There are many aspects that must be taken into account when someone wishes to apply for leave to remain in the UK, including passing an English language test from a recognised provider. One of the accredited test by the Home Office used to be the Test of English for International Communication (TOEIC) provided by an US-based Educational Testing Service (ETS).

Many still remember that in 2014, BBC carried out an undercover investigation and alleged that there was systematic cheating in TOEIC test. The Home Office subsequently took action to cancel around 45,000 students’ visas, on the ground that they had either provided a fraudulent English test certificate (namely TOEIC) in their visa applications or attended such test with an intention to use it. In the meantime, they have also highlighted many more other cases which will trigger similar action, as soon as the relevant applicants come into contact with the Home Office by either submitting further applications or crossing the border. This issue has been the subject of substantial litigation at Immigration Tribunals, High Court and Court of Appeal.

Regarding ETS cases, it has been established that the correct approach should be that each case should be assessed on its particular circumstances and a blanket policy to claim all such certificates to be fraudulent (and hence cancel the relevant applicants’ visa) is incorrect and unlawful. Today we will look at one of such cases.

Alam v Secretary of State for the Home Department

The case in question involves a man who was accused of cheating on the TOEIC, which resulted in his application to remain in the UK on a Tier 4 student visa being refused.

The main concern regarding the test was the location in which it took place, Queensway College, which is reported to have housed many suspicious English language assessments.

The case reports states that:

“there was a significant amount of cheating being undertaken … it was a location at which proxy tests were occurring: it was a fraud factory.”

“Fraud factory” is a term used in the TOEIC case-law to denote a testing centre which offered the services of proxies on a regular basis and a large scale.

The Appellant’s appeal was dismissed by the First-Tier Tribunal and the Upper Tribunal. By the time the case had reached the Court of Appeal, the primary remaining issue was whether the Tribunals had given sufficient weight to an All Party Parliamentary Group Report (the APPG report) and hence made an error in their judgments.

What is an APPG report?

An all-party parliamentary group (APPG) is composed of members of parliament across all political parties. APPGs will have officers drawn from the major political parties and aim to avoid favouring one political party or another. Their aim is to examine issues of policy relating to particular areas, debating new developments, and holding inquiries into a various issues. They will often invite stakeholders and government ministers to speak at their meetings. An APPG report will be the collected opinions and evidence that spawn from these meetings.

The APPG report on TOEIC was released in July 2019. The key findings of the report were that the Home office’s evidence was confusing and misleading, that the affected students had been provided inadequate opportunity to present their cases and challenge the Home Office’s decision and/or offered to resit new tests. It also found that there was procedural irregularity in the Home Office’s conduct in the way that it ignored its own experts’ opinions.

Such findings were clearly in favour of the affected students like the Appellant. It was not a surprise that the argument at the Court of Appeal had been that the Tribunals had not attached sufficient attention to such report in their judgments.

It was the Appellant’s case that the APPG report in question offered potential evidence that cast doubt on the reliability of the information that suggested the testing results were the outcome of cheating. The appellant’s opinion was that if the APPG report was given proper weight, then his appeal should be granted and his leave obtained.

The Judgment

It was not accepted that the role of the court was to specifically examine the role in which this APPG report played in the case.

However, The APPG report was not supplied to the Upper Tribunal in advance of the hearing and was first referred to by the appellant in his closing submissions, and did not reference the report in great detail, rather only shortly. There was no detailed submission how the APPG report was relevant to the Appellant’s case and in what way it would make the Home Office’s decision unlawful and hence assist the Appellant.

In dismissing the Appellant’s appeal, the Court of Appeal held that by simply referring to the report would not help the Appellant much. The Tribunals were entitled to find what they had concluded in light of the information available to them. They were not expected to think or look in a precise way the Appellant wanted them to think or look.

Our comments

What we can say about the appellant’s use of the APPG report is that it was a potentially valuable asset and showed some good legal insight. However, it was a case of ‘too little too late.’ When a report, or previous case etc. is going to make up part of an argument, it must be presented and argued in good time, it must be researched well and it must be relevant to the case at hand. Otherwise, more often than not it will not serve the appellant in the way that they have hoped it would.

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Written by Mahfuz Ahmed.

Under paragraph 276ADE of the Immigration Rules, an applicant can make an application for leave to remain on the basis of their Private life established in the United Kingdom.

These applications are considered in accordance with Article 8 of the European Convention on Human Rights, which protects your right to respect for your private and family life.

Successful private life applications, will result in limited leave to remain in the UK which is usually for 30 months. The applicant must then apply for extensions until 10 years continuous leave has been accumulated in the UK, following which the applicant can apply for Indefinite leave to Remain.

The Home Office have now published guidance detailing new concessions permitting private life applicants (aged 18 – 24) to apply for indefinite leave to remain after 5 years continuous leave as opposed to 10 years.

The Home Office’s guidance titled ‘Concession for granting longer periods of leave and early indefinite leave to remain’

The Home Office guidance published recently on 21^st October 2021, states that to be eligible under the concession, the applicant must meet the following

• Be aged 18 years or above and under 25 years of age and has spent least half of his/her life living continuously in the UK (discounting any period of  imprisonment);
• Have either been born in or entered the UK as a child;
• Have held five years limited leave; and
• Be eligible for further leave to remain under paragraph 276ADE(1) of the Immigration Rules and have made an application under those rules.

Should an applicant meet the above criteria, then they will be granted indefinite leave to remain under the new concession policy.

Our comments

It appears that the Home Office have recognised that those that fall within the above criteria are adults that have come as children to the UK and should not be treated similarly to applicants that arrived in the UK as adults.

This is a much welcomed change introduced by the Home Office which will save many private life applicants both time and significant expense.

Should you have any questions relating to the Home Office’s new concession, then do not hesitate to contact us.

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Applying for leave to remain, visa extensions or going through any other immigration procedures can be stressful and leave applicants with serious anxiety and confusion. This is made twice as hard when the case becomes mixed up in various court jurisdictions and responsibility ends up being juggled around, leaving the person at the centre of it feeling lost.

In this article we will look into the issues that can arise when there are many factors that make up a person’s application to stay in the UK, such as point-based application, human rights violation, and how the Home Office can occasionally make matters worse, which was demonstrated in a recent case.

MY (Pakistan) v Secretary of State for the Home Department

In this case, the appellant had come to the UK on a spousal visa and was living with his wife and her parents. However, the marriage ended due to claims of domestic abuse by the appellant at the hands of his former wife’s family.

As his marriage was no longer a base for him to remain in the UK, the Appellant applied for leave to remain under section DVILR of Appendix FM of the Immigration Rules as a victim of domestic violence. Within this application was a contention that, should his application be refused and he ended up being removed, this would constitute a breach of his human rights.

In the end, the Home Office refused the Appellant’s application as a victim of domestic violence. In the decision, the officer dealing with the case refused to consider the Appellant’s claim for human rights breach and insisted that a new application be submitted.

In response to this, the appellant went to the First Tier Immigration Tribunal to appeal against the Home Office’s refusal. One of his argument was that it would be in breach of his human rights, if he was removed from the UK forcibly. The Appellant was yet again met with disappointment as the FTT ruled that they had no jurisdiction to take on his appeal on the human rights issue because the Secretary of State had not made a decision (and refused), his human rights claim.

Eventually, the appellant’s appeal proceeded to the Court of Appeal, which re-affirmed the principle that an appeal Court could only adjudicate on a decision. Where there was no decision, the Court would have no jurisdiction. The Court of Appeal concluded that the Appellant should have started his challenge of the Home Office’s decision by way of judicial review, rather than an appeal.

Our comments

It has always been Home Office’s policy that applicants should state all the reasons why they want to stay in the UK or want to extend their visa when making their application, and not to hold off any reasons and then follow them up with further applications down the road when their initial applications are refused. For example, if a person wants to apply for a skilled worker visa, they should also mention their human rights claims if they believe there is a relevant component within them that the Home Office should take into account.

Where the applicant fails to mention a connected human rights issue, the Home Office has a duty to consider it in addition to the main application, especially if the Home Office intends to refuse the main application and request the applicant to leave the UK. In this way, the Home Office can deal with all the issues in one go, as a single package. It saves them time and resources, therefore saving the taxpayer’s money. It can also speed up the process of removal if the Home Office decides to go through with it. Otherwise, it will be very difficult for the Home Office to remove anyone, as that person can raise one issue after the other. This is not an efficient way for the judicial system to operate.

One scenario could be that after an application is refused, the applicant raises another issue by submitting a new application, which the Home Office must consider. The whole process can become an endless loop.

In the case of MY (Pakistan) v Secretary of State, for some reason that remains unclear, the Home Office officer insisted that the applicant should submit a further application form regarding his human rights issue, which clearly goes against their own policy. However, as the officer did not make any decision on the human right issue, the first-tier tribunal has no jurisdiction. No decision was made, so no appeal can be based on.

This case is a good example of how the immigration systems in place can become a dangerous minefield, or confusing maze, which must be navigated with caution.

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Written by Mahfuz Ahmed. 

A Court Order is an official judgement made by a Judge at the end of a hearing, or in the interim, (prior to a final order being made). The contents of the Order depends entirely on the case presented to the Judge.

There may be exceptional circumstances where a Court Order does not comply with relevant statutory provisions and is therefore invalid. In such cases, can the Court Order simply be ignored?

The Supreme Court has recently considered this and handed down a judgement of constitutional importance in the recent case R (Majera).

R (Majera) (formerly SM Rwanda) v Secretary of State for the Home Department [2021] UKSC 46.

The Appellant was made subject of deportation order in 2012. He was subsequently detained in an Immigration Detention Centre. He made an application for Bail to the First-tier Tribunal which was considered by the Tribunal Judge.

During the Bail hearing, the Respondent (The Secretary of State for the Home Department) sought a condition that should bail be granted, then a condition should be attached, preventing the Appellant from undertaking unpaid work. The Tribunal granted the bail with no such condition and further did not require the Appellant to appear before an immigration officer at a specific time and date, which is not in accordance with paragraph 22(1A) of Schedule 2 to the Immigration Act 1971.

Following the Appellant’s release, the Respondent gave the Appellant a new notice imposing sanctions and essentially ignored the Order made by the Tribunal. The Appellant brought a claim for Judicial Review.

The Appellant’s position was that the Respondent could not impose conditions that the tribunal did not order. The Respondent’s argued that they could impose conditions as the Bail order was invalid and therefore void. The matter was considered by the Upper Tribunal, Court of Appeal and then the Supreme Court.

The Supreme Court considered this matter and held that an order of a Court or tribunal, even if invalid must be respected until it has been set aside.

Our comments

This recent decision by the Supreme Court is of great importance as it provides certainty that an order by a court and tribunal must be followed, unless it is set aside or appealed. The reasons for the decision is to ensure that there is legal certainty and respect for the rule of law.

Whether it is the Home Office or an individual, an order by the Court or Tribunal must be adhered too and cannot be simply ignored.

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Written by Mahfuz Ahmed.

Victims of Modern slavery and trafficking both abroad and in the UK, who have claimed asylum, typically have to wait a substantial amount of time for their claim to be considered. The Competent Authority will make a reasonable and then conclusive grounds decision as to whether an individual is a victim of trafficking and modern day slavery.

Despite a decision being given by the competent Authority, the Home Office does not consider granting the victim leave, until their asylum claim has been considered. This can take a considerable amount of time, leaving the individual subject to the UK’s hostile environment.

Council of Europe Convention on Action against Trafficking in Human Beings (ECAT)

Since Brexit, victims of trafficking and modern slavery have lost the protection of the anti-trafficking Directive 2011/36/EU which came into force for the United Kingdom from 14th October 2011. This directive was obligatory on all Member States and the Institutions of the European Union.

However, victims of trafficking and modern slavery still have some protection in the form of ECAT as long as the UK remains party to the Council of Europe. Although, ECAT is an unincorporated international treaty.

Article 14(1) of ECAT states:

1 Each Party shall issue a renewable residence permit to victims, in one or other of the two following situations or in both:

a the competent authority considers that their stay is necessary owing to their personal situation;

b the competent authority considers that their stay is necessary for the purpose of their co-operation with the competent authorities in investigation or criminal proceedings.

Upon first reading, it would not be unfair to assume that most would interpret Article 14 as those who have been victims of human trafficking are to be given leave to stay in the UK without restrictions.

However, despite the Home Office accepting that an individual is a victim of trafficking and modern slavery, they do not consider granting the individual leave to remain until their asylum claim has been considered which can take a substantial length of time, often years. Further, if the individual is then granted leave, they are typically not given permitted to access to public funds.

KTT, R (on the application of) v Secretary of State for the Home Department [2021] EWHC 2722 (Admin) (12 October 2021)

In this case, the Claimant was a Vietnamese national who was a victim of trafficking and modern slavery which was accepted by the Home Office. Despite this, the Claimant was not granted discretionary leave as his asylum claim was still pending. The Claimant sought a challenge by way of Judicial Review.

The Respondent argued the following:

1. ECAT was not incorporated in domestic law, it is not justiciable and therefore not capable of being decided by the Court. The treaty was made in ‘good faith’ in accordance with the Vienna Convention principle. The Home Offices modern slavery policy does not make a commitment to make decisions in accordance with Article 14 ECAT.

2. The correct interpretation of article 14 of ECAT, is whether the residence permit is required in order to facilitate a stay which is necessary. However, it is not required as victims are protected from removal by sections 77 and 78 Nationality, Asylum and Immigration Act 2002.

The High Court held that in the Home Office’s Modern Slavery policy construction, the respondent committed to making the relevant decision in accordance with the requirements of the relevant article(s) of the ECAT. This means that they gave effect to Article 14 of ECAT and therefore is justiciable, referring to previous judgements on the matter.

In relation to whether a residence permit is required, the High Court disagreed with the Respondent’s argument and held the that the language of the provision clearly requires consideration of whether the stay is necessary, in which case the permit must be issued as the they have a pending asylum claim.

Accordingly, a failure to comply with the requirements of Article 14(1)(a) was a breach of domestic law.

The Respondent can appeal the decision.

Our comments

This is a huge decision in relation to those who have been victim of trafficking and modern slavery. Those who have been recognised as such by the Competent Authority should be granted discretionary leave to remain in the UK whilst their asylum claim is pending.

Those who have suffered so much should now not be subject to the UK’s hostile environment of not working, accessing public funds etc, whilst waiting for their asylum claim to be processed. Hopefully, if the Respondent appeal the decision, the Court of Appeal are in agreement of the High Court’s decision.

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The Migration Advisory Committee (MAC) is an independent, non-statutory, non-time limited, non-departmental public body that advises the government on migration issues. Recently, they conducted a review of the Intra-Company Transfer visa route to explore what is working about it and review what needs to be changed. This inspection was requested by the Home Secretary Priti Patel in order to ensure the route complies with the UK’s commitments under free trade agreements and to open a debate on eligibility criteria for workers being transferred and the sending organisations transferring them.

What is the Intra-Company Visa?

An Intra-company visa allows international companies to send staff between their UK and overseas branches, either to provide or receive training or work on a particular project for a short period of time. By such visa, an applicant is able tto come to or stay in the UK to do an eligible job in the UK.

There are 2 types of Intra-company visa.

Intra-company Transfer visa

This visa is for more skilled workers. It should be applied for where the applicant is being transferred by their employer to a senior role in the UK.

The applicant will need to have worked for the employer overseas for more than 12 months, unless that company is going to pay such an applicant £73,900 a year or more to work in the UK.

This visa has replaced the Tier 2 (Intra-company Transfer) Long-term Staff visa.

Intra-company Graduate Trainee visa

This visa is for junior staff who are transferred to the UK as part of a graduate training programme for a managerial or specialist role.

Applicants will need to have worked for their employer overseas for at least 3 months immediately before the date they apply.

This visa has replaced the Tier 2 (Intra-company Transfer) Graduate Trainee visa.

Eligibility

To qualify for an Intra-company visa, you must:

• Have worked for the overseas sending company for a certain period of time as stated above.

• Work for a UK organisation that’s been approved by the Home Office as a sponsor

• have a ‘certificate of sponsorship’ from your employer with information about the role you’ve been offered in the UK

• do a job that’s on the list of eligible occupations

• be paid at least £41,500 for an Intra-company Transfer visa or at least £23,000 for an Intra-company Graduate Trainee visa

What were the advantages of the ICT according to the MAC?

The main remaining advantages of using the ICT route, according to the MAC, are:

• the lack of English language test requirement; unlike the general skilled worker visa where applicants will need to have an English level of no lower than B1, ICT visa does not need applicants to possess any English.

• The inclusion of some allowances, particularly housing costs, when assessing whether a worker meets the salary threshold;

• The multiple-entry aspect of the visa allows more flexibility for time spent in the UK over the duration of the visa; and

• The requirement for workers to only meet the salary threshold for the route when working in the UK (rather than throughout the validity period of the visa).

What does the MAC recommend changing?

Switching and settlement:

One of the more significant recommendations we can see is that the MAC said the ICT route should be a route to settlement and time spent on it should count towards settlement if the worker switches into another route. This could be a vital change for those workers who want to make the UK their permanent home.

Salary thresholds:

It was suggested in the report that salary thresholds for this visa should be calculated in the same manner and with much the same thresholds. However, one exception is that the ICT threshold could increase from £41,500 to £42,400 and Intra-Company Graduate Transfer threshold be set at the same level as graduates on the Skilled Worker route, being £20,480 rather than the current £23,000, or the ‘going rate’ for the occupation with a 30% discount, whichever is the higher. Salary thresholds for the route should be updated annually.

Allowances and reported salaries:

Another minor suggestion made by MAC is that the sponsors should be more transparent with the applicant’s remuneration by providing a complete breakdown of allowances so that the Home Office can easily decide whether the reported salary is accurate to prevent any abuse going on within the route.

Sole representative of an Overseas business:

Notably, the MAC made two important recommendations regarding the sole representative visa for an overseas business or newspaper/media, which are:

• The maximum term of the visa should be reduced to two years, which will enable the representative to establish the subsidiary/branch which he/she is sent for. As soon as the mission is done, the representative should switch to skilled worker visa. These two years will also count toward settlement, should the representative decide to apply for it in the future.

• There should be a trial ‘team subsidiary’ visa, of up to five applicants per team, where at least one member of the team meeting the criteria of the current Representative of an overseas business visa route, while the other members of the team must at least meet the requirements of the Skilled Worker route. It would remain necessary to have a sponsor licence for the team members. This visa would also last for two years.

This is an interesting idea, as a team of workers coming to the UK could be beneficial for both the sponsoring company and the UK as a whole, attracting hard workers who come to the country with an ambition of building up a business to be successful here.

Short-term assignments:

The MAC also suggested that the permitted activities under the Immigration Rules under the visitor route should be expanded to allow ICT workers to carry out specialist technical work which only requires a few days or weeks to complete. If needed, this could potentially put in place a fast-track system if the workers were only going to be in the UK for a short amount of time. This will save the workers from applying for an ICT visas which are more expensive and take longer to be granted.

What do we think?

There are some positive ideals here, particularly in the case of the ICT visa being a route to settlement, which could open doors for a more permanent stay in the UK for many people. Why should time spent on the ICT not count towards time leading up to settlement? The applicant is in the UK and working on a legitimate visa, so we see no reason to oppose this notion. It also makes sense to allow visitors to undertake  a certain short term of ICT work.

As to the sole representative visa, the recommendation is more in line with the primary purpose of such visa. Once the subsidiary is established, the sole representative’s job is done. If he/she wants to stay in the UK, it will have to be in another capacity.

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In this blog we will take a deep dive into the Creative Worker Visa route, examining who the route is for, what the requirements of it are, and where it can lead for those who are accepted on to it. This visa, while it may seem to some to be exclusive in nature, is actually wider reaching than you may first assume.

Who is the creative visa route for?

As you may be able to deduce from its name, this route is made for applicants coming to work in the UK in a creative role. This could be musicians, comedians, actors, models, magicians and more. However, you do not have to be the main star to apply for this route, you can also be part of the production team, such as a sound engineer, personal assistant or light operator etc, so long as you are coming over for the same reasons as the main star and have a previous working relationship with them.

How long does the visa last?

Broadly speaking, if the applicant is successful, they will be able to stay for whatever is shorter between:

• a period starting 14 days before the first engagement and ending 14 days after the final engagement, if the applicant has consecutive engagements

• the period of the role on the CoS plus 14 days before and after, if the applicant does not have consecutive engagements; or

• 12 months.

Can their stay be extended?

This route does have the option for the applicant to extend their permission up to a maximum of 24 months (if continuing to work for the same sponsor). However, this is not a route that can lead expressly to settlement.

Applicants may have to consider whether they can combine such stay with other lawful residence in the UK so to apply for settlement based on 10-year lawful long residence in the UK.

What are the eligibility requirements of this visa?

There are various requirements that applicants must bear in mind. These include, but are not limited to, the requirements that the applicant:

• has a valid Certificate of Sponsorship (CoS) from an approved sponsor for the role they will undertake – if they are undertaking consecutive engagements, they will need a separate CoS from each sponsor

• genuinely intends, and is able, to do the role for which they are being sponsored

• does not intend to intend to undertake employment other than in the role for which they are being sponsored, or as otherwise permitted by their conditions of stay – see section S8 of Part 2: Sponsor a worker for information on conditions of stay

• where relevant, meets the financial requirement (If the applicant is applying for entry clearance from outside the UK or has been in the UK for less than one year at the date of application, they must show they have enough funds to support themselves and any family members in the UK.)

• if aged under 18, meets the parental consent requirement

What is the cost of applying to the visa?

The fee for this route is £244.

Dependents?

Yes, creative workers are allowed to have their spouses and children under 18 to come with them or stay with them in the UK.

Other options for creative workers

When it comes to being a creative worker, it is not necessary to put all your eggs in one basket. The Global Talent route could also be considered in some circumstances.

The Global Talent route is for leaders, or potential leaders, in the fields of academia or research, digital technology, or arts and culture. Fields of arts and culture covered include:

• combined arts, dance, literature, music, theatre or visual arts

• architecture

• fashion design

• film and television, including animation, post production and visual effects

We cover the Global Talent route in our article UK Immigration Rules: Let’s keep up with the changes!

Alternatively, applicants may want to consider the skilled worker route.  If their performance has impressed their employers during their stay in the UK, they may want to sponsor the applicants on the skilled route which will enable them to settle in the UK after 5 years.

What do we think?

This visa is fairly standard in the grand scheme of things, and we would hope that no major issue should be faced by those looking to apply for it, as long as they have the relevant credentials. After the nearly two years that everyone has had with the pandemic, we would hope that creatives and entertainers will be made to feel welcome here in the UK, especially as events such as festivals, plays and films are starting to operate as normal again!

Have questions? Get in touch today!

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