UK Immigration News

Section EX

Section EX. Exceptions to certain eligibility requirements for leave to remain as a partner or parent.

For those applicants already in the UK who wish to make a family-based further leave to remain application but do not meet the requirements, they may still apply and have their application considered under Paragraph EX.1. Being granted leave in this way does entail a ‘cost’ albeit one that must be considered in relation to the alternative prospect of living outside of the rules and within a hostile environment.
Parents or partners under this paragraph are still asked to meet the suitability, relationship and part of immigration requirements i.e. it is possible to apply and have your application considered favourably, if you are an over-stayer or an illegal entrant; they will however, not have to meet the financial or language requirements. Those granted leave under EX.1. instead of being granted a further 30 months of leave en route to settlement after 5 years, will be given 30 months on a 10 year route. Any applicant granted leave in this way may be able to switch back in to the five year route later, but given that no leave granted under EX.1. can be used to meet the five year requirement it is important to consider carefully if doing this has any significant benefit.
EX.1. applies if the applicant is able to prove that they have a ‘genuine and subsisting parental relationship’, one that would be capable of engaging Article 8 of the European Convention on Human Rights, with a child who is a either a British citizen or who has lived for at least 7 years immediately preceding the application. Additionally, taking into account the child’s best interests as a primary consideration, it would not be ‘reasonable’ to expect the child to leave the UK.
The term ‘parent’ incorporates those who may have parental responsibility for the child but are not in possession of any legally recognised documentation or birth certificate. Therefore, it is recognised that someone who cares for and makes the important decisions with regard to a child’s upbringing may be that child’s ‘parent’, even if they do not have the corroborative backing of biological facts or legal pronouncements.
The phrase ‘reasonable for child to leave UK’ incorporates the belief that normally, the best interests involve the child remaining with whole family. So, if the child is not expected to leave it may be unlikely that the parent(s) would be and vice versa. Conversely, where the parents were to both be expected to leave the UK, it would not be unreasonable to expect the child to leave as well, unless proven otherwise.
With regard to partners – it is stated that the applicant must be in a ‘genuine and subsisting relationship’, in the UK, with a British Citizen, a settled person or a person with refugee leave or humanitarian protection. Furthermore, there needs to be ‘insurmountable obstacles’ to family life with that partner continuing outside the UK, or would entail ‘very serious hardship’ for the applicant or their partner.
‘Insurmountable obstacles’ could be where neither party were able to enter the third country in question; ‘very serious hardship’ would cover, non-exhaustively, cultural or religious persecution based upon personal beliefs and lifestyle or serious threat of endangerment due to a general lack of security and/or governance within that country; the onus, as is usually the case, is placed upon the applicant.
It may be noted from the above that through the use of language i.e. ‘insurmountable’ as opposed to ‘reasonable’, that the margin of appreciation afforded by courts is significantly narrower for partners than it is for children.

Fiancé Visit or a Marriage Settlement Visa?

However, although that essentially surmises a fiancé visit visa and its limitations, a marriage settlement is two-part visa. As soon as the applicant and sponsor are married, rather than the applicant having to return to the country of their origin to make a subsequent entry clearance application as a spouse, they are instead permitted to make an in-country application. If, granted the applicant is then permitted to work straightway should they wish and although they would continue to have no recourse to public funds i.e. state benefits, they would have access to the National Health Service due to the fact that they would have been required to pay an Immigration Health Surcharge (IHS) when they applied, currently £400 p.a. This leave then allows those who are successful to remain in the UK for a further 30 months after which they may apply again for further leave of another 30 months; once 60 months of lawfully permitted leave within a settlement category has been accumulated, this enables the applicant to apply of Indefinite Leave to Remain or what is also referred to as ‘settlement’.

These family-based visa routes are at once similar and very different. They are both issued by The Home Office for the purpose of becoming lawfully married to a person present and settled here in the UK. By making one of these applications, and if granted, both result in a vignette within your passport, permitting entry clearance for not more than six months, in order that you may be married within that time. In both cases these, as they are for less than six months, are essentially visit visas and therefore carry with them the restrictions imposed upon most visitors – you will not be entitled to undertake paid or unpaid work; you will only be entitled to study for a period not exceeding 30 days as long as it is not the main reason for your visit (the study entails either a recreational course or a short-course, which includes English Language training, at an accredited institution).

Of course, in return for a settlement visa there is a price that has to be paid, both in terms of the initial outlay of Home Office fees as well as the meeting of much more extensive and exacting suitability and eligibility requirements for Entry Clearance. As the nature of immigration applications entails that the Home Office places the burden of proof firmly upon the applicant and their sponsor, it is their responsibility alone, unless shared with an approved and engaged legal representative, to convince the ECO (Entry Clearance Officer) that as well as meeting the financial requirement, they are in a genuine and subsisting relationship and are not trying to circumvent the rules by way of a ‘sham’ marriage or a marriage of convenience. These requirements need to be met by way of relevant and extensive corroboratory documentary evidence, as specified within The Immigration Rules.

Despite the fact that the initial outlay is much greater, the marriage settlement route may nevertheless appeal to those who find the logistics, as well as the emotional upheaval, of travelling here once, living with their partner for up to six months, getting married and then leaving, less attractive. Conversely, for those whose personal circumstances differ, resulting in alternative priorities, the fact that a fiancé visa costs around £100 and under normal circumstances takes around three weeks (as opposed to three months) to be granted from the submission of their bio-metrics, the fiancé visit visa may well be the preferred route for yourself and your partner.

Tier 2 Shortage Occupation List has been expanded

All UK businesses who recruit individuals from outside the UK will enjoy improved access to the Tier 2 category of skilled workers. Following the Immigration Minister Seema Kennedy’s announcement on 9th September.

The Tier 2 Shortage Occupation List has been expanded to accommodate the following occupations; veterinarians, architects and web designers. Which means UK companies looking to recruit in these sectors will find the process a lot more streamlined, meaning they can access the skills pool quickly rather than undertaking the required Resident Labour Market Test for 30 days prior to selection of the candidate.

The Migration Advisory Committee known as (MAC) has already proposed the UK government exclude the Resident Labour Market Test in any future amendment to the UK Immigration System for Highly Skilled Workers. This change will have a positive affect on businesses.

Immigration Minister Seema Kennedy said:

Giving British based businesses the access to the brightest and best global talent is a key priority for this government.

That is why we have made it easier for employers to hire the skilled workers, such as vets and web designers, that this country needs to flourish.

A new Immigration System may be promulgated from as early as Autumn 2020. The new system will be streamlined and a lot more user friendly for businesses to recruit from overseas, especially those whom have historically depended on EU workers. Largely focused on the working route the new system will be based on the Australian points based system. More detail about the system can be found on the UKVI website.

Sponsor Licence Renewal

Renew your licence early to avoid the potential harm an out of time application can do to your migrant workforce and business.

Tier 2 Sponsor Licence renewal
In order to protect your existing migrant workforce it is important that you apply to renew your sponsor licence in time before the expiry date of the licence. If, you do not apply to renew your licence, the Home Office will curtail your migrant workforces leave to 60 days. If they haven’t found an alternative sponsor within those 60 days they will be required to leave the country, which is not what anyone wants. You will not be able to access the Sponsorship Management System or Issue Certificates of Sponsorship without a valid licence. In order to avoid administration oversights the Home Office will send out three reminders starting three months in advance of the licence expiry, allowing you time to manage an in-time renewal.

Sponsor Licence Renewal Process

  1. You must apply to renew your licence using your Sponsor Management System
  2. Please ensure you review the most recent guidance on the sponsor licence renewal process to be up to date with any process, legal or compliance changes. For example making sure the information on the licence is up to date with the right Key Personnel and work address
  3. If any amendments are required and before you renew the licence please ensure you have the Authorisation Officers authority in writing
  4. You must pay a sponsor licence renewal fee. Please ensure you select the right fee for the size of the company as your application may be rejected
  5. Once the application for a Sponsor licence renewal has been submitted online, the Home office will conduct further checks and may request supporting documentary evidence
  6. If, the Home office is not satisfied you meet the requirements of the licence application, they may conduct a site visit to reassure themselves that you continue to maintain the compliance and administration requirements of the Tier 2 Sponsor Licence

In order to ensure a smooth transition we advise that you start the renewal process at least 2 months in advance of the expiry date. This will ensure you:
• Have gained consent from the Authorisation Officer
• Maintained all the reporting duties
• Updated your personnel files
• Undertaken an in-house compliance audit

If you are unable to manage the above due to core work commitments, your Immigration Consultant can manage this process for you. If you don’t have one please get in contact with us. Tier 2 Sponsor Licence applications and the management of migrant workers are one of the key areas we specialise in.

EEA Settlement Scheme Update: The Facts and Figures So Far…

EEA Settlement Scheme Update: The Facts and Figures So Far…

Now that we are coming towards the end of ‘public beta phase’, the third instalment of the public service juggernaut, that is the piloting of the EU Settlement Scheme application process, it occurred to me that it was about time we had a roundup of the figures published thus far. We will also focus upon the most recent additions to ‘Appendix EU’, which itself is now firmly entrenched within the UK system – UK HC395: The Immigration Rules, and furthermore reflect on our own experiences, here at The Visa Office, of the system.
Read more “EEA Settlement Scheme Update: The Facts and Figures So Far…”

Brexit Seminar

Brexit Seminar

Yesterday our Corporate Consultant David Faulkner-Bryant joined the Chamber of Commerce and sat on ‘the Future of Business Post Brexit’ panel  to discuss the current and future approach to ensuring local Somerset employers’ EEA national workforce is protected during these turbulent times, particularly with focus on key manufacturing industries across the South West. It was interesting to gage an understanding of the wider approaches other companies are pushing forwards with, in order to ensure they are able to weather the Brexit storm.

EEA Settlement Scheme – First Steps

EEA Settlement Scheme – First Steps

Back in May I wrote a blog bemoaning the lack of a definitive process that would enable EEA nationals to cement their rights as individuals here in the UK. It would now appear to be the case that there is something further to report regarding this topic. Discernible, if somewhat tentative, efforts have been made towards implementing a system which would facilitate the switching of those Europeans here from The (EEA) Regulations to The (UK) Immigration Rules; thus regularising their UK immigration status in advance of ‘Brexit’ and subsequently affording them a formal, legalised security to their futures as well as a sense of belonging within a society, a basic human right that surely everybody should be entitled to.

Read more “EEA Settlement Scheme – First Steps”

Immigration Health Surcharge set to rise on 18th December 2018

Immigration Health Surcharge 2018

The Immigration Health Surcharge set to rise on 18th December 2018 

The plan was put forward to parliament on 11/10/2018 to raise the Immigration Surcharge on 18th December 2018. Individuals whom hold a UK visa for more than 6 months but not settlement, will be required to pay £400 per year which is an increase of 100%. Students and Tier 5 Youth Mobility Scheme Workers who previously paid £150 will be required to pay £300 per year. There are further concessions and exemptions for individuals, you can find more information under the Immigration Health Charge Order.

Read more “Immigration Health Surcharge set to rise on 18th December 2018”

Employing EEA Nationals during and after the Brexit Process

Employing EEA Nationals during and after the Brexit process

As the fight for an ‘appealing’ Brexit continues, the uncertainty for UK businesses grows. A number of EEA Nationals are leaving the UK and there are very little skilled EEA Nationals coming to the UK. UK companies who have enjoyed the wonderful skills pool of the EU job market are beginning to wonder what the impact is going to be on their business, if their key people move back to Europe.

Read more “Employing EEA Nationals during and after the Brexit Process”

Visit Visas – Negotiating the ‘Labyrinth’

Visit Visas

As we are just emerging from the holiday season it occurred to me that it may be an appropriate moment to write about visit visas, both the nature of the beast and ways to go about taming it. This urge was borne to me by way of the recent reported difficulties within the media that internationally renowned musicians have had varying degrees of difficulty when trying to negotiate the UK immigration system, so that they may play at a variety of festivals and concerts.

Read more “Visit Visas – Negotiating the ‘Labyrinth’”