You have likely seen on the news that the political and economic situation in Afghanistan remain in dire circumstances, with the Taliban in full control of the nation. There are reports of many people going without food, shelters being overly full and many businesses being unable to operate properly.

To show support to Afghanistan during this hard time, the UK has launched the Afghan Resettlement Scheme in order to bring people safely over here with the view of rehoming them and allowing them to integrate into our society. This blog will look at how concessions have been changed in order to allow Afghan nationals who either had entered the UK prior to 1 September 2021 or had made an entry clearance application prior to that date and subsequently arrive in the UK. These concessions also apply to their dependants.

Important criteria to be considered under the Afghan concessions

It is integral that applicants meet the below criteria to remain in the UK:

• be an Afghan national, or their dependant partner or child

• be in the UK lawfully or have been granted an exceptional assurance, or where the applicant has overstayed, paragraph 39E of the Immigration Rules must apply to them

• prior to 1 September 2021 have lawfully entered the UK, or made an entry clearance application and subsequently arrived after that date in the UK using that entry clearance, as a:

1. person on a work or study route set out in Table 1 (main applicants) or Table 2 (dependants) below (links to tables here),
2. Visitor,
3. T5 (Temporary Worker) Seasonal Worker/Temporary Work – Seasonal
4. Worker,
5. T5 (Temporary Worker) Youth Mobility Scheme/Youth Mobility Scheme,
6. Short-term Student,
7. Overseas Domestic Worker,
8. Domestic Worker in a Private Household, or
9. Domestic Worker who is a Victim of Modern Slavery

Or,

• be applying for permission to stay on a work or study route

• meet the requirements of the Immigration Rules for the route on which they are applying, subject to the concessions contained in this guidance.

It is important to remember that when an applicant does meet these criteria, it does not guarantee them a successful application. Each applicant will be considered individually on their own merits.

Switching routes

Some Afghan nationals may be permitted to stay in the UK under a different route to what they are currently on, otherwise known as ‘switching’. Usually, this will require the candidate to return to their home country in order to make such an application. As the situation in Afghanistan means that this is impossible or unadvisable for many people, some concessions have been brought in so that they can switch from inside the UK.

Such concessions will cover those who meet the general requirements above and also meet the following relevant requirements:

• the applicant has confirmed in writing that they wish to be considered under this concession and has explained their reasons for applying in-country, rather than returning to Afghanistan to make an entry clearance application: the decision maker does not require detailed evidence as to why returning to Afghanistan would be problematic – they can instead be satisfied with a reasonable written explanation provided with the application.

• they have entered the UK on a temporary route and are seeking permission to switch into a route listed in the tables below.

So, should an applicant meet the above criteria, they can apply to UK Visas and Immigration to switch from one route under the Immigration Rules to another. However, they must meet the requirements of the rules of that other route. All applications will be considered on a case by case basis, taking into account all of the circumstances.

Document flexibility

The Home Office will be reasonably flexible when dealing with applicants who cannot provide certain documentation needed for their application. However, this decision will be based on a written explanation from the applicant detailing why they cannot provide the document in question.

For example, the institution which distributes the document may not be operating in Afghanistan at this time. Or, the document must be collected in person, which again may not be possible or advised presently.

If the Home Office is satisfied that due to the situation in Afghanistan a document required by the Immigration Rules cannot reasonably be obtained from Afghanistan, the requirement to provide that document may be waived. Again, all applications will be considered on a case by case basis, taking into account all of the circumstances.

Our thoughts

We are pleased to see the UK take this positive stance on the situation in Afghanistan and have chosen to act in an empathetic and supportive way. People who find themselves in the UK after fleeing the situation in Afghanistan do not deserve to be punished for something that is not their fault, and it is a testament to the UK to provide them with needed support.

If you are reading this and have been affected by the situation in Afghanistan and require any legal advice, we are here for you.

Have questions? Get in touch today!

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Written by Mahfuz Ahmed.

A person can apply for naturalisation and become a British Citizen if they satisfy all of the requirements. Some of those requirements include suitability requirements, eligibility requirements and passing the Life in the UK test.

Schedule 1, paragraph 1(2)(a) of the British Nationality Act 1981 states that any applicant must be in the United Kingdom for a period of 5 years prior to the date of the applicant (the five year rule).

The aim of the five-year rule is to ensure that an applicant for citizenship has a clear, strong connection with the UK evidenced by presence in the UK.

This means that an applicant can only be absent for a certain amount of days prior to the application to be eligible.

R (on the application of Vanriel and another) v Secretary of State for the Home Department

In this case the Claimant was born in Jamaica in 1956 and he came to the United Kingdom in 1962 with his mother.

In the 1990’s the Claimant would regularly visit his father and son in Jamaica using his Jamaican passport, which had an Indefinite Leave to Remain stamp.

In 2004, the Claimant attended his father’s funeral in Jamaica. When he sought to return in 2007 he was denied entry as a returning resident.

In 2018, the Claimant was granted a visa as a returning reside under the Windrush scheme. He applied for ILR which was granted. However, when applying for naturalisation he was refused in 2021 as he had not satisfied the five-year rule, that is to say he was not in the UK for 5 years prior to the application. The Secretary of State stated that they had no discretion to waive this requirement.

The Claimant challenged the refusal of his citizenship application by way of Judicial Review.

Judicial Review proceedings

The Claimant argued that they were victims of the type of injustice which had given rise to the Windrush scheme. They were wrongfully prevented to enter the United Kingdom despite having Indefinite Leave to Remain and therefore the 5 year rule could not be satisfied, through no fault of their own.

The Claimant argued that the five-year rule could not be justified as the criteria did not allow discretion, and therefore incompatible with the European Convention of Human Rights. There was indirect discrimination as the present rule did not permit the treatment of different situations to be assessed.

The Court agreed with the Claimant and held making citizenship decisions in the Claimants’ cases by application of the five-year rule with no discretion or flexibility was incompatible with their rights under art 14 in conjunction with art 8.

Our comments

This important decision is much welcome as discretion should be permitted when considering the 5 year rules. Applicant’s may have significant reasons as to why they cannot satisfy this requirement and now the Secretary of State would be obliged to consider those reasons.

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.

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Sometimes the best way to figure out what is going on in the world of UK immigration is to take a look at the numbers related to it. We have analysed the data related to the sponsoring of applicants on the Tier 2, 4 and 5 routes. There are some interesting trends that reading this data reveals, and these findings will be the focus of this blog.

Firstly, what are Tier 2, 4 and 5 sponsors?

• Tier 2 sponsors are employers of skilled workers.
• Tier 4 sponsors are education providers (focussing on students).
• Tier 5 sponsors are employees of temporary workers.

Number of registered Sponsors on Points Based System routes

Across each Tier, there has been a steady rise in the number of registered sponsors between Q4 of 2020 and Q3 of 2021. The largest increase has come in for the Tier 2 sponsors, with an additional 5,000 sponsors added within that time frame.

This is indicative of the fact that the Home Office is keen to bring in skilled workers from overseas, therefore incentivising them to allow for more firms to become sponsors of overseas workers. In fact, this is the largest increase of Tier 2 sponsors within such a time period since at least 2014.

Number of sponsor applications made

Keeping in line with the previous point, the largest number of sponsorship applications in recent months has been for the Tier 2 category, meaning that employers are very keen on getting workers from overseas into their businesses. This is a good thing for those looking to make a career in the UK, as opportunities seem to be on the rise for this kind of work.

Applications from Tier 4 and 5 sponsors, on the other hand, are slightly lower than usual but not by a significant amount. This shows that while there is still demand in these positions, uncertainties due to COVID-19 may have made education providers and employers of part time workers less sure about the future.

Length of time taken to process sponsorship applications

The length of time it takes to process applications has increased significantly, especially when looking back at the same data from 2014. Then, such applications for each Tier took under 4 weeks to complete in 80 – 90% of cases. In Q3 of 2021 this has only been the case in 18% of Tier 2 applications, 27% of Tier 4 applications and 23% of Tier 5 applications.

However, it is not necessary to look back that far to see that the length of time it takes to get applications completed is increasing. This creates backlogs of cases and other delays down the road.

One may look at this with an element of understanding when it comes to the Tier 2 applications, as there are now many more cases to deal with. However, the fact that applications for Tier 4 and 5 sponsorships have decreased should mean there is more time to get these completed.

Action against sponsors

There is an interesting trend that we can identify here. Action against sponsors, in this data, relates to the suspension or revocation of the sponsors licence. From 2013 to 2018 there was a slight decrease in this happening, with the exception of 2017 where revocations of Tier 2 sponsors experienced a spike.

If we turn our attention to the beginning and middle of 2020, when COVID-19 was causing major disruptions, we can see that the Home Office was still taking action against sponsors. They were not deterred by the pandemic very much at all.

However, looking at the data from 2021 we can see that hardly any action has been taken against sponsors. This means that they are being far more lenient than before. We presume this is because, after the effects of the pandemic, it is of vital importance to get the economy back up and running, and to do this they must encourage employers to bring in the workers they need to provide services and perform roles that will keep the wheels of society turning, and the money flowing in.

It is easy to criticise the government over this difficult period, but we wonder if the government had taken this stance earlier and not revoked so many sponsorships at the height of coronavirus, it may have worked out better for everyone.

Announcements on future visas

There have been some announcements recently regarding plans to bring in new visas for skilled workers. For example, care workers have been added to the Shortage Occupation List and are eligible for the Care Worker visa. Likewise, Sadiq Khan has announced that he wants to bring in a Temporary Construction Worker visa to help build up the capital, and build more affordable housing. This may result in more sponsorships being allocated to employers in these related fields.

Our thoughts

We are pleased to see that new visa types may be on the horizon, as more skilled workers coming to the UK means growth and prosperity for the nation, but also those who come here to work and make a life for themselves. This data holds some valuable information, and as far as we can see the coming months may look good for international workers coming to work.

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!

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lisaslaw@web

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