Illegal Worker Case & Data Protection

Recently I acted for an education provider. They had received a notice for illegal working with a civil penalty warning attached. It was alleged that in and around 2007 some 10 years ago, they had employed an illegal worker. It was being put to the employer that this employee had a fraudulent indefinite leave to remain stamp and thus the Home Office position was they were entitled to investigate the illegal working that had occurred in 2007 and impose a fine if no defence was forthcoming.
Interesting point that arises – if an employee that has left your employment some 9 years ago and the employer has destroyed their HR records because of the passing off time – Are you liable for such a fine? Is this time barred?
The Data Protection Act stipulates that data and records should only be stored for as long as they are useful, so it’s up to the employer and their HR policy to determine how long those records are useful for. Different records may also need to be disposed of at the different times.
In this case, we were acting for a charity and fortunately, they had not destroyed this employees file. Fortunately, we were able to point the relevant documentation and the fine was avoided to show that they had inspected relevant documentation at the time of the employee’s employment.

Application Appendix FM Se

If your client has sold up and put all his monies into Gold Bullion and Silver coins and wants to call his partner/ spouse to the UK. The application of Appendix FM Se
Cash savings held only in gold /silver coins. We put this to the Home Office and they supplied the below guidance.
This investment can be treated as any other covered in the Rules and Guidance – but they must be able to satisfy the Rules to show how long they have held them for and their value in the 6 months prior to the spousal visa application. Clients can liquidate the gold/ silver during the 6 month period as long as they have proof of ownership. the applicant would have to liquidate the gold /silver before they apply for their visa.
“Appendix FM SE Guidance relied upon:-
7.4.8. Under paragraph 11A(c) funds held as cash savings by the applicant, their partner or both jointly at the date of application can have been transferred from investments (including funds liquidated from a pension pot), stocks, shares, bonds or trust funds within the period of 6 months prior to the date of application, provided that:
(i) The funds have been in the ownership and under the control of the applicant, their partner or both jointly for at least the period of 6 months prior to the date of application.
(ii) The ownership of the funds in the form of investments, stocks, shares, bonds or trust funds; the cash value of the funds in that form at or before the beginning of the period of 6 months prior to the date of application; and the transfer of the funds into cash, are evidenced by a portfolio report or other relevant documentation from a financial institution regulated by the appropriate regulatory body for the country in which that institution is operating.
(iii) The requirements of Appendix FM-SE in respect of the cash savings held at the date of application are met, except that the period of 6 months prior to the date of application in paragraph 11(a) will be reduced by the amount of that period in which the relevant funds were held in the form of investments, stocks, shares, bonds or trust funds.
(iv) For the purposes of sub-paragraph 11A(c), “investments” includes funds held in an investment account which does not meet the requirements of paragraphs 11 and 11A(a).
7.4.9. This means that, where the cash savings have previously been held as investments (including where they have been held in an investment account which does not meet the requirements of paragraphs 11 and 11A(a)), stocks, shares, bonds or trust funds that were owned by and under the control of the applicant, their partner or both jointly, this ownership period can be counted towards the 6 month period. So money held as cash savings at the date of application can have been liquidated or transferred by the same owner(s) from investments and may have been held as investments for the first part of the period of 6 months prior to the date of application and as cash savings for the rest of that 6 month period (see the table in 7.4.3. for a summary of the cash savings requirements). Evidence must be provided showing that:
• The investments, stocks, shares, bonds or trust funds were in the ownership and under the control of the applicant, their partner or both jointly for that part of the 6 month period prior to the date of application before they were liquidated into cash savings;
• The value of the investments, stocks, shares, bonds or trust funds at or before the beginning of that 6 month period was at least equivalent to the amount of the cash savings relied upon in the application; and
• The cash savings meet the requirements of Appendix FM-SE.
If this evidence is not provided, the cash savings previously held as investments, stocks, shares, bonds or trust funds cannot be counted towards the financial requirement.

Customer Testimonial – Brazial National Immigration

Dear Arona,

I’d like to share a few words to express how extremely happy my Husband and I are with your services. Right from the outset, I knew that we could entrust you with my immigration case. You are very professional, your attention to detail is remarkable and your extensive experience and in-depth knowledge of the Immigration laws, regulations and administrative processes in the UK are exceptional.

Most of all, we felt you could lead my immigration case to a successful completion because you are extraordinarily passionate about your job. I particularly appreciated the fact that you were very accessible, you took the time to answer all our questions and gave us clear guidance on how to manage the process in an efficient and successful way. Of all the law firms I have worked with in the past, I can say with confidence that you and your firm are the best in the field of immigration.

Please accept our deepest gratitude for all the work that you did for us.

M Fournier Brazilian national living in London.

Kiarie & Byndloss v Secretary of State for the Home Department [2017]

Those subject to deportation with cases involving human rights arguments have the right to appeal in country

If previously you were denied the right of appeal you may want to read this carefully.
On 14th June 2017, a landmark case was decided by the Supreme Court, that of Kiarie & Byndloss v Secretary of State for the Home Department [2017] UKSC 42. The result of this case has drastically altered the current immigration appeals process.

The deport first, appeal later provision, a scheme launched by the government to deport foreign criminals first and allow them to appeal once they had been deported was a controversial introduction. It was an extension of the Conservative party’s manifesto to create a ‘hostile environment’ for immigrants, one which has largely been met in recent immigration legislations. The provision itself was extended in December 2016 to those who had overstayed their leave to remain.
Under this principle, the Secretary of State has been awarded the power of certification under s.94B of the NIAA 2002 as introduced by s.17 (3) of IA 2014. This allows the Secretary of State to certify a human rights claim as unfounded stating that it would be “conducive to public good” for the applicant to be deported or in the alternative the court has recommended deportation after conviction of the applicant.

In the case of Kiarie & Byndloss v Secretary of State for the Home Department [2017] UKSC 42, The appellants both had indefinite leave to remain in the UK, Mr Kiarie a 23 year old Kenyan national who had lived with his parents and siblings in the UK since he was 3 and Mr Byndloss a 33 year old Jamaican National living in the UK for 12 years. Both appellants were convicted and imprisoned for possession of Class A drugs with intent to supply. In 2014, the appellants were informed that the Home Secretary intended to deport them, in response to this they submitted representations that deportation would go against their Article 8 right to private and family life.

In 2014, the Home Secretary ordered the deportation of Mr Kiarie and Mr Byndloss, sighting that it would be accepted that they could make appeals (due to time spent in UK and family ties) against the decision but that appeals must be made in Kenya and Jamaica respectively. Both appellants sought to appeal the deportation decision on the basis of their Article 8 rights.

The Supreme Court overwhelming concluded that certification of claims inherently violated the Article 8 rights of those chosen for deportation. Namely on the basis that making appeals from overseas was inherently problematic and effected the applicant’s ability to successfully present their appeal (i.e. through having to present evidence through video link etc.).

So what do this mean for those presenting human rights claims post- June 2017? Whilst a human rights claim can still be refused, applicants are entitled to appeal such decisions from within the United Kingdom instead of being deported and told to appeal from overseas. Should an applicant not wish to appeal a refusal, they will be required to leave the United Kingdom.

Written 6th October 2017

Section 3C leave revised Guidance

UPDATE

Further revisions to Section 3 C Leave – December 2016

The Home Office have replaced the 28 day grace period with a 14 day grace period as set out in paragraph 39E of the Immigration Rules.
This sets out instances where an application may be accepted:

• within 14 days of leave expiring where there was a good reason beyond the control of the applicant or their representative why the application could not be made in-time;

• within 14 days of the date of a decision to refuse an application which was either made in-time or within 14 days;

• within 14 days of 3C leave expiring;

• within 14 days of the deadline for lodging an administrative review application or appeal against a refusal decision, following an application made in time or within 14 days; or

• within 14 days of any administrative review or appeal being concluded, withdrawn or abandoned or lapsing, following an application made in time or within 14 days.

The Supreme Court in the case of R (Mirza & Ors) v Secretary of State for the Home Department [2016] UKSC 63 (14 December 2016).
This case concerns whether leave is extended under section 3C of the Immigration Act 1971 if it later turns out that the application for further leave to enter or remain making was invalid even though the application had been made in time. The Supreme Court was forced to conclude that, because of the way in which the law is drafted, leave is not extended. This means that a person whose application to extend their leave turns out to be invalid after their leave has expired does not benefit from 3C leave, including during the period before the mistake was discovered. In one of the cases considered, and dismissed, by the Supreme Court, the application was invalid as the applicant had not paid the correct application fee which had increased shortly before he made his application. As the application had been made close to the expiry of his leave, there was no time to correct the mistake and make a valid application before his leave expired. The Supreme Court criticised the Home Office for failing to address the difficulties caused by the lack of flexibility in the provisions.

The Home Office new updated version of its policy on section 3C and 3D leave: Leave extended by section 3C (and leave extended by section 3D in transitional cases).
Section 3C and 3D leave is an automatic type of leave so that where a person makes a valid application to extend his or her leave to enter or remain and the application is refused, that person’s immigration status would be extended during any waiting time for the application to be decided or for an appeal to be decided.
However Section 3C was amended by the Immigration Act 2014 and no longer protects those who make an application and appeal it where the decision was made by the Home Office before the person’s leave expired. (Where the decision is made after the person’s leave expired, section 3C continue to work )
The first subsections of section 3C now read:
3C Continuation of leave pending variation decision
(1) This section applies if—
(a) a person who has limited leave to enter or remain in the United Kingdom applies to the Secretary of State for variation of the leave,
(b) the application for variation is made before the leave expires, and
(c) the leave expires without the application for variation having been decided.
(2) The leave is extended by virtue of this section during any period when—
(a) the application for variation is neither decided nor withdrawn,
(b) an appeal under section 82(1) of the Nationality, Asylum and Immigration Act 2002 could be brought, while the appellant is in the United Kingdom against the decision on the application for variation (ignoring any possibility of an appeal out of time with permission),
(c) an appeal under that section against that decision, brought while the appellant is in the United Kingdom,] 4 is pending (within the meaning of section 104 of that Act), or
(d) an administrative review of the decision on the application for variation—
(i) could be sought, or
(ii) is pending…

New British-Irish Visa Scheme

Chinese and Indian nationals can visit the UK and Ireland using a single visa when travelling on certain short stay and visitor visas. The scheme will start in China by the end of October 2014 and in India soon afterwards.

Under the British-Irish visa scheme, some Irish short stay visas will allow onward travel to the UK and some UK visitor visas will allow onward travel to Ireland. For example, under the scheme an Indian or Chinese visitor in Dublin will be able to make a short trip to London or Belfast without needing a separate visa. Alternatively an Indian or Chinese visitor in London could travel to Dublin or Cork.

Only eligible Irish short stay visas applied for after the scheme starts are covered by the scheme.

All Indian and Chinese nationals who hold an eligible UK visitor visa (except visitor in transit and visitor for marriage or civil partnership) are covered by the scheme. Currently the scheme only applies to Indian and Chinese nationals.

Please contact us if you require assistance with your immigration matter.

Settlement visa

I met with Arona who heads the Immigration team. I loved the firms response throughout.

Their knowledge, their speed is far better than any other firm that I have used in the past. I found that they care about the work they do and this showed throughout. I asked for a super premium service and all my paper work was checked, and prepared very well, so much so the visa centre also remarked that this bunch of solicitors are excellent in this field. Highly recommend them to clients. It is certainly a boutique and one that suits us. I will be using them again. Mr and Mrs Anwar , UAE

Transit visa changes

From 1 December important changes are being made to Airside and landside transit From the 1 December, the airside and landside transit visa requirements are changing because UKVI are making the rules for transit without a visa simpler, more consistent and easier for customers and partners to understand.Transit visas are required by some customers who are passing through the UK en-route to another country within 24 or 48 hours.

Some nationals require a visa to transit both airside and landside, these are know as Direct Airside Transit Visas nationals (DATV), others only need a visa to transit landside, known as non- Direct Airside Transit Visas nationals (non-DATV).Airside transit refers to passengers catching an onward flight on the same day and from the same UK airport at which they arrived. Airside transut passengers do not pass through the UK s border controls.Landside transit refers to passengers who arrive at one UK airport but are catching an onward flight from another UK airport or who may have to re-check-in baggage and therefore need to pass through border controls and enter the UK