GLOSSARY
Leave to remain definition
What does Leave to remain mean?
A form of immigration status that is granted to an applicant following an application to vary, extend or switch their existing immigration permission to remain in the UK.
Immigration
Permission given to a person who is already in the UK, and who would have required leave to enter (whether or not he has such leave), to stay in the UK.
A person who is not a British citizen, or as otherwise provided by or under the Immigration Act 1971 (IA 1971), and who is already in the UK may be given leave to remain for a limited or for an indefinite period and if given for a limited period may be given subject to stipulated conditions: see IA 1971 1971, s 3(1). The power under IA 1971 to give or refuse leave to remain shall be exercised by the Secretary of State for the Home Department: IA 1971, s 4(1).
View the related practice notes about Leave to remain
Tier 1 (Investor): investment requirements for pre-6 November 2014 Rules applicants at indefinite leave to remain
Tier 1 (Investor): investment requirements for pre-6 November 2014 Rules applicants at indefinite leave to remain This Practice Note looks at the eligibility requirements in relation to money and investments that will be relevant for a Tier 1 (Investor) migrant applying for indefinite leave to remain, where their last leave was granted under the pre-6 November 2014 Immigration Rules covering the category and they are applying before 6 April 2022. This includes what investments will qualify (including relevant restrictions), how the qualifying investments should be maintained, and the evidence needed to show that the qualifying investments and, if relevant, any balancing funds have been maintained over the relevant specified continuous period. It should be read in conjunction with Practice Note: Tier 1 (Investor): applying for indefinite leave to remain. The same requirements will apply where an applicant in this situation misses the 6 April 2022 deadline. As this route was closed to any further initial applications on 17 February 2022, through Statement of Changes in Immigration Rules CP 632, in part due to the concerns the route facilitated the transfer of illicitly obtained wealth, extension and settlement applications may face increasingly high levels of scrutiny. For further information, see: LNB News 17/02/2022 76. Investment within three months of the specified date If a person wishes to rely upon the date of first entry after being granted entry clearance,
Schedule of absences
Schedule of absences The schedule of absences spreadsheets below may be used by Lexis®PSL Immigration subscribers to calculate a person’s absences from the UK for the purposes of various application types. Schedule of absences for settlement in work routes, and naturalisation applications (incorporating ‘rolling absences’ tool for periods of leave granted under the Immigration Rules in force from 11 January 2018) Click on the below link to download the spreadsheet: This spreadsheet may be used in preparing an application for indefinite leave to remain in the UK in work, business and investment routes under the Immigration Rules. All routes which have been ‘simplified’ for the post-Brexit Immigration system now refer to indefinite leave to remain as settlement. The spreadsheet may also be used for naturalisation as a British citizen under section 6 of British Nationality Act 1981. It is suitable for persons who have relevant initial leave granted under the Immigration Rules in force on or after 11 January 2018, as they will be fully subject to the ‘rolling absences’ requirement in relation to indefinite leave to remain, and the spreadsheet incorporates a tool which calculates absences using the rolling absences method. It will also be suitable for persons who are also relying on previous time spent under the Immigration Rules in place before 11 January 2018, but they may wish to use the General schedule of absences below
Statement of Changes in Immigration Rules, HC 693—analysis [Archived]
Statement of Changes in Immigration Rules, HC 693—analysis [Archived] This analysis covers the main changes to the Immigration Rules (the Rules) set out in HC 693 that are likely to be of most interest to business immigration advisers. It is possible to navigate to specific topics quickly using the Contents bar at the bottom of the page. HC 693 was issued on 16 October 2014 and covers a wide range of new measures including: • the introduction of new procedural rules and Appendix AR, which covers the administrative review (AR) procedure which replaces appeal rights for Tier 4 students and their family members, who have not made a human rights or protection claim • substantive changes to the Tier 1 (Investor) category, further to the government's consideration of a related report from the Migration Advisory Committee which was published earlier in the year • what many commentators are calling the 'final death knell' of the Points-Based System (PBS), with the introduction of genuineness and related subjective tests into various of the remaining PBS categories that were previously unaffected • specific provisions to deal with suspected fraud in relation to English-language testing in relation to applications for limited leave under Appendix FM and Part 8 and for settlement where Appendix KoLL applies (where there is also a similar provision in relation to the Life in the UK test) • numerous minor technical
Deportation
Deportation Deportation is the process by which a non-British citizen can be removed from the UK and prevented from lawfully returning. The power to deport is found in the sections 3 and 5 of the Immigration Act 1971 (IA 1971) and sections 22–35 of the UK Borders Act 2007 (UKBA 2007). A deportation order has a number of effects: • it requires the subject to leave the UK • it authorises their detention until removal • it automatically invalidates any leave to enter or remain—either given before the deportation order is made or while it remains in force • it prohibits the subject from re-entering the UK unless, and until, it is revoked The process of deportation must be distinguished from that of administrative removal (see Practice Note: Administrative removal: general principles). Knowingly entering the UK in breach of a deportation order is a criminal offence. What are the circumstances which may trigger a decision to deport? A deportation order may be made by the Secretary of State for the Home Department (SSHD), acting through the Home Office, in the following circumstances: • where the SSHD deems it to be ‘conducive to the public good’ • where a court recommends deportation in the case of a person over the age of 17 who has been convicted of an offence punishable with imprisonment, and • where the person is the spouse, civil partner or child under 18 years,
Making an application under the EU Settlement Scheme
Making an application under the EU Settlement Scheme Coronavirus (COVID-19): This Practice Note contains guidance on subjects potentially impacted by the government’s response to the coronavirus (COVID-19) outbreak. For updates and links to useful information, news and news analysis in relation to the implications for immigration lawyers, see Practice Note: Coronavirus (COVID-19) immigration resources. This Practice Note looks at the procedure for submitting applications for settled and pre-settled status under the EU Settlement Scheme (the Scheme). It covers: • the requirement to submit a ‘valid’ application • application procedures for applying for immigration permission under the Scheme (for European Economic Area (EEA) citizens and non-EEA citizens, inside and outside the UK) • the Home Office’s ‘EU Exit: ID Document Check’ app • the evidential requirements (these relate to identity and nationality, residence and the additional documents required for family members) • authorisation for a legal representative to liaise with the Home Office in relation to the application, and • the requirement to keep the Home Office updated in relation to certain details following grant of leave The Practice Note also looks at the application process for family permit applications from outside the UK. For the purpose of this Practice Note, EEA citizens are defined as nationals of all remaining 27 EU Member States (excluding the UK), as well as Liechtenstein, Norway and Iceland and Switzerland. Although Switzerland is not a member of the EEA,
Right to work checks and illegal working: problem areas and practical tips
Right to work checks and illegal working: problem areas and practical tips This Practice Note looks at how advisers can balance the competing risks that arise in practice where an employer fails to conduct a compliant right to work check or comes to suspect that an employee does not have the right to work. For aspects relating to right to work checks on EEA and Swiss citizens, and their family members, before 1 July 2021, see Practice Note: Brexit materials—right to work checks. Suspected illegal working situations involve consideration of a number of intertwined issues including: • employment—employment law considerations are key as they regulate the employer’s decision whether or not to dismiss. Potential risks include unfair dismissal and discrimination claims. For further information, see Practice Note: Illegal working: dealing with employees • regulatory—an employer may become liable to pay a civil penalty (leading in some cases to a revocation of any sponsorship licence) for employing a person who does not have the right to work. See Practice Notes: Illegal workers—civil and criminal sanctions and Illegal working: dealing with a civil penalty • criminal—it is a criminal offence to employ a person who does not have the right to work while either knowing, or else having reasonable cause to believe, that the person is not entitled to undertake such work in the UK. See Practice Notes: Illegal workers—civil and criminal
EEA nationals: retained and 'derivative' rights of residence for family members [Archived]
EEA nationals: retained and 'derivative' rights of residence for family members [Archived] ARCHIVED: this Practice Note is no longer maintained as it covers the implementation of EU free movement law in the UK prior to IP completion day, on which date domestic legislation implementing EU free movement law was revoked, subject to certain savings and modifications. For further details, including of the relevant savings and the position of CJEU case law, see Practice Note: What does IP completion day mean for Immigration?. The Practice Note has been retained in archived form for historical interest, because EU law as previously implemented in the UK remains relevant in certain limited situations. For historical versions of the Immigration (European Economic Area) Regulations 2016, SI 2016/1052, including immediately prior to revocation, see Legislation.gov.uk. For the ongoing development of EU free movement law in EU Member States, see: Immigration, employment & share incentives (EU Law)—overview. Introduction Important note on implications of Brexit This Practice Note looks at the conditions for obtaining retained and derived rights of residence under EU free movement law, as implemented in the UK until the end of the Brexit transition period (31 December 2020) by the Immigration (European Economic Area) Regulations 2016 (EEA Regs 2016), SI 2016/1052. All EEA nationals (other than Irish nationals) and non-EEA nationals relying on EU residence rights will need to have applied for pre-settled or
Statement of Changes in Immigration Rules, HC 309—analysis [Archived]
Statement of Changes in Immigration Rules, HC 309—analysis [Archived] This analysis considers the main changes to the Immigration Rules (the Rules) set out in HC 309. HC 309 was issued on 7 December 2017, along with an Explanatory Memorandum (EM). It covers: • the electronic issuing of entry clearance • controversial changes to the Rules relating to indefinite leave to remain (ILR) for main applicants and their dependants in work categories, in particular on how absences from the UK are to be treated • substantial amendments to the Tier 1 (Entrepreneur) sub-tier • amendments to Tier 1 (Exceptional Talent) including: ◦ increasing the Tier 1 (Exceptional Talent) limit to 2000 endorsements per year, with 1,000 of these to be allocated among the Designated Competent Bodies on a first-come first-served basis ◦ introducing provision for migrants endorsed under the exceptional talent criteria to apply for ILR after three years • amendments to Tier 2 (General), including: ◦ allowing Tier 4 (General) students to apply to switch into Tier 2 (General) following completion of their course, instead of being required to wait for final results ◦ relaxing the resident labour market test for certain supernumerary researchers and members of established research teams ◦ restricting prohibitions on start date delays so they only apply to Tier 2 (General) migrants and to changes made after leave has been granted • various amendments to the Tier 4 (General) sub-tier, including: ◦ allowing sponsorship
Submitting an immigration appeal to the First-tier Tribunal (IAC)
Submitting an immigration appeal to the First-tier Tribunal (IAC) IP COMPLETION DAY: The Brexit transition period ended at 11pm on 31 December 2020. At this time (referred to in UK law as ‘IP completion day’), transitional arrangements ended and significant changes began to take effect across the UK’s legal regime. This document contains guidance on subjects impacted by these changes. Before continuing your research, see Practice Note: What does IP completion day mean for Immigration? Coronavirus (COVID-19): This Practice Note contains guidance on subjects impacted by the government’s response to the coronavirus (COVID-19) outbreak. For updates and links to useful information, news and news analysis in relation to the implications for immigration lawyers, see Practice Note: Coronavirus (COVID-19) immigration resources. This Practice Note outlines the procedural aspects of submitting an appeal to the First-tier Tribunal of the Immigration and Asylum Chamber. For a summary of the key steps involved in a typical First-tier Tribunal appeal, see Practice Note: Procedure in the First-tier Tribunal (IAC). For the procedural steps and other practical issues involved in preparing an First-tier Tribunal appeal, see Practice Note: Preparing for an immigration appeal to the First-tier Tribunal (IAC). Appeal deadlines The deadlines for lodging an appeal to the First-tier Tribunal are as follows: • for in-country appeals, 14 calendar days from the date that they are sent the notice of decision, and • for appeals from overseas, 28
Article 8 immigration claims
Article 8 immigration claims IP COMPLETION DAY: The Brexit transition period ended at 11pm on 31 December 2020. At this time (referred to in UK law as ‘IP completion day’), transitional arrangements ended and significant changes began to take effect across the UK’s legal regime. This document contains guidance on subjects impacted by these changes. Before continuing your research, see Practice Note: What does IP completion day mean for Immigration? Article 8 of the European Convention on Human Rights 1950 (ECHR), which is incorporated into domestic law by section 1 of the Human Rights Act 1998 (HRA 1998), sets out a right of respect for private and family life. Every immigration practitioner needs to be able to identify when a client can rely upon Article 8 and to assess the related prospects of success. This Practice Note summarises the background to Article 8 claims in the immigration context, and provides links to the series of Practice Notes on Lexis®PSL Immigration which consider the area in detail. Article 8 ECHR—general background Article 8 ECHR and related international provisions reflect the desire of the international community to create stronger international law protections for individual rights, after the experience of gross abuses of human rights during the 1930s and through to and beyond the end of the Second World War. Article 8 ECHR substantially repeats the terms of Article 12 of the
View the related precedents about Leave to remain
Children of a parent with limited leave as a partner under Appendix FM: leave to remain—letter in support from applicant partner
Children of a parent with limited leave as a partner under Appendix FM: leave to remain—letter in support from applicant partner [Insert your current residential address] [Insert Home Office address where application is being sent] [Insert date] Dear [insert organisation name] Letter of support of leave to remain application of [insert name of child(ren), nationalit(ies) and date(s) of birth] I am a [insert the nationality of the applicant parent] national and am the [state the relationship to the child(ren)] of [insert name(s) of child(ren)]. I am currently resident in the UK and am applying for leave to remain as the partner of [insert name of sponsoring partner] at the same time as [insert name(s) of child(ren)]. [In addition to me, [insert name of sponsoring partner] and [insert name(s) of child(ren)], the following person(s) are/will be members of our household: [insert name(s) and relationship(s) to you and the sponsoring partner].] I confirm that [insert name(s) of child(ren)] [is OR are] unmarried, not in a civil partnership, not leading an
Representative of an Overseas Business: settlement application—additional checklist
Representative of an Overseas Business: settlement application—additional checklist A. Additional documents for all main applicants Evidence of your employment for the last 12 months. This could include:—payslips—bank statementsPayslips should be either:— printed on company-headed paper showing the employer’s name, or—printouts of online payslips Your bank statements should show a full breakdown of your pay, including salary payments and any commission. Personal bank or building society statements should be either:—statements on bank stationery—ad hoc statements printed on the bank's letterhead (excluding mini-statements from Automatic Teller Machines (ATMs)), or—printouts of electronic statementsAll statements should include the following details:—your name—account number—date of the statement—the financial institution’s name, contact details and a branch code, and—any transactions over the periodThe last document should be dated no more than 31 days before the application. Some of this information will also be provided in a letter from your employer (see below).The format of documentation may vary depending on the country where you have your employment contract. There is some flexibility allowed in the format of payslips and evidence of documents from financial institutions—if your existing documents are not in the format suggested, please contact us for further advice as to whether they are acceptable. Your current job description For any absences from the UK over the qualifying period due to a serious or compelling reason: a personal letter from
Representative of an Overseas Business: extension application—additional checklist
Representative of an Overseas Business: extension application—additional checklist A. Additional documents for main applicant Evidence of your continued employment with your employer and your financial ability to maintain yourself and any dependants in the UK:Your payslips and bank statements should be provided which should cover a three-month or 12-month period (see comment) and should show a full breakdown of your pay, including salary payments and any commission, and your ability to support yourself financially. The last document should be dated no more than 31 days before the application.Payslips—these should be either:—payslips printed on company-headed paper showing the employer’s name, or—printouts of online payslipsPersonal bank or building society statements—these should be either:—statements on bank stationery—ad hoc statements printed on the bank's letterhead (excluding mini-statements from Automatic Teller Machines (ATMs)), or—printouts of electronic statementsAll statements should include the following details:—your name—account number—date of the statement—the financial institution’s name, contact details and a branch code, and—any transactions over the periodEvidence of your accommodation in the UK, eg tenancy agreement or mortgage documents. The format of documentation may vary depending on the country where you have your employment contract. There is some flexibility allowed in the format of payslips and evidence of documents from financial institutions. If your existing documents are not in the format suggested, please contact us for further advice as to
Spouses, civil partners and unmarried partners under Appendix FM: in—country switch—letter in support from applicant partner
Spouses, civil partners and unmarried partners under Appendix FM: in—country switch—letter in support from applicant partner [Insert your current residential address] [Insert Home Office address to which the application is being sent] [Insert date] Dear [insert organisation name] Application for leave to remain as a [spouse OR civil partner OR unmarried partner] under Appendix FM of the Immigration Rules I confirm that I am a [insert nationality] national and am the [spouse OR civil partner OR unmarried partner] of [insert name of sponsoring partner]. My date of birth is [insert date of birth] and I am currently [insert age]. I confirm that I am not related to [insert name of sponsoring partner] in a way that is prohibited for [marriage OR civil partnership] in the UK. [I am currently living in the UK with leave to [enter OR remain] as [insert current immigration status] OR My last granted leave to remain as [insert last granted immigration status] expired on [insert date of expiry of leave, which must be within 14 days of the date that the application will be submitted]. [Insert full details as to why you have overstayed your leave].] I confirm that [insert sponsoring partner’s name] and I are in a genuine and subsisting relationship and that we intend to live permanently in the UK. [I confirm that [insert name of sponsoring partner] and I have met in person. [Insert details of how and when you
Spouses, civil partners and unmarried partners under Appendix FM: grant of entry clearance—information sheet
Spouses, civil partners and unmarried partners under Appendix FM: grant of entry clearance—information sheet You have now been granted entry clearance (a visa) until [insert date] as the partner of a person with [British citizenship OR settled status in the UK OR refugee leave in the UK OR leave in the UK under the humanitarian protection provisions]. This information sheet outlines some of the key conditions of your stay in the UK as well as your responsibilities to the Home Office. It is important that you understand these conditions. Please do not hesitate to contact us if you have any queries. Please note that while the information below is correct as at today’s date, UK immigration law is subject to regular change. Arrival in the UK and documents You have been issued with a short-term entry clearance valid for 30 days from [insert date], to enable you to travel to the UK. You will be required to collect your Biometric Residence Permit (BRP) from [insert details of relevant post office or alternative collection location] within ten days of arrival in the UK. Please contact us as a matter of urgency if any circumstances arise which mean that you will be unable to meet either of these deadlines. When collecting your BRP, you will need to show both your passport and your decision letter from the Home Office. If you
Children of a parent with limited leave as a partner under Appendix FM: leave to remain—letter in support from sponsoring partner
Children of a parent with limited leave as a partner under Appendix FM: leave to remain—letter in support from sponsoring partner [Insert your current residential address] [Insert Home Office address where application is being sent] [Insert date] Dear [insert organisation name] Letter of support of leave to remain application of [insert name of child(ren), nationalit(ies) and date(s) of birth] I [am a British citizen OR have indefinite leave to remain in the UK OR have refugee status in the UK OR have humanitarian protection leave in the UK] and am the [spouse OR civil partner OR unmarried partner] of [insert name of applicant partner]. My date of birth is [insert date of birth] and I am currently [insert age]. I am the [state the relationship to the child(ren)] of [insert name of child(ren)] who [is OR are] applying for leave to remain under Appendix FM of the Immigration Rules. Their [other] parent is [insert name of applicant partner]. [Insert name of applicant partner] is currently resident in the UK with leave to [enter OR remain] [as my partner OR insert immigration
Senior or Specialist Worker—entry clearance—email at beginning of process
Senior or Specialist Worker—entry clearance—email at beginning of process Dear [APPLICANT], Your Senior or Specialist Worker entry clearance visa We have been instructed by [SPONSOR] to assist you [and your dependants] with an application for entry clearance to the UK (a visa) under the Global Business Mobility (GBM)—Senior or Specialist Worker route. This route is for established workers who are being transferred by their existing employer to do a skilled role in the UK. Eligibility To be eligible for a Senior or Specialist Worker visa, you must be currently working for [SPONSOR]’s group overseas and [have worked with [SPONSOR] outside the UK for 12 months and earn at least £42,400 per annum and the relevant appropriate rate for your occupation code OR earn at least £73,900 per annum and the relevant appropriate rate for your occupation code and therefore be classified as a ‘high earner’ by the Home Office] in a role that is listed as eligible for the route in Tables 1 or 2 of Appendix Skilled Occupations of the Immigration Rules. I understand that you have been employed by [SPONSOR] since [OVERSEAS EMPLOYMENT START DATE] in the role of [ROLE], which falls within [OCCUPATION CODE] and earn £[SALARY] per year, therefore you are eligible to apply. Visa duration [SPONSOR] will apply for a [NUMBER OF YEARS OF VISA] year Senior or Specialist Worker visa for you [and linked visas for
Price and services notice—immigration application—law firms
Price and services notice—immigration application—law firms A note on value added tax (VAT)—All the figures given below include VAT charged at 20% unless specifically stated. However, charging VAT in relation to immigration matters may depend on where you live and what immigration permission you have. We will confirm whether VAT (at a rate of 20%) is payable when you instruct us and we can work out if VAT is properly chargeable. Hourly rate: £[insert rate] On average, this type of works takes [insert range of hours] hours to complete. This means that on average costs are between £[insert cost range]. The exact number of hours it will take depends on the circumstances in your case, such as: • the amount of supporting evidence that we need to consider; • which language(s) you speak; • whether you are applying with other dependants. If you are able to provide sufficient evidence at our first meeting and clearly meet the applicable Immigration Rules, the cost is likely to be at the lower end of this range. What services are included The work will involve: • discussing your circumstances in detail and confirming whether this is the most appropriate application for you to make and what other options may be available to you; • giving you advice about the requirements of the Immigration Rules and whether you meet the criteria; • if you do not fulfil certain criteria, whether this
Children of a parent with limited leave as a partner under Appendix FM: entry clearance—letter in support from sponsoring partner
Children of a parent with limited leave as a partner under Appendix FM: entry clearance—letter in support from sponsoring partner [Insert your current residential address] Entry Clearance Officer [Insert address of [Embassy OR High Commission OR Consulate to which application is being sent]] [Insert date] Dear [insert organisation name] Letter in support of entry clearance application of [insert name of applicant child(ren), nationality(ies) and date(s) of birth] I [am a British citizen OR have indefinite leave to remain in the UK OR have refugee status in the UK OR humanitarian protection leave in the UK] and am the [[spouse OR civil partner OR unmarried partner]] of [insert name of applicant partner]. My date of birth is [insert date of birth] and I am currently [insert age]. I am the [state the relationship to the applicant children] of [insert name of applicant children] who [is OR are] applying for entry clearance under Appendix FM of the Immigration Rules. Their [other] parent is [insert name of applicant partner] [[Insert name of applicant partner] has applied for entry clearance as my partner, and [he OR she] and [our OR his OR her] children will be coming to live in the UK following the approval of their applications for entry clearance. OR [[insert name of applicant
General permission to stay application—checklist
General permission to stay application—checklist Checklist of supporting documents for permission to stay Format for translations Any documents not in English or Welsh must be accompanied by a translation which includes: —certification by a qualified translator and details of the translator’s or translation company’s credentials —contact details for the translator or translation company —confirmation that it is an accurate translation of the original document —date of the translation, and —full name and signature of the translator or an authorised official of the translation company Format for documents All identity documents that are provided must be original, unless otherwise specified. The supporting documents can be either originals or copies. In the majority of applications, supporting documents are digitally uploaded prior to the appointment. You also have the option to bring the original supporting documents with you to your appointment, where they will be scanned by a staff member on the day of your appointment (for a fee). The originals will then be returned to you. Alternatively, in cases where it is possible to use the ‘UK Immigration: ID Check’ app, the documents are uploaded digitally at the end of the submission process. In some circumstances, eg where the application is made outside the UK Immigration Rules, you may be required to bring all your original documents at an appointment at a specified visa application centre. In this case, your passport and other original documents are retained until a decision
View the related q&as about Leave to remain
A married but non-cohabiting couple are looking to extend their leave under Tier 2 (General). They have not been living at the same address in the UK since 2017 but are in a genuine relationship. What effect will this have on their extension application?
A married but non-cohabiting couple are looking to extend their leave under Tier 2 (General). They have not been living at the same address in the UK since 2017 but are in a genuine relationship. What effect will this have on their extension application? Immigration Rules, Part 8, para 319C sets out the requirements for partners of Tier 2 (General) migrants when applying for leave to remain. These include that: ‘…(d) The marriage or civil partnership, or relationship similar to marriage or civil partnership, must be genuine and subsisting at the time the application is made. (e) The applicant and the Relevant Points Based System Migrant or Appendix W worker must intend to live with the other as their spouse or civil partner, unmarried or same-sex partner throughout the applicant’s stay in the UK.’ Note that, in relation to an extension of stay, this intention to live together requirement will also have been a requirement for their preceding application for leave to remain/entry clearance in the category. The Home Office Policy guidance (version 02/2020) in relation to PBS Dependants states (under the heading ‘Additional evidential requirement for dependants of Main Applicants whose last grant of leave was not in this capacity’) that: ‘…63. If you are applying as a family member of a PBS migrant or Appendix W Worker and your last grant of leave was not as their dependant
What should I consider if my client wishes to apply under Tier 2 but the sponsor licence is yet to be granted?
What should I consider if my client wishes to apply under Tier 2 but the sponsor licence is yet to be granted? Can my client apply for leave to remain under Tier 2 even though a new sponsor’s licence has not yet been granted? If an application is lodged under the Immigration Rules pertaining to Tier 2 and a decision is made without your client being in possession of a Certificate of Sponsorship (CoS), you will need to advise your client that it will fall for refusal. If the client’s leave is due to expire shortly and they have been offered a job which will qualify under Tier 2 by an employer that needs to obtain a sponsor licence, it is important to make a request to the Sponsor Licensing Unit for the licence application to be expedited. You should ask for the application to be decided by, or in advance of, the date that the individual’s leave is due to expire. Can I ask the Home Office to hold off on making a decision on the leave to remain application until the licence is granted and the Certificate of Sponsorship is issued? When the Sponsor Licensing Unit was experiencing delays in processing applications, a provision was put in place to this effect. However, this provision has now been withdrawn. It may be possible to persuade individual caseworkers to
For Tier 1 (Investor) route of £5 million or £10 million, can any proportion of these figures be invested in property in the UK?
For Tier 1 (Investor) route of £5 million or £10 million, can any proportion of these figures be invested in property in the UK? The Practice Note: Tier 1 (Investor): applying for indefinite leave to remain (under the headings ‘Old rules: investment requirements’ and ‘New rules: investment requirements’) confirms the following: The investment requirements for the Tier 1 (Investor) category depend on when the applicant made their initial application under the category. In order to qualify for accelerated settlement after two years, the relevant investment must be at least £10m. In order to qualify for accelerated settlement after three years, the relevant
For the purposes of a child’s settlement application under the Immigration Rules, Part 8, para 298, is there any guidance or case law on the meaning of ‘normally lives with’ their parent at para 298(c), in particular on whether there is a minimum time requirement?
For the purposes of a child’s settlement application under the Immigration Rules, Part 8, para 298, is there any guidance or case law on the meaning of ‘normally lives with’ their parent at para 298(c), in particular on whether there is a minimum time requirement? In order to secure indefinite leave to remain, amongst other requirements, a child must comply with the Immigration Rules, Part 8, para 298(c), which states as follows: ‘(c) one parent is present and settled in the United Kingdom and has had sole responsibility for the child’s upbringing or the child normally lives with this parent and not their other parent;’ Originally, the Immigration Rules, Part 8, para 298(c) only concerned whether a parent had sole responsibility of the child, but the provision was amended on 13 December 2013, allowing the requirement to be satisfied if the parent could prove that the child ‘normally lives with’ them. Therefore, if a parent of a child can demonstrate that the child normally lives with them and not their other parent, the above requirement can be satisfied and the child should be permitted to remain with them in the UK. The Home Office has not published any guidance in relation to what must be satisfied in order to demonstrate that a child normally lives with one parent and not the other under the Immigration Rules, Part 8,
When an applicant has leave under Appendix FM of the Immigration Rules and their relationship with the British sponsor is breaking down, how can they protect their position and evidence an active role in their child’s life if the sponsoring partner is making an application for the child’s indefinite leave to remain after five years? What are the difficulties with making a leave to remain application on the basis of their relationship with a child and would the position change if the child is over the age of 18 (at the time of making the application)?
When an applicant has leave under Appendix FM of the Immigration Rules and their relationship with the British sponsor is breaking down, how can they protect their position and evidence an active role in their child’s life if the sponsoring partner is making an application for the child’s indefinite leave to remain after five years? What are the difficulties with making a leave to remain application on the basis of their relationship with a child and would the position change if the child is over the age of 18 (at the time of making the application)? It has been assumed, for the purpose of this Q&A, that the child in question is not the child of the British sponsor. If it were, it would, in the vast majority of cases, also be British, or have the option of registering as such under the British Nationality Act 1981. In this scenario, the applicant’s child would only be eligible to apply for indefinite leave to remain under Immigration Rules, Part 8, as Immigration Rules, Appendix FM only allows a child to apply for limited leave to remain. The applicant in these circumstances appears to be prevented from applying for indefinite leave to remain in the partner route. They would only have the option to apply for leave as a parent if they have a British, settled or otherwise
Do the general grounds for refusal in the Immigration Rules, Part 9, paragraph 322 apply to applications for indefinite leave to remain by Tier 2 (General) migrants?
Do the general grounds for refusal in the Immigration Rules, Part 9, paragraph 322 apply to applications for indefinite leave to remain by Tier 2 (General) migrants? The general grounds for refusal of an application for indefinite leave to remain by a Tier 2 (General) migrant under the Immigration Rules, Part 6A, para 245HF are set out in the Immigration Rules, Part 9, para 322. Immigration Rules, Part 9, para 322 states: ‘In addition to the grounds for refusal of extension of stay set out in Parts 2–8 of these Rules, the following provisions apply in relation to the refusal of an application for leave to
Where an applicant has joined an existing business, they are required to show a net increase of employment. How is net increase calculated for job creation where the employment has fluctuated throughout the year before the applicant joins the business? In addition, what constitutes a job? For example, where there are 10 waiters in a company, does this count as 10 different jobs or is it just one job—that of a waiter?
Where an applicant has joined an existing business, they are required to show a net increase of employment. How is net increase calculated for job creation where the employment has fluctuated throughout the year before the applicant joins the business? In addition, what constitutes a job? For example, where there are 10 waiters in a company, does this count as 10 different jobs or is it just one job—that of a waiter? The job creation requirement must be satisfied by applicants making applications to extend their leave as Tier 1 (Entrepreneurs), or later applying for indefinite leave to remain (ILR) having spent the required period in the UK in that route. As the Q&A identifies, where a Tier 1 (Entrepreneur) has taken over or invested in an existing business or businesses, they must show a net increase in the employment provided by the business or businesses for settled workers by creating the equivalent of at least two new full time jobs (row 4, Table 5, Appendix A to the Immigration Rules). The rules at paragraph 50(g) and (h) of Appendix A to the Immigration Rules require certain evidence to be provided in respect of the job creation requirement, and the net increase in jobs: '(g) if the applicant took over or joined a business, they must provide a signed and dated letter from an accountant, showing: (i) the name
Are there any time restrictions on making an application for a biometric residence permit (BRP) on form BRP(RC), where the applicant holds indefinite leave to remain (ILR), their current BRP is due to expire, and they were a person aged under 16 when their BRP was issued?
Are there any time restrictions on making an application for a biometric residence permit (BRP) on form BRP(RC), where the applicant holds indefinite leave to remain (ILR), their current BRP is due to expire, and they were a person aged under 16 when their BRP was issued? Practice Note: Biometric Immigration Documents confirms that: ‘An application for a replacement BRP must be made if the original BID is lost, stolen or damaged, if they are a child and their BID has expired ahead of their leave, or if they have ILR and their BID has expired. The application in such circumstances is made on form BRP(RC).’ The requirement to apply for a replacement BRP derives from the Immigration (Biometric Registration) Regulations 2008, SI 2008/3048, reg 19. This states (our emphasis): ‘19 (1) A person who has been issued with a biometric immigration document under regulation 13(1), 13A(1) or 13B(1) is required to apply for a replacement biometric immigration document where his original document— (a) has been cancelled under paragraphs (a) to (g) of regulation 17; or (b) has ceased to have effect under regulation 13(4)(b), (c) or (d), regulation 13A(6)(b), (c) or (d), or regulation 13B(4)(b). (2) A person required to apply for a biometric immigration document under paragraph (1) must do so within 3 months beginning with the date that the original document was cancelled or ceased to have effect.’ A person
In a situation where an EU national has lived in the UK for over six years, but has only recently registered under the EU Settlement Scheme (EUSS), can they rely on the fact that they had permanent residence status as a matter of law for six years to apply for British citizenship immediately after settled status is ‘granted’ under the EUSS? Or do they have to wait 12 months from the date the settled status is recognised/granted under the EUSS before applying?
In a situation where an EU national has lived in the UK for over six years, but has only recently registered under the EU Settlement Scheme (EUSS), can they rely on the fact that they had permanent residence status as a matter of law for six years to apply for British citizenship immediately after settled status is ‘granted’ under the EUSS? Or do they have to wait 12 months from the date the settled status is recognised/granted under the EUSS before applying? One of the requirements for an adult's naturalisation as a British citizen under section 6(1) of the British Nationality Act 1981 (BNA 1981) is to have ‘not at any time in the period of 12 months so, ending [been] subject under the immigration laws to any restriction on the period for which they might remain in the United Kingdom’. There are two ways of satisfying this requirement which may be relevant to European Economic Area (EEA) nationals: • through indefinite leave to remain (including ‘settled status’ granted under Appendix EU) that has been granted more than 12 months ago, or • through providing a document confirming that the applicant has acquired permanent residence (PR) under the Immigration (European Economic Area) Regulations 2016, SI 2016/1052 more than 12
Can a child of a points-based system migrant apply for settlement with the main applicant parent if the other parent cannot apply for indefinite leave to remain and is instead applying for an extension?
Can a child of a points-based system migrant apply for settlement with the main applicant parent if the other parent cannot apply for indefinite leave to remain and is instead applying for an extension? A child of a relevant points-base system (PBS) migrant can apply for settlement if they meet the requirements set out in the Immigration Rules, Part 8, para 319J. When looking at the immigration status of the parents, Immigration Rules, Part 8, para 319J states that the dependent child can apply for settlement if: • both of their parents are lawfully settled in the UK • both of their parents are being granted indefinite leave to remain (ILR) at the same time as
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Immigration weekly highlights—30 June 2022
Welcome to the 30 June 2022 highlights from the Immigration team, which provides links to key news stories from the last week, as well as a round-up of new and updated content in Immigration.
Sponsoring nannies under the Skilled Worker route
Immigration analysis: James Perrott of Mayer Brown considers the sponsorship of au pairs and nannies under the Skilled Worker route including why the current Overseas Domestic Worker route is not suitable for families looking to bring them to the UK, who can sponsor them to work in the UK, situations where it might be possible for companies and practical tips.
Dishonesty not a ‘precedent fact’ (Ashrafuzzaman v ECO)
Immigration analysis: The Upper Tribunal (UT) confirmed (applying R (Giri) v SSHD) that the use of deception in an immigration application is not one of ‘precedent fact’. Consequently, a court or tribunal deciding an application for judicial review does not have jurisdiction to decide for itself whether or not the applicant in fact used deception. Instead, the tribunal or court’s jurisdiction is limited to its usual supervisory function of deciding whether the Secretary of State for the Home Department has made a public law error in reaching its conclusion. Written by Eva Doerr, barrister at Garden Court Chambers.
Immigration weekly highlights—16 June 2022
Welcome to the 16 June 2022 highlights from the Immigration team, which provides links to key news stories from the last week, as well as a round-up of new and updated content in Immigration.
Immigration weekly highlights—9 June 2022
Welcome to the 9 June 2022 highlights from the Immigration team, which provides links to key news stories from the last week, as well as a round-up of new and updated content in Immigration.
Immigration weekly highlights—19 May 2022
Welcome to the 19 May 2022 highlights from the Immigration team, which provides links to key news stories from the last week, as well as a round-up of new and updated content in Immigration.
Nationality and Borders Act 2022—nationality provisions
Immigration analysis: The Nationality and Borders Act 2022 received Royal Assent on 28 April 2022. In addition to controversial provisions relating to deprivation of citizenship without notice and statelessness, the Act makes a wide range of more generous changes to British nationality law, including for the first time a general discretionary power to register adults as British citizens. The ambition is to deal conclusively with issues of historical legislative unfairness in British nationality law. In this analysis, Alexander Finch, solicitor and senior manager at Fragomen LLP, provides a comprehensive summary of the key changes in the Act relating to nationality law, and how they might pan out in practice.
What are the duties of an expert witness in the Tribunal? (Re: HA (Sri Lanka) v SSHD)
Immigration analysis: The tribunal identified this as an appropriate case in which to consider the correct approach to be adopted in a human rights appeal where it is argued that removal of an individual from the UK would be contrary to Article 3 of the European Convention on Human Rights (ECHR), having regard to the individual’s mental health and/or risk of suicide. The tribunal further considered that this case gave them the opportunity to give guidance in respect of expert reports and in particular mental health/psychiatric reports. It helpfully provides an analysis of the judgment of the Grand Chamber of the European Court of Human Rights (ECtHR) in Savran v Denmark (Application no 57467/15; 7 December 2021). The main focus however was in identifying the extent of the duties owed by an expert and in particular what is required to ensure that the expert’s duties are carried out in substance and not merely in form. Written by Charlotte Bayati, barrister at Goldsmith Chambers.
Immigration weekly highlights—5 May 2022
Welcome to the 5 May 2022 highlights from the Immigration team, which provides links to key news stories from the last week, as well as a round-up of new and updated content in Immigration.
Immigration monthly highlights—April 2022
Welcome to the April 2022 highlights from the Immigration team, which provides links to key news stories from the last month, as well as a round-up of new and updated content in Immigration.
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