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Here you will find a wide range of practical notes of information authored by some of our solicitors for information purposes only. Just one important caveat, however: the guidance here is for information purposes only and should not be mistaken for individually-tailored legal advice.

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By shanthi-law, Aug 31 2015 02:09PM



The problem:


The Supreme Court has given judgment in R (on the application of Tigere) v Secretary of State for Business, Innovation and Skill (Just for Kids Law intervening) [2015] UKSC 57 in favour of a child with limited leave but did not fulfil the pre-existing criteria to be eligible for a student loan to pursue/fund higher education. Namely, Regulation 4(2) via paragraph 1(a) and (c) of Part 2, Schedule 1 of Education (Student Support) Regulations 2011 (SI 2011/1986) ('the Regulations'):


(a) of being settled in the United Kingdom (UK); and,

(b) 'has been [lawfully] ordinarily resident in the United Kingdom and Islands throughout the three-year period preceding the first day of the first academic year of the course'.


If settled in the UK, an eligible student will be liable to pay the reduced/subsidised home student fees due in England, rather than the far higher fees paid by international students from outside the European Economic Area.


This long-standing provision arguably prevented a generation of those children who came through the indiginous school system but only had limited leave to remain (in line with their family members or in their own right - unaccompanied minor asylum-seekers among them) from pursuing higher education along with their contemporaries or at all, despite being academically capable, purely owing to economic constraints, as they did not have Indefinite Leave to Remain ('ILR').


Facts:


The child and her mother had arrived in the UK legally as dependants of her student father in 2001 when the child was just five or six years of age, however had become overstayers when her father had left the country in or around 2003.


Mother and daughter had remained in that capacity until October 2010, when the UK Border Agency (now UK Visas and Immigration, 'UKVI') served on them notices to this effect and informing them of their liability to be removed from the UK but granted them Temporary Admission at the same time (suggesting that the notification may have triggered a right of appeal to the First-tier Tribunal albeit this is not clear from the judgment).


Eventually, mother and daughter were granted Discretionary Leave to Remain ('DLR') on 30th January 2012. DLR is the predecessor to the current Limited Leave to Remain ('LLR') regime, which allowed recipients (unusually overstayers or those falling short of meeting the strict criteria(s) of the Immigration Rules for a compelling/exceptional reason) periods of leave to remain in batches of three years at a time that made the vast majority eligible to apply for ILR once they have completed six years continuous leave to remain in that category. (In contrast, the present LLR regime grants recipients leave in 30 month or 21/2 year batches that require those who possess such leave to complete 10 years continuous leave under that category to become eligible to apply for ILR).


Having completed their first three years of DLR between 30th January 2012 and 29th January 2015, mother and daughter were granted an extension of further three years of DLR until 30th April 2018. However, this still did not make the daughter eligible to apply for and/or receive a student loan to pursue her higher studies at University under the Regulations. As the daughter had been granted DLR on 30th January 2012, by 30th January 2015 it was conceded by the parties to the appeal by the time it arrived before the Supreme Court (albeit various alternative grounds were contended beforehand), that she had fulfilled paragraph 2(c)'s requirement to have completed three years lawful residence in the UK.


It seems the application submitted by mother and daughter on 29th January 2015 sought to pre-empt the above decision (by presumably, submitting the application on form SET(O) or (F), or both, for settlement rather than FLR(O) for extension alone) submitting an accompanying cover letter inviting the UKVI to dispense with and/or waive the six year minimum requirement to grant ILR. Predictably, this received what has now become the stock-response of the UKVI to requests seeking exercise of discretion in virtually all scenarios: No, specifically under Immigration Directorate

Instruction, Family Migration: Appendix FM, section 1.0b, para 11.3.1 (page 60 - cf: paragraph 6 of judgment).


Route to Supreme Court:


Proceedings were commenced in June 2013 and meandered through the High Court (cf: [2014] EWHC 2452 (Admin)), where Hayden J had allowed the daughter's challenge under paragraph 2(a) [requirement to have ILR] but not paragraph 2(c) [to be lawfully resident for three years] of the Regulations, after a hiatus of over a year awaiting a decision in a similar case. Both parties then appealed against each of the adverse findings they received to the Court of Appeal on an expedited basis (cf: [2014] EWCA Civ 1216), where the Secretary of State's appeal against paragraph 2(a) finding was allowed and, the daughter's appeal against the finding against her under paragraph 2(c) was dismissed by a panel compromising of Laws LJ, Floyd LJ and Vos LJ.


The decision:


Delivering the majority decision of the Court, Lady Hale (Deputy President, with whom Lord Kerr and Lord Hughes agreed) held:


1) the requirement for an applicant to have ILR rather than DLR or LLR to be eligible for a student loan under paragraph 1(a) is unjustifiable and contrary to the provisions of Article 1 of the First Protocol (Right to Education) and Article 14 (Prohibition of Discrimination) of the European Convention of Human Rights 1950 ('ECHR'); however,


2) the requirement for an applicant to have lawfully lived in the UK for the preceding three years was a justifiable safeguard to protect the limited funds available and therefore compatible with the government's obligations under the ECHR and therefore lawful [it is this requirement Lady Hale refers to in the above video clip that the court was in unanimous agreement over] .


In a joint dissenting judgment, Sumption LJ and Reed LJ held that the Secretary of State for Business, Innovation and Skills ('SSBIS', under who's purview the student loan system is administered) had acted within the 'margin of discretion' afforded to governments by the ECHR and both aspects of the Regulations under challenge were lawful as they were reasonably open for the SSBIS to make.


What now?


At paragraphs 47-49 of her judgment, Lady Hale states that either paragraph 2(1)(a) of the Regulations should be 'read down' as being compatible with the requirements of the ECHR (i.e. paragraph 2(a) to include those granted DLR and/or LLR); or, alternatively, (b) sets the groundwork for applicants to seek and obtain a declaration that the provision in its current form is incompatible with the provisions of the ECHR on a case by case basis through the Courts, until a more compliant version of paragraph 2(1)(a) is devised. In short, not the immediate remedy that some applicants may have wanted, but a means to a remedy for those affected.

By shanthi-law, Jul 9 2015 12:57PM

The possibility of some long-awaited good news may be in the (admittedly, very far off) horizon for families struggling to meet the minimum income threshold set by Appendix FM of the Immigration Rules to be granted a 2.5 year visa for their Non-European Economic Area National spouse/partner to join them in the UK in the first half of 2016.


First, Colin Yeo of the very popular Free Movement Blog reported on 15th June 2015 that the Supreme Court had granted permission to consider the decision of the Court of Appeal to reverse an earlier decision of the High Court, essentially in favour of the Claimants.




Now, we have confirmation courtesy of BritCits that the hearing will be held from 22nd to 24th February 2016.




The Justices of the Supreme Court assigned to the case appear to be Lady Hale, Lord Sumption and Lord Carnwath. A high powered bench, who can hopefully bring some much needed resolution and clarity to this vexed and highly divisive issue.


Until then and at the time of writing, non-EEA National spouses/partners must either:


a) earn a minimum of £18,600.00 (Gross not Net; received for the required length of time varying from six months, to a year, to two years and corroborated with the appropriate evidence depending on your individual circumstances stipulated in Appendix FM-SE of the Immigration Rules) or, alternatively,


b) have access to £16,000.00 in savings (in actual fact, it works out to £ Whatever Figure of Savings You Have - £16,000 = £ X / 2.5 = £ X [the end figure should be £16,000 or more]; again, corroborated with appropriate evidence of the source of funds, the manner in which it is held and length of time for which it has been and is held must conform to the requirements of Appendix FM-SE).


By shanthi-law, Apr 21 2014 09:49AM

The facts:


1. Appellant entered the United Kingdom on a Tier 4 (General) visa to pursue a Masters degree which she successfully complete, and obtained a two year work visa under the now discontinued Tier 1(Post-study Work) Scheme. During the course of the latter, she became accredited as teacher in the UK and was eventually offered (and accepted) a permanent contract with a Secondary School in the public sector. A term of the contract was that the school would issue the appellant a Certificate of Sponsorship to enable her to continue her employment beyond the currency of her Tier 1 (Post-Study Work) visa.


2. As the deadline to renew approached, it was discovered that school's Tier 2 Sponsors Licence (which they had presumably held since being passported onto the Register of Tier 2 Sponsors when the Points Based System was launched) had run its four year period of validity and expired. An application for renewal was hurriedly submitted and ( while the renewal application was pending consideration and, on the advice of predecessor to UK Visas and Immigration, 'UKVI') the Appellant submitted her application for Tier 2 (General) visa with a covering letter asking for it to be put on hold until the outcome of her Sponsoring employer's license renewal - the clear gamble being:


i) tier 2 (General) application will be refused, if the licence renewal is refused; or,

ii) if renewal was granted, the employer would be given an opportunity to issue the Appellant the required Certificate of Sponsorship (CoS) and forward it to UKVI to process her visa.


3. Unfortunately, the Tier 2 (General) application was refused by UKVI citing failure to issue the appellant her CoS. When these questions were put to the employer, they appeared to suggest their ignorance or unfamiliarity with the UKVI's Sponsor Management System and (despite there being no scope for triggering asponsor-led review of a decision short of appealing when a right of appeal is available) maintained they would make haste to put an emergency CoS in place. This assurance was taken on good faith but, at the same time, an in-time appeal was pursued to the First-tier Tribunal (Immigration and Asylum Chamber) (FTT).


4. Between lodgement of appeal and listing of date of hearing before FTT no progress on issuing CoS was made and the appellant's employer's offer to do so also lost credibility, particularly when said employer had postponed decision to issue CoS until after the date of hearing before FTT - a period of four to five months from filing the appeal. Pausing there: had the CoS been issued any time sooner, it would have fallen foul of section 19 of the UK Borders Act 2007 which restricts the appellant from submitting post-decision evidence and the appellant would not have succeeded in her appeal under the Immigration Rules. The appeal hinged its bets completely under Article 8 of the the European Convention of Human Rights 1950 and interrelated concepts such as 'common law principle of fairness' etc.


5.Returning to the facts: things took an unexpected turn when the Respondent's Bundle (usually released 14 days or seven days before the FTT Hearing, or -in this case-, earlier still) revealed a series of emails exchanged between the appellant's would-be Tier 2 (General) Sponsor and the relevant department of UKVI, initiated by the latter:


a) enquiring about the status of the CoS following renewal of the Sponsor's Tier 2 (General) Licence for a further four years;

b) followed by an email from the Sponsor to UKVI seeking guidance on how to issue a CoS (i.e. precise procedure involved);

c) UKVI directing the Sponsor to the UKVI's own Sponsor Management System helpful step-by-step manuals;

d) followed by an email yet again from UKVI to the Sponsor seeking an update after a gap of no response at all; and,

e) a simple, curt email from the Sponsor to UKVI stating that they will not be proceeding to issue a CoS as the appellant-employee will be leaving their employment shortly.


6. By this time, the appellant was still employed by the Sponsor and, while a capability process had been initiated by the Sponsor, the process was at its early stages and to suggest that appellant's employment had ceased and/or would end shortly was premature in the extreme, disingenuous and unlawful.


7. The appellant's appeal was pleaded on this ground and permission was sought to obtain witness summonses against the key protagonists involved from the Sponsor's side to compel attendance at the hearing to give evidence, be questioned and/or cross-examined about the circumstances underlying the events (absent their agreement to attend, which was declined by their lawyers) under paragraph 2.1(8) of the Senior President's 'Practice Statements: Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal' dated 10 February 2010. Unfortunately, the applications were turned down on the basis that the FTT had received enough material (personnel file of the appellant, minutes of meetings, full and frank disclosure of emails with the school - including those cited as attracting 'without prejudice' : see: South Shropshire District Council v Amos [1986] 1 WLR 1271, CA and Schering Corpn v Cipla Ltd (2004) Times, 2 December (LADDIE J)) to determine the appeal.


Decision:


8. Although the appeal had to fail under the Immigration Rules owing to the lack of a CoS, the FTT Judge (in a thorough analysis) concluded the facts outlined were 'exceptional' enough to allow the appeal on human rights grounds to enable the appellant to seek redress from her Sponsor via the Employment Tribunal where they (the Sponsor) appeared to have a prima facie case to answer.


Observation:


9. This decision does not attract the weight of precedence, however, it is nevertheless a reminder that Article 8's 'public interest' provision can be successfully pleaded to allow an appellant (like the appellant in this appeal) to seek remedy through the courts where there has been a genuine legal wrong committed against them.

By shanthi-law, Jun 11 2012 04:00PM

Broadly, the procedure to be followed can be outlined as follows:


First, if your prospective or proposed employer does not already have the required Tier 2 licence, they should apply to be included in the Tier 2 Register of Sponsors. This entails completing an application online and then submitting the hardcopies of all the specified list of evidence (with the current appropriate fee, which is expected to increase from 14th June 2012) to enable the UK Border Agency to determine your employer's application to be permitted to employ foreign workers from outside the European Economic Area[1]. Further details of the procedure (including the process that will need to be followed to obtain one of the Certificate(s) of Sponsorship to employ you post-recognition) is set out in the current Sponsors Guidance Note (due to be updated in June 2012).


Second, once your employer has been granted a licence, they are required to issue a prospective employee who they wish to employ under the Tier 2 (General) Points Based System a document called a 'Certificate of Sponsorship' (‘CoS’) using the online-interface with the UKBA utilising the access keys they will be given on recognition (referring to the various online guides for assistance, if necessary).