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Supreme Court dismisses challenge to the English language requirement

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20 November 2015

The requirement for a partner to pass an English test before applying for a visa came into effect in 2010, and has caused much grief since. The rule was challenged in the courts, and has gone all the way to the Supreme Court, but unfortunately all five judges hearing the case have held that the requirement is not unlawful.

The only glimmer of hope is that the judges held that the way that the Home Office operate any exceptions to the requirement to pass an English test before applying for a visa may be unlawful.  They seemed to suggest that in places such as remote rural areas, where it is impractical and unaffordable for someone to take the test, they should be excused doing so, though no such concession was suggested for an applicant who is illiterate.

It remains to be seen if the Home Office will change the way they operate this requirement.


More change is on the way

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This week saw changes announced in both nationality law and the Immigration Rules.

From 12 November EEA nationals and their family members who wish to apply for naturalisation as a British citizen will no longer be able to do so by submitting evidence of having exercised Treaty rights in the UK for the required period of time, but will need a document to show that they have permanent residence, thereby adding one additional step to the process.

Whilst most of the changes to the Immigration Rules are minor and many are of a technical nature, two important changes are the addition of nurses and some digital technology jobs to the Shortage Occupation list, meaning that these posts can be recruited to without conducting a recruitment campaign, and also, from 06 April 2016, the coming into force of plans announced many years ago, whereby people on Tier 2 will only be able to apply for settlement if they are earning £35,000 or more.

Businessman presenting four British passports at customs or check in area

New immigration checks

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Businessman presenting four British passports at customs or check in area

Continuing with the government’s stated intention to create a ‘hostile environment’ in the UK, landlords will now be forced to act as immigration policemen.

From 01 February 2016 landlords in England and Wales will be required to check passports to make sure that people are in the UK legally before renting out their property.  This scheme, which was introduced by the Immigration Act 2014, has been carried on on a trial basis in the Midlands, but is to be extended across England and Wales.

Failure on the part of a landlord to comply currently carries a fine of up to £3000.  The Immigration Bill going through Parliament will increase the maximum penalty to a five year jail sentence.


Old, circa 1948, blank British Birth Certificate showing the main headings.

New paternity laws

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Old, circa 1948, blank British Birth Certificate showing the main headings.

Until now, the people named as  your parents on your birth certificate were – well, accepted as your parents.  You took your nationality from them, and if they died intestate, you were their next of kin and natural inheritor.

This is to change from today, at least for the purposes of UK nationality law.  For birth certificates issued from today onwards, the Home Office will no longer automatically accept the person named as the father on a birth certificate as the natural father – which is not to say that they will not, but that they may not.

The circumstances in which they would query the relationship is not clear, but presumably this means that there will be an increased need for DNA tests to establish relationship.


Workers and sham marriages

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eu-flag-800x450Once upon a time EEA law gave EEA citizens living in the UK and their families considerably more rights than the families of British and settled persons, because EEA law, which applies to EEA nationals and their families, is far more ‘family friendly’ than UK domestic law, which applies to British and settled people and their families.

This, though, is changing rapidly.   In a crackdown that began last October, the way in which EEA law is interpreted in the UK is becoming increasingly rigid.  Whether this is lawful or not is something that needs to be tested in the courts, but the first indications from two cases decided recently are that the courts are in agreement with the Home Office

 The first case dealt with the rights of free movement, and whether someone who is in the UK as a jobseeker would continue to be a ‘qualified person’ – that is, an EEA national exercising Treaty rights of free movement in the UK – if he or she failed to find a job.  The Tribunal has held that if that is the only basis on which you are exercising rights of free movement then the answer is no – failure to get a job means that you are no longer a qualified person.

The other case was about another contentious issue, that of ‘sham marriages’ – marriages of convenience, entered into to give one party rights under EEA law.  Until now, if your application is refused because the Home Office don’t believe that your marriage is genuine, you have had the right to remain in the UK whilst appealing the decision.  The Tribunal has held, however, that there is no reason why you cannot be removed from the UK and exercise your right of appeal from overseas.

These decisions may well be challenged in the higher courts, but until they are, this is the law as it stands at the moment.


Financial requirements – it isn’t over yet

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The current financial requirements, which require a UK based sponsor to show an annual income of £18,600 before he or she can sponsor a partner from overseas, were brought in on 09 July 2012, and have been the cause of much controversy since.  Challenged successfully in the High Court, who ruled that the requirement was unlawful, the Home Office reacted by taking the matter to the Court of Appeal, meanwhile putting all applications that did not meet the financial requirements on hold – in March 2014, this was some 3,641.

In July 2014 the Court of Appeal ruled in favour of the Home Office, and all the applications that were on hold, and any others where the financial requirements were not met, in precisely the way that the Immigration Rules specify, were refused and have continued to be refused.  Now, 10 months after that judgement, comes a glimmer of hope – the case is to go before the Supreme Court.  No date has been set as yet, and it is likely to be many months before the matter is heard, and some months after that before a judgement is released.  Meanwhile the financial requirements stand as they are, but there is, somewhere at the end of a very long tunnel, a glimmer of hope ….

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What the future holds for immigration

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If the mantra of the 1997 general election, when Labour came to office, was that things can only get better, the manta of this general election is that, for anyone affected by immigration law in this country, things can only get worse.  A lot worse, probably.

It is likely that the Human Rights Act, which is based on the European Convention on Human Rights and which guarantees, amongst other things, the right to respect for an individual’s family and private life, will be repealed during this Parliament, as the Conservative Party manifesto commits the party to replacing the Human Rights Act with a British Bill of Rights.  The contents of this Bill of Rights are as yet unknown.

The commitment to bring annual net migration down to the ‘tens of thousands’ remains, and a tightening of the Immigration Rules that apply to students and to skilled workers is likely.  Closer monitoring of migrants and ‘non-suspensive appeals’ – that is, appeals that do not give you the right to remain in the UK while your case is going through the appeal process – are also likely to be brought in.

There are stated intentions to limit access to benefits and impose English language and income requirements on EEA nationals, though all this of course is not permitted under EEA law, and would mean considerable negotiations with other EEA member states before this could be implemented. Meanwhile a referendum on the UK’s membership of the European Union is promised by the end of 2017.


Election Watch: It’s a mug’s game

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mugWhen Labour swept to power in 1997, it was to the tune of D:Ream’s hit song, Things Can Only Get Better.  We don’t know if they are going to sweep into power in 2015, or limp into power, or even make it to the finishing line, but one thing seems certain – things aren’t going to get any better for migrants.

Number 4 of Labour’s five election pledges is controls on immigration.  While they don’t seem to play the numbers game in quite the same way that the other parties do, they want stronger border controls, “proper” entry and exit checks, and to stop the exploitation of low-waged workers by unscrupulous bosses.  Or, in other words, to stop people from coming to the UK, but only for their own good.

Someone in the Labour Party thought this mug was a good idea.  Someone in the Labour Party continues to think that it is a good idea, because despite the outpouring of disgust at the crassness and insensitivity that this mug embodies (including some fairly strong statements from high profile party members) you can still buy it for £5 on their website.

Oh dear.