The number of asylum seekers waiting for a decision on their case has soared to record levels over the years with almost 75,000 claims in 2022 alone. The asylum backlog of claims has grown substantively by almost 10 times since December 2010. Clearly, dealing with the huge backlog is a priority for the Home Office, as well as the UK government at large.

Recently, the Home Office have announced that they intend to fast track asylum claims made by those that have come to the United Kingdom from Afghanistan, Eritrea, Libya, Syria and Yemen. The Home Office will be sending 10-page Home Office questionnaires and deciding claims without face-to face interviews. They hope that this will help to decrease the huge backlog of around 166,000 claims.

On 7^th March 2023, the Home Secretary announced the new proposed Illegal Migration Bill with the intention of stopping illegal entry to the UK. If passed, this will surely decrease the number of asylum claims every year and allow the Home Office to deal with the backlog.

More details about the Illegal Migration Bill can be found in our full breakdown here.

Our thoughts

With the need for the Home Office to reduce the backlog of claims, this raises the question of whether it is a good time for those in the UK without status to make an application for discretionary leave?

There are many who are residing in the UK who have children who have been living in the UK for less than 7 years. They are attending school and have fully integrated into the UK. There are also many who have been living in the UK for many years but under the 20 years requirement to make an application under article 8 – private life.

They not only suffer hardship due to immigration hostile environment, but there is also a significant cost to the taxpayer due to the  Home Office’s ever-increasing workload.

Rather than using taxpayers’ money in conducting reporting events, providing NASS support, and many other costs, for those who realistically cannot be removed as they almost meet the requirements, would it not be better to grant discretionary leave, allowing many to work and contribute to UK Society earlier?

I have no doubt that this will reduce cost to the Home Office long term and will help clear the number of migrants in the UK who remain illegally. Of course, if there is an internal policy regarding this it is unlikely to be publicised however in view of the recent actions made by the Home Office perhaps it is now a wise time to make an application based on discretion.

If you are in the UK without leave, and wish to discuss options available, and in particular whether discretionary leave could be worth an attempt then please get in touch.

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On 7^th March, the Home Secretary announced her plan to stop illegal migration to the UK by preventing those who enter the United Kingdom from claiming asylum. The Illegal Migration Bill proposes that all that enter the UK ‘illegally’ (often by crossing the Channel in a small boat) will be detained and then removed to their home country or another safe third country, namely Rwanda.

The Home Secretary has stated that the rationale behind the bill is as follows:

“The British people rightly expect us to solve this crisis and that’s what myself and the Prime Minister fully intend to do. We must stop the boats. It is completely unfair that people who travel through a string of safe countries then come to the UK illegally and abuse our asylum laws to avoid removal.”

“It has to stop. By bringing in new laws, I am making it absolutely clear that the only route to the UK is a safe and legal route. If you come here illegally, you won’t be able to claim asylum or build a life here. You will not be allowed to stay. You will be returned home if safe, or to a safe third country like Rwanda. It’s the only way to prevent people risking their lives and paying criminals thousands of pounds to get here.”

The arrival of this legislation follows the five key priorities outlined by the Prime Minister earlier this year. Pledge number five was to stop the small boats from crossing the channel and enter the UK. Notably, the PM’s lectern was emblazoned with the simple slogan of “Stop the Boats” at his press conference following the announcement of the new policy.

But what will the details of the plan involve?

Illegal migrants will be detained for 28 days during which they will not be able to lodge bail applications, or application for Judicial Review. Those who have exceptional circumstances and face risk will have a maximum of 45 days to remain in the UK until their appeal rights are exhausted.

Some of the other measures proposed in the Bill are:

• Duty to make arrangements for removal – the Home Secretary will have a legal duty to remove people who have entered the UK illegally.
• Entry, citizenship and settlement – people who come to the UK illegally will be prevented from settling in the country and will face a permanent ban from returning.
• Asylum – people who come here illegally will have their asylum claims deemed inadmissible and considered in a safe third country.
• Modern slavery – modern slavery referrals for those who come to the UK illegally will be disqualified under public order grounds under the terms of the international anti-trafficking treaty, ECAT.
• Legal proceedings – limiting the circumstances in which legal challenges will prevent someone from being removed from the UK. Most legal challenges will be considered when someone has been successfully removed from the UK.
• Expanding the list of countries that are considered safe in law – this will make it unquestionably clear when someone doesn’t need our protection because they are obviously not at risk of persecution in their home country.

Our thoughts

The Home Office believe that the above measures will prevent people from risking their lives in their dangerous routes to the UK, as well as stop criminal gangs from profiting from the asylum system. Of course, it is worth remembering that the decision by the government to introduce these measures are politically motivated. Conservative voters on the whole are much more likely to be in favour of reducing immigration, a hugely important factor in deciding policy for a party ahead of the upcoming May local elections and likely general election next year.

These proposals thus far appear to be impractical. A claim for asylum and those who are a victim of trafficking often involve complex issues that cannot be practically investigated within 28 days. We do not see how the Home Office will be able to practically conduct this plan. To date, not a single migrant is yet to be sent to Rwanda under their previous proposal which shows that such plans can be very difficult, if at all possible to be implemented.

There is also the question of whether the bill is compatible with the European Court of Human Rights. Indeed, the government looks set for a collision course with the legal body over the proposals, with the Home Secretary herself writing to Conservative MPs to say that there is “more than a 50% chance” that the legislation is not compatible with the ECHR. Time will tell whether this is the case.

Have questions about this article? Get in touch today!

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The government has announced the latest statement of changes in the immigration rules, titled HC1160. These provisions have been made under Section 1 (4) and Section 3 (2) of the Immigration Act 1971. These are the first statement of changes to the immigration rules since 18^th October last year, and as a result are relatively substantial. Introduced are a number of new visa routes, as well as changes to existing routes. In this article we will cover some of the major changes outlined by the Home Office which will take effect from 12^th April 2023.

Keep reading to learn more about these important changes announced by the Home Office, and how they could impact you.

Introduction of the Innovator Founder route

One of the most eye-catching announcements is the introduction of the brand new Innovator Founder route, which will kick start from 13^th April 2023. While there are currently provisions in place for those wishing to come to the UK in order to set up an innovative business, namely the Innovator visa, the Innovator Founder route replaces the Innovator route entirely. The Innovator Founder route introduces:

• The removal of the £50k minimum funds requirement
• Removing restrictions of Innovator migrants from engaging in employment outside of the running of their business as long as it is in a skilled role (RQF Level 3 or above)
• Closure of the Start-up route to new initial applications other than those issued prior to 13^th April 2023

The removal of the £50k requirement in particular gives more flexibility to innovators while retaining the requirement for an innovative business idea with sufficient funds to deliver on it. Furthermore, this removal also means that the there is no longer any need for the Start-up route as neither route will require access to £50k of funds.

Updates to employment requirements in work routes

A number of visa routes including the skilled worker/global business mobility/scale-up and seasonal worker routes are also being updated.

• Perhaps unsurprisingly given the current levels of inflation, salary thresholds and going rates for individual occupations are being updated. This also means the minimum salary requirement of at least £25,600 for Skilled Worker, will be increased to £26,200 from 12th April 2023.
• For work routes which require applicants to have a specific job offer, applications will be refused if the decision maker has “reasonable grounds to believe that the job does not comply with the National Minimum Wage Regulations or the Working Time regulations”.
• Jury service and attending court as a witness will now be valid reasons for absence from employment in relation to consideration about continuity of employment

A minor change has been introduced to the skilled worker route which confirms the route applies to those “working in UK waters”, as per section 43 of the Nationality and Borders Act 2022.

Meanwhile, a change is being made to the Global Business Mobility route in line with commitments the UK has made in the UK-Australia Free Trade Agreement. This changes means that Australian nationals and permanent residents will not need to provide that they have worked for their overseas employer for 12 months prior to coming to the UK to open a branch or subsidiary of their Australian employer.

Changes to the EU Settlement Scheme (EUSS) and EUSS family permit

A number of changes have been made to the EUSS and EUSS Family Permit.

These are as follows:

• Durable partners – A durable partner must have had another lawful basis of stay in the UK before the end of the transition period in order to rely on that residence if they were not documented as such
• Key rulings such as Zambrano, Chen and Ibrahim & Teixeira are all being brought within Appendix EU of the immigration rules under the concession that relevant cases “are not excluded from eligibility by having leave to enter arising from arrival in the UK with an EUSS family permit
• Cancellation – A person’s EUSS leave is to be cancelled where the relevant threshold is met relating to a person who is subject to a travel ban imposed by the UK or the UN Security Council. This is subject to right of appeal.
• EUSS family permits issued from 12^th April are to be valid in all cases for six months from the date of decision. These could previously be as short as four months.
• Relevant EEA or Swiss citizens will be prevented from being granted pre-settled or settled status as a result of sponsoring a EUSS family permit.

Changes to the Youth Mobility Scheme (YMS)

People from a number of places including Australia, Hong Kong and Canada are eligible for the Youth Mobility Scheme. Changes are being made to this in line with the UK’s arrangement with New Zealand. The age range for those from New Zealand will now be expanded from 18-30 to 18-35, while New Zealanders will also now be able to stay for 3 years instead of 2.

Meanwhile, the quote for the number of places available to each participating country has also been updated.

Introduction of new Appendix Adult Dependent Relative

Going forward, the rules in Appendix Adult Dependent Relative will now be aligned with suitability at settlement on all Article 8 human rights routes. The applicant may therefore be refused if they have committed certain serious crimes and are applying for entry clearance or permission to stay.

Furthermore, if an applicant fails certain suitability rounds but their removal would breach Article 8 of the European convention on Human Rights, they must complete a longer qualifying period before being able to settle in country.

Introduction of new Appendix Family Reunion (Protection) and new Appendix Child joining a Non-Parent Relative (Protection)

Changes to Appendix Family Reunion and new Appendix Child joining a Non-Parent Relative (Protection) replace existing provisions for leave to enter and remain as both a partner and child of a person with protection status in the UK. These changes are part of an attempt to simplify the immigration rules following a report by the Law Commission.

As part of these changes, a four stage decision-making process has been introduced for both. These are:

1. Validity
2. Suitability
3. Eligibility
4. Decision

These are part of a reformatting of the immigration rules, no specific policy changes have been made. Furthermore, the definitions of ‘protection status’ and ‘refugee leave’ have been added to the rules. These terms must be referred to when applying Immigration Rules to applications.

Changes to the Long Residence rules

Finally for today’s article, changes have also been made to Long Residence rules. These changes will be much-welcomed by those affected, with the previous rules bringing confusion around what constitutes lawful residence in the long residence rules.

• These changes mean that any period on immigration bail will not count towards the qualifying period for long residence in any circumstances.
• Time as a visitor, short term student and seasonal worker will also not count towards long residence.
• Someone who has spent time on immigration bail or in the UK on temporary permission who is later granted permission on another basis will still be able to qualify for long residence settlement. However, due to these changes they will now have to wait longer to do so.

These are all of the changes announced in the first Statement of Changes in 2023 which we will be discussing today. There are further updates to Electronic Travel Authorisations (ETA), as well as Global Talent, Seasonal Worker and Temporary Work routes. We will soon post another follow-up article to explain the new changes further.

Have questions about this article? Get in touch today!

Call us on 020 7928 0276, our phone lines are open and we will be taking calls from 9:30am to 6:00pm.

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The appellant is a Turkish national that applied for leave to remain under the European Communities Association Agreement (ECAA) in order to establish himself in business (ECAA Business Visa). His proposal involved the acquisition of an existing grocery shop and its development. He was intending to buy an existing business, organic grocery store in the Highbury area of North London.

This case focuses on the question of whether the appellant had the business experience and qualifications to apply for leave to remain on the basis of setting up his own business. It therefore provides an important lesson for situations of this kind.

Background

His business plan identified the range of foods to be provided, and the sale strategy of the business was described as “straight forward”. The appellant was described as “a young, energetic and enthusiastic businessperson” who “… will be responsible for management, staffing and daily operations.

The Home Office refused the application stating that “No evidence has been provided to demonstrate that [the appellant] possesses any experience or qualifications to ensure the role can be carried out successfully”. Additional concerns were identified relating to the “young age” of the appellant, the absence of the list of potential or existing clients, and whether sufficient funds existed to cover the investment.

The Appellant submitted a pre-action protocol letter stating that there was ‘there is no legal requirement that the applicant should have any experience or qualification to invest in a business.’

The Home Office responded by saying that: “Whilst you claim there is no legal requirement to have experience or qualifications to run a grocery store business and therefore unreasonable to highlight that such experience or qualification is needed.’

The Appellant commenced Judicial Review Proceedings.

Decision – R (on the application of Agca) v Secretary of State for the Home Department [2023] EWCA Civ 56

The Court considered this case and confirmed that the difficulty for this appellant is that he provided no evidence of any relevant business experience nor of any understanding of business and financial management.

The Court held that it is not difficult to understand that such a requirement of experience is required as it relates to the finances, sales and stock of the business and of managing staff. In the absence of this the respondent’s decision was reasoned and rational.

Our comments

The findings show the importance of ensuring that the business plans are carefully produced, ensuring that any potential issues are addressed. In this case, the appellant lack experience and qualifications, and failed to provide evidence as to why the business plan would be effective without these key components.

Have questions about this article? Get in touch today!

Call us on 020 7928 0276, our phone lines are open and we will be taking calls from 9:30am to 6:00pm.

Email us on info@lisaslaw.co.uk.

Use the Ask Lisa function on our website. Simply enter your details and leave a message, we will get right back to you: https://lisaslaw.co.uk/ask-question/

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