Written by Caryn Toh.

The Court of Appeal raised the issues of the gaps in 10 years continuous lawful residence applications in the case of Hoque & Ors v SSHD [2020] EWCA Civ 1357 on 23^rd October 2020. It considered whether unlawful residence which was followed by grant of lawful residence (“book-ended gap” as it was called in the case) should be treated differently from that which was not (“open-ended gap”).

Before looking into the aforementioned recent case law, let’s look into the definition:

What is continuous Lawful Residence?

“Lawful residence” is defined under Paragraph 276A(b) of the Immigration rules as follows:

• existing leave to enter or remain; or

• (temporary admission within section 11 of the 1971 Act (as previously in force), or immigration bail within section 11 of the 1971 Act, where leave to enter or remain is subsequently granted; or

• an exemption from immigration control, including where an exemption ceases to apply if it is immediately followed by a grant of leave to enter or remain.

ILR will be available for those who have satisfied ten years continuous lawful residence in the UK and satisfied other requirements listed under Paragraph 276B of the Immigration Rules.

Backgrounds and Issues

There are five applications for permissions to appeal (two of them are in the same case) and the court granted permission to appeal on three of the applications, which in turn raised two issues.

The four appellants from separate cases had all come to the UK with leave to enter as students and were subsequently granted successive further limited periods of leave to remain. Three of the appellants claimed to be entitled to ILR on the basis of long residence.

Their applications for further leave to remain were refused, as were their appeals against the refusals, at which point they became overstayers in the UK. However, the three appellants subsequently made further applications for leave to remain within the time periods prescribed by para 39E of the UK’s Immigration Rules, with the headings of ‘Exceptions for overstayers’.

The three appellants later varied their applications that were pending to ILR applications based on their upcoming ten years of residence in the UK. An applicant that has a pending application for leave to remain on one basis is allowed to make a further application on a different basis, which is treated as a variation of the original application: see JH (Zimbabwe) v Secretary of State for the Home Department [2009] EWCA Civ 78.

The applications were pending until they have reached  the 10th year of their stay in the UK. However, the applications were refused by the Respondent on the basis that they had not been in the UK for 10 years continuous lawful residence as per 276B(i)(a) of the Rules.

The appellants argued that the requirement in para 276B(i)(a) was qualified by para 276B(v) of the Immigration Rules, which provided that ILR applicants must not have been in the UK in breach of immigration rules, but provided an exception that ‘any current period of overstaying’ would be disregarded if para 39E of the Rules applied, and the appellants argues that they fell within the scope of that exception.

It was claimed that the their period of overstaying should be disregarded and have therefore accumulated 10 years “continuous lawful residence. Additionally, the appellants also contended that the refusal of the ILR applications was in breach of their Article 8 of the European Convention on Human Rights (“ECHR”).

Decisions

None of the appellants met the requirements pursuant to para 276B for the grant of ILR and the appeal would be dismissed. Lastly, little weight should be given to a private life established by a person at a time when the person’s immigration status is ‘precarious’ in accordance to the public interest considerations applicable in all cases under s117B(5) of the Nationality, Immigration and Asylum Act 2002. It is concluded that the appellants are unlikely to be granted leave to remain when the requirements are not met, but had instead relied on art 8 ECHR. [see 53 – 58 of the judgment].

In short, the Court of Appeal found that the requirement for ILR applicants to have 10 years’ continuous lawful residence in the UK was not qualified by a subsequent requirement in the UK’s Immigration Rules that ‘any current period of overstaying’ would be disregarded in certain circumstances.

The Court of Appeal has ruled that the any period of overstaying and the grace period of 14 days provided under Paragraph 39E of the Immigration Rules headed “Exception for overstayers” will not be applicable or counted as lawful if the Applicant has not accumulated at least 10 years lawful residence for the purpose of paragraph 276B(i)(a) of the Immigration Rule at the time of their ILR application under Paragraph 276B of the Immigration Rules.

Thoughts

What is interesting is however there are some instances where any overstaying permitted (Book-ended gaps) under Para 39E will be treated as lawful residence if it falls between previous period of lawful residence. This can be referred to in para 50 of the judgement.

It is worth mentioning however that the Court of Appeal “do not regard it as unreasonable or disproportionate for the Secretary of State to treat book-ended and open-ended overstaying differently”. The case of open-ended overstaying is not permitted under Para 39 E because there will have been no grant of leave on the original application.

In conclusion, the Court of Appeal has confirmed that the appellants that have open-ended gaps are not to rely on the provision under Paragraph 39E to extend the lawful residence in order to meet the 10 years continuous lawful residence criteria.

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The Immigration Skills Charge (Amendment) Regulations 2020 passed both houses of the Parliament on 3^rd November 2020. It is to amend the Immigration Skills Charge Regulations 2017.

What is the immigration skills charge?

First thing first, immigration skills charge is levy paid by employers who hire foreign workers to the government.

Employers must pay this if they are applying for a visa to work in the UK for 6 months or more under either a:

• Tier 2 (General) visa

• Tier 2 (Intra-company Transfer) visa

If the worker has applied for their visa from within the UK, the employer must pay the charge even if they’re applying for less than 6 months.

So what has changed?

Amendments made by the 2020 Regulations include the definition of skilled worker and add exemptions to the requirement to pay the charge. These Regulations come into force on 1 December 2020.

Definition of a skilled worker:

The amendment defines a person as a skilled worker as follows:

“skilled worker” means an individual who, in order to undertake employment, seeks entry clearance or leave to remain via an immigration route that—

(a) requires the individual’s role to be skilled appropriately in accordance with the immigration rules;

(b) requires the individual’s remuneration to meet or exceed a minimum threshold in accordance with the immigration rules;

(c) requires the individual to be sponsored in accordance with the immigration rules; and

(d) permits workers applying under that route to obtain a visa for a time period greater than 2 years.”

Exemptions from the charge:

The obligation to pay the charge does not apply where a sponsor assigns a certificate of sponsorship to a skilled worker under the following catchments (the last 3 in bold have been added within the recent amendment):

(i)     2111 (chemical scientists);

(ii)     2112 (biological scientists and biochemists);

(iii)     2113 (physical scientists);

(iv)     2114 (social and humanities scientists);

(v)     2119 (natural and social science professionals not elsewhere classified);

(vi)     2150 (research and development managers);

(vii)     2311 (higher education teaching professionals);

(viii)   2444 (clergy);

(ix)     3441 (sports players);

(x)      3442 (sports coaches, instructors and officials);.

Refunds on the Immigration Skill Charge

Employers can apply for a full refund if the worker’s visa application is:

• refused or withdrawn

• successful, but they do not come to work for you

They can get a partial refund if the worker:

• gets less time on their visa than you sponsored them for

• starts working for you but then changes to another sponsor

• leaves their job before the end date on their certificate of sponsorship

How long it takes

Employers usually get a refund within 90 days of:

• telling UKVI that the worker did not come to work for you

• the expiration date on the worker’s certificate of sponsorship, if they did not use it to apply for a visa

• the date the worker’s visa application is refused or withdrawn

If the worker’s visa application is refused, the employer can ask for the decision to be reviewed. This is known as an ‘administrative review’.

If they do not ask for an administrative review, the employer can get a refund within 90 days of the deadline for applying for one.

The employer will get a refund within 90 days of the administrative review being dismissed if the worker applied for one and were unsuccessful.

Have questions? We are here for you!

In the meantime, we are operating as usual, and you can reach us on 020 7928 0276 or email in to info@lisaslaw.co.uk for any questions you may have on this topic.

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The most recent changes to the Immigration Rules, according to the Home Office, aim to continue the government’s commitment to ‘simplifying the rules’ while also bringing in the Future Points-Based Immigration System.

This blog post aims to highlight the key parts of these new changes. For the full guidance you can follow this link.

Taking effect:

It is good to be aware that parts of this guidance have been released already, but this new statement fully solidifies previous ones.

Some key dates within this guidance us as follows:

Much of the new guidance will take effect from 9am on 1 December 2020, however, if an application for entry clearance, leave to enter or leave to remain has been made before 9am on 1 December 2020, the application will be decided in accordance with the Immigration Rules in force on 30 November 2020.

Parts of this guidance coming in from 9am on 1 December 2020 includes Skilled Worker visa rules, Global Talent visa, and Representative of Overseas Business visa.

The following changes take effect at 11pm on 31 December 2020: Leave to Remain, Settlement applications, and Family permits.

The changes around Hong Kong British National (Overseas) takes effect on 31 January 2021.

Visitor rules:

The Visitor rules will now:

• permit study of up to six months under the standard visit route. All study must be undertaken at an accredited institution, except recreational courses undertaken for leisure that last no longer than 30 days;

• allow drivers on international routes to collect as well as deliver goods and passengers in and out of the UK;

• remove the requirement for volunteering to be incidental to the main reason for the visit.

Other visitation rules to take note of are:

• Permitted Paid Engagement visitor: for experts in their field coming to the UK to undertake specific paid engagements for up to one month.

• Transit visitor: for those who want to transit the UK on route to another country outside the Common Travel Area and who will enter the UK for up to 48 hours by crossing the UK border unless Appendix Visitor: Transit Without Visa Scheme applies.

Short term study route:

A new Short-term Study route is being introduced for students who wish to come to the UK to study English language courses for between 6 and 11 months, replacing the current route. The study must be at an accredited institution. Students who wish to come to the UK to study for 6 months or less may now do so under the Visitor route.

Some notable changes here are:

• Validity requirements for the online form must be completed, the fee and Immigration Health Charge paid, biometrics and passport or travel document to be provided, and that the applicant must be outside the UK and aged 16 or over at the date of application. An applicant who does not meet these requirements may have their application rejected rather than being considered and refused.

• Applicants need to have either paid their course fees, or have sufficient funds to pay their fees.

• The study that a Short-term Student can undertake must consist solely of English language study at an accredited institution. An accredited institution is one which has been independently assessed by a specified inspection body as meeting required educational standards. The student must intend to leave within 30 days of the completion of their English language course and have sufficient funds to support themselves in the UK. A successful applicant will be granted a visa for 11 months.

The Parent of a Child Student route:

The Parent of a Child Student route allows one parent to come to or stay in the UK to care for their child (or children), where the child is a Child Student aged between four and 11 who is attending an independent fee-paying school in the UK.

Similarly to the above, online forms must be completed and the Immigration Health Surcharge must be paid.

Applicants need to show that they have funds available to cover their stay in the UK at  £1,270 and £315 per month for both the parent and the child, if they are applying for entry clearance or who have been living in the UK for less than 12 months.

Skilled worker route:

The Skilled Worker route is a new points-based route for those who wish to come to the UK for the purpose of working in a skilled job they have been offered. The key characteristics of the new route are that an applicant must be sponsored to do a specific job, which meets skill and salary requirements, by an employer that has been licensed by the Home Office.

An application as a Skilled Worker must:

• provide a certificate of sponsorship issued to them by their sponsor, dated no more than 3 months before the date of application (sponsor must be recognised as legitimate by the Home Office);

• provide written consent to the application from any Government or international scholarship agency who awarded the applicant any award for study in the UK in the 12 months preceding the date of application as a Skilled Worker;

• be aged 18 or over on the date of application.

Salary:

The general salary threshold set for Skilled Workers will be lowered from £30,000 under the Tier 2 (General) route to £25,600 a year. Sponsors must, as under Tier 2 (General) route, pay their skilled workers a salary which equals or exceeds both this threshold and the “going rate” for the occupation.

Sponsored workers may be paid less than the above amounts, depending on the tradeable points they are awarded. Applicants under the new route will need to be awarded 70 points in total.

All applicants must qualify for 50 mandatory points for:

• Sponsorship (20 points).

• A job at the appropriate skill level (20 points).

• English language skills at B1 (intermediate) level (10 points).

An applicant may be awarded the remaining 20 tradeable points in one of the following ways:

– A salary which equals or exceeds both £25,600 per year and the going rate for the occupation (20 points).

– A PhD qualification which is relevant to the job (10 points), and a salary which equals or exceeds both £23,040 per year and 90% of the going rate for the occupation (10 points).

– A PhD qualification in a STEM subject which is relevant to the job, and a salary which equals or exceeds both £20,480 per year and 80% of the going rate for the occupation (20 points).

– A job in a shortage occupation, and a salary which equals or exceeds both £20,480 per year and 80% of the going rate for the occupation (20 points).

– Being a new entrant to the labour market, and a salary which equals or exceeds both £20,480 per year and 70% of the going rate for the occupation (20 points).

– A job in a listed health or education occupation, and a salary which equals or exceeds both £20,480 per year and 80% of the going rate for the occupation (20 points).

Intra-Company Transfer Route:

On the Intra-Company Transfer route changes are being made to remove the cooling off requirement, to a single salary threshold for high earners at £73,900, and to allow people to move onto the route when already in the UK.

Start-up and Innovator routes:

These routes were reformed recently to attract to the UK those with innovative business ideas, you can read about them in our recent article – Immigration Changes for EEA Nationals from Jan 2021 – What you need to know!

Essentially, the Start-up route is for those setting up a business for the first time, who need to work to support themselves while developing their business ideas. The Innovator route is for those with industry experience and at least £50,000 funding, who can dedicate their working time to their business ventures, or those moving from Start-up who are progressing their business.

Also, each applicant for Start-up and Innovator must have the support of an approved Endorsing Body.

What do we think?

These are just some important parts of the guidance that we believe will have the most far reaching effects on people. In terms of the guidance itself, it is clear and concise. In the past the guidance has been a lot vaguer in regards to certain immigration. We are not saying these rules are perfect or that we support them wholeheartedly, but we do feel that they at least have clarity and applicants will know where they stand.

There is no getting away from the fact that the end of free movement and the introduction of a Points-Based Immigration System marks a huge change for EU, EEA and Swiss citizens, as well as for the UK in general.

We want to remind readers that EU, EEA and Swiss citizens arriving in the UK on or before 31 December who wish to work, study or visit the UK should not apply through the Points-Based Immigration System. If they want to stay in the UK after 30 June 2021 they should apply to the EU Settlement Scheme upon arrival in the UK.

Commonwealth citizens can continue to apply for a UK Ancestry visa to live, work or study in the UK. We are here to help anyone who has questions about these options.

It is of vital importance that people get their applications to stay in the UK in to the Home Office as soon as possible, as the time will come where it is too late and the chance will have been missed.

Please do not hesitate to get in contact with us if you have any questions whatsoever, or if you’d like our help in completing your applications.

Have questions? We are here for you!

In the meantime, we are operating as usual, and you can reach us on 020 7928 0276 or email in to info@lisaslaw.co.uk for any questions you may have on this topic.

Or, why not download our free app today? You can launch a new enquiry, scan over documents and much more.

If you have an iPhone, follow this link to download.

If you use an Android phone, follow this link to download. 

Find the link here if you need some further instructions on how to use our new app!

lisaslaw@web

See Full Bio