Written by Mahfuz Ahmed

A recent case (R v G 2022) involving an Italian family which saw the father make an application under the Convention on the Civil Aspects of International Child Abduction 1980 for the return of his child has highlighted the complexity around the relationship between family law and asylum law.

The respondent mother, who had moved to the UK with her child unbeknownst to the father, had her application for a further stay of a return order refused by the The Family Division in light of judicial review proceedings relating to her immigration.

But before we continue any further, a bit of context to the case. The respondent mother, the father and the child are all Italian nationals. The parents had been in a relationship for a number of years but did not marry. The respondent and her child came to the UK in 2021 following a separation from the child’s father in August 2021 in which they remained living together.

The father did not know the whereabouts of the mother and child until he received a text from the mother stating that she was in England and would return on 7^th September 2021, however they did not.

Mother made an asylum claim in the UK

The father then made an application pursuant to the Convention on the Civil Aspects of International Child Abduction 1980 (the 1980 Hague Convention) for the return of the child.  In February 2022, the Court made a return order, requiring the child be returned to Italy by 13^th February 2022.

Prior to this order being made, the mother made an asylum claim in the UK, which was deemed inadmissible under para 326E of the Immigration Rules. These rules states that EU asylum applications will be declared inadmissible unless there are exceptional circumstances which require the application to be admitted for full consideration. There is no right of appeal.

The mother made an application for judicial review in relation to her immigration decision. Thereafter, she applied to the Family Division for a stay (postponement) of her return order until her judicial review application had been determined.

The judgement of the Court

R v G [2022] EWHC 655 (Fam)

The Court considered the mother’s (respondent) application and refused her application. They held:

(i)  there was no right of appeal against the decision by the Secretary of State for the Home Department that the asylum claim was ‘inadmissible’;

(ii)  as a consequence, there was no ‘in country’ appeal in accordance with the Nationality, Immigration and Asylum Act 2002 and therefore, the protection afforded for such a situation by section 78 of the Nationality, Immigration and Asylum Act 2002 did not apply; and

(iii)  it rejected the mother’s submission that it should treat her application for judicial review as having the same effect as an ‘in country’ appeal on the basis that it was the only route by which the admissibility decision could be challenged.

Court orders child to be returned to Italy

The Court held that there was no breach in the principles set out in the recent case G v G [2021] 4 All ER 113 that prevented the return order from being implemented. The Court subsequently ordered that the child be returned to Italy by 23^rd March 2022. This would give the opportunity for the mother to consider if she would return to Italy with the child, and if she didn’t then the child would be returned to Italy in the care of the father.

Our comments:

This judgement makes it clear that a person is afforded protection in an in-country right of appeal under the Nationality, Immigration and Asylum Act 2002. A judicial review application does not have the same effect and does not afford the same protection.

Have questions? Get in touch today!

Call us on 020 7928 0276, 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/

Or, download our free app! You can launch an enquiry, scan over documents, check progress on your case and much more!

lisaslaw@web

See Full Bio

The Home Office’s new statement of changes, Immigration Rules HC 1118, appears to represent one of the biggest shake-ups to the system since Britain formally left the EU and introduced the new points-based immigration scheme on 1st January 2021.

As well as the High Potential Individual and new Scale-Up route, which we addressed in a previous blog, the HC 1118 changes have also seen the introduction of the UK Expansion Worker Visa, which replaces the Representative of an Overseas Business route.

The Representative of an Overseas Business route closes for most applicants on 11th April 2022 but will remain open for media representatives as well as sole representatives applying for extension and/or settlement. Its replacement, the UK Expansion Worker Visa, will open to applicants on 11th April at 9am and will be one of five routes under the Global Business Mobility umbrella. This includes Senior or Specialist Worker, Graduate Trainee, Service Supplier and Secondment Worker.

The Expansion Visa is for senior managements or specialist employees who have been assigned to the UK to expand their company’s business in the UK. It provides a two year grant of leave for applicants, however successful applicants will be able to extend their stay in the UK up to a maximum period of 5 years in any 6 year period.

A step backwards for business mobility?

It is not a route which automatically leads to settlement and is for businesses which are both set up and trading outside of the UK, however applicants are allowed to bring their dependent partner and children under the age of 18.

The lack of an automatic route to settlement is something which has proven slightly controversial, with this omission coming despite recommendations from the Migration Advisory Committee. Indeed the previous version of the visa, the Representative of an Overseas Business route, did offer a route to settlement – meaning that in some ways this new visa represents one step forward and two steps back.

These companies will be able to use the visa to send a senior manager to the UK in order to grow and expand the presence of their business in the UK. However, it is important to note that the applicant will need to be sponsored and their employer will need to hold a sponsorship licence before they can apply for the visa.

The Home Office’s latest Statement of Changes in the Immigration Rules adds that:  “If the business is already trading in the UK, workers should apply under Appendix Global Business Mobility – Senior or Specialist Worker instead”.

Validity requirements for a UK Expansion Worker Visa

In order to qualify for a UK Expansion Worker Visa, the applicant will have to obtain 60 points as part of the UK’s points-based immigration system. The table below shows the route to 60 points for an applicant:

As the Immigration Rules require the sponsoring overseas company not to be trading in the UK, it is anticipated that the Home Office will create another register for overseas companies who intend to expand in the UK and send their senior employees here to implement the expansion. The relevant requirements are understood to be similar to those under which the current register of skilled worker sponsors is maintained.

In addition to the sponsorship requirement, the expansion worker visa also requires that the applicant needs to do a job at an appropriate skill level with a salary at required level, both of which are prescribed at Appendix Skilled Occupation to the Immigration Rules.

As well as the 60 points necessary, below are the validity requirements for those looking to apply for the UK Expansion Worker visa:

(a) Any fee and Immigration Health Charge must have been paid;

(b) The applicant must have provided any required biometrics;

(c) The applicant must have provided a passport or other travel document which satisfactorily establishes their identity and nationality;

(d) The applicant must have a Certificate of Sponsorship that was issued to them by their sponsor no more than 3 months before the date of application.

• The applicant must be aged 18 or over on the date of application.
• An applicant applying for entry clearance or permission to stay as a UK Expansion Worker who has received an award from a Government or international scholarship agency in the 12 months before the date of application which covers both fees and living costs for study in the UK, must have provided written consent to the application from that Government or agency.

An applicant applying for permission to stay must be in the UK and must not have, or have last been granted, permission:

(a) As a Visitor; or

(b) as a Short-term Student; or

(c) as a Parent of a Child Student; or

(d) as a Seasonal Worker; or

(e) as a Domestic Worker in a Private Household; or

(f) outside the Immigration Rules.

Switching to settlement routes?

It should be noted that although the expansion worker route does not lead to settlement itself, the visa holders are able to switch into other types of settlement routes, like the skilled worker visa or innovator visa either during the term of the visa or at the end of it.

Family members

The expansion worker applicants will be able to bring their family members with them, provided that they are able to adduce evidence to prove the relevant relationship and have the required funds to maintain and accommodate themselves adequately without resorting to public funds (£285 for the spouse/partner, £315 for the first child and £200 for any additional child(ren) which has to be held on the accounts for no less than 28 days). Family members includes spouses/civil partners and minor children.

Our thoughts

Although this new visa purports to simplify the process and make it easier for businesses to expand in the UK, the lack of an automatic route to settlement compared with the previous visa does seem to undermine the new UK Expansion Worker visa somewhat.

This may put off some businesses from investing money into UK expansion if settlement through the UK Expansion Worker Visa is not guaranteed, however it remains to be seen what the true outcome will be until the new scheme launches on 11^th April 2022.

Have questions? Get in touch today!

To discuss an expansion worker visa application, feel free to use the following options below.

Call us on 020 7928 0276, phone calls are operating as usual and 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/

Or, download our free app! You can launch an enquiry, scan over documents, check progress on your case and much more!

Links to download below:

iPhone: https://apps.apple.com/us/app/lisas-law/id1503174541?ls=1

Android: https://play.google.com/store/apps/details?id=com.lisaslaw 

lisaslaw@web

See Full Bio

Written by Mahfuz Ahmed

In a case involving a man killed by the Taliban after being deported to Afghanistan, the Upper Tribunal has ruled that an immigration appeal is over once the appellant dies.

You could be forgiven for not being aware of the circumstances around the right to appeal and whether the right of appeal under section 82 is firmly personal upon death, however a recent case sets the record straight.

In the case of a man known only as FZ (human rights appeal: death: effect) Afghanistan [2022] UKUT 71 (IAC), the appellant was an Afghan national who came to the UK in November 2000 and was granted indefinite leave to remain in December 2009.

Sadly, this is where the story of FZ begins its downward spiral. From this point, FZ committed 5 criminal offences and the Home Secretary deported him as a persistent offender in April 2016. An appeal was lodged by the appellant from Afghanistan.

In September 2018, the appellant was killed by the Taliban. His appeal was then pursued by his widow and children. The First-tier Tribunal dismissed the appeal and the appellant’s widow and children appealed to the Upper Tribunal.

Judgement by Upper Tribunal

The Upper Tribunal considered this matter and they held that as a matter of statutory construction, the right under section 82 of the Nationality, Immigration and Asylum Act (NIAA) 2002 to appeal to the First-tier Tribunal against the refusal of a human rights claim would come to an end on the death of the person whose human rights claim had been refused.

Accordingly, the Upper Tribunal dismissed the appeal by the appellant’s widow and children.

Our comments:

This judgement by the Upper Tribunal makes it clear that an appellant’s right of appeal under section 82 of the NIAA 2002 is firmly personal to that person, and therefore upon death that right comes to an end.

Have questions? Get in touch today!

Call us on 020 7928 0276, phone calls are operating as usual and 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/

Or, download our free app! You can launch an enquiry, scan over documents, check progress on your case and much more!

lisaslaw@web

See Full Bio

It can be challenging to keep up with the latest changes to the Immigration Rules especially as they have been updated a few times in recent memory, so one can be forgiven for feeling a bit left behind. However, as usual your friends at Lisa’s Law are here to help.

Think you might be a High Potential Individual and looking for help? Contact us today by emailing info@lisaslaw.co.uk or calling on 020 7928 0276.

But first, keep reading to learn more about the route itself.

In this blog we will focus on the recent announcements of the High Potential Individual route and the new Scale-Up route.

High Potential Individual Route

This route is dedicated to attracting graduates from leading non-UK universities who have the potential to work in certain fields particularly in areas such as science, technology, innovation, and entrepreneurship, cementing the UK’s reputation as a hub for technological advancement.

To be eligible for this route, applicants must have either a bachelor’s or postgraduate degree qualification from one of the top global universities outside the UK as published in the Global Universities List by the Home Office, awarded during the last 5 years from the date of application. This list will be compiled annually and will consist of institutions that are included in the list of the top 50 universities in at least two of the following ranking systems:

1. Times Higher Education World University Rankings
2. Quacquarelli Symonds World University Rankings
3. The Academic Ranking of World Universities.

Permission to remain in the UK will be granted for a period of 2 years for applicants who hold a qualification equivalent to a UK Bachelor’s or Master’s level degree. This is increased to 3 years where the applicant holds a qualification equivalent to a UK PhD.

Once in the UK, the applicants will be able to freely look for jobs and work for UK companies. Although this route does not lead to settlement, applicants will be able to switch to other types of visas which lead to settlement, like skilled worker visa, scale-up visas and others.

In addition, the applicants will also be able to bring their spouse and dependent children with them.

The Scale-Up Route

Before we get into this route, a Scale-Up is a company which has an average annualized return of at least 20% in the past 3 years with at least 10 employees in the beginning of the period. They have essentially passed the start-up phase and have established themselves as having a strong base from which to grow.

With this in mind, the new Scale-Up visa route is aimed at applicants who have a job offer from a recognised scale-up business to qualify for a fast track visa. Companies can register for this route by showing they meet the requirements of a scale-up as detailed in the above paragraph.

The job offer above must be skilled to graduate level (RQF 6 and equivalent).Also, the applicant will have to be paid an appropriate salary – at least £33,000 per year or the going rate for the particular occupation, whichever is higher.

In the meantime, provided that the applicants have worked for at least 12 months for a UK company on a Scale-Up route with an annual earning of no less than £33, 000, they will become unsponsored, which means that they will be free to work for any Scale-up companies in the future.

The route leads to settlement. Applicants are required to have PAYE earnings of at least £33,000 in 24 months of the 3-year period immediately prior to their application for settlement. This will be in addition to the standard settlement requirements relating to 5 years’ continuous residence and demonstrating knowledge of life in the UK.

Benefits of the High Potential Individual route and the Scale-Up route

The good news for people on both these routes is that they will be able to work full time at any skill level. The only difference is that those on the Scale-Up route will have to remain at their original employer for the first 6 months in a role at skilled to graduate level, but after that time period is up their status will no longer be tied to that company.

Successful applicants will be able to bring dependent family members (spouses/partners and children under 18), as is the case with other work routes.

Our thoughts

These two routes, in our opinion, are promising and can attract some highly skilled individuals to the UK. Blooming careers can potentially be made for the successful applicants while the country itself will reap the benefits of having such talent working here in the UK.

The fact that successful candidates can bring family members with them and settlement in the UK can eventually be achieved through these routes is also a massive positive. We look forward to seeing how the routes play out in reality, because in theory there is a lot to be excited about here.

Have questions? Get in touch today!

Call us on 020 7928 0276, phone calls are operating as usual and 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/

Or, download our free app! You can launch an enquiry, scan over documents, check progress on your case and much more!

lisaslaw@web

See Full Bio