McGill & Co Solicitors Blog

Announced today by UKBA, fom May 7, if you apply for a Tier 4 student visa you may have to sit a short interview when you attend the visa application centre to submit your application and biometric information.

The interview will focus on your reasons for coming to the UK; this is known as a credibility interview.

A report of the interview will be sent to the visa officer who will consider it alongside your visa application and supporting documents. You may be called for a further interview if the visa officer needs more information.

A new statutory resident test came into force on the 6th April 2013 designed to give taxpayers greater certainty as to whether or not they are UK resident for tax purposes.

The test distinguishes between ‘arrivers’ and ‘leavers’. Arrivers are people who have not been resident in the UK in any of the previous three tax years. Leavers are those who have been. Arrivers and leavers must use different measures to establish their residence status.

The first part of the test is an ‘automatic overseas test’. The automatic overseas test sets out factors which, if they are met, prove that a taxpayer is conclusively non-resident. If the individual is not conclusively non-resident, one then moves on to the automatic residence test, which sets out factors which prove someone is definitely UK-resident.

For arrivers in the UK, defined as those not present in the UK in any of the previous 3 tax years, one is considered conclusively as non resident is they are in the UK for less than 46 Days. Conclusive residence is deemed where one is present for more than 183 days.

If an individual is neither conclusively resident nor non-resident under these tests, the ‘sufficient ties test’ applies. This sets out five further factors which must be considered, together with the number of days spent in the UK, in order to determine an individual’s residence. The five connecting ties are:

Family – this includes spouses, civil and common law partners and minor children in the UK.

Accommodation – the individual has accommodation in the UK which is available for a continuous period of at least 91 days (ignoring breaks of less than 16 days) and s/he spends at least one night there. All forms of tenure or occupancy will fall within the definition of accommodation.

Substantive work in the UK – 40 working days or more (a working day is defined as more than 3 hours of work).

UK presence in the previous 2 tax years – an individual spends more than 90 days in the UK in either of the previous two tax years.

More days spent in the UK in a tax year than any other single country – this applies only to leavers and is designed to catch leavers who do not take up residence in any other country following a period of UK-residence.

The rules are as always significantly complex and specialist tax advice should be taken. It is interesting however in an Immigration law context when considering UK Residency.

We have seen the introduction of further new rules this month adding to an already substantial and never ending list of amendments, changes and additions to the extensive Immigration Rules.

There are minor, yet numerous ,changes to the PBS system, changes to the salary thresholds under Tier 2, updates for the codes of practice for skilled workers and requirements in respect of the resident labour market testing and updates for the shortage occupation lists…..and so it continues.

However, to be welcomed are the more significant changes offering hope to many skilled professionals in the Country seeking further leave to remain in specific categories under Tier 1 and Tier 2.

Changes have been made to the Tier 1 ( exceptional talent ) and ( graduate entrepreneur ) categories including allowing any Tier 2 migrant to switch into the Tier 1 ( exceptional talent ) category. And Tier 4 students who successfully complete their PHD to extend their stay for a further year to allow experience to be gained in the chosen field, to find work as a Tier 2 worker or to set up as a entrepreneur.

See HC1039 New rules 6th April 2013

http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/statementsofchanges/2013/hc1039.pdf?view=Binary

The Court of Appeal has issued its judgement in respect of the challenge made to the introduction of the english language tests for fiances, partners & spouses coming and remaining in the UK.
Although there had been a ruling in the High Court last year where it was declared that the amendment to the Rules whilst interfering with Family life was nevertheless justified, an appeal proceeded to the Court of Appeal, challenging the finding of justification, with the Secretary of State challenging the finding that there was interference.

Finding that the crux of the challenge failed, the Court of Appeal held that it was a perfectly reasonable and proportionate response to a significant and real problem of partners and spouses lacking a basic level of english after entry to the UK.
The Court considered that individuals may well seek to invoke Article 8 in applications, section 55 of the Borders, Citizenship & Immigration Act 2009 or even arguement of exceptional compassionate circumstances but the thrust of the arguement had to fail.

BIBI V SSHD 2013 EWCA Civ 322

For many, obtaining an appointment at the public enquiry offices is a difficult experience. There have been reports of individuals and agents abusing the system by taking blocks of appointments thus almost crippling the service so many require.

In February, UKBA revised the fee for appointments at £375. With effect from 6th April, UKBA will require an interim payment of £100 to be made when booking the appointment. It is not an additional charge but is simply an advance payment on account.

Should an appointment be cancelled within 5 days of the actual date, then the £100 payment will NOT be refunded.

From 9 April 2013 the Home Office is launching a pilot, in partnership with Capita, which will remind individuals whose permission to stay in the UK is due to expire that they must either apply for further leave, or depart from the UK. As part of the pilot, Capita will make contact with a randomly selected sample group of individuals whose leave to remain in the UK will expire in June 2013. They will receive a letter, email or SMS reminding them to either apply for further leave to remain in the UK, or to make plans to depart before their permission to stay expires. They will receive further reminders 1 month, and then 7 days before their leave expires.

If you have been contacted by Capita and need to respond, you should contact them at Capitapep@homeoffice.gsi.gov.uk

The Court of Appeal by consent, granted a declaration on 19 March 2013 to the effect that the SSHD’s Asylum Policy Instructions (API) on Discretionary Leave in force before 9 July 2012 were unlawful in so far as these restricted grants of Discretionary Leave for persons sentenced to 12 months or more for a criminal offence, and quashed that part of the API. (The API stipulated that those who had been sentenced to 12 months’ imprisonment or more had committed a ‘serious crime’ and were ‘excluded’ from Discretionary Leave though they in fact got Discretionary Leave nonetheless. ‘Excluded’ people ‘normally’ received only Discretionary Leave for six months rather than the standard three years; ‘exclusion’ also affected the time that had to lapse on Discretionary Leave before the SSHD would consider Indefinite Leave to Remain).

A week before the full hearing in the Court of Appeal , and after two years of litigation, the SSHD conceded that the rigid ‘exclusionary’ policy contained in the API amounted to a rule and should have been contained in the Immigration Rules and also that the Home Office had, for over two years, unlawfully failed to publish an internal instruction on leave to remain for foreign national offenders. .

See : R (Mayaya) v SSHD, C4/2011/3273, on appeal from [2011] EWHC 3088 (Admin), [2012] 1 All ER 1491

And where there are new forms, there are increased fees….

http://www.bia.homeoffice.gov.uk/sitecontent/documents/aboutus/fees-2013.pdf

A series of new application forms have again been published for most of the categories of the Rules.

There are a couple of new forms introduced which are helpful being for SET (LR) form – settlement (long residence) and FLR(LR) – further leave to remain (long residence).

For those who have applied prior to the 6th April applications will be accepted up to and including 27 April 2013. If you submit an application on or after 6 April 2013, it will be considered under the revised Immigration Rules which take effect on 6 April, regardless of which version of a form you use. Applications submitted on or after 6 April must be accompanied by the new fee.

The Home Secretary has today announced that she has accepted that the UKBA must go as it’s work is simply not good enough.

MPs criticised the border agency in a report published on Monday, describing it as “not fit for purpose”.

The Home Affairs Committee also said that for years the UK Border Agency had repeatedly supplied it with incorrect information about the size of the backlog of asylum cases.

http://www.bbc.co.uk/news/uk-politics-21941395

To many of us, it merely confirms what we have been arguing for years.