa and will soon be flying to visit her daughter and her grandchildren in the UK! We wish her and her family all the best for the future.

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