The Government published its vision for a reformed court and justice system, on 15 September 2016 – to modernise and upgrade our justice system so that it works even better for everyone – for judges and legal professionals, businesses and individuals, families, and witnesses and the vulnerable victims of crime.
The Government is committed to investing more than £700 million to modernise courts and tribunals, and over £270 million more in the criminal justice system.
Alongside this reform it remains important to make sure that our courts and tribunals service is properly and sustainably funded now and into the future, so that access to justice is protected.
In 2015/16, the net cost of the courts and tribunals service to the taxpayer was £1.2 billion. This is unsustainably high and we think that it is right to reconsider the balance of funding between the taxpayer and those who use the courts and tribunals and can afford to make a larger contribution.
The Government’s general principle, as reflected in Managing Public Money, is that where users are being charged for a service they should usually be charged at a level to recover the true cost to the Government of providing that service.
In line with this principle we believe it is right that those who use our courts and tribunals should make a greater financial contribution, to make sure that the system is properly funded to protect access to justice and to reduce the unsustainably high cost to the taxpayer.
As a result we have introduced a number of fee reforms in recent years, including to the fees charged for proceedings in the civil courts, family courts and in some tribunals.
In the challenging financial circumstances faced by this country, we consider it is reasonable to ask users of Tribunals to contribute to the running costs while ensuring that access to justice is protected.
Those who use our immigration and asylum system are not excepted from the need to make a financial contribution.
Consequently in 2011, the Government introduced fees for the first time in the Immigration and Asylum Chamber of the First-tier Tribunal. These fees would be paid, where they could afford to do so, by those who make an application to appeal an immigration or asylum decision of the Home Secretary. At that stage those fees were set well below full cost recovery levels.
Consistent with our general principle we revisited those fees earlier in the year and launched a public consultation on 21 April 2016 proposing to raise fees in the Immigration and Asylum Chamber of the First-tier Tribunal for those who pay to a level to recover the full cost of proceedings.
We also consulted on introducing fees for the first time for appeals in the Immigration and Asylum Chamber of the Upper Tribunal and for permission to appeal applications in both the First-tier Tribunal and the Upper Tribunal.
In addition, we consulted on a proposal to add an exemption from fees based on the Home Office destitution waiver policy.
We responded to the consultation announcing our intention to proceed with the proposed fee measures. The higher fees in the First-tier Tribunal then came into effect.
The fee increases introduced in the Immigration and Asylum Chamber of the First-tier Tribunal are affordable for those who have to pay, taking into account the fee exemptions and waivers that apply, as well as the Lord Chancellor’s exceptional power to remit fees.
However, we have listened to the representations that we received on the current fee levels and have decided to take stock and review the immigration and asylum fees, to balance the interests of all tribunal users and the taxpayer and to look at them again alongside other tribunal fees and in the wider context of funding for the system overall.
From today all applicants will be charged fees at previous levels and we will reimburse, in all cases where the new fees have been paid, the difference between that fee and the previous fee.
We will bring forward secondary legislation to formalise the position as soon as possible. That legislation will come into force shortly, but in the meantime the changes will be effected through the use of the Lord Chancellor’s discretionary power to remit or reduce fees.
Alongside the fee changes introduced we extended the fee exemptions offered in the First-tier Tribunal, to include:
those in receipt of a Home Office destitution waiver in respect of their initial application;
parents of, and those with parental responsibility for, children receiving support from local authorities;
children in local authority care; and
those appealing a decision to revoke their humanitarian protection or refugee status.
The Government believes that these exemptions are proportionate measures that protect some of the most vulnerable users of the Tribunal. For this reason the extended system of fee exemptions will remain in place.
We also took the opportunity when introducing the fee changes to expand and clarify the guidance around the application of the Lord Chancellor’s power to remit or reduce fees in exceptional circumstances. This revised guidance is not affected.
The role of fees in the Upper Tribunal will also form part of the review. The focus of our work is now on carrying out that review. We will bring forward any new plans for Tribunal fees, including in the Immigration and Asylum Chambers of the First-tier and Upper Tribunals, for consultation in due course.
The Government’s belief is unchanged that it is right that those who use our courts and tribunals should pay more, where they can realistically afford to do so, to ensure that the system is properly funded to protect access to justice and to relieve the burden on the taxpayer.
Statement of Changes to the Immigration Rules HC667 was laid yesterday, 3 November 2016. The document weighs in at 90 pages but many of the changes are to language rather than effect. The more significant changes are to Tier 2 skileld workers, for whom the minimum salary level is increased, to Tier 4, the introduction of a new English language requirement for family immigration and the abolition of the 28 day grace period for making out of time immigration applications.
Some of the main substantive changes are outlined in an accompanying press release:
## Tier 2
Implement the first of 2 phases of changes to Tier 2, announced by the government in March following a review by the Independent Migration Advisory Committee.
· Increasing the Tier 2 (General) salary threshold for experienced workers to £25,000, with some exemptions
· Increasing the Tier 2 (Intra-Company Transfer) salary threshold for short term staff to £30,000
· Reducing the Tier 2 (Intra-Company Transfer) graduate trainee salary threshold to £23,000 and increasing the number of places to 20 per company per year
· Closing the Tier 2 (Intra Company Transfer) skills transfer sub-category
These changes will come into effect for all certificates of sponsorship assigned by Tier 2 sponsors on or after 24 November 2016. The date from which intra company transfers will be liable for the health surcharge will be announced in due course.
## Tier 4
A number of changes are being made, including amendments to the academic progression rule, maintenance requirements for the Doctorate Extension Scheme and evidence of overseas qualifications, UK qualifications used as evidence, and a series of minor and technical adjustments.
## English language requirement
As announced in January this year, a new English language requirement at level A2 of the Common European Framework of Reference for Languages is being introduced for non-EEA partners and parents.
This affects those applying to extend their stay after 2.5 years in the UK on a 5-year route to settlement under Appendix FM (Family Member) of the Immigration Rules. The new requirement will apply to partners and parents whose current leave under the family Immigration Rules is due to expire on or after 1 May 2017.
The abolition of the 28 day period of permissible overstay for the purpose of making a new application is big and very unwelcome news. The various references to the 28 day rule are replaced with reference to a new paragraph 39E which applies where:
(1) the application was made within 14 days of the applicant’s leave expiring and the Secretary of State considers that there was a good reason beyond the control of the applicant or their representative, provided in or with the application, why the application could not be made in-time; or
(2) the application was made:
(a) following the refusal of a previous application for leave which was made in-time or to which sub-paragraph (1) applied; and
(b) within 14 days of:
(i) the refusal of the previous application for leave; or
(ii) the expiry of any leave extended by section 3C of the Immigration Act 1971; or
(iii) the expiry of the time-limit for making an in-time application for administrative review or appeal (where applicable); or
(iv) any administrative review or appeal being concluded, withdrawn or abandoned or lapsing.
The Explanatory Memorandum explains the new approach thus:
The 28-day period is therefore to be abolished. However, an out of time application will not be refused on the basis that the applicant has overstayed where the Secretary of State considers that there is a good reason beyond the control of the applicant or their representative, given in or with the application, why an in time application could not be made, provided the application is made within 14 days of the expiry of leave.
There will presumably be guidance forthcoming on what might constitute a “good reason”, which will be crucial.
Provision is also made so that those who made use of the 28 day rule while it existed are not penalised when it comes to continuous residence applications further down the line.
Other changes include:
· Tightening up refusals on public policy grounds to provide for mandatory rather than discretionary refusals.
· Adjusting and rewording the rules on validity of applications.
· Relatively minor clarification and changes to Tier 1 (Entrepreneur) and Tier 1 (Exceptional Talent)
· The upper age limit of 65 for domestic workers in private households is removed along with some other changes to domestic worker categories.
· Incorporating existing EU safe third country law into the Immigration Rules.
· Slight clarification of the Administrative Review process.
· Various amendments to the family and private life rules including decreasing the threshold for refusal because of NHS debt from £1000 to £500 and adjustments to the specified evidence provisions.
· Slight relaxation of the rules on visitors so that refusal is not mandatory where a person previously breached immigration laws, is now outside the re-entry ban period and has since then been readmitted to the UK.
The Government has today lost a major case in the High Court on the issue of whether a Parliamentary vote is required before the Government issues notice under Article 50 of the Treaty on the Functioning of the European Union to the EU that the UK is leaving.
If the High Court’s decision stands, it means that the Government cannot begin the formal legal process of leaving the EU without there first being a vote in Parliament.
The full High Court judgment is available here. The decision turns on upholding the constitutionally sacrosanct principle of Parliamentary sovereignty:
This subordination of the Crown (i.e. the executive government) to law is the foundation of the rule of law in the United Kingdom. It has its roots well before the war between Crown and Parliament in the seventeenth century but was decisively confirmed in the settlement arrived at with the Glorious Revolution in 1688 and has been recognised ever since.
At the time of writing, the Government had indicated it would appeal. The High Court granted the Government a certificate which would enable the case to go straight to the Supreme Court. Permission will inevitably be granted and the hearing will no doubt be expedited. There is a rumour the hearing will be in early December, when there is a gap in sittings, with all 11 Justices hearing the case.
There is a distinct possibility the Supreme Court will want to establish whether Article 50 can be reversed or revoked in the period between notice being given and a Member State actually formally legally leaving the EU. The two parties in the High Court agreed that it could not and the High Court accepted that as an underlying assumption, but the Supreme Court might well want to dig deeper. If so, it is highly likely that a reference would be made to the Court of Justice of the European Union on this question of EU law. The prospect of the EU court deciding on an issue around the UK leaving will leave some newspaper columnists foaming at the mouth.
Readers of Free Movement will be particularly interested in the impact, if any, this all has on the rights of EU nationals and their family members in the UK. As has repeatedly been said here, EU law continues to apply in the UK unless or until the UK formally leaves the EU. The formal legal process of leaving has not even begun yet, but Prime Minister Theresa May has stated that she intends to begin the process in by the end of March 2017. This would be when Article 50 would be triggered. Unless an agreement was reached first, the UK would then formally leave the EU two years later and EU law would cease to apply then.
If the outcome of the court case stands (i.e. the Government does not actually appeal or does appeal but loses) then Parliament will have to have a vote before Article 50 is triggered.
What are the chances of MPs and Lords voting to trigger Article 50? That is a big question. It would be extraordinary for Parliament not to accept the result of the referendum and not permit Article 50 to be triggered. However, Parliament might well have something to say about the conditions or process of triggering Article 50.
In constitutional and democratic terms, the point of the challenge is that the Executive should not be given a completely free hand to make all decisions on what settlement the UK reaches with the EU without any oversight or input from the Legislature.
Jolyon Maugham QC, who was responsible for organising the Article 50 case, thinks there is a case for Parliament to require as a condition for the trigger of Article 50 that a clear choice is presented either to Parliament or to the people in a second referendum on what Brexit actually means. So far, the Brexiteers and Leave campaigners have managed to get away with completely fudging key issues. Some Leavers said it means more immigration, some said less. Some Leavers said it means leaving the Single Market and the customs union, others said that the UK should remain in the European Economic Area like Norway.
If the public, either directly in another plebiscite or through their elected delegates, our Members of Parliament, are presented with a choice of Hard Brexit or No Brexit, it is possible the country might vote for No Brexit. Alternatively, the knowledge that there is no Parliamentary majority for Hard Brexit might well force the Government to take a different path and pursue a Soft Brexit strategy of leaving the EU but remaining in the EEA or similar.
As of 10 October 2016, it now costs £800 to lodge an appeal against an immigration decision where a proper oral hearing is requested. The change was announced on 15 September 2016 and the necessary legal change, the First-tier Tribunal (Immigration and Asylum Chamber) Fees (Amendment) Order 2016, was laid at the same time to come into effect on 10 October 2016.
The new fees only apply where the decision appealed against was taken on or after 10 October 2016, according to Article 7 of the Order:
the amendments made by this Order only apply in respect of an appeal to the First-tier Tribunal against a decision which was taken on or after the coming into force date of this Order
This means that the cost of lodging an appeal against a decision received before 10 October 2016 is still the old cost.
So, the costs of appealing a Home Office immigration decision are now to be as follows:
Appeal type Old fee New fee
Application for a decision on the papers £80 £490
Application for an oral hearing £140 £800
Application to the FTT for permission to appeal to the UT Nil £455
Application to the UT for permission to appeal to UT Nil £350
Appeal hearing Nil £510
* The date for introducing fees for permission to appeal and in the Upper Tribunal is unknown at the date of writing.
If an appeal succeeds, the Home Office will normally be ordered to repay the appeal fee. However, the waiting times for appeals is thought to be over 12 months at present, so repayment is unlikely to be rapid.
The percentage increase is over 500%. The immigration tribunal is the only part of the court and tribunal system in which full cost recovery is being sought from litigants. It is axiomatic that the impact will mainly be felt by ethnic minority communities.
The proposed exceptions to appeal fees have been very slightly widened to include the following:
those in possession of a Home Office fee waiver
those who qualify for legal aid or asylum support;
those who are appealing against a decision to deprive them of their citizenship; and
those children bringing appeals to the tribunal who are being supported by a local authority.
those people appealing decisions to revoke their refugee or humanitarian protected status;
those with parental responsibility for, children receiving support from local authorities under section 17 of the Children Act 1989 (or any equivalent legislation in Scotland, Wales or Northern Ireland);
children who are being housed by a Local Authority under section 20 of the Children Act 1989 (or any equivalent legislation in Scotland, Wales or Northern Ireland).
It is also possible to apply for fee remission or reduction under paragraph 7 of the original First-tier Tribunal (Immigration and Asylum Chamber) Fees Order 2011:
A fee specified in this Order may be reduced or remitted where the Lord Chancellor is satisfied that there are exceptional circumstances which justify doing so
The impact is likely to be a sharp reduction in the number of appeals. Potential litigants, many of whom might well have won their cases, will simply not bother and will instead reapply or go underground. There will no doubt continue to be plenty of work for immigration lawyers in a general sense, but far, far less for immigration barristers and judges.
When the Immigration Act 2016 is implemented and immigration appeals almost all become exercisable only on departure from the UK, the number of appeals would be likely to reduce even further. Paying a huge fee for an appeal at which one is not even permitted to be present seems particularly unlikely.
EU migrants are those most likely to be affected by this change; many appeal rights have already disappeared with the Immigration Act 2014 and there is likely to be a huge surge in the number of EU migrant tribunal appeals as some European nationals struggle to establish their right to remain in the UK in their aftermath of Brexit.
Start typing your update here.Online versions of the FLR(M) and FLR(FP) application forms are now available for use. The form needs to be printed at the end and sent off to the Home Office with the required supporting documents.
Use this online application as an alternative to the FLR(M) and FLR(FP) paper forms.
Apply to remain in the UK as the family member or partner (for example, spouse) of a:
person settled in the UK
person who has refugee leave or humanitarian protection in the UK
You can also use this form to apply on the basis of private life in the UK.
You can add some family members (‘dependants’) to your application. For example, if you are applying as a partner with two children, you can all apply on the same application.
You cannot use this form to apply for settlement (also known as ‘indefinite leave to remain’).
You cannot use this online application if you are applying with a fee waiver. Fee waiver applicants must complete the paper form and fee waiver application.
By making this application you are making a claim under Article 8 of EC
Criminals convicted of human trafficking and modern slavery face being sentenced to life in prison from (Friday 31 July).
Today, the new Modern Slavery Act comes into force.
The first series of measures, focused on criminal justice provisions, to come into force include:
ensuring that those who commit these crimes are subject to the toughest possible asset recovery regime.
introducing Slavery and Trafficking Reparation orders, which encourage the courts to use seized assets to compensate victims.
the commencement of regional pilots of the National Referral Mechanism (NRM) – the system used across Government and by various agencies to refer, protect and support victims of modern slavery.Karen Bradley, Home Office Minister for Preventing Abuse and Exploitation, said:
Today the new, consolidated and improved slavery and trafficking offences commence, ensuring that perpetrators receive the severe sentences their crimes deserve, including life imprisonment.
This landmark legislation sends the strongest possible message to criminals - if you are involved in this vile trade you will be arrested, you will be prosecuted and you will be locked up.
We are standing up for the most vulnerable in society and it also says to victims that you are not alone – we are here to help you.
Earlier this week the Prime Minister announced that, following consultation, additional provisions that address the prevention of slavery in supply chains will come into force in October.
The turnover threshold for businesses who must declare what steps they are taking to tackle modern slavery has been set at £36m.
Additional provisions of the Act which further address support for victims will be introduced later this year.
In a judgment handed down on 29 July 2015, the Court of Appeal has agreed with Nichol J’s earlier judgment in the High Court holding the Detained Fast Track appeal system to be inherently unfair. The new judgment is The Lord Chancellor v Detention Action  EWCA Civ 840. The Home Office were an interested party.
The reasoning of the Court of Appeal is very similar to that of Nichol J below. Essentially, the time scale of only 7 days to prepare and present a full appeal as well as all the other tasks that must be completed is held not to allow enough time. The fast track rules are declared to be “systemically unfair and unjust”. In giving the leading judgment the Master of the Rolls, Lord Dyson, states “that justice and fairness should not be sacrificed on the altar of speed and efficiency” and that the current rules do not strike the correct balance.
Some highlights to savour:
37. These asylum appeals are often factually complex and difficult. They sometimes raise difficult issues of law too. I am unpersuaded that the safeguards are sufficient to overcome the unfairness inherent in a system which requires asylum seekers to prepare and present their appeals within 7 days of the decisions which they seek to challenge.
38. I have no doubt whatsoever about the independence and impartiality of the tribunal judges who deal with the appeals. I accept that they are specialist judges who can usually be trusted to get the right answer on the basis of the material that is presented to them. I am also sure that they do their best to comply with the overriding objective of dealing with appeals justly. Nevertheless, in view of (i) the complex and difficult nature of the issues that are often raised; (ii) the problems faced by legal representatives of obtaining instructions from individuals who are in detention; and (iii) the considerable number of tasks that they have to perform (see para 20 above) the timetable for the conduct of these appeals is so tight that it is inevitable that a significant number of appellants will be denied a fair opportunity to present their cases under the FTR regime.
He goes on to consider the potential safeguards and finds them inadequate. Rule 14 on transferring cases out of the fast track is not sufficient because
1. There isn’t even time to prepare an argument that the main case is unsuitable for the fast track, particularly given that the main case must be simultaneously prepared in case the rule 14 transfer out request is refused;
2. In making out an argument that the main case cannot be adequately prepared, the appellant is placed in an invidious and unfair position because in order to explain why the time scales are unjust, the appellant has to identify all the evidential gaps in his case. But if the application to transfer is refused, the appellant will then have to persuade the judge that the appeal should be allowed notwithstanding these gaps;
3. The rule is insufficiently flexible and there is too great a danger that judges applying the rule will consider the fast track timescale to be the default position otherwise the object of the rules would be defeated: “there will be a momentum in favour of proceeding with the hearing which it will be difficult for an appellant to stop”.
Lord Dyson concludes:
To summarise, in my view the time limits are so tight as to make it impossible for there to be a fair hearing of appeals in a significant number of cases. For the reasons that I have given, the safeguards on which the SSHD and the Lord Chancellor rely do not provide a sufficient answer. The system is therefore structurally unfair and unjust. The scheme does not adequately take account of the complexity and difficulty of many asylum appeals, the gravity of the issues that are raised by them and the measure of the task that faces legal representatives in taking instructions from their clients who are in detention.
The Home Office is seeking permission to appeal, the Law Society Gazette reports.
I am currently dealing with an old asylum case that illustrates exactly the problems caused by the Detained Fast Track. An Afghan arrived in the UK in 2010 and claimed asylum on the basis of threats he had received while working at a US base. He was fast tracked. His claim was rejected on the basis that he was lying about his role: he was unable to obtain good proof in the short time available. He was lucky to be released and once he was released he was then able to contact his previous employers and get references and solid proof that he had been telling the truth. Five years later, he has belatedly been granted status by the Home Office but for some reason not yet recognised as a refugee, which we are challenging.
How many were not so lucky and were simply removed? The good news, though, is that323 detainees have been removed from the Detained Fast Track since the first judgment was handed down in June.
Cockroaches” according to Katie Hopkins. A “swarm” according to our likeminded Prime Minister, David Cameron, and The Daily Mail(again). An “army” according to the popular press, who seem to think we should literally send troops into France (without asking the French, we can assume) to hold the thin red line. “Migrants” to others. Why never “refugees”, though, which is what most of them are? What do we know about who these people are — brothers, sisters, mothers, fathers and children, all of them — and why they want to come to the UK?
Back in 2002, at the height of the previous Calais hysteria, the Home Office commissioned some respected researchers to ask some of people themselves. Their answers are still the best information we have. Some of the nationalities have changed but the motivations are probably perennial.
But first, some numbers and some perspective.
The Immigration Minister, James Broken-shire, reported on 21 July 2015 that there are thought to be about 3,000 people in the Calais areas trying to reach the United Kingdom. To put that in perspective, the old Sangatte camp used to house around 2,000 when it was closed in 2002; the present numbers, unlike the hype, aren’t that much higher.
The year 2002 was the year that asylum claims in the UK hit their peak of 84,132. The numbers have fallen considerably since then and the official statistics record that the number of claims in the year ending was a mere 25,020. There was a slight increase in claims last year, but the numbers are clearly still much, much lower than they were.
For some broader perspective, the Syrian civil war has generated over 4 million refugees. 1.7 million of them reside in Lebanon, meaning that over 20% of the population of Lebanon is now Syrian refugees. The Zaatari refugee camp in Jordan alone houses over 80,000 Syrian refugees. Only around 4,000 of the 4,000,000 Syrian refugees have reached the UK in the last few years. We did everything in our power to stop those 4,000 from entering our country and we have only voluntarily offered resettlement to a mere 187 Syrian refugees, far fewer than other comparable countries.
Broken-shire also reported that the top five nationalities of those in Calais are Syrian, Eritrean, Sudanese, Iranian and Iraqi. This is similar to the top five countries of origin of those crossing the Mediterranean, reported by UNHCR to be Syria (34%), Afghanistan (12%), Eritrea (12%), Somalia (5%), Nigeria (5%). The Syrians are self evidently refugees. If we look at the UK grant rate for the other nationalities, the latest official statistics say 85% of Eritreans are granted asylum, 79% of Sudanese and 56% of Iranians.
The vast majority of those at Calais are refugees and would be recognised as such if they managed to reach the UK. But why do they want to come specifically to the UK so much that they will risk the one thing they have left, their lives? Why not stay in France?
The Home Office previously commissioned research on this question and in 2002 the resulting report was published. Understanding the decision-making of asylum seekers was based on 65 interviews with asylum seekers in 63 households, with each interview lasting 80- 120 minutes.
The principal aim of those questioned was to reach a place of safety. The mix of nationalities at Calais suggests that factor remains constant.
Agents were found to play a key role in the final destination:
Some agents simply facilitated travel to a destination chosen by the asylum seeker. Other agents directed asylum seekers to particular countries without giving them any choice. Yet other agents offered asylum seekers a priced ‘menu’ of destinations from which the asylum seeker could then choose.
For those that did have an element of choice about their destination, there were a range of factors that influenced that choice:
These were: whether they had relatives or friends here; their belief that the UK is a safe, tolerant and democratic country; previous links between their own country and the UK including colonialism; and their ability to speak English or desire to learn it.
There was very little evidence that the sample respondents had a detailed knowledge of: UK immigration or asylum procedures; entitlements to benefits in the UK; or the availability of work in the UK. There was even less evidence that the respondents had a comparative knowledge of how these phenomena varied between different European countries. Most of the respondents wished to work and support themselves during the determination of their asylum claim rather than be dependent on the state.
Attitudes towards work for those questioned seemed to be complex. Back in 2002 the media and Home Office were obsessed with the idea that bogus asylum seekers wanted to claim benefits. These days, after our collective experience of EU migration, most of us now surely recognise that the desire to work is likely to be a more significant motivation for migration.
The research found that most of those questioned believed they would be allowed to work, wanted to work and thought they would have to work:
Many of the respondents had worked in the country of origin (and acquired skills and had careers there), and wanted to do so again when they arrived in the country where they claimed asylum. Finding a job was important because it enabled people to rebuild their lives after what had often been traumatic and disruptive experiences. It helped refugees to regain their self-respect and confidence, and to focus upon the future…
This being the real world, there is no easy answer to the question “why?” Work, friends, family, language, historical links to the UK and, ironically, the UK’s reputation for fairness, tolerance and welcome all play their role.
By Colin Yeo; A barrister specialising in UK immigration law at Garden Court Chambers in London.
Right to reside on basis of child in UK education
Right to reside on basis of child in UK education
Council Regulation (EEC) 1612/68 -
Article 12 and European Court of Justice (ECJ) Cases Ibrahim and Teixeira
In February 2010 the ECJ delivered judgement in the
cases of two women who, it had been decided by the UK, had no right to reside
but who were the primary carers of the children of an EEA national parent in UK
The ECJ held that the child of an EEA national
parent who is or was a worker (employed; not self-employed) in the UK has a
right to UK education under Article 12 of Council Regulation 1612/68 and that
confers on the child a right to reside in the UK. In order for the child to
effectively exercise that right, it is necessary that the child’s primary carer
in the UK also have a right to reside in the UK for the duration of the child’s
education and since the residence rights of both the child and the primary
carer arise directly from Article 12 Council Regulation 1612/68, they are not
conditional on either the child or the child’s primary carer being self
sufficient in the UK.
However the following circumstances must exist in
order for this right to arise
The child must have one EEA national
The EEA national parent must be, or
have been, employed in the UK;
The EEA national parent must have been
resident in the UK on the date the child entered the UK education system,
although they need not have been employed or self-employed on that date; and
The child must have been entered into
UK formal education. This means compulsory schooling: so primary and secondary
school and sixth form or non advanced further education up to the child’s
No right to reside would arise for the primary carer of a child of an EEA
national where the EEA national is only or had formerly been self employed only
in the UK.
In general the child’s right to education and so the primary carer’s right to
reside in the UK comes to an end once the child turns eighteen, even if the
education continues beyond that date. However, where there are compelling
circumstances which mean the child continues to need the care of the primary
carer in order to continue in education beyond the age of eighteen then the
primary carer’s right to reside in the UK will extend until the child completes
education. ‘Compelling circumstances’ may include, for example, a physical or
mental illness or disability of the child in education.
While it is essential to this right to reside that the child has an EEA
national parent, it is not necessary that the EEA parent is the primary carer
of the child in education. The primary carer’s and indeed the child’s
nationality are not relevant once the circumstances set out above are met.
Today, Thursday 22 November 2012, a written ministerial statement has been laid in Parliament outlining a number of changes to the Immigration Rules which will come in to force on 13 December 2012.These include non substantive changes for sponsors and migrants coming to the UK under the following routes of the points-based system:Tier 1 - entrepreneurs and investors.Tier 2 - skilled workers, including changes for senior intra-company transfers.Tier 4 - students, including extending the interim limit.Tier 5 - temporary workers including the requirements for the government authorised exchange category and private servants in a diplomatic household.Sponsorship - revised sponsorship guidance will be published in December.In addition, there are changes to the Rules affecting:CriminalityEstablishing a more robust and clear criminality framework to assess immigration applications against which immigration applications will be assessed.Recalculating the length of time, based on the length of sentence, before we will revoke a deportation order.Introduction of a re-entry ban, for some foreign national offenders who have been removed from the UK as part of a conditional caution and additional powers to end (curtail) a migrant's visa or leave.Creation of a 'route' for ex-Armed Forces to remain in the UK.SettlementAmendments to clarify the absences from the UK that are allowed during the continuous residence period for Tier 1 (General), Tier 2 and pre-points based system work routes (for example work permits, self-employment and business person).Family and private life. Minor changes to the child and parent routes to make them as clear and comprehensive as possible.There will also be some changes to the Youth Mobility Scheme quotas and Tier 4 loan letters in early 2013.For full details, please see the Statement of Changes to the Immigration Rules and the explanatory memorandum within the document. The written ministerial statement and statement of policy can be found on the Home Office website.
We shall post the full statement in due course...