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Inbuilt obstacles and mechanisms that the Home Office use to defeat, deny and deter immigration claims

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On the surface, all that is required to enable preparation and submission of a successful application to the Home Office is self-evident.  After all, the application forms themselves are free and readily accessible (postal or on-line, as relevant). These applications forms indicate what documents are required to support an application. Additionally, voluminous Home Office guidance policy is transparently available for leisurely perusal in advance of submitting an application. With all this in sight, in some categories, it seems there  isn’t even any need to consult a legal practitioner prior to submission of an application.

 

There are however in-built laws, policies and procedures in the assessment process of immigration applications, such that a seemingly straightforward application may end up falling foul of these provisions.

 

In summary, the main applicable procedures relate to the following:

 

 

(1). INVALIDATION OF LEAVE TO REMAIN APPLICATIONS

 

An application for leave to remain in the UK is valid when the requirements of paragraph 34 of the Immigration Rules are met, or where one of the exceptions set out in paragraph 34 apply. The requirements must be met by each applicant.

 

The relevant home office guidance is : Applications for leave to remain: validation, variation and withdrawal, April 2017

 

Paragraph 34B however sets out that, where an application contains errors and / or omissions, the Secretary of State may write out to an applicant and give them 10 working days to remedy the errors and / or omissions. If an applicant does not respond within 10 working days,  the home office caseworker should normally reject the application as invalid.

 

In summary, the key requirements are as follows:

 

 

A recent blog article in relation to the relevant guidance can be found here: Know The Procedure: Brand New Home Office Guidance on Validity and Rejection of Leave to Remain Applications

 

(2).EXORBITANT HOME OFFICE APPLICATION FEES AND NHS SURCHARGE REQUIRED

 

Unless a fee waiver is applied for and granted, a family unit consisting of the parents and four minor children, applying for example under the 7Year Rule( Form FLR(FP), would need to make provision for the following funds:

 

 

These are considerable sums required by the Home Office and most would say unreasonably excessive, especially considering that where all the children are under the age of 18years, only one application form is required to cater for the entire family.

 

The Secretary of State will waive the fee in respect of certain types of immigration application, where failure to do so would render the applicant incapable of exercising their rights under the European Convention on Human Rights (ECHR).

 

For guidance on fee waivers see: Fee waiver guidance for FLR(O) form

An applicant will qualify for a fee waiver in the following circumstances:

 

“1. When the applicant has demonstrated, by way of evidence, that they are destitute. (As set out more fully below, a person is deemed to be destitute for these purposes when they do not have adequate accommodation or any means of obtaining it; and/or they cannot meet their other essential living needs); or

2.When the applicant has demonstrated, by way of evidence, that they would be rendered destitute by payment of the fee, because whilst they have adequate accommodation and can meet their essential living needs:

a) They have no additional disposable income such that they could either:

(i) pay the fee now; or

(ii) save the required amount within a reasonable period (12 months) (and it would be reasonable in all the circumstances to expect the applicant to delay their application for this length of time);

in either event, without compromising their ability to accommodate themselves adequately or meet their other essential living needs; and

b) They have no ability to borrow the required amount from family or friends; and

c) There is no basis for concluding that the applicant’s financial circumstances are likely to change within a reasonable period (12 months) (and it would be reasonable in all the circumstances to expect the applicant to delay their application for this length of time); or

 3.The applicant has demonstrated, by way of evidence, that notwithstanding the fact that neither 1. nor 2. apply, there are exceptional circumstances in their case such that the fee waiver should be granted. The ‘exceptional circumstances’ relied on must relate to the applicant’s financial circumstances and their ability to pay the fee”.

 

If the Home Office caseworker is satisfied on the basis of the information in the Appendix 1 to the FLR(FP)  and the supporting documentation, including where relevant any explanation of why evidence has not been provided, that the applicant is destitute, or would be rendered destitute by payment of the fee, or that there are exceptional circumstances relating to their financial circumstances and ability to pay the fee, the applicant will qualify for a fee waiver.  If the applicant qualifies for a fee waiver, their FLR(FP) application form will be passed to the relevant caseworking unit for consideration and they will have their leave to remain application considered without paying a fee. Applicants who do not qualify for a fee waiver will have their application rejected as invalid for non-payment of the required fee.

 

The applications covered by the guidance are applications for leave to remain under the 10-year partner, parent or private life route on an FLR(FP) form, where the applicant claims that refusal of that application for leave to remain would breach his or her rights (or the rights of other specified persons) under Article 8 ECHR (the right to respect for private and family life), or applications for leave to remain on the basis of an ECHR article other than Article 8. If the applicant is a child and his or her parent or parents have or are seeking leave to remain, the whole family unit must qualify under this policy for any member of it to qualify for a fee waiver.

 

There is no fee waiver available for the 5-year partner or parent route. An applicant for these routes has to meet financial requirements such as a minimum income threshold or an adequate maintenance requirement. If an applicant wishes to be considered for one of these routes, they will have to pay the relevant application fee and submit the correct form.

 

Applications for indefinite leave to remain (e.g. on a SET(O) or SET(M) application form) are not covered by the fee waiver policy. All such applications will need to be accompanied by the correct fee in order to be considered.

 

An applicant who made an application for a fee waiver which was rejected, may re-submit their FLR(FP) and Appendix 1 to the FLR(FP)/FLR(O) with additional documentary evidence of their claim to be destitute, or that they would be rendered destitute by payment of the fee, or to demonstrate that there are exceptional circumstances relating to their financial circumstances and ability to pay the fee. This will be considered afresh by the Home Office. Alternatively, the applicant may re-submit their FLR(FP) along with the relevant fee.

 

If an applicant has made an in time application, that is, before their current leave has expired, and has made an application for a fee waiver at the same time which is rejected, the Home Office caseworker  must write to them and give them 10 working days to pay the application fee. If they do not respond within that deadline,  the caseworker  must reject the application for leave as invalid.

 

(3).OWING A LITIGATION DEBT

 

A power to refuse applications for entry clearance, leave to enter or leave to remain on the basis of litigation debt was added to the Immigration Rules and applies to applications made on or after 6 April 2016. Home Office caseworkers must take account of all litigation debts, including those accrued before 6 April 2016, when considering an application made on or after 6 April.

 

The relevant Home Office policy Guidance is Litigation debt.

 

Litigation debt is a debt owed to the Home Office where the court or Tribunal has ordered another party to pay the Home Office’s  legal costs.

 

Litigation debt can arise from all types of litigation, including appeals, judicial reviews and private law claims such as unlawful detention.

 

The guidance does not apply to:

 

 

If the person has not yet fully paid off the debt but the Litigation Finance Team( LFT) confirm they have entered into an arrangement to pay it off in instalments and the person is paying as agreed, Home Office caseworkers  must not take the debt into account when considering the application.

 

If the person has agreed to pay by instalment but then failed to start making payments, missed payments or stopped paying, LFT will reassess the debt. LFT will confirm to  the Home Office caseworker  whether the debt is again outstanding and must therefore be taken into account when  the caseworker contacts LFT to check whether the debt is outstanding.

 

If the home office caseworker decides to grant the application despite the litigation debt, this does not mean that the debt is written off. It is still a debt. The Home Office expects all litigation debts to be paid.

 

Entry clearance and leave to enter – All routes except appendix Armed Forces and appendix FM:

 

If an applicant applying for entry clearance or leave to enter owes a litigation debt to the Home Office, the Home Office caseworker must normally refuse the application under:

 

 

This is a discretionary ground for refusal and although there is a presumption in favour of refusal (because the rule states the application will normally be refused), the caseworker  must not automatically refuse an application for this reason. They  must consider whether it is appropriate to exercise discretion in the applicant’s favour.

 

Entry clearance and leave to enter- Appendix Armed Forces and appendix FM

 

If an applicant applying for entry clearance or leave to enter owes a litigation debt to the Home Office, the Home Office caseworker must consider whether on the basis of the litigation debt the application should be refused under:

 

This is a discretionary ground for refusal (because these rules state the application may be refused) so  the caseworker  must not automatically refuse an application for this reason. For applications made under appendix Armed Forces or appendix FM, there is no presumption in favour of refusal on the basis of litigation debt. The caseworker must consider whether, in the individual circumstances of the case, it is proportionate to refuse leave under the suitability provisions on the basis of the debt.

 

Leave to remain – All routes except appendix Armed Forces, Family and Private Life (part 7 paragraph 276ADE(1) or appendix FM):

 

If the applicant applying for leave to remain owes a litigation debt to the Home Office, the caseworker  must normally refuse the application under:

 

This is a discretionary ground for refusal so although there is a presumption in favour of refusal (because the rule states the application will normally be refused),  the caseworker must not automatically refuse an application for this reason. They  must consider whether it is appropriate to exercise discretion in the applicant’s favour.

 

Leave to remain- Appendix Armed Forces or Family and Private Life (part 7 paragraph 276ADE(1) or appendix FM):

 

If an applicant applying for leave to remain owes a litigation debt to the Home Office, the caseworker  must consider whether to refuse the application under:

 

 

This is a discretionary ground for refusal (because these rules state the application may be refused) so the caseworker must not automatically refuse an application for this reason. There is no presumption in favour of refusal on the basis of litigation debt for applications made under:

 

 

The caseworker must consider whether, in the individual circumstances of the case, it is proportionate to refuse leave under the suitability provisions on the basis of the debt.

 

(4).OWING AN NHS DEBT

 

A person may have an NHS debt if they have received secondary healthcare, which is healthcare provided to the person by a hospital.

 

NHS bodies use their own internal processes to recover the monies owed, and will only notify the Home Office once the debt has been outstanding for 2 months and there is no agreement to pay by instalments.

 

A Home Office caseworker must only consider refusing an application on the basis of NHS debt if the NHS debt information has been supplied or confirmed by an NHS body.

 

The relevant guidance for entry clearance officers on what to consider when an applicant applying for entry clearance owes a debt to NHS bodies is General grounds for refusal: considering entry clearance, Section 2 of 5, and the current version is that of 10 April 2017.

 

Refusal on the basis of NHS debt is discretionary rather than mandatory. Entry Clearance Officers must consider the following before refusing on the basis of NHS debt:

 

 

Entry Clearance applications – Part 9 and Appendix V:

 

Entry clearance officers should normally refuse the entry clearance application under paragraph 320(22) for non-visit applications and paragraph V3.14 of Appendix V for visit applications if either of the following apply:

 

 

An individual who has incurred charges of under £1000 before 6 April 2016 cannot be refused on this basis after 6 April 2016 unless either of the following apply:

 

 

Appendix FM and Appendix Armed Forces:

 

The Appendix FM routes are for those seeking to enter or remain in the UK on the basis of their family life with a person who is a British Citizen, is settled in the UK, or is in the UK with limited leave as a refugee or person granted humanitarian protection.

 

The Appendix Armed Forces routes are for members of the armed forces, civilian employees and their families.

 

Entry Clearance officers may consider refusing the entry clearance application under Appendix FM and Appendix Armed Forces if either of the following apply:

 

 

An individual who has incurred charges of under £1000 before 24 November 2016 cannot be refused on this basis after 24 November 2016 unless either of the following apply:

 

 

The entry clearance officer must consider human rights factors in accordance with the Appendix FM guidance.

 

An entry clearance officer must check if the applicant has an outstanding total NHS debt that meets the above thresholds.

 

The Caseworker must consider whether the applicant’s stated reason for entering or remaining in the UK at the time of their previous application was genuine, or whether their true intention was to gain free access to healthcare that is chargeable. If the person made a false representation about the purpose of their current or previous application, the caseworker must refuse their application on this basis.

 

A linked dependant is a person who is applying for entry clearance as a dependant of the main applicant at the same time as the main applicant. If the Home Office caseworker refuses the main applicant because they owe an NHS debt, they must also refuse any linked dependants. However, if they refuse an application from a linked dependant because the dependant owes an NHS debt, they must not also refuse the main applicant on the basis of the dependant’s debt.

 

An NHS debt would have been recently discharged if it was paid off in the 6 month period before the application was made. If the applicant has only recently discharged their debt to the NHS, before granting entry clearance, the entry clearance officer must consider the effect of paying off the debt on the person’s ability to meet any relevant requirements of the Immigration Rules. This includes the ability of the applicant to maintain and accommodate themselves while in the UK and that they have no intention to seek further NHS treatment without paying, unless such access is permitted on the route under which they are applying. A refusal on the grounds of insufficient funds should be made under the relevant rules and not under the NHS debtor rules.

 

Once the NHS debt has been cleared, there will no longer be a reason to refuse entry on this basis. The applicant must satisfy the Home Office caseworker that they meet the all requirements of the Immigration Rules for the category in which they are seeking entry before grant of the application. This includes the ability of the applicant to maintain and accommodate themselves while in the UK. The caseworker must consider whether the applicant has sufficient funds to support themselves in the UK, given that they previously had an outstanding healthcare debt. The caseworker must also consider whether they intend to access further NHS treatment without paying, unless such access is permitted on the route under which they are applying.

 

(5).MEETING THE ENGLISH LANGUAGE REQUIREMENT

 

On 3 November 2016, Immigration Rules changes for a new English language requirement at level A2 of the Common European Framework of Reference for Languages (CEFR), announced in principle on 18 January 2016, were laid for those applying for further leave in the UK as a partner or parent, after completing 30 months in the UK on a 5-year route to settlement under Appendix FM. This new requirement applies to those whose previous period of leave expires on or after 1 May 2017.

 

If the applicant is not able to demonstrate that they meet the English  language requirement or qualify for an exemption from it, their application as a partner or parent will be refused under the 5-year route to settlement under the Immigration Rules

 

The current policy guidance is : Appendix FM section 1.21: English language requirement, dated April 2017.

 

Who needs to meet the English language requirement and at what level?

 

The English language requirement applies to those applying under Part 8, Appendix FM or Appendix Armed Forces of the Immigration Rules:

 

Part 8

 

 

Required level: CEFR level A1, unless exempt.

 

Appendix FM

 

 

Required level:

 

 

Appendix Armed Forces

 

 

Required level: CEFR level A1, unless exempt.

 

The required CEFR level can be met by passing an approved test at a higher level.

 

The English language requirement only applies to those applying as the main applicant under the rules listed above. It does not apply to dependants of such applicants.

 

Meeting the requirement

 

An applicant can meet the requirement in one of the following ways:

 

 

The applicant is exempt from the requirement if:

 

 

Trinity College London and the IELTS SELT Consortium are approved to deliver secure English language test (SELT) services for UK immigration purposes since 6 April 2015.

 

The two approved level A1 tests from 6 April 2015 for partner and parent test candidates are:

 

 

From 3 November 2016 there are three approved level A2 tests for partner and parent test candidates:

 

 

The applicant must provide their SELT unique reference number (URN) on the application.

 

(6).THE KNOWLEDGE OF LANGUAGE AND LIFE (KoLL) REQUIREMENT

 

Indefinite leave to remain: All those applying for indefinite leave to remain under a provision where they must meet the KoLL requirement, must meet both parts of the requirement, unless they are exempt because of their age, physical or mental condition.

 

Naturalisation as a British citizen: All those applying for naturalisation must meet both parts of the KoLL requirement, unless they are exempt because of their age, physical or mental condition.

 

The relevant Home office policy guidance is: Knowledge of language and life in the UK, currently that dated 20 June 2016.

 

Categories not subject to knowledge of language and life: indefinite leave: People who are not subject to the knowledge of language and life (KoLL) in the UK requirement when applying for indefinite leave to remain (ILR):

 

 

Exemption because of age – indefinite leave : People aged under 18 years or 65 years or older on the date of their application are exempt from the knowledge of language and life in the UK requirement. The applicant must provide suitable documents as evidence of their age, such as a passport or birth certificate.

 

Exemption because of age – naturalisation: There is discretion to waive the knowledge of language and life in the UK requirement if, because of a person’s age, it would be unreasonable to expect them to meet it. This is set out in paragraph 2(e) of Schedule 1 to the British Nationality Act 1981.

 

Where the applicant is aged 65 or over the Home Office Caseworker must waive the requirement.

 

Where the applicant is aged 60-64, the caseworker  should normally be prepared to waive the requirements if the time needed to reach the required standard means the applicant would then be aged 65 or over. Where the applicant is aged under 60, the caseworker  should not normally expect to waive the requirements on the basis of age alone.

 

Exemption because of physical or mental condition:

 

It applies for both applications:

 

 

There is discretion to waive the knowledge of language and life in the UK requirement if, because of a person’s physical or mental condition, it would be unreasonable to them to meet it. This is set out in

 

 

The Home Office caseworker must exercise discretion if the applicant:

 

 

Other physical conditions may prevent an applicant from meeting the requirement. The caseworker must consider how the condition would stop the applicant from taking the Life in the UK test or learning English. Each application must be considered on its own merits. For example, discretion may be appropriate where an applicant:

 

 

but this will depend on the facts in each case including whether the applicant is a national of a majority English speaking country.

 

Life in the UK test centres and many colleges can cater for a variety of disabilities, such as blindness. An applicant may be able to do the test even if they produce evidence of a disability.

 

If an applicant claims to have a physical or mental condition, they must provide original and current medical evidence from a medical practitioner. This must state the condition, and explain why it is unreasonable to expect the applicant to take the Life in the UK test or learn English.

 

A person must meet the requirement by:

 

 

and one of the following:

 

 

A person who successfully made an ILR application on the basis of a B1 level qualification can meet the requirement English language requirement for naturalisation without needing to pass another qualification, but will be required to pass the Life in the UK test if they have not already done so.

 

A person can apply for indefinite leave to remain without passing the KoLL test if they have an English language speaking and listening qualification at A2 CEFR and have been in the UK for 15 years with limited leave as a:

 

 

They must provide evidence from a suitably qualified person, for example a teacher of English for Speakers of Other Languages, that it is not reasonable to expect them to reach B1 English.

 

Overseas applicants: There is also a provision for naturalisation cases for a person designated by the Secretary of State to confirm in writing that a person has sufficient knowledge of language and life in the UK. However, at present, no one is designated by the Secretary of State for these purposes.

 

An applicant must show original photographic identification to the test supervisor at the test centre to take the Life in the UK test. Documents that can be used are:

 

 

They will also need to take proof of address to the test centre.

 

People who pass the Life in the UK test receive a pass notification letter. They must include this with their application. Applicants have had to sign their pass notification letters since 16 March 2008. Test results are sent to the Home Office electronically.

 

(7).MEETING THE FINANCIAL  REQUIREMENT- MINIMUM INCOME  THRESHOLD

 

Currently the financial requirement – in the form of the minimum income threshold, for those not exempt from it – needs to be met by those making an application in the following categories of Appendix FM:

 

 

The relevant  home office policy guidance  currently is: Appendix FM 1.7: financial requirement, dated May 2016.

 

Since 9 July 2012, the Immigration Rules have contained a financial requirement to be met by a person applying for entry clearance to, leave to remain in or indefinite leave to remain in the UK as the non-EEA national partner or dependent child of a person who is:

 

 

Since 1 December 2013, the Immigration Rules in Appendix Armed Forces have also contained a financial requirement to be met by a person applying for entry clearance to, leave to remain in or indefinite leave to remain in the UK as the non-EEA national partner or dependent child of a person (British or foreign or Commonwealth) who is a member of HM Forces (as defined in paragraph 2(d) of Appendix Armed Forces).

 

Under paragraph A280(b) of Part 8 of the Immigration Rules, the financial requirement needs to be met by those applying from 9 July 2012 as a child under paragraph 314(i)(a) or (d) (unless both parents are settled), or paragraph 316A(i)(d) or (e), where a parent who has adopted the child, or is doing so, is themselves subject to the financial requirement because they have or are applying for entry clearance or limited leave to remain as a partner under Appendix FM. Otherwise, the maintenance requirement applicable to the child applicant will be that contained in the relevant adoption rule in Part 8.

 

The financial requirement also needs to be met by those making an application in the following categories of Appendix Armed Forces unless otherwise stated in that Appendix:

 

 

Those making an application as the child of a person with entry clearance or limited leave to remain as a parent who is not themselves subject to the financial requirement in the parent route are also not required to meet the financial requirement but, like their parent, a requirement for ‘adequate’ maintenance.

 

Unless exempt, there is a minimum income threshold that must be met. The minimum income threshold for a Partner applying under Appendix FM from 9 July 2012 and for a Partner applying under Appendix Armed Forces from 1 December 2013, without dependent children, is £18,600. However, where the application includes sponsorship of a child at the same time (or at any time before the applicant reaches settlement), the minimum income threshold increases and there is a higher financial requirement to be met. An additional gross annual income of £3,800 is required for the first child sponsored in addition to the Partner and an additional £2,400 for each further child.

 

Currently, if the higher financial requirement and other requirements are met, the child or children will be granted leave in line with the migrant partner. If the migrant partner and child or children are applying together, and the higher financial requirement and other requirements are not met, all the applicants will be refused.

 

Currently the financial requirement does not apply to a child who:

 

 

Meeting the financial requirement through “adequate maintenance”:

 

Where the applicant’s partner is in receipt of any of the following benefits or allowances in the UK, the applicant will be able to meet the financial requirement at that application stage by providing evidence of “adequate maintenance” rather than meeting an income threshold:

 

 

If the applicant’s partner is in receipt of one of the above benefits or allowances on behalf of their child, the applicant will be able to qualify by meeting the financial requirement through “adequate maintenance”.

 

Sources for meeting the financial requirement:

 

Where the applicant has to meet the minimum income threshold, the financial requirement can be met in the following 5 ways:

 

 

(8).INVALIDATION OF RIGHT OF RESIDENCE EEA APPLICATIONS

 

The procedural formalities introduced on 1 February 2017 via the coming into force of the new 2016 EEA Regulations,  mean that  where an application for  EEA residence documentation is  not  submitted on a prescribed application form  and  is not accompanied by  specified  supportive documentation,  such an application is now very likely to  be rejected as invalid, i.e it will not be considered at all by the Secretary of State.

 

The current relevant home office policy guidance is: Processes and procedures for EEA documentation applications, issued on 21 April 2017.

 

In line with regulation 21(4), applications can be rejected as invalid where, within the specified time period:

 

 

For an application for a document confirming a right of residence to be valid, it must be submitted on the specified application form, with all relevant sections completed. In addition, all applications must be accompanied by the relevant fee, documentation and evidence or proof required by the 2016 EEA regulations.

 

Applicants must apply online (where applicable) or using the specified hard-copy form. Applications made by post must be sent to the specified address, on the specified hard-copy form, with the relevant fee and accompanying documents and evidence.

 

Applications submitted online must be joined by the relevant evidence or proof required within 10 calendar days of the application being submitted

 

EEA nationals who are qualified persons, may choose to apply for a registration certificate at the Croydon premium service centre (PSC). They must book an appointment in advance.

 

An application can be rejected as invalid if it is incomplete. All relevant sections of the application form must be completed.

 

Applications submitted by post or in person should be accompanied by the relevant evidence or proof required at the time the application is submitted.

 

If these conditions are not met then the application can be rejected as invalid

 

Regulation 21(5) specifies that where an application for documentation is made by a person who is not an EEA national on the basis that they are, or were, the family member of an EEA national, or an extended family member of an EEA national, the application must be accompanied or joined by either a valid national identity card, or a passport for the EEA national sponsor.

 

A recent blog article on the issues can be found here: EEA residence documentation applications to withstand validity hurdle: a calculated hindrance or delaying tactic to confirming residence rights

 

(9). CERTIFICATION – NON EEA CLAIMS

 

Section 94 Certification- clearly unfounded claims:

 

Section 94(1) of the Nationality, Immigration and Asylum Act 2002 states that the Secretary of State may certify a protection or human rights claim as clearly unfounded. The effect of certification under section 94 is to restrict the right of appeal against refusal so that the claimant can only appeal once they have left the UK (referred to as a non-suspensive appeal).

 

The relevant Home Office’s  Section 94 Certification Policy Guidance issued on 12 April 2017 is : Certification of protection and human rights claims under section 94 of the Nationality, Immigration and Asylum Act 2002 (clearly unfounded claims).

 

Section 92 of the 2002 Act sets out if a person can bring an appeal from within or outside of the UK. Where the person was outside the UK when they made the claim, they must appeal from outside the UK. When the person was inside the UK when they made a claim they may appeal from within the UK unless the claim has been certified under section 94 or 94B.

 

Any attempt by the claimant to lodge an appeal against a certified claim whilst still in the UK must be rejected by the tribunal as invalid.

 

When the tribunal considers the appeal of the person outside the UK the appeal will be considered as if the appellant had not been removed from the UK.

 

Home Office policy is that in  all cases where a protection and/ or human rights claim is refused  Home Office  caseworkers must consider whether certification is appropriate and cases that are clearly unfounded should be certified unless an exception applies.  The legal test as to what amounts to a clearly unfounded claim is the same for claims certified on a case by case basis as for those from designated states.

 

Each claim must be considered on its individual merits and should only be certified if the Home Office caseworker is satisfied that the claim is clearly unfounded.

 

Where a human rights claim is refused but is not clearly unfounded, consideration must also be given as to whether it should be certified under section 94B.

 

A decision to certify can be challenged by judicial review.

 

Further details as to Section 94 Certification can be found in a recent blog article  here: Clearly unfounded claims and the two stage reasoning process: Section 94 Certification policy updated following FR & KL 2016

 

Section 96 Certification: Late claims:

 

Section 96 of the Nationality, Immigration and Asylum Act 2002 removes the right of appeal against a refusal where the refusal was of a claim that could have been made earlier. According to the Home Office, Section 96 is intended to prevent claimants raising matters at the last minute to frustrate removal.

 

The current Home Office  policy guidance is: Late claims: certification under section 96 of the Nationality, Immigration and Asylum Act 2002

Section 96 provides that where the refusal of a claim would ordinarily result in a right of appeal, there will be no right of appeal if the claim should have been made earlier. Section 96 works together with section 120 which imposes an ongoing duty on individuals to raise new matters with the Secretary of State as soon as reasonably practicable after they arise.

 

A case can be certified under section 96 (if the conditions are met to do so) regardless of whether the right of appeal notified or the section 120 notice served was under the 2002 Act before its amendment by the Immigration Act 2014 or after its amendment.

 

The effect of the amendments to sections 96 and 120 under the Immigration Act 2014, is that where a person has been served a section 120 notice, they have an ongoing duty to inform the Secretary of State as soon as reasonably practicable of any new or additional reasons to remain in the UK and if this is not done the claim may be certified under section 96(2).

 

The duty to inform the Secretary of State of any new reasons applies to anyone who needs leave to be in the UK but does not have it or anyone whose only leave in the UK is as a result of section 3C or section 3D of the Immigration Act 1971.

 

Some persons may make late human rights or protection claims that could have been made earlier. A person resisting removal may try and make a late claim because if they exercise their right of appeal it could delay removal. To make this behaviour ineffective in preventing or delaying removal, the new process under the Immigration Act 2014 requires that a section 120 notice is served in every case. This notice requires the person to make any further claim now or as soon as reasonably practicable after it arises.

 

The consequence of not complying with the notice and making a late claim could be that the claim is certified under section 96 Nationality, Immigration and Asylum Act 2002 which removes any consequential right of appeal where the claim is refused.

 

Section 120 Nationality, Immigration and Asylum Act 2002 states that the Secretary of State (SSHD) or an immigration officer may serve a notice on a person who has:

 

 

The EEA regulations provide that a section 120 notice can be served in EEA claims.

 

Once a person has been served with a section 120 notice, if that person requires leave to be in the UK (or only has leave by virtue of section 3C or 3D of the Immigration Act 1971), the person must provide a statement setting out any additional reasons or grounds they have for remaining in the UK, or any grounds on which he or she should not be removed from the UK.

 

This is an ongoing duty which continues until the individual has either left the UK or has been granted leave.

 

A further statement must be made if a new reason or ground for remaining in the UK arises. Any reasons or grounds must be raised as soon as reasonably practicable. There is no requirement to reiterate grounds or reasons that the SSHD is already aware of, or that have previously been considered.

 

Where the person makes a statement in response to a section 120 notice the person may be told that in order to have the matter considered they must make an application on a specified form or follow a specified process, for example, by attending an asylum screening unit to make an asylum claim.

 

However, if a person wishes to raise again a ground that has previously been refused supported by further evidence because his or her circumstances relating to that ground have changed, that information should be included in a section 120 response. For example, if a person has previously made an application on the basis of family life which was refused because he was a single man and he now claims to have established family life (such as marriage, children from the relationship), that information should be provided to the Secretary of State together with details of the claim for family life. In this type of case, the Home Office caseworker will want to consider any application under paragraph 353 (fresh claims) in the first instance.

 

A time limit may be specified on the section 120 notice. This time limit indicates the period after which a decision may be made. However, once this limit has expired, a person is still under an ongoing duty to provide the SSHD with any new or additional reason or ground. If the time limit has expired, the SSHD must still consider the matter or grounds raised but if appropriate may be able to certify any claim under section 96.

 

*In R (on the application of J) v Secretary of State for the Home Department [2009] EWHC 705 (Admin) (hereafter, “J”) Stadlen J considered the effect of section 96 and concluded at paragraph 106 of his judgment:

“Under Section 96 (1) and (2) before the Secretary of State can lawfully decide to certify, she has to go though a four stage process. First she must be satisfied that the person was notified of a right of appeal under Section 82 against another immigration decision (Section 96(1)) or that the person received a notice under Section 120 by virtue of an application other than that to which the new decision relates or by virtue of a decision other than the new decision (Section 96(2)). Second she must conclude that the claim or application to which the new decision relates relies on a matter that could have been raised in an appeal against the old decision (Section 96(1)(b)) or that the new decision relates to an application or claim which relies on a matter that should have been but has not been raised in a statement made in response to that notice (Section 96(2)(b)). Third she must form the opinion that there is no satisfactory reason for that matter not having been raised in an appeal against the old decision (Section 96 (1) (c)) or that there is no satisfactory reason for that matter not having been raised in a statement made in response to that notice (Section 96 (2)(c)). Fourth she must address her mind to whether, having regard to all relevant factors, she should exercise her discretion to certify and conclude that it is appropriate to exercise the discretion in favour of certification”.

 

Section 94B Certification:

 

Section 94B of the Nationality, Immigration and Asylum Act 2002 allows a human rights claim to be certified where the appeal process hasn’t started or is not yet exhausted if deporting the person before the appeal process is exhausted would not be unlawful under section 6 of the Human Rights Act 1998.

 

The effect of section 94B certification is that any appeal can only be lodged and heard, or continued if the claim is certified after the appeal is lodged, while the claimant is outside the UK. This means the right of appeal against the decision to refuse the human rights claim is non-suspensive, meaning it is not a barrier to removal.

 

Certification under section 94B means the right of appeal against the decision to refuse the human rights claim will not stop a person being removed. They will only be able to submit an appeal after they  have left the UK.

 

The current Home Office policy guidance is: Section 94B of the Nationality, Immigration and Asylum Act 2002, 20 January 2017.

 

Amendments to section 94B of the Nationality, Immigration and Asylum Act 2002 come into force on 1 December 2016.

 

The 2016 Immigration Act extended section 94B to apply to all refusals of human rights claims where certification would not cause serious irreversible harm or otherwise breach human rights.

 

Between 28 July 2014 and 1 December 2016 section 94B applied only in relation to human rights claims made by those liable to deportation under section 3(5)(a) and 3(6) of the Immigration Act 1971.

 

Section 63 of the Immigration Act 2016 amended the Nationality, Immigration and Asylum Act 2002 to extend the scope of section 94B to all human rights claims.

 

Home Office must consider whether section 94B certification is appropriate in all cases where a human rights claim has been made and is refused, unless it is:

 

 

The Home Office should only consider a case for certification if the claimant has been informed that the power might apply and given the opportunity to provide reasons why their claim should not be certified.

 

Deport cases – Section 94B continues to be potentially applicable to all deport cases where a human rights claim has been refused. Home Office caseworkers should consider whether to certify any such case.

 

Phased implementation for non-deport cases -Implementation of the extended power is being phased. The power to certify non-deport cases should be applied on or after 1 December 2016 where the case under consideration meets both of the criteria below:

 

 

The term ‘family member’ means a partner, parent, or child, where there is evidence of the relationship.

 

Cases that should not be certified under section 94B include the following:

 

 

Cases not normally suitable for section 94B certification are as follows:

 

 

A blog article on the effect of Section 94B certification can be found here: Irremovability And Beating the Effect of the Remove Now, Appeal Later Provisions

and

Indecipherable Upper Tribunal Headnotes and whether post-decision evidence is admissible in a section 94B Certification judicial review challenge

 

National Security- Section 97 certificates:

 

Certificates may be issued in national security cases under section 97 of the 2002 Act. The effect of a section 97 certificate is that an appeal may not be brought to the tribunal. Any appeal already lodged will lapse. Instead there is a right of appeal to the Special Immigration Appeals Commission (SIAC).

 

Section 97 certificates are issued if the Secretary of State has decided, or directed, that a:

 

 

National Security -Section 97A certificates:

 

Certificates can also be issued under section 97A of the 2002 Act:

 

 

(10).SECTION 33 CERTIFICATION- EEA CLAIMS

 

The relevant policy guidance is: Regulations 33 and 41 of the Immigration (European Economic Area) Regulations 2016

Regulation 33 Certification:

Regulation 33 is similar in wording to section 94B of the Nationality, Immigration and Asylum Act 2002.

An appeal against a deportation decision made under regulation 23(6)(b) of the EEA Regulations 2016 will suspend removal proceedings, unless the Secretary of State for the Home Department) has exercised her discretion to certify removal. The Secretary of State can certify removal if the person’s deportation before the conclusion of any appeal proceedings would not give rise to a real risk of serious irreversible harm or otherwise be unlawful under section 6 of the Human Rights Act 1998. If removal has been certified, it will only then be suspended if the person subject to removal has made an application to the courts for an interim order to suspend removal proceedings (eg judicial review) and that application has not yet been determined, or a court has made an interim order to suspend removal.

 

The application of a regulation 33 certificate does not prevent a person from lodging an appeal from within the UK; rather, it limits the suspensive effect of that appeal. So, whilst a person may lodge an appeal in-country, the lodging of such an appeal does not suspend removal from the UK, provided the removal is certified. Regulation 33 does not impact on the period allowed for voluntary departure, and a person liable to deportation pursuant to the EEA Regulations 2016 still has one month in which to leave the UK voluntarily before removal is enforced. The one month period to leave voluntarily will not apply in certain cases, including where the person is detained pursuant to the sentence or order of any court (regulation 32(6)(c).

 

Regulation 33 applies to:

 

 

Regulation 33 establishes that removal may not be enforced if:

 

 

Regulation 33 lists certain exemptions where an application for an interim order will not suspend removal proceedings (as established by Article 31(2) of the Free Movement Directive (2004/38/EC.

 

Re-entry to present appeal in person:

 

The EEA Regulations 2016 also allow a person who is subject to a decision to remove under regulation 23(6)(b) and who is outside the UK to apply from outside the UK for permission to re-enter the UK solely in order to make submissions in person at their appeal hearing (regulation 41).

 

Article 31(4) of the Free Movement Directive (2004/38/EC) states that:

 

‘Member States may exclude the individual concerned from their territory pending the redress procedure, but they may not prevent the individual from submitting his/her defence in person, except when his/her appearance may cause serious troubles to public policy or public security or when the appeal or judicial review concerns a denial of entry to the territory’.

Regulation 41 of the 2016 Regulations reflects the requirements of Article 31(4), and establishes a process whereby a person who has lodged an appeal against a removal decision and who is outside of the UK may apply from outside the UK for permission to be temporarily admitted to the UK solely for the purpose of making submissions in person at their appeal hearing.

 

Other Certification

 

Paragraph 36(1) of the EEA Regulations 2016 provides that the subject of an EEA decision may appeal against that decision under the Regulations however makes it clear that :

 

“(7) The Secretary of State or an immigration officer may certify a ground for the purposes of paragraph (8) if it has been considered in a previous appeal brought under these Regulations or under section 82(1) of the 2002 Act.

(8) A person may not bring an appeal under these Regulations on a ground certified under paragraph (7) or rely on such a ground in an appeal brought under these Regulations”.

For further details on expulsion of EE nationals reference to is made to a recent blog article:

 

The New 2016 EEA Regulations: Fertile Ground for Removal, Expulsion and Deportation of EEA Nationals and their Family Members

 

(11).FURTHER SUBMISSIONS- PARAGRAPH 353 OF THE IMMIGRATION RULES

 

Some persons may repeat human rights and protection submissions with the aim of trying to secure a second right of appeal. To prevent repeat rights of appeal, Home Office caseworkers are instructed to consider whether further human rights or protection submissions amount to a fresh claim.

 

Paragraph 353 in Part 12 of the Immigration Rules applies to further submissions on protection and human rights grounds. It sets out the circumstances in which further submissions will be considered and, if rejected, how to determine whether they amount to a fresh claim and hence, whether a further right of appeal exists if those further submissions are refused.

 

Where it is decided that a fresh claim has not been made, there is no right of appeal against refusal of further submissions, including refusal of repeat applications.

 

Guidance on the operation of paragraph 353 can be found in the Asylum policy instruction: further submissions.

Paragraph 353 only applies where an earlier protection or human rights claim has been refused, withdrawn or treated as withdrawn under paragraph 333C of the Immigration Rules. Paragraph 353 does not apply in any of the following circumstances:

 

The claimant must have raised protection or human rights issues by means of a claim to the Home Office.

 

Paragraph 353 only applies where any appeal is no longer pending against a previous refusal of a protection or human rights claim. If there is an appeal pending, the claimant must raise all relevant matters, including any material that comes to light after the decision has been made but before the appeal hearing, in the context of that appeal.

 

Paragraph 353 also applies in cases where an earlier decision did not generate any right of appeal – because there is no pending appeal. In other words, there does not have to have been an appeal for paragraph 353 to apply to further submissions raised after an earlier claim has been refused.

 

All further submissions made on protection grounds following the refusal of asylum or humanitarian protection must be made in person at the Further Submissions Unit (FSU) in Liverpool. Claimants must make an appointment to attend the FSU unless they fall into one of the exceptional categories

 

The FSU operates an appointment only system. To make an appointment, individuals must contact the FSU (the telephone number is 0151 213 2411). The FSU will send written confirmation of the appointment (by letter or e-mail) to the individual, including the address of the FSU and a link to the form on the Gov.UK website. Claimants should complete the form and bring it to their appointment in Liverpool. The FSU address is Level 1, 6 Union Street, Liverpool, Merseyside, L3 9AF. All documentary evidence to be considered must be submitted at the further submissions appointment as a decision will be made on the evidence available.

 

Caseworkers dealing with further submissions from failed asylum seekers that raise protection grounds must consider them in accordance with the principles set out in the asylum instruction, Assessing credibility and refugee status.

 

Further submissions on ECHR Article 8 grounds in non-deportation cases, including those made by way of a valid application, must be considered in accordance with the instruction on Further Submissions and relevant family guidance at: IDI Chapter 8: Appendix FM: 1.0b Family and private life – 10 year route’.

 

Further submissions on ECHR Article 8 grounds in criminal deportation cases must be considered in accordance with part 13 of the Immigration Rules.

 

Further submissions in deportation cases, for reasons other than criminal convictions, must be considered outside the Immigration Rules. Further submissions in all cases must be considered in accordance with the Further Submissions instruction.

 

In all cases, where new information is provided it must be considered alongside the previous material, taking all evidence available into account. However, where further submissions simply repeat information that has already been considered, Home Office caseworkers should refer to the previous refusal and appeal determination in rejecting the claim – there is no need to provide detailed reasons again if the issues have already been properly considered previously.

 

Where it is decided that a fresh claim has not been made, there is no right of appeal against refusal of further submissions, including refusal of repeat applications. However, where further submissions are refused but it is considered that there is a fresh claim on asylum or human rights grounds, a right of appeal is generated under section 82 of the Nationality, Immigration and Asylum Act 2002 as amended by the Immigration Act 2014.

 

In all cases where further submissions are received, caseworkers must first decide whether or not to grant leave for asylum or human rights reasons, family or private life under the Immigration Rules or on the basis of exceptional circumstances. Caseworkers must consider whether the new evidence, taken together with the old material (including any appeal determination, previous statements, or interviews), and any other change of circumstances, for example more recent country information or caselaw where applicable, should result in a grant of leave.

 

The starting point must always be the findings in any final appeal determination which override conclusions in the original decision letter.

 

Caseworkers only need to decide if further submissions amount to a fresh claim on asylum or human rights grounds when they have already considered the additional evidence provided, and decided not to grant any leave. In such cases, caseworkers must then consider whether the further submissions amount to a fresh claim. The claimant will only be entitled to an in-country right of appeal if it is accepted that there is a fresh claim.

 

Paragraph 353 states that submissions will amount to a fresh claim if they are significantly different from material that has already been considered. Submissions will only be significantly different if the content:

 

 

If the material, in whatever form it takes, has previously been considered by the Home Office or by an Immigration Judge at appeal, the first test required in paragraph 353 is not met and there is no fresh claim. In such cases, it is not necessary to consider whether the material creates a realistic prospect of success (the second test) and the further submissions can be rejected without being considered as a fresh claim.

 

If the material has not previously been considered, caseworkers must assess whether the new material, taken together with material previously considered, creates a realistic prospect of success. The question is whether the issues raised are at least arguable and could lead an Immigration Judge to take a different view.

 

Caseworkers must consider all the available evidence when deciding whether there is a realistic prospect of success at appeal.

 

The question is whether, in light of all the evidence available, the new material could persuade an Immigration Judge – in other words whether it is arguable notwithstanding rejection.

 

If the caseworker considers that this test is met, the further submissions must be treated as a fresh protection or human rights claim and the refusal will attract a right of appeal. If this test is not met, the caseworker must refuse the submissions, making it clear that they have not been accepted as a fresh claim meaning that there is no right of appeal. Caseworkers must provide reasons why the further submissions have not been accepted as a fresh claim.

 

If a claimant challenges a decision that further submissions do not amount to a fresh claim by lodging a judicial review, the Court will ask whether the decision was reasonable. The decision will be reasonable if the caseworker has carefully and objectively considered further material taken together with previously considered material, against the correct legal test and alongside any relevant circumstances (such as country situation), and concluded that the new material does not create a realistic prospect of success at appeal.

 

(12.)SAFE RETURN REVIEWS, CESSATION, EXCLUSION AND REVOCATION OF  REFUGEE STATUS

 

Prior to 9 March 2017,  the general  view certainly was that, Home Office practice (subject to some exceptions), was to routinely grant settlement to  refugees  who had  completed the 5year probationary period.  On  9 March 2017,  the Home Office however published updated  Guidance, Refugee leave  dated  2 March 2017, firmly indicating  that,  “All those who apply for settlement protection after completing the appropriate probationary period of limited leave will be subject to a safe return review with reference to the country situation at the date the application is considered”.

 

Not only that but that  refugees can  be subject to the  review procedure at any  juncture whilst holding  refugee status, “ A person’s case may also be reviewed at any point in the process either when triggered by their actions, for example, they are convicted of a serious crime, or in light of a significant and non-temporary change in conditions in their country of origin such that they no longer need protection”.

 

All those who apply for settlement protection after completing the appropriate probationary period of limited leave will be subject to a safe return review with reference to the country situation at the date the application is considered. Those who still need protection at that point will normally qualify for settlement.

 

A person’s case may also be reviewed at any point in the process either when triggered by their actions, for example, they are convicted of a serious crime, or in light of a significant and non-temporary change in conditions in their country of origin such that they no longer need protection. Refugee leave may be revoked where someone no longer needs, is no longer entitled to protection due to their actions, or should not have been given protection under the Refugee Convention

 

For more information, a  recent blog article  is referenced: A Government’s onslaught on refugees: Safe return reviews, cessation, exclusion, and revocation

 

(13).SUITABLITY CRITERIA AND GENERAL  GROUNDS OF  REFUSAL

 

Appendix FM and General grounds of refusal:

 

Applicants applying as a partner or parent under Appendix FM are not subject to the General Grounds for Refusal, except for the provisions in paragraph 320(3), (10) and (11) which continue to apply to applications under Appendix FM as set out in the General Grounds for Refusal.

 

In addition to the suitability criteria that an applicant must meet under Appendix FM, the following general grounds for refusal must be considered:

 

Appendix FM – Suitability requirements: Partner or Parent- 5year route to settlement

 

In considering all applications for entry clearance or leave to remain as a partner or parent the decision maker must consider whether the suitability requirements in Appendix FM of the Rules are met.

 

These are set out in the Family Life as a Partner section of Appendix FM of the Immigration Rules but also apply to Family Life as a Parent.

 

The relevant policy guidance is: Appendix FM 1.0a: Family Life (as a Partner or Parent): 5-Year Routes , currently dated August 2015.

 

Suitability – entry clearance:

 

In all applications for entry clearance as a partner or parent the decision maker must consider whether the suitability requirements in paragraphs S-EC.1. to .2.5. of Appendix FM are met.

 

Under paragraph S-EC.1.1. the applicant will be refused entry clearance on the grounds of suitability if any of paragraphs S-EC.1.2. to .1.8. apply.

 

Under paragraph S-EC.2.1. the applicant will normally be refused entry clearance on grounds of suitability if any of paragraphs S-EC.2.2. to .2.5. apply.

 

In addressing suitability criteria under paragraphs S-EC.1.2. to S-EC.1.5. of Appendix FM, decision makers must refer to the Criminality Guidance:

 

 

In addressing suitability criteria under paragraphs S-EC.1.6, to S-EC.1.8 and S-EC.2.2. to .S-LTR.2.5. of Appendix FM, decision makers must refer to the General Grounds for Refusal Guidance:

 

 

Under paragraph S-EC.1.8. an application made on or after 6 April 2013 must be refused where the applicant left or was removed from the UK as a condition of a caution issued in accordance with section 22 of the Criminal Justice Act 2003 less than 5 years prior to the date on which the application is decided.

 

If the applicant falls for refusal on the basis of suitability under S-EC, the application will be refused.

 

Suitability – leave to remain:

 

In all applications for leave to remain as a partner or parent the decision maker must consider whether the suitability requirements in paragraphs S-LTR.1.1. to .3.1. of Appendix FM are met.

 

Under paragraph S-LTR.1.1. an applicant will be refused leave to remain on the grounds of suitability if any of paragraphs S-LTR.1.2. to .1.7. apply.

 

Under paragraph S-LTR.2.1. an applicant will normally be refused leave to remain on grounds of suitability if any of paragraphs S-LTR.2.2. to .2.4. apply.

 

Under Paragraph S-LTR.3.1. – when considering whether the presence of an applicant in the UK is not conducive to the public good, any legal or practical reasons why the applicant cannot presently be removed from the UK must be ignored.

 

In addressing suitability criteria under paragraphs S-LTR.1.2. to .S-LTR.1.6. of Appendix FM, decision makers must refer to the Criminality Guidance:

 

In addressing suitability criteria under paragraphs S-LTR.1.7, S-LTR.2.2. to S-LTR.2.4. and S-LTR.3.1. of Appendix FM, decision makers must refer to the General Grounds for Refusal Guidance:

 

The decision maker must consider whether criminality which does not fall within:

 

 

may fall for refusal within/could be considered within:

 

 

In doing so, decision makers should look at whether their conduct, (including any convictions which do not fall within paragraphs S-LTR.1.3. to S-LTR.1.5). mean the applicant’s presence in the UK is undesirable or non-conducive to the public good under conduct, character, associations or other reasons. The applicant can meet the suitability requirements even where there is some criminality.

 

If the applicant falls for refusal on the basis of suitability under S-LTR, the application will be refused.

 

Suitability – indefinite leave to remain:

 

In all applications for indefinite leave to remain as a partner or parent the decision maker must consider whether suitability requirements S-ILR.1.1. to 3.1.under Appendix FM are met.

 

These are set out in the Family Life as a Partner section of Appendix FM of the Immigration Rules but also apply to Family Life as a Parent.

 

Under paragraph S-ILR.1.1. the applicant will be refused indefinite leave to remain on the grounds of suitability if any of paragraphs S-ILR.1.2. to 1.9. apply.

 

Under paragraph S-ILR.2.1. the applicant will normally be refused indefinite leave to remain on grounds of suitability if any of paragraphs S-ILR.2.2. to 2.4. apply.

 

Under paragraph S-ILR.3.1. – when considering whether the presence of an applicant in the UK is not conducive to the public good, any legal or practical reasons why the applicant cannot presently be removed from the UK must be ignored.

 

In addressing suitability criteria under paragraphs S-ILR.1.2. to .S-ILR.1.8. of Appendix FM, decision makers must refer to the Criminality Guidance:

 

In addressing suitability criteria under paragraphs S-ILR.1.9. , S-ILR.2.2. to S-ILR.2.4. and S-ILR.3.1. of Appendix FM, decision makers must refer to the General Grounds for Refusal Guidance:

 

To meet the suitability requirement for indefinite leave to remain under paragraph S-ILR.1.5. the applicant must not have been sentenced to imprisonment for less than 12 months, unless 7 years have passed since the end of the sentence.

 

To meet the suitability requirement for indefinite leave to remain under paragraph S-ILR.1.6. the applicant must not have received a non-custodial sentence or other out-of-court disposal that is recorded on their criminal record within 24 months prior to the date on which the application is decided.

 

Under paragraph D-ILRP.1.2. if the applicant in the partner route does not meet the requirements of S-ILR.1.5. and/or 1.6., they can only be granted limited leave to remain, provided they meet all the other requirements.

 

Under paragraph D-ILRPT 1.2. if the applicant in the parent route does not meet the requirements of S-ILR.1.5. and/or 1.6., they can only be granted limited leave to remain, provided they meet all the other requirements.

 

Appendix FM – Suitability requirements: Partner or Parent- 10year route to settlement

 

In considering all applications for leave to remain in the UK on the basis of a person’s family life as a partner, parent or child, or on the basis of a person’s private life in the UK, the decision maker must consider whether the suitability requirements under paragraphs S-LTR.1.1.-3.1 of Appendix FM of the Immigration Rules are met.

 

The relevant policy guidance is: Appendix FM 1.0b: Family Life (as a Partner or Parent) and Private Life: 10- year ,currently dated August 2015.

 

Under paragraph S-LTR.1.1, an applicant will be refused leave to remain on the grounds of suitability if any of the paragraphs S-LTR.1.2-1.7 apply.

 

Under paragraph S-LTR.2.1, an applicant will normally be refused on grounds of suitability if any of the paragraphs S-LTR.2.2-2.4 apply.

 

Under paragraph S-LTR.3.1. – when considering whether the presence of an applicant in the UK is not conducive to the public good, any legal or practical reasons why the applicant cannot presently be removed from the UK must be ignored.

 

In addressing suitability criteria under paragraphs S-LTR.1.2. to S-LTR.1.6. of Appendix FM, decision makers must refer to the Criminality Guidance:

 

 

In addressing suitability criteria under paragraphs S-LTR.1.7, S-LTR.2.2. to S-LTR.2.4. and S-LTR.3.1. of Appendix FM, decision makers must refer to the General Grounds for Refusal Guidance:

 

Where an application for further leave on the basis of Article 8 is received from a foreign criminal who has:

 

the application should not be considered under Appendix FM, but under Part 13 of the Immigration Rules. This is because deportation remains conducive to the public good and in the public interest even though the foreign criminal has previously been exempted from deportation for a limited period.

 

The relevant Immigration Rules are set out in paragraph A362 and paragraphs A398 to 399D of Part 13.

 

In such cases, the decision make  should refer the case to Criminal Casework Directorate (CCD) following the appropriate referral guidance.

 

The decision maker must consider whether criminality which does not fall within paragraphs S-LTR1.2. to S-LTR.1.4.may fall for refusal within paragraphs S-LTR.1.5. to S-LTR.1.6.

 

In doing so, decision makers should look at whether their conduct (including any convictions which do not fall within paragraphs S-LTR.1.3. to S-LTR.1.4.) mean the applicant’s presence in the UK is undesirable or non-conducive to the public good under conduct, character, associations or other reasons. It is possible for an applicant to meet the suitability requirements, even where there is some low-level criminality.

 

Under paragraphs S-LTR.2.2-2.4, where an applicant will normally be refused if they fail to meet these suitability requirements, the decision maker can look at the nature of the issues under consideration and decide whether these are sufficiently serious to refuse on the basis of suitability (bearing in mind that anything which comes within these criteria should normally be refused) or whether there are compelling reasons to exercise discretion and to decide that the applicant meets the suitability criteria. This will be a case specific consideration.

 

If the decision maker decides that the applicant falls for refusal on the basis of suitability under any of the requirements in S-LTR, the application must be refused.

 

Adult relative dependant requirements- suitability requirements

 

The applicant will be refused entry clearance on grounds of suitability if any of paragraphs S-EC.1.2. to 1.7. apply.

 

The applicant will normally be refused on grounds of suitability if any of paragraphs S-EC.2.2. to 2.5. apply.

 

The applicant must meet the requirements at section S-EC: Suitability for entry clearance

 

The relevant policy guidance are:

 

Annex FM 6.0: adult dependent relatives

Appendix FM to the Immigration Rules: adult dependent relatives

Bereaved Partner- suitability requirements

The applicant must not fall for refusal under any of the grounds in Section S-ILR: Suitability-indefinite leave to remain.

 

If the applicant does not meet the requirements for indefinite leave to remain as a bereaved partner only because paragraph S-ILR.1.5. or S-ILR.1.6. applies, the applicant will be granted further limited leave to remain for a period not exceeding 30 months, and subject to a condition of no recourse to public funds.

 

Victims of domestic violence- Suitability requirement

 

The applicant must not fall for refusal under any of the grounds in Section S-ILR: Suitability-indefinite leave to remain.

 

If the applicant does not meet the requirements for indefinite leave to remain as a victim of domestic violence only because paragraph S-ILR.1.5. or S-ILR.1.6. applies, the applicant will be granted further limited leave to remain for a period not exceeding 30 months.

 

Victims of domestic violence can apply under the Victims of domestic violence (DDV) concession- Victims of domestic violence (DDV) concession, Form

 

They should only complete the  form if:

 

Applicants can complete the form if they  want to notify  the Home Office  that they  require access to public funds (income-related benefits), in order to find safe accommodation and support themselves  before they  apply for indefinite leave to remain. This is on the basis that they  have been a victim of domestic violence.

 

If they are granted leave with access to public funds, this will be for a limited time of 3 months only. This is to enable them  to apply for access to public funds and it will replace their  current period of leave to remain.

 

Applicants should submit their application for indefinite leave to remain on the basis of domestic violence within this 3 month period. If  they do not submit a further application within 3 months, any leave  the home office  grant  the applicant  as a result of this notification will come to an end. This means they  will be expected to leave the UK.

 

Family life as child of  a person with limited leave as  a partner of a parent – suitability  requirements

 

The applicant must not fall for refusal under any of the grounds in Section S-EC: Suitability for entry clearance.

 

The applicant must not fall for refusal under any of the grounds in Section S- LTR: Suitability-leave to remain.

 

General Grounds for refusal- Mandatory or discretionary:

 

The Immigration Rules have 2 types of refusal on general grounds. It will depend on the grounds the Home Office caseworker is using to refuse as to how they consider the application. If it is a mandatory ground for refusal the caseworker must refuse the application. If it is a discretionary ground for refusal then the caseworker can consider whether the circumstances allow them to use their discretion.

 

Paragraphs 320 to 322 of the Immigration Rules set out the specific grounds when a person’s background, behaviour, character, conduct or associations lead to a refusal on general grounds, and any circumstances when the grounds are either discretionary or would not apply. For visitors, these grounds are covered by part V3 of Appendix V.

 

General ground of refusal, entry clearance: mandatory and discretionary refusals

 

Paragraph 320 of the rules sets out these general grounds for refusal:

 

For visitors part V3 of Appendix V sets out the general grounds for refusal. The relevant Home Office policy guidance is: General grounds for refusal: considering entry clearance

Paragraph 320 and section S-EC: suitability entry clearance of the rules sets out a number of general grounds for refusal.

Mandatory grounds for refusal are set out in paragraphs 320 (1) – (7) and S-EC.1.2 to 1.7.

 

Discretionary grounds for refusal are set out in paragraphs 320 (8) – 20 S-EC.2.2 to 2.5.

 

General grounds of refusal, considering entry at UK port – mandatory and discretionary refusals:

 

Paragraphs 320, 321 and 321A of the rules set out a number of different general grounds for refusal:

 

For visitors part V3 of Appendix V sets out the general grounds for refusal.

The applicable Home Office policy guidance is:  General grounds for refusal: considering entry at UK port

Considering leave to remain – mandatory and discretionary refusals:

Paragraph 322 of the rules sets out these general grounds for refusal:

For visitors part V3 of appendix V sets out the general grounds for refusal.

The relevant Home Office policy guidance is: General grounds for refusal: considering leave to remain

Having regard to the About this guidance, general grounds for refusal and checks, policy document, the general grounds of refusal apply as follows:

False representation: If a person or third party lies or makes a false statement in relation to their application, either orally or in writing the Home Office caseworker must consider refusing entry or leave to remain. When they have evidence that a person has done this, either as part of their current or previous application, the Immigration Rules state the caseworker must refuse the application unless the particular paragraph of the rules allow them to use discretion.

Fraud and forgery: If a person submits a document or information with an application which is independently verified as being false (forged or not genuine), the caseworker must consider refusing entry or leave to remain. When they have evidence that a person has done this, either as part of their current or previous application, the Immigration Rules state that the caseworker should refuse the application unless the deception related to an application over 10 years ago.

Non-disclosure of material facts: The Immigration Rules define non-disclosure of material facts as a form of deception. If a person withholds information relevant to the caseworker’s decision on their application, the caseworker must consider refusing entry or leave to remain. The Immigration Rules require that the caseworker refuse an applicant who has done so, either as part of their current or previous application.

F

ailure to cooperate: If a person fails to give information or documents the caseworker requires to make a decision on their application, they must consider refusing entry or leave to remain.

Criminal history: Regard is had  to the following:

 

Sentence based thresholds: The Immigration Rules and revised criminality framework does not apply to EEA nationals, or their family members, exercising treaty rights in the UK. Unless the EEA national specifically wants to apply for leave within the rules, for example, as the spouse of a UK national.

However, there will be situations where the revised criminality framework will apply. For example

 

Sentence based thresholds: applications for entry clearance or leave to enter:

 

 

Sentence based thresholds: applications for limited leave to remain

 

 

 

Sentence based thresholds: applications for ILR (settlement)

 

 

War crimes

 

For leave to remain: The case worker must refuse a person under paragraph 322(1E) if there are serious reasons for considering they have committed, participated or otherwise been complicit in:

 

even if they have not been charged or convicted.

This is irrespective of whether they were excluded from the Refugee Convention. For example, the person may not have applied for asylum at any point in the past.

Article 1F of the Refugee Convention

Where an applicant’s conduct falls within Article 1F of the Refugee Convention or paragraph 339D of the Immigration Rules (including where a protection claim has not been made or where such a claim has been finally determined without reference to Article 1F or paragraph 339D), or the applicant is an individual to whom Article 33(2) of the Refugee Convention applies, then their application must be refused under paragraph 322(1E) of the Immigration Rules.

For further information on the exclusion provisions, see the guidance: Exclusion under Article 1F of the Refugee Convention.

Failing to declare convictions

There is no specific provision to refuse for failing to declare criminal convictions. However, the case worker must consider if a failure to do so:

 

The caseworker must consider refusing an application on character and conduct grounds if a person fails to declare a criminal conviction, especially when explicitly asked to do so on an application form. However, an application must not be refused if they believe the person has made a genuine error.

From 1 October 2012, the effect of section 56A of the UK Borders Act 2007 is that a person must declare all their criminal convictions in their dealings with the Home Office, regardless of whether or not they are spent.

For applications made on or after 13 December 2012, it is not reasonable for an applicant to think their conviction is ‘spent’ within the meaning of the Rehabilitation of Offenders Act 1974.

 

Exclusion is conducive to the public good

 

If it is conducive to the public good not to admit a person to the UK because of their character, conduct or associations the caseworker must consider refusing entry or leave to remain.

Refusal of entry clearance, leave to enter and leave to remain is mandatory where:

 

This list is not exhaustive.

 

Secretary of State’s exclusion

When the Secretary of State has personally directed that a person’s exclusion from the UK is conducive to the public good, the caseworker must refuse entry or entry clearance. This is mandatory under paragraph 320(6) and S-EC.1.2 of Appendix FM and V 3.2(a) of Appendix V of the Immigration Rules.

Returning residents and the spouses or children under 18 of people settled in the UK are not exempt from refusal under this paragraph.

Exclusion can be recommended if there is evidence of conduct or activities that indicate exclusion would be conducive to the public good.

If a person has not been excluded by the Secretary of State personally but their character, conduct or associations are such that it is conducive to the public good not to admit them to the UK, the caseworker must consider refusing their entry clearance or leave to enter under paragraph 320(19) of the Immigration Rules or V 3.3 of Appendix V for visitors.

Deportation order

The paragraphs that apply are 320(2) and 321(iii) and for visitors paragraphs V 3.2(b) and V9.6 of Appendix V apply.

If a person is the subject of a deportation order the caseworker must refuse entry or leave to remain. A person is not allowed to enter the UK whilst a deportation order is in force.

A person deported from the UK as a family member can return to the UK without applying for revocation (paragraph 389), if:

 

However, returning residents and the spouses or children under 18 of people settled in the UK are not exempt from refusal under this paragraph.

Applications for leave to remain and indefinite leave to remain (settlement)

If a person meets the criteria for considering deportation because of a criminal conviction, the decision maker must refer the case to criminal casework (CC). The caseworker cannot grant leave until CC have considered the case.

If a person is subject to a deportation order, the application must be refused. This is mandatory under paragraph 322(1B) and S-LTR.1.2 of Appendix FM and V 3.2(b) of Appendix V of the Immigration Rules.

Travel ban

The Immigration Rules do not specifically refer to a travel ban in the general grounds for refusal. However, when a non-British national is subject to a United Nations (UN) or European Union (EU) travel ban, the UK has to prevent their entry to or transit through the UK.

Leave to enter or remain should be refused on the basis that the person’s presence in the UK would not be conducive to the public good, unless:

Paragraphs 320(19) and 322(5) apply (see also: Immigration Rules: General grounds for refusal – Paragraph 320 to 322). For visitors paragraph V 3.3 of Appendix V applies.

If the person has extant leave to enter or remain consideration should be given to cancelling or curtailing the leave.

Threat to national security

A threat to national security is a general ground for refusal under paragraphs 320(19), 321A(5), and 322(5) and for visitors V 3.3 and V 9.6 of Appendix V.

Before the caseworker makes a decision on entry clearance or leave to enter or remain, they must consider if the person is a threat to national security. If a person is a threat to national security then the caseworker must consider refusing entry or leave to remain.

Adverse immigration history

An adverse immigration history is a general ground for refusal under paragraphs 320(7B), 320(11), and 322(3) and for visitors V 3.7-11 of Appendix V.

The rules say the caseworker must consider refusing entry clearance or leave to enter the UK if a person has broken the UKs immigration laws by having:

The rules say the caseworker must consider refusing leave to remain in the UK if a person has broken the UKs immigration laws because they have:

For visitors

The rules say the caseworker must consider refusing entry clearance, leave to enter or remain if a person has broken the UK’s immigration laws by having:

Medical grounds

A person who has a medical disease or condition is a general ground for refusal. Paragraphs 320(7), 320(8A), 320(17), 321(iii) and 321A(3) of the rules apply. For visitors, paragraphs V3.13, V 3.12(b)(iv), V9.6 and V9.5 of Appendix V apply.

Medical inspectors will only issue certificates when satisfied the person’s condition is a significant risk to public health. If they do issue a medical certificate or following a medical examination they recommend the person must not enter because of medical grounds the decision maker must refuse entry or leave to remain in the UK.

The entry clearance officer or Home Office officer has discretion to waive the medical requirement in certain circumstances.

Who must be referred for medical examinations?

The caseworker may refuse a person on medical grounds if medical evidence shows that they are, or suspected to be, suffering from:

When removing passengers who have been certified for these diseases, medical advice must be sought as to the fitness of the passenger.

Other medical grounds where the case worker must obtain medical clearance are:

The caseworker also has limited discretion to refer conditions not specifically mentioned, for example when a person is obviously unwell.

CONCLUSION

It is therefore apparent from the above that within the application process, there are in-built obstacles and mechanisms that the Home Office use to defeat, deny and deter immigration claims.

Until a relevant application is accepted as valid by the Home Office, no consideration of leave to remain or a confirmation of a right of residence will take place. Ensuring that the intended application is appropriately prepared and submitted, will counter a potential rejection of an application. Where a few waiver application is being included with the substantive application, ensuring that it   is well prepared  would serve well, otherwise the Home Office will refuse fee waiver applications which do not address the fee waiver policy guidance relevantly.

In relation to avoiding refusal applications for reasons of owing a debt to the  Home Office, Court or Tribunal or NHS, it is worth considering entering into an agreement or arrangement to pay off the litigation or NHS debt prior to submission of an application.

Certification of human rights/protection claims or refusals to accept further submissions as fresh claims, can result in either outright denial of rights of appeal or a requirement to appeal out of country. It is however important to be alert to the possibility of challenging such decisions by way of judicial review where appropriate.

The Home Office apply their own policy guidance in decision – making and as such reasonable  awareness of  the guidance for the relevant category application can  go some way in advancing a claim which has good prospects  of success on  initial consideration.

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