Immigration news – everything you need to know about…

by Danielle Cohen on November 4, 2016

Here’s a few things that have happened recently in the world of immigration law which we think you should know about…

The refusal of an asylum application

 
When an application is refused, and the entry clearance officer or the Home Office was wrong in reaching this decision, we submit the appeal. We then ask for reconsideration to take place, but very rarely does the lodging of an appeal lead to reconsideration. Yet some decisions get overturned when appeals are lodged and therefore it is always sensible to ask for an “appeal review”. The purpose of an “appeal review” is to consider the Grounds of Appeal and supporting documents. When the entry clearance officer undertakes the review, she must assess whether the appellant has satisfactorily addressed the reasons for refusal. If she did, then the decision should be overturned and a visa issued. The appellant must be contacted within 10 working days, requesting submission of the passport.
 

An asylum seeker who had to wait 14 years for a decision on his asylum application

 
Did you know that the European Court of Human Rights held that there had been a violation by the UK authorities of Article 8 (the right to respect for private and family life) and Article 3 (prohibition and inhumane or degrading treatment)? Why? The Court found that they had failed to determine an applicant’s asylum application without any justification – for more than 14 years – and had breached the positive obligations inherent in his right to respect for his private life. The asylum seeker had been waiting for a decision since 2002. Furthermore, while waiting for a decision, the applicant’s legal status remained uncertain which put him in danger of being returned to Turkey where there was a substantial risk that he could be subjected to ill-treatment, breaching Article 3 of the Convention.
 

 
EU Residence Application Delays

 
Did you know that Brexit is causing delays in processing EU applications for documentation? It is stated in the Immigration (EA Regulations) 2006, that The Home Office is legally obliged to issue EU residence documents within six months of the application. However, even if the Home Office fails in its duty to issue it within six months, pursuing a legal remedy can be very expensive and inconvenient. At the moment there is a policy on expediting residence document applications, however, these are usually for people being detained or when there are exceptional circumstances which would merit an application being expedited for example a family emergency such as bereavement, serious illness or the need to travel for essential medical treatment overseas. Of course it is up to you to provide the documentary evidence for the “exceptional compelling circumstances”. It is also possible to request the return of the passport from the Home Office using an online form. This does not have the effect of withdrawing the application – but you must tick the box which says that you are not withdrawing your application. The current turn around time for returning passports is within 10 working days.
 

Benefits and Asylum

 
Did you know that claiming benefits does not necessarily disqualify a person from acquiring EU rights of residence? Benefitting from Tax Credits is not a problem, neither is claiming Child Benefits. In addition, if a worker earns so little that he qualifies for welfare Benefits, that too does not necessarily mean that they will not qualify. In the case of Levine, the Court held that a person could be a worker even if the person had to supplement their income from other sources. In the case of Kempf, the Court held that the fact that the source might be Welfare Benefits do not mean the work was not genuine and effective. Therefore, the test is not whether or not somebody is claiming Welfare Benefits. The test is whether somebody’s job is genuine and effective. A self-employed person also can work part time, have low earnings, and claim Benefits and can earn less than the minimum income threshold and still acquire EU rights of residence, as long as the self-employment is genuine and effective.
 

Asylum Application Appeals’ Fees Have Increased 500%

 
Finally did you know that the fees for EU nationals and others appealing immigration decisions have increased over 500%! Nowadays it will cost £800 to lodge an appeal against an immigration decision, where an oral hearing is requested. This change came into effect as of 10th October 2016. If an appeal succeeds, the Home Office will have to repay the appeal fee. This is an increase of 500% and the impact that the Government we suspect hopes to achieve is a sharp reduction in the number of appeals. Does the Government want people to go underground and not appeal? Re-submit further applications to stand in the queue? Many appeal rights have already disappeared with the Immigration Act 2014 and given the number of EU migrants who will now be applying for residence permits, we anticipate decisions which will need to be appealed from these European nationals as well.