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Immigration under the spotlight

IMMIGRATION IS under the spotlight in the United Kingdom due to the increasing popularity of The UK Independent Party (UKIP), and political climate in general.

In addition, there is an increased terrorist threat, demand for cuts in public spending and blame on asylum seekers for loss of jobs and strain on resources.

Attention has also been put in the UK Border Agency (UKBA) due to delays, up to a year, for applications to be considered and recently publicised 50,000 missing Asylum seekers over 10,000 in limbo.

As a result, the coalition government is under pressure to present to the public effective immigration policies in the United Kingdom.

In 2012, sweeping changes were made, which included extended period, from 14 to 20 years, for overstayers to remain in the UK before getting indefinite leave to remain, children having to be in the UK for seven years, no right of appeals for non-family visit applications and reductions in controlled point based migration ie students and workers.

This year there have been three statements of immigration rules, first in July, then in September and October. Many of the sections under these rules being incorporated into immigration law are to deal with new tests and definitions to clarify loopholes, public interest issues, reduce appeals and easier removal from the UK of those who have exhausted their appeal rights.

A SUMMARY OF THESE CHANGES INCLUDE:

Entrepreneurs and business: Extensive guidance to Tier 1 entrepreneur Category, including definitions and precise requirements on how investment funds should be held.

Private life applications: Changes here test mainly for applicants stating that they cannot return to their countries of origin. Previously, you had to establish exceptional circumstances and “no ties”, including social cultural or family ties depending whether you were claiming family life or private life. Now this is substituted with “very significant obstacles to integration”. These changes create a more defined test, which requires the applicant to show why they or family members cannot reintegrate into the subjects home country.

There have also been provisions to reduce switching. Previously, due to the financial and English requirements some foreign spouses would come into the UK as visitors and then once in the UK apply to switch from a family visitor to settle as a spouse or even carer.

Family panels: To ease enforcement, the routine assessment of families being removed from the UK will be part of the removal process. Once it is established a family have exhausted any appeal rights, they will be referred to a panel comprised of social workers and other experts to ensure each family have their basis requirements e.g. limited access to housing and/or medication.

The government had previously come under criticism for not assessing vulnerable families and specifically children’s requirements during the removal process. These panels have not been fully established and are still being piloted. The government hope to have local enforcement teams working with social services to confirm they have fully considered the interests of children being removed from the UK.

No Recourse to public funds: There is ability to change the restriction of no recourse to public funds that is often placed on grants of leave to remain. Anyone needing to access benefits can apply to have this condition removed, however, you will need to show that you are not able to meet your living cost and basic subsistence requirements.

Fee Waiver:There is also an option for families that are suffering destitution or not able to meet their basic living costs to apply for a fee waiver on applications. The fees vary but currently £55 for EEA applications, £601 for most in county limited leave applications, and £1093.00 for indefinite leave to remain. There is currently a judicial challenge to the manner in which the UKBA have been assessing these applications. It has been claimed that previous assessments have been delayed on many and granted to so few. In some cases, the UKBA have even rejected waiver applications from families with no access to benefits and homeless being accommodated by social services.

Transitional Arrangements (overstayers in relationships): These are changes for those who have been granted discretionary leave. Those with children, who are playing an active role their lives, but whose relationships may have broken down may need to apply for an extension of their discretionary leave to remain having already been granted a period of three years. Much of the sections that institute changes apply with regards to public interest.

Police reporting, deportation and rights: The Government has now incorporated a new public interests test and increased ability to deport offenders - even those who are European nationals. In addition having the right of appeal will not stop removal i.e. your right will have to be excised from outside the UK with the need for special permission required from the UKBA to return and take part in the hearing.

Individuals who commit offences and receive prison sentences of up to 12 months, receive automatic deportation orders. However, Home Secretary Theresa May was highly embarrassed in 2012 when Abu Qatada successfully appealed to the European Court of Human Rights against her decision to deport him to Jordan. This was expensive and embarrassing for the coalition government and Home secretary, in but addition, many other foreign offenders were successful in using the Human Rights Act (Articles 3 degrading treatment & Article 8 private family life) to delay or prevent their deportation from UK.

This statement of immigration rules seeks to prevent delays and barriers to deportation by:
a. Reducing rights of appeal including reducing rights to those outside the United Kingdom and
b. Redefining the test of Public Interest and presenting an "unduly harsh” test to be applied to children expected to return to the foreign national’s country including.
Approximately 399 dependent children expected to be removed to foreign criminal’s county and also 399 (b) – partners in relationships formed when subject had illegal/unlawful status ie overstayed

In addition, the government now has the ability to substitute and downgrade applicants status and revoke British nationality more easily e.g. UKBA has the ability to reduce your indefinite leave to remain to discretionary leave, and refuse to extend limited leave due to criminal conduct

English tests: Many of the institutions and examining boards authorised to provide the English examinations for spouses and B1 English (for settlement and naturalisation), have asked to be removed from the UKBA's panel, while others have had their licences revoked. In addition, there are expiry dates on the pass certificates so if you passed an English test over two years ago, it may no longer be valid. Or if you pass an English test, you need to find funds to make the application within two years before it expires.

Shared database with banks: This means that anyone who has opened or opens a bank account while subject to immigration control will be subject to additional scrutiny. It is illegal for anyone who does not have permission to work, to engage in economic activity. They can be subject to money laundering charges or of crime offences. More concerning, however, the identity documents used to open accounts and information held by UKBA will be part of a shared database.

The Driver and Vehicle Licensing Agency (DVLA) and the Security Industry Authority (SIA) both have the ability to cancel driving and SIA licenses if they were acquired when the licence holder did not have valid leave to remain in the UK. There is a right of appeal to a Magistrate should your licence be cancelled. These revocations have caught the European Economic Area (EEA) dependents off guard as confirmation by the Home Office of an EEA dependent application confers the right to take up employment, but does not entitle the applicant to a driving or SIA licence automatically. This is currently being judicially challenged.

Landlords: Landlords have an obligation under the new statements to confirm the identity of their tenants. Should they be found letting property to people who are illegal in the UK, they may be fined up to £3000. The pilot for this scheme was in Birmingham. The government is yet to establish an on line portal on the .GOV website for landlords to log on to and check the identity of their potential tenants

Employing illegal workers: There is an increased fine of £20,000 for those who employ illegal workers. The government has also stated they will actively enforce these fines. The employers checking service is in place but it does not always give accurate results. For example, if you have an appeal it can give a result to an employer that you have not right to work leading to wrongful termination

Voluntary return: The option to go back voluntarily may become an increased choice or only option for many. However, the government have cut funding and removed this scheme from detention centres. Therefore, once an overstayer is caught it will be difficult for them to leave the UK at their own expense. The voluntary return scheme can give up to £1500 to each member of a household if there are children and further assistance for medical conditions. However, if you use the scheme you can face up to a five-year ban on applying for a visa to return to the United Kingdom.

Conclusion:
It is important for everyone to know about these changes if directly or indirectly affected. You can find additional information on the .GOV websites, but you should consult a qualified and experienced legal adviser if in need of advice.

Copy Right (C) Jennifer Obaseki
OBASEKI SOLICITORS


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