Month: October 2020

EEA nationals benefit from the provisions relating to freedom of movement under EU law.

EEA nationals have a peculiar immigration status in the context of UK immigration law:

• UK immigration law (most significantly the Immigration Act 1971 and the British Nationality Act 1981) draws a distinction between persons who have a ‘right of abode’ in the UK (mainly British citizens) and persons who do not.
• Anyone who does not have a right of abode can only enter or remain in the UK if granted leave to do so.
• Anyone who has a right of abode can enter and reside in the UK – they do not need to seek or be granted leave (though they need to demonstrate their right of abode on entry – most commonly by producing a British passport).
• EEA nationals do not have a right of abode.
• Despite this, by virtue of EEA law, EEA nationals do not need leave to enter or remain in the UK.
• This status is limited slightly by the requirement to be exercising rights arising from the Treaty of Rome; but it is nevertheless a special status, not similar to any other status under UK immigration law.

The rights of EEA nationals derive directly from EU law (the Treaty of Rome, Regulations and Directives) and where there is conflict between EU law and domestic law, EU law prevails (case 6/64 Costa v ENEL [1964] ECR 585).

An EEA national can exercise treaty rights provided they are a ‘qualified person’.

Initial right of residence

EEA citizens now enjoy a three month initial right of residence in other Member States, effectively as a short term qualified person (regulation 13 of the 2016 Regs).During this time, family members can join or accompany the EEA citizen.

Extended right of residence for qualified persons

If an EEA citizen wishes to remain beyond this initial three month period, they must be a qualified person. If they are a qualified person, they have an ‘extended right of residence’.

Under regulation 6 of the 2016 Regs, a qualified person is a person who:
a) is an EEA national; and
b) is in the UK as:

• a job seeker;
• a worker;
• a self-employed person;
• a self-sufficient person; or
• a student.

The definitions of these categories of person are broad.

Workers

The European Court of Justice (‘ECJ’) defined a worker in the case of Lawrie Blum (1986) ECR 2121 as a person who is:

• employed:
•  
• for a period of time;
•  
• in the provision of services;
•  
• for and under the direction of another;
•  
• in return for remuneration.

The definition is liberal and does not require that the person must be employed on a full time basis; the work simply needs to be ‘effective and genuine’.

EEA nationals do not need permission to work in the UK.

Involuntary unemployment

Regulation 6 (2) of the 2016 Regs also allows for a worker who has become involuntarily unemployed to continue to be treated as a worker. In order to fully understand Regulation 6(2), which is set out below, it is important to have an overview of the regulation as a whole.

Regulation 6 — “Qualified person”

Immigration (EEA) Regulations 2016

(1) In these Regulations,
“jobseeker” means an EEA national who satisfies conditions A, B and, where relevant, C;
“qualified person” means a person who is an EEA national and in the United Kingdom as—
(a) a jobseeker;
(b) a worker;
(c) a self-employed person;
(d) a self-sufficient person; or
(e) a student.

“relevant period means”

(a) in the case of a person retaining worker status under paragraph (2)(b), a continuous period of six months;
(b) in the case of a jobseeker, 91 days, minus the cumulative total of any days during which the person concerned previously enjoyed a right to reside as a jobseeker, not including any days prior to a continuous absence from the United Kingdom of at least 12 months.

(2) A person who is no longer working shall not cease to be treated as a worker provided that the person —

(a) is temporarily unable to work as the result of an illness or accident;
(b) is in duly recorded involuntary unemployment after having been employed in the United Kingdom for at least one year, provided that the person—
(i) has registered as a jobseeker with the relevant employment office; and
(ii) satisfies conditions A and B;

(c) is in duly recorded involuntary unemployment after having been employed in the United Kingdom for less than one year, provided that he—
(i) has registered as a jobseeker with the relevant employment office; and
(ii) satisfies conditions A and B;

(d) is involuntarily unemployed and has embarked on vocational training; or

(e) has voluntarily ceased working and embarked on vocational training that is related to his previous employment.

(3) A person to whom paragraph (2)(c) applies may only retain worker status for a maximum of six months.

(4) A person who is no longer in self-employment shall not cease to be treated as a self-employed person for the purpose of paragraph (1)(c) if he is temporarily unable to pursue his activity as a self-employed person as the result of an illness or accident.

(5) Condition A is that the person—
(a) entered the United Kingdom in order to seek employment; or

(b) is present in the United Kingdom seeking employment, immediately after enjoying a right to reside pursuant to paragraph (1)(b) to (e) (disregarding any period during which worker status was retained pursuant to paragraph (2)(b) or (ba)).

(6) Condition B is that the person can provide evidence that he is seeking employment and has a genuine chance of being engaged.

(7) A person may not retain the status of a worker pursuant to paragraph (2)(b), or jobseeker pursuant to paragraph (1)(a), for longer than [the relevant period] unless he can provide compelling evidence that he is continuing to seek employment and has a genuine chance of being engaged.

If you think the wording of regulation 6 seems convoluted, you are not alone. What regulation 6(2) means, put simply, is that a person does not necessarily lose his ‘qualified person’ status if he cannot work due to illness or accident (reg.6(2)(a)), or involuntary unemployment (reg 6(2)(b))provided that certain conditions are satisfied.

An EEA national who has been employed in the UK and who has become involuntarily unemployed will still be treated as a worker – and will therefore continue to be a qualified person – provided that certain conditions are met. These conditions are that the person must have registered as a jobseeker with the relevant employment office, and must satisfy additional conditions, described as conditions A and B.

Condition A is that the person must have come into the UK to find work, or must be in the UK seeking work immediately after a period of being a worker, a self-employed person, a self-sufficient person or a student.

Condition B is that the person must provide evidence that he is looking for a job and has a genuine chance of being taken on in a job.

Vocational training

Regulation 6 (2) (d) permits a person to retain their worker status where they are involuntarily unemployed and have embarked on vocational training.

The final category is regulation 6 (2) (e), which permits a worker to retain their ‘worker’ status where they have voluntary left employment to take up vocational training related to their previous employment.

Time limits

Regulations 6(1) and 6(7) set limits on the length of time that a person may retain the status of a worker.

A person who wants to retain their status as a worker following involuntary unemployment cannot retain this status for longer than a continuous period of six months (reg. 6 (1)) unless they can provide compelling evidence that they are continuing to seek employment and have a genuine chance of being engaged (reg. 6 (7)).

Job seekers

There is guidance on the definition of a ‘jobseeker’ at regulation 6(1). To be defined as a jobseeker, a person must satisfy conditions A and B (above). In addition, if it is relevant, the person must satisfy condition C which is a rather complicated provision and the contents of which are outside the scope of this course.

Essentially the effect of these conditions is that a jobseeker is a person who enters the United Kingdom in order to seek employment and can provide evidence that he is seeking employment and has a genuine chance of being engaged.

A person who wants to continue to remain in the UK as a jobseeker cannot retain this status for longer than 91 days (reg. 6(1)), unless they can provide compelling evidence that they are continuing to seek employment and have a genuine chance of being engaged (reg. 6 (7)).

The court examined the meaning of ‘genuine chance of being engaged’ in AG & Ors (EEA-Jobseeker) Germany (2007) UKAIT 00075. The court found that it was necessary to look at a number of factors:

• • the job seeker’s intentions in entering the member state;
  • the job seeker’s efforts in relation to finding work in the member state; and
  • the job seeker’s prospects of obtaining employment.

Students

A student is defined in regulation 4(1)(d) of the2016 Regs. To be construed as exercising a Treaty right, a student must:

i. be enrolled for the principal purposes of following a course of study at a public or private establishment which is:
a) financed from public funds; or
b) an institution accredited by the Secretary of State for the Home Department;

ii. have comprehensive sickness insurance in the UK; and

iii. sign a declaration confirming that he has sufficient resources not to become a burden on the social assistance system in the UK during his period of residence in the UK.

Permanent residence

Reg. 15 of the 2016 Regs provides for a right of permanent residence in the UK on various bases. The most important of these (and the most common basis for an application) is where an EEA national has resided in the UK for five years and has been a qualified person continuously for those five years.

The five years could be any five years: so if an EEA national had worked for five years continuously, but then left the UK and stayed away for three years, they could still make an application and be granted permanent resident in the UK.

A more common question is that of how ‘continuous’ is construed if, for example, a person has worked for some periods but been out of work for other periods. In this case, commonly the person would seek to argue that they remained a qualified person throughout:

• • by being a jobseeker under reg. 6(1) (for up to 91 days);
  • by being temporarily unable to work due to illness or accident under reg. 6(2)(a). In this situation, worker status is retained indefinitely, as confirmed by the ECJ’s decision in Tarola (C-483/17), 11 April 2019;
  • by being involuntarily unemployed after having been employed for at least a year, under reg. 6(2)(b). Again, worker status is retained indefinitely, per Tarola;
  • by being involuntarily unemployed after having been employed for under a year, under reg. 6(2)(c). Here, Tarola confirms that worker status is only retained for 6 months.

Giving up work for pregnancy does not negate worker status, as the ECJ confirmed in Saint-Prix (C507-12), 19 June 2014. That was a person who had been in employment; the same applies to self-employed persons, as the ECJ confirmed in Dakneveiciute (CJEU C-544/18, 19 September 2019).

It is also possible to remain a qualified person on the basis of the exercise of a broader combination of Treaty rights – for example, part of the period being in employment and part as a student (subject to the additional requirements in reg. 4(1)(d)).

There can be procedural difficulties, though, in demonstrating to the Home Office that a person has remained a qualified person on multiple bases.

Documentation and registration

During the transition period, for EEA and Swiss nationals, there should be only a brief passport or identity card check on arrival in the UK.

Prior to Brexit, if an EEA national person stayed in the UK other than as a short-term visitor, they could apply for a registration certificate from the UKVI website. This was normally valid for 5 years.(The expectation was that people would commonly seek a registration certificate and then, after five years as a qualified person, apply for permanent residence.)

The registration certificate confirmed the person’s right to live in the UK under EU law and allowed them to apply for residence cards for any eligible family members with them who were not EEA citizens.

The certificate was not compulsory – because the person’s rights would arise from the Treaty as long as they remained qualified persons. The certificate was therefore not evidence of any grant of leave. It was only a document by which the UK recognised the rights that the person already had.

Nevertheless, it was highly advisable for an EEA national to obtain a registration certificate, for a number of reasons. First, from a practical perspective, the registration certificate could assist the EEA national to access services in the UK, for example to demonstrate to a bank that they were resident in the UK.

Secondly, in order to apply for an EEA family permit (discussed below) or residence card for family members, the UKVI required the EEA national to have a registration certificate to demonstrate that they are a qualified person.

Historically there were no compulsory application forms – again, because a qualified person automatically had rights.

The law in relation to the rights of EEA nationals comes from a variety of sources, including the following important sources.

The Treaty of Rome and EC law

The rights we are discussing ultimately derive from Treaty of Rome 1957 (as amended by subsequent treaties). The UK became a member of the European Community in 1973, since when provisions of the Treaty of Rome bind the UK by virtue of the European Communities Act 1972.

In 1993 the EEC became known as the European Community (‘EC’). The member states of the EC formed the European Union (‘EU’).

The core of Community law as regards immigration is the right to free movement of EU citizens and their family members for work and other economic activities. The Treaty on the European Union also provided structures for co-operation between governments on issues such as asylum.

Council Regulations and Directives

EU policies are given effect in legislation via ‘regulations’ and ‘directives’. A couple of examples of regulations and directives relevant to this area are:

• Council Regulation 1612/68, which confirms the rights of workers in respect of eligibility for employment, equality of treatment and family members; and
• Directive 2004/38 (also known as the Citizen’s Directive) which relates to the free movement rights of EU citizens.

Immigration (European Economic Area) Regulations 2016

In UK law, the Immigration (European Economic Area) Regulations 2016 (‘2016 Regs’) give effect to the rights in relation to free movement and immigration under EU law.

The 2016 Regs are partly a consolidation of recent judgments and previous EEA regulations including the Immigration (European Economic Area) Regulations 2006, European Economic Area (Amendment) Regulation 2012 (SI 2012/1547), and the Immigration (European Economic Area) (Amendment) Regulations 2013 (SI 2013/1391).

The 2016 Regs are the main basis for decisions on application by EEA nationals and their family members, and therefore the main focus of this Chapter and the SGS.

The definition of an EEA national

EEA nationals are:

• nationals of the member states of the European Union (‘EU’); and
• nationals of Iceland, Liechtenstein and Norway (which are parties to the European Economic Area Agreement).

The Agreement on the Free Movement of Persons made between the EU and the Swiss Confederation places Swiss nationals and their families in broadly the same situation as EEA nationals and their families in the context of immigration law. These countries enjoy full rights of free movement around the EEA.

Although there had previously been provisions allowing the limitation of rights of certain new Member States, all now enjoy full rights. Limitations had previously been in place for nationals of:

• the eight Accession states (the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia, and Slovenia,also known as the A8 countries)
• Bulgaria and Romania (also known as the A2 countries); and
• Croatia.

Member countries that enjoy Full Rights of Free Movement

• European Union (including A8 and A2 countries)

Austria Italy Belgium Bulgaria Croatia Cyprus Czech Republic Denmark Estonia Finland France Germany Greece Hungary Ireland

Latvia Lithuania Luxembourg Malta The Netherlands Poland Portugal Romania Slovakia Slovenia Spain Sweden

• Parties to EEA agreement

Iceland
Liechtenstein
Norway
Switzerland (though not a member of the EEA, for freedom of movement purposes, is treated by all EEA members as if it was a member.)

The Impact of Brexit

On 23 June 2016 the UK voted by referendum to leave the EU,by a 52% majority. This will have a signficantimpact on immigration law.

At the time of writing, the final effects of Brexit remain unclear. The UK is scheduled to leave the EU on 31 January 2020 (‘exit day’), though transitional provisions will remain in place until 31 December 2020.

Article 50 of the Lisbon Treaty sets out how an EU member state might voluntarily leave the EU. It requires a member state:

• to notify the European Council of an intention to leave;
• to negotiate a deal on its withdrawal (the ‘Withdrawal Agreement‘); and
• to establish a newlegal framework for a future relationship (‘Future Relationship Agreement’) with the EU.

Article 50 provides a two-year period, from the date of the initial notification, in which the Withdrawal Agreement should be agreed. Failure to do so results in the exiting state leaving the EU with no new provisions in place, unless every one of the remaining EU states agrees to extend the negotiations.

The UK triggered Article 50 on 29 March 2017, meaning that the UK was, from that date, set to leave the EU on 29 March 2019. Subsequent extensions were agreed to 31 October 2019 and then to 31 January 2020.

The Withdrawal Agreement is intended to deal with issues including:

• the rights of EU citizens in the UK and of UK citizens abroad;
• the relocation of EU agencies currently based in the UK; and
• how to allocate unspent funds due to be received by UK regions and farmers.

The Withdrawal Agreement needs a qualified majority of member states and consent of the European Parliament.

The future relationship agreement will cover a wide range of issues including immigration. At the time of writing, substantive negotiations on a future relationship agreement have yet to begin.

Therefore, the future legal landscape remains shrouded in fog. For now, the provisions relating to EU law and specifically free movement are still legally

binding in the UK. This Chapter will now deal with the law as it stands immediately following exit day.

It will then set out a timeline of events henceforth (though this may well change) and deal with the most likely effects of Brexit.

Immigration control can take place in the following locations:

• Overseas before entry to the UK: applications for entry clearance (which will act as leave to enter in most cases) to Entry Clearance Officers;
• At ports on entry to the UK: applications for entry to the United Kingdom to Immigration Officers;
• Within the UK after entry: applications to remain in the UK to immigration caseworkers of the UKVI.

Entry clearance

Entry clearance is immigration control which takes place prior to a person arriving in the UK. Applications are made to entry clearance offices at British Embassies or High Commissions abroad, or to the UKVI via an online application process.

An entry clearance document, often referred to as a visa, can take the form of a sticker (known as a vignette) in the holder’s passport or travel document. For some types of visa, the UKVI now also issue a Biometric Residence Permit – a card – once the person arrived in the UK.

For some countries, the UK always requires entry clearance before travel, for all types of visa. A list of those countries (‘visa national’ countries) is appended to the Immigration Rules (Appendix V, Appendix 2).

For other countries (‘non-visa national’ countries – any non-EEA countries not listed in Appendix V, Appendix 2), the UK allows nationals of those countries to travel to the UK for short periods without seeking entry clearance before travel. They still require leave to enter, but they can apply for that at the port when they arrive.

For anyone applying to enter the UK for a period of more than six months, they must always seek entry clearance before travelling.

What is the procedure for entry clearance?

In dealing with an application for entry clearance for a particular purpose, the entry clearance officer (‘ECO’) or UKVI will apply the immigration rules. The entry clearance procedure requires a form of application to be submitted, together with the appropriate fee, and any supporting documentation. Many of the busiest entry clearance posts now employ an agent or commercial agent to accept and process applications before forwarding them to the entry clearance post for decision.

The application is usually made on-line to a Visa Application Centre (‘VAC’), thereafter the applicant is given an appointment to attend the VAC. At this appointment the applicant must submit the required documentation, pay the application fee and Immigration Health Service Charge (where applicable), and provide biometric data i.e. finger prints and photographs etc. (s.126 of the Nationality Immigration and Asylum Act 2002 requires the submission of biometric information as part of a valid immigration application). Section 14 of the IA 2014 provides for the use and retention of biometric information, but only if it is necessary for immigration and nationality purposes. Biometric data can also be retained for a broad range of non-immigration purposes such as the prevention of crime, protection of nationality security etc. Concerns have been raised about these provisions and the need to ensure that agencies carrying out immigration functions comply with data protection regulation. The applicant may be interviewed, but this is less common.

In some entry clearance posts the practice is for the applicant to attend the VAC for an appointment, thereafter they must send their documents to the UKVI in Sheffield who will make a decision.

What happens if the application is refused?

If the ECO is minded to refuse the application may be reviewed by an Entry Clearance Manager. If the decision is upheld the applicant is informed as to whether they have a right of appeal against the decision.

Can a person travel once they have entry clearance?

Yes – generally entry clearance also operates as leave to enter the UK (Immigration and Asylum Act 1999 and the Immigration (Leave to Enter and Remain) Order 2000), and therefore the person can finalise their travel arrangements. The ECO will make this clear.

Where entry clearance has been granted, a person should be subject to fewer checks on arrival in the UK. However, on arrival an Immigration Officer may examine the grant of entry clearance, and has the power to cancel it if, for example, there has been a change of circumstances or it is shown that the leave was obtained on the basis of false information. See IA 1971, Schedule 2, paragraph 2A.

Leave to enter the United Kingdom

Immigration control takes place at all ports in the UK and is administered by the UKVI. The Immigration Service consists of Immigration Officers (‘IOs’) Chief Immigration Officers (‘CIOs’) and inspectors appointed by the Home Secretary. Leave to enter may be granted abroad (as above) or on entry to those ¬persons not requiring a visa before travelling (i.e. non-visa nationals), for certain categories of 6 months or less. Persons without entry clearance will be required to submit to a more detailed examination by an immigration officer at the port, who will seek to ascertain whether they satisfy the requirements of the immigration rules for the category in which they are seeking to enter. The IO will do this by means of questioning and examination of the applicant’s documents.

What happens if the application is refused?

Whether a person has a right of appeal against refusal will depend on the basis on which they were seeking to enter. Those arriving without entry clearance for temporary purposes have very limited appeal rights. In such circumstances the only in-country remedy may be judicial review.

Leave to remain

Applications for further leave to remain are dealt with by the UKVI and may be granted in accordance with the immigration rules or on a discretionary basis, outside the rules. Applications may be for an ‘extension of leave’ for a further period in the same category (e.g. a student applies for a further period of leave to complete a course), or to vary leave to an alternative category, known as ‘switching’.

What is the procedure for applying for leave to remain?

Most applications to extend/vary leave to the UKVI must be made on prescribed application forms, which are available from the UKVI and can be downloaded from the website. There is a prescribed fee for most applications and since April 2015 a NHS surcharge may be payable.

It is anticipated by the UKVI that applications to vary/extend leave will be made while the applicant’s existing leave to remain is still current. Where an application is made in this way, an applicant may remain in the UK lawfully while the application is being considered (even though the previous leave may expire before the application is decided) and the conditions attached to the original leave remain in force until a decision on the application is made (see IA 1971 s. 3C). If an application is made after an applicant’s leave to remain has expired, the applicant will be an overstayer at the time of the application and therefore potentially subject to immigration enforcement action by the Immigration Service.

What happens if the application is refused?

A client may have a right of appeal to the Tribunal. This will depend on the type of application made and it is likely that a right of appeal will only exist if asylum and/or human rights issues are raised.

Types of application and powers of the immigration authorities

A person who requires leave to enter or remain must make an application to the appropriate body depending on where they are, their circumstances and the purpose of their application. The immigration authorities (abroad, on entry or after entry) have powers to grant or refuse leave to enter or remain and the UKVI can “curtail” existing leave in certain circumstances. The immigration rules set out the criteria for most applications and there are also general grounds in the immigration rules on which applications can be refused. In some circumstances the application will be outside the rules and based on asylum law, human rights law or at the discretion of the UKVI.

Work by a representative on an immigration or asylum matter can be funded as follows:

• privately by the client;
• publicly funded where the client is eligible; or
• in some cases organisations may provide pro bono advice.

Public Funding

There have been a number of significant changes to publically funded work following the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘LASPO’), which came into force on 1 April 2013. The agency which administered publically funded work was previously called the Legal Services Commission (‘LSC’). The LSC is now called the Legal Aid Agency (‘LAA’). Further in the context of immigration work, public funding is now only essentially available in cases involving asylum, detention, victims of trafficking, victims of domestic violence and forced marriage, protection of children and the Special Immigration and Appeals Commission.

As a result of LASPO the majority of immigration applications are no longer automatically eligible for public funding: they are an ‘excluded category’. LASPO includes a provision which enables the LAA to grant some funding to excluded category cases: this is known as ‘exceptional funding’.

The Lord Chancellor’s Guidance on when exceptional funding should be granted sets a high threshold and uses words like ‘rare case’ or ‘risk of breach substantial’. Unsurprisingly, of grants of exceptional funding have been rare: around 1% of exceptional funding applications in immigration cases have been granted.

A number of challenges were brought against the LAA refusal to grant exceptional funding which led to the judgement R (On the application of Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622. The court held that the guidance being issued by the LAA to make decisions on whether to grant exceptional funding was unlawful as it was effectively too stringent.

A further systemic challenge was brought and resulted in IS (by his litigation friend the Official Solicitor) v Director of Legal Aid Casework and the Lord Chancellor [2015] EWHC 1965 (Admin)) (‘IS’). This case established that the Exceptional Case Funding scheme was operating unlawfully as it gave rise to an unacceptable risk that an individual would not obtain funding where a failure to do so would breach her rights under the European Convention on Human Rights. IS was overturned in the Court of Appeal in Director of Legal Aid Casework and another v IS [2016] EWCA Civ 464. In what many consider an unsatisfactory judgement, the Court of Appeal did find that parts of the scheme are badly operated, but not quite bad enough to be unlawful. The decision is being appealed to the Supreme Court.

Publically funded work can only be carried out by law firms/organisations which have been awarded a LAA contract in the relevant area of law, e.g. for asylum law. Further, the LAA will only provide payment for work carried out by legal representatives who have been accredited under the Immigration and Asylum Accreditation Scheme (‘IAAS’).

The Legal Help scheme

This scheme enables public funding for work undertaken save for representation at an appeal hearing. The Legal Help Form (CW1) must be fully completed with the client and the client must sign it. The scheme is subject to a means and merits test. The merits tests is known as the “Sufficient Benefit test”; you would need to ask yourself ‘would a privately paying client pay in these circumstances?’. The threshold is relatively low. These tests must be assessed by the representative (who must be accredited to carry out such work). The scheme is then subject to financial limits according to the type of case. Most case will operate under the graduated fixed fee scheme (‘GFS’), which essentially limits the amount of profits costs a firm can claim, to a fixed amount.

Controlled Legal Representation

Controlled Legal Representation (CW2 form) is potentially available for representation at asylum appeals and bail applications in the Immigration and Asylum Chamber. It is subject to a merits test based on the prospects of success and a means test. In relation to the ‘prospects of success test’ the representative would need to be satisfied that there were good prospects of success, so around a 50% chance of being successful. In some circumstances there are modifications to the merits test, for example the test is modified when the client is a child.

Costs and client care

Solicitors must observe professional conduct rules in respect of costs and client care. Chapter 1 of the Code of Conduct requires accurate information to be given regarding costs (including explanations of terms such as disbursements and the application of VAT), advance costs information to be provided and clients to be kept fully informed throughout the case regarding costs. Eligibility for legal aid should be discussed and the implications of the appropriate scheme explained. In contentious matters clients should be informed of costs implications.

Who needs leave (permission) to enter or remain in the UK?

Generally any person without a ‘right of abode’ (mainly British citizens), will require leave (i.e. permission) to enter the UK (s. 3 IA 1971).

People with right of abode can reside freely in the UK, and can enter without restriction. They may, however, be required to demonstrate that they actually have the right of abode – e.g. by producing a valid British passport or other evidence of nationality.

There are also a few special groups who are exempt from immigration control, including diplomats.

What is leave to enter or remain?

Leave can be

• Limited in duration (e.g. six months leave to enter the UK as a visitor); or 
• Indefinite, i.e. the person may remain in the United Kingdom for an indefinite period without conditions.

Where the UKVI grants leave for a limited period, then it may also impose conditions to the leave: e.g. a prohibition or restriction on working, or a requirement not to have recourse to public funds.

Indefinite Leave to Remain (‘ILR’) (Or Indefinite Leave to Enter (‘ILE’) if granted before someone enters the UK) carries no time limit, nor any other condition. However, the holder remains subject to some immigration control and may be subject to deportation action in certain circumstances.

It is also possible for ILE/ILR to lapse if the holder remains absent from the UK for a continuous period of 2 years.

The Home Secretary has the power to revoke ILE/ILR in some limited situations – most obviously in light of serious criminal convictions, of if it transpires that the leave has been obtained by fraud.

ILE/ILR is sometimes also referred to as settlement, settled status or permanent residence.

The Home Office and the Secretary of State for the Home Department

Under the IA 1971, the SSHD has overall responsibility for the administration of immigration control. The SSHD normally, unsurprisingly, acts through his/her officials, who make almost all actual decisions (see below). However, there are certain decisions which require the SSHD to act in person (e.g. the exclusion of persons from the UK on the grounds of national security).

UK Visas and Immigration

The UKVI is responsible for managing the UK’s borders and controlling migration by enforcing immigration and customs regulations. It also considers applications for permission to enter or stay in the UK, citizenship and asylum.

UKVI officials make decisions on behalf of the SSHD in respect of people already in the UK, including:

• People who have already entered the UK and have been given leave to enter or remain, and are seeking to extend or change the basis of their stay;
• People who have entered illegally, and wish to seek permission to stay (for example, on asylum grounds);
• People who have overstayed a previous grant of leave, and now wish to regularise their status;
• People who are subject to detention, and people seeking release from detention (this is also dealt with by immigration officers – see below);
• People who are subject to administrative removal from the UK (because they have not been granted leave, or established a right to be in the UK);
• People who are subject to deportation on the basis of criminal behaviour.

The Agency is divided into a number of different departments according to the type of application or status being dealt with. The UKVI has its headquarters in Croydon, and regional offices in Belfast, Birmingham, Cardiff, Glasgow, Sheffield, Solihull and Liverpool.

Immigration Officers

Immigration officials (immigration officers and chief immigration officers) are based at ports and other designated offices. They make decisions in respect of entry to the UK, and are concerned with enforcement of immigration control, detention and release. Local enforcement offices and enforcement sections at ports are primarily concerned with enforcement action against those who are treated as illegal entrants, people subject to administrative removal or deportation and asylum claimants who have been refused.

There are also prosecution units at ports and some offices staffed by immigration officers with additional powers and training, and police officers who investigate immigration-related criminal offences. Sections of the immigration service are responsible for intelligence gathering and investigation of ‘organised crime’ connected with migration and there is co-operation between various agencies on these issues.

Entry Clearance Offices at British Embassies and High Commissions overseas

Entry Clearance Officers (‘ECOs’) are officers of the UKVI based in British diplomatic posts – Embassies and High Commissions.

A High Commission is essentially a diplomatic post in a Commonwealth country, while an Embassy is a diplomatic post anywhere else. They serve the same functions. Both are sometimes colloquially referred to as Consulates – though properly speaking, a Consulate is the section of a diplomatic post that is directly concerned with the interests of that country’s own citizens in the host country.

ECOs make decisions as to whether a person is permitted to come to the UK. The UK visa operation has offices in 146 locations throughout the world. The UKVI operates an online application system, with the grotesque soubriquet ‘Visa4UK’.

The First-tier Tribunal (Immigration and Asylum Chamber) and Upper Tribunal (Immigration and Asylum Chamber)

On 15 February 2010, Immigration and Asylum Chambers were established in both tiers of the Unified Tribunals framework created by the Tribunals, Courts and Enforcement Act 2007. The Immigration and Asylum Chambers replace the previously existing Asylum and Immigration Tribunal.

The First-tier Tribunal (Immigration and Asylum Chamber) is an independent Tribunal dealing with appeals against decisions made by the Home Secretary and his /her officials in immigration, asylum and nationality matters.

The Upper Tribunal (Immigration and Asylum Chamber) is a superior court of record dealing with appeals against decisions made by the First-tier Tribunal (Immigration and Asylum Chamber).

From 1 November 2013 most immigration judicial review applications have been dealt with by the Upper Tribunal (they were formerly dealt with by the Administrative Court).

Special Immigration Appeals Commission (‘SIAC’)

SIAC was created by the Special Immigration Appeals Commission Act 1997 to deal with cases in which the SSHD argues issues of national security or other public interest reasons. SIAC deals with appeals against deportation or exclusion on these grounds, as well as decisions to certify persons as international terrorists or decisions to deprive persons of British citizenship status.

What is immigration control?

Immigration control is the system of identifying who can enter the United Kingdom (‘UK’) and on what terms. Different groups of people are subject to different forms of control. For example, people are subject to different criteria according to the reason they want to enter the UK, and the length of time they want to remain. An immigration solicitor will require knowledge of all of these types of control.

The main governmental body responsible for these matters is UK Visas and Immigration Agency (‘UKVI’) (previously called the UK Border Agency – you may find references to that, or even to the older Border and Immigration Agency, in older case law).

Sources of immigration law

An immigration practitioner must be familiar with a wide range of sources of applicable law in this area. It may be useful to break down the areas of work as follows:

• Immigration law: applications to enter and remain in the UK for a variety of purposes, from temporary (e.g. visitors) to permanent (e.g. joining a spouse or partner).
• Nationality law: who is entitled to British citizenship, either by birth or by descent; and who can apply for naturalisation or registration as British citizen.
• Asylum law: applications for refuge from persecution.
• Human rights law: rights under the European Convention on Human Rights (‘ECHR’) and the Human Rights Act 1998 (‘HRA 1998’);

However, particular clients’ cases may involve more than one area, and so a broad knowledge is useful even if one’s practice is predominantly in one area.

Legislation

The main piece of legislation dealing with immigration law is the Immigration Act 1971 (‘IA 1971’). However, the IA 1971 has been substantially amended by subsequent statutes to arrive at the current system of control and appeals and it should therefore be read in the light of these amendments.

British nationality law is set out mainly in the British Nationality Act 1981 (implemented on 1 January 1983). This has since been amended by various provisions, notably the Nationality, Immigration and Asylum Act 2002 (‘NIAA’), Immigration, Asylum and Nationality Act 2006 (‘IANA 2006’) and the Immigration Act 2014 (‘IA 2014’).

Since the implantation of the HRA 1998, human rights have played a significant role in immigration law. A breach of human rights will occur where an authority (such as the UKVI) acts in a way which is unlawful under the HRA (i.e. acts in a way which is incompatible with a Convention (ECHR) right).

The law in relation to appeals is now mainly governed by the NIAA, as amended by the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 and by the IANA 2006.

The IANA 2006 abolished some rights of appeal – particularly against entry clearance decisions for students and employment categories. These have come into effect gradually in line with the Points Based System.

The Race Relations (Amendment) Act 2000 extends the scope of the Race Relations Act 1976, making it unlawful for public authorities to discriminate on grounds of race or colour or ethnic origin, when carrying out their functions. (Note that discrimination on grounds of nationality or national origin may be allowed in respect of some UKVI functions where specifically authorised at ministerial level. For example, it is possible for immigration authorities to subject persons of certain nationalities to more detailed scrutiny in relation to fingerprints/photographs where specifically authorised at ministerial level (Race Relations (Immigration and Asylum)(Comparison of Fingerprints and Photographs) Authorisation 2006)).

The Immigration Act 2014 (‘IA 2014’) introduces a vast range of substantial changes to UK immigration law, the majority of which either significantly limit rights or simply remove them. Most provisions have been enabled via secondary legislation which at times creates a complex web of legal rules including transitional provisions for certain categories of applicants.

The IA 2014 was quickly followed by the Immigration Act 2016 (‘IA 2016’). The Government stated that the purpose of the IA 2016 is to tackle illegal immigration by making it harder to live and work illegally in the UK. The IA 2016 introduced some significant provisions, including a new offence of illegal working, a new immigration bail regime and a new skills levy for those hiring skilled workers from overseas. The IA 2016 not only made changes to immigration law and practice, but also extended immigration control into other areas such as housing, social welfare and employment. For example it introduced criminal offences for landlords and agents who rent to persons without leave to remain in the UK.

A considerable number of statutory instruments have also been made which provide guidance on procedure such as at appeals e.g. The Tribunal Procedure (First Tier Tribunal) Immigration (Immigration and Asylum Chamber) Rules 2014.

The Immigration Rules

The Secretary of State for the Home Department (‘SSHD’; commonly known as the Home Secretary) is empowered under the IA 1971 (ss1(4) and 3(2)) to make Immigration Rules (the ‘Rules’).

The Rules set out specific and detailed criteria to be satisfied by any person who seeks permission to enter the UK, or to remain in the UK. The current rules, Statement of Changes in Immigration Rules 1994 (HC (House of Commons paper) 395) are consolidated and incorporate a number of amending statements since 1994. The rules are most readily available on the UKVI website.

What is the precise legal status of the immigration rules?

The Rules have a sui generis status. As the power to create them stems from the IA 1971, they appear at first to be secondary legislation. However, they are approved by a different procedure to other secondary legislation. They are, in fact, laid before Parliament; but they are not routinely debated by Parliament. Instead, they remain before Parliament for forty days; if no Member raises anything to debate, they pass automatically – a procedure known as negative resolution.

In Pearson v Immigration Appeal Tribunal [1978] Imm AR 212, the Court of Appeal stated that although the immigration rules are not delegated legislation or rules of law, they are rules of practice laid down for those administering the Act and have the force of law in some immigration appeals and judicial review proceedings.

From the point of view of clients – and, largely, of practitioners – the unusual legal status of the Rules makes very little difference. Whatever the fine detail of the resolution procedure, the consequence is that the Rules contain criteria that must be met to succeed in an application (and in any consequent appeal or judicial review action).

In general, when making decisions, the UKVI will look to the Rules. The UKVI should not act more restrictively than the Rules allow. However, the SSHD does have a residual discretion – stemming from the 1971 Act – to depart from the Rules by acting more generously than the Rules permit.

Advice to clients will often concern whether they fulfil the terms of the Rules (which may sometimes be a matter of interpretation).

Where it is alleged that the UKVI has failed to follow the Rules, a right of appeal may exist; or there may be a possibility of judicial review action.

The Rules are subject to frequent amendment, and practitioners should make sure they have the most up to date version available.

Concessions, policies and practices outside the Immigration rules

There are some concessions and policies operated by the UKVI in its discretion, outside the Rules. For example, there is a concession for visitors who wish to enter or remain to care for a sick relative. Some policies and concessions are operated on a time-limited basis, while others are ongoing.

In situations covered neither by the Rules, nor by existing policy or concession, the SSHD (and his/her officers) may make a decision on the particular facts of a case outside the immigration rules on a discretionary basis.

Some of the practices used by the UKVI officials in deciding cases can be ascertained from the internal guidance to staff, some of which is available on the UKVI website. This guidance is extremely useful to practitioners and should be regularly referred to when assisting clients. It includes Immigration Directorate Instructions (‘IDIs’), Entry Clearance Guidance (‘ECGs’) and Asylum Policy Instructions (‘APIs’).

Decisions of the courts

Case law has been important in the development and interpretation of immigration and asylum law. Immigration cases have in recent years formed the largest single category of applications for judicial review. These, and other cases reaching higher courts by way of appeal, have generated some important principles.

1951 UN Convention relating to the Status of Refugees

The Convention, to which the UK is a party, provides the broad definition of a refugee. Domestic law requires that decisions taken by the immigration authorities are not contrary to the UK’s obligations under the Convention.

European Convention on Human Rights

Articles of the ECHR had played a role in immigration and asylum cases for some years; but the implementation of the HRA 1998 gave effect to those articles in domestic law by requiring public authorities (including the UKVI) to act in a way which is compatible with ECHR rights (s. 6 HRA 1998).

Following the HRA, when passing legislation the government is required to confirm that that legislation is compatible with the ECHR. If the courts find that the legislation is incompatible with the ECHR, they can make a declaration to that effect requiring Parliament to consider whether to take further action. (See Ullah and Do [2004], in which the House of Lords held that the Court of Appeal had gone too far in restricting the potential extent of human rights decisions in removal cases and stated that it was not for the British courts to be limiting the direction of travel of the ECHR.)

Other international treaties and obligations

Other international treaties, such as the Convention on the Rights of the Child, may also be relevant in particular cases.

European Community Law and EU agreements

Nationals of the European Economic Area and their families had previously benefitted from freedom of movement under European Union law (‘EU law’) expressed in Treaty articles, regulations, directives and case law from the Court of Justice of the European Union. EU law took precedence when there was a conflict with domestic law.

Following the UK’s decision to leave the EU in the July 2016 referendum, EU law no longer applies directly in an immigration context. Free movement provisions no longer apply.

Aside from EU law, there are also agreements between European partners on a number of immigration and asylum matters.

The role of an immigration solicitor

The work of an immigration solicitor can vary widely, from advising and representing high-level employees in multinational companies to assisting vulnerable clients seeking refuge from persecution. Firms may undertake both private and publicly funded work, or may specialise in one or the other. Firms may also specialise in particular aspects of immigration law – for example, a firm may deal exclusively with applications under the Points-Based System, but undertake no asylum work at all.

Immigration solicitors, like solicitors in all fields, operate under the professional supervision of the Solicitors Regulation Authority (SRA).

In addition, it is possible for advisers to operate outside the aegis of the SRA. This applies mainly to non-solicitors, who may choose instead to practise under the regulatory authority of a separate body: the Office of the Immigration Services Commissioner (OISC). The OISC was created by the Immigration and Asylum Act 1999. It monitors and regulates immigration advice given by those advisors it regulates; and it has fairly wide powers, including disciplinary action and criminal prosecution.

Immigration practitioners (whether solicitors supervised by the SRA or non-solicitors supervised by the OISC) who wish to undertake publicly funded work must have accreditation under a scheme operated by the Law Society and the Legal Aid Agency. To some extent, the Legal Aid Agency takes on an additional supervisory role, separate to that of the SRA or OISC.

Practitioners dealing with vulnerable groups such as victims of torture, unaccompanied minors, etc. need skills in dealing with such vulnerability as well as being able to advise accurately on the law.

All immigration practitioners need to be able to consider detailed evidence in particular cases; to evaluate how that evidence relates to the legal framework for the type of case at hand; and to be able to represent clients effectively in a potentially adversarial system.