£1000 to £3000 civil penalty proposed for Landlords if illegal immigrants are found in their properties

On 3 July 2013, the Home Office published its consultation, ‘Tackling illegal immigration in privately rented accommodation’.

The Government proposes to require private landlords to check the immigration status of new tenants and other adults living in their property. Landlords who do not carry out checks and are found renting residential property to anyone unlawfully in the UK will face civil financial penalties. The new requirements are being modelled on those which presently apply to employers.

The proposals affect you if you are:

Renting out accommodation for people to live in anywhere in the United Kingdom. Potentially, this could include taking in a lodger (or similar) in the home where you are living

A letting agent who provides a service for landlords by finding people to live in rented property or who manages the property for them

A hotel or guest house or provider of similar accommodation and you take in guests who stay for three months or more

Intending to live in rented accommodation anywhere in the United Kingdom in the future (potentially including as a paying lodger in someone else’s home).

The proposals are that before renting accommodation to anyone to live in as their main or only home, landlords will ask them to produce evidence (from a checklist of documents) of their permission to be in the UK.

Landlords will check this evidence and keep a copy for their records. If a person cannot produce satisfactory evidence, the landlord should not rent accommodation to them. A landlord would be liable to pay a civil penalty if the Home Office found he was renting accommodation to an illegal migrant without having made the necessary checks. The penalties will be proportionate for landlords who have inadvertently taken in an illegal migrant for the first time. But those rogue landlords who repeatedly provide accommodation to multiple illegal migrants will pay penalties amounting to thousands of pounds.

The Proposals include certain exemptions for various types of properties from the scheme, either because checks will already have been made on the people living in it or because the nature of the accommodation makes such checks inappropriate. These include:

Social housing rented to tenants nominated by the local authority

Privately rented homes let to people under the homelessness legislation

Accommodation provided to employees

Tourist accommodation such as hotels and guest houses where the person is staying less than three months

Properties let under short term business or holiday lets (less than three months)

Properties rented for commercial use (shops, offices, etc)

Hostels and refuges providing crisis accommodation to homeless and other vulnerable people

Hospital accommodation of patients, hospices, care homes etc

University / college halls of residence, boarding schools and children’s homes.

If you are in the UK illegally then contact us today and we may be able to help you regularize your stay.

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Fees/health insurance for NHS treatment for visa holders

The Home Office has published a consultation on 3 July 2013 about migrants’ access and financial contribution to the NHS. The consultation asks who should be charged in future, what services they should be charged for, and how we can ensure that the system is better able to identify patients who should be charged.

The consultation includes plans to:

  • make temporary residents from outside of the European Economic Area contribute to the cost of their healthcare with a levy that then enables them to access NHS services when they need them, or through health insurance or other options
  • end free access to primary care for all visitors and tourists
  • more effectively claim back reimbursement from the home countries of patients who are visiting from within European Economic Area
  • introduce more practical and easier ways for the NHS to identify whether someone is not eligible for free healthcare.

Contact us today for advice on how to apply for Indefinite Leave to Remain in the UK in order to avoid any possible restrictions.

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Come as a Student visitor for short study in the UK

The student visitor route was introduced in 2007 and allows people to visit the UK to undertake a short course of study for up to six months.

Unlike students seeking entry under Tier 4 of the Points-Based System, student visitors do not have to be formally sponsored by an educational institution, but they must attend an institution that is accredited to provide education.

Student visitors may take any course of six months or less in duration but cannot undertake work or work experience placements, bring dependants or switch to another immigration category whilst in the UK.

Visa nationals require entry clearance while non-visa nationals can apply for entry at the port in the UK. Entry Clearance Officers and Border Force Officers have discretionary powers to refuse a visa and/or entry if they are not satisfied that the applicant is a genuine student visitor.

The most recent statistics on entry to the UK show that during 2011, 262,000 student visitors came to the UK.

Most of these student visitors were from non-visa countries (186,150), including 115,000 from the US.

More recent statistics on visas issued show 68,372 student visit visas were issued during 2012. This included Russians (10,246), Chinese (9,190) and Turkish nationals (7,621).

The number of student visitor arrivals has been increasing each year, and increased by 9 per cent from 2010 to 2011.

These figures include the extended student visitor route (permitting entry for up to 11 months for the study of English language courses) introduced in January 2011 and for which both visa and non-visa nationals are required to gain prior entry clearance.

For further information contact us and we will be able to help you with student visitor entry clearance application.

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More Changes from 13 December 2012

On Thursday 22 November 2012, a written ministerial statement was 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.

According to these changes from 13 December 2012 Tier 4 (general) students will no longer be able to switch into Tier 1 (Entrepreneur) unless they apply under the £50,000 funding route from a specified source (registered venture capitalist firms, UK Government Departments, Devolved Administration Departments or listed seed funding competitions).

If you currently have leave to remain as a Tier 4 (General) student and you want to apply in-country to switch into the Tier 1 (Entrepreneur) category on the basis of having access to at least £200,000 to invest in a UK business, you must prepare and submit your application before the window of opportunity closes on 13 December 2012 if you can.

On 13 December 2012 the English language requirement for the Tier 1 (Entrepreneur) category is being lowered from CEFR Level C1 (e.g. IELTS 7.0) to Level B1 (e.g. IELTS 4.0) (see English Language Page for Explanation) and this change will apply to both entry clearance and leave to remain applications. This is a good news particularly for Entrepreneurs overseas who were more hindered by the current high English Language competency requirements.

If you are currently holding leave to remain as a Tier 1 (Post-study work) Migrant, you can still switch to the Tier 1 (Entrepreneur) category, on the basis of having access to £50,000 to invest in a UK business.

New rules coming into force on 13 December 2012 will prevent Tier 1 investor applicants from leveraging against the investment portfolio used for Tier 1 Investor leave where another party would have a claim on the money if the loan repayments were not met.

In addition, there are changes to the Rules affecting: Criminality; Settlement; Family and private life categories.

In criminality the rules propose to establishing a more robust and clear criminality framework to assess immigration applications against which immigration applications will be assessed. This includes inter alia recalculating the length of time, based on the length of sentence, before we will revoke a deportation order. The rules also introduce 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.

The proposed changes create of a ‘route’ for ex-Armed Forces to remain in the UK. Ex-armed forces and Ghurkhas will be able to qualify for further leave to remain if they cannot qualify for ILR because of an unspent criminal conviction.

There are amendments 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). The Rules now specifically set out the number of days an applicant can be absent from the UK without their application being refused.  The total number of days is 180 days in any of the 12 calendar month periods preceding the date of the application for ILR. For every period of 12 months in a person’s lawful stay in the UK, up to 180 days absence is allowed.

There are also minor changes to the child and parent routes to make them as clear and comprehensive as possible. The reasonability test will be added to the Paragraph 276ADE (the 7 year route for children) This will be in force from 13 December 2012 and there are transitional arrangements in place so any application made before 13 December will be considered under the previous rules. So it is best for child applicants coming under this category to apply before this date.

There are other numerous changes to family life categories under Appendix FM. The upcoming changes in Appendix FM-SE indicate similar evidential flexibility in the evidential requirements of Appendix FM as were in place under the PBS evidential flexibility policy.

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. Standard disclaimer applies to all the above.

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Section 47 removal decisions: Tribunal Procedures Adamally and Jaferi [2012] UKUT 00414 (IAC)

In the Upper Tribunal case above the Secretary of State for the Home Department (SSHD) appealed against two decisions of the First-tier Tribunal (FTT) where the FTTs in their respective determinations “remitted” both cases to the SSHD to rectify what was described by one of the FTTs as a “defective notice”. This is certainly not the most favourable outcome in the FTT for our clients as the Tribunal in recent months have allowed many appeals in similar cases following Ahmadi, but in vain as almost every determination of the FTT was challenged by the SSHD and many appeals are still pending.

The appeal was heard on 8 October 2012 before Mr C M G Ockelton, Vice President and the Upper Tribunal Judge Hanson and the determination was promulgated on 1 November 2012. There were indications of such outcome after Patel and others v SSHD [2012] EWCA Civ 741 was decided by the Court. The Upper Tribunal in Adamally and Jaferi (section 47 removal decisions: Tribunal Procedures) [2012] UKUT 00414 (IAC), has made it very clear at the Tribunals’ level how many of our clients who had very thin substantive grounds in their appeals (against combined decisions refusing leave to remain and removal under s47 of the 2006 Act), but relied on the unlawfulness of the SSHD decision for the unlawfulness of the s47 combined decision after Ahmadi, will be treated.


Mrs Adamally, a Sri Lankan national, came to the United Kingdom on 29 October 2008 as a dependent spouse of a Tier 4 Student, valid from 28 October 2008 to 28 October 2011.  On 19 October 2011 she applied for leave to remain in the UK.  She was refused, and at the same time as the refusal the SSHD purported to make a decision under s 47 that she should be removed. She appealed in the FTT who following Ahmadi, decided that the removal decision was unlawful.  FTT however purported to determine the whole appeal by “remitting” the decision to the SSHD to rectify the defective notice.  FTT made no enquiry into, or decision on, the merits of the refusal to vary leave.

Mr Jaferi, a Pakistani national, entered the United Kingdom on 22 November 2002 as a student.  There were further extensions, and his final leave was as a work permit holder, until 27 March 2011.  On 16 March 2011 he applied for indefinite leave to remain on the basis of his work permit employment.  His application was refused, and at the same time the SSHD purported to decide that he should be removed by way of directions under s 47.He appealed to the FTT who again followed Ahmadi and decided that the decision under s 47 could not stand.  No enquiry was made into the merits of the decision refusing leave, but, the decision was “remitted” to the SSHD to rectify what was described as a defective notice.

Legislative provisions referred

Section 3C and 3D of the Immigration Act 1971 and the regulations made under s 3C(6) namely the Immigration (Continuation of Leave) (Notices) Regulations 2006 (SI 2170/2006) read with the Immigration (Notices) Regulations 2003 (SI 658/2003). Section 47 of the Immigration, Asylum and Nationality Act 2006 and  S82, s85 and s86 of the Nationality, Immigration and Asylum Act 2002.

Background case law

The Upper Tribunal in this case proceeded on the basis that the Court of Appeal in Patel and others v SSHD [2012] EWCA Civ 741 followed Lamichhane v SSHD [2012] EWCA Civ 260 in preference to Mirza v SSHD [2011] EWCA Civ 159, and Sapkota v SSHD [2011] and on the basis of its own decision in Ahmadi v SSHD [2012] UKUT 147. The Upper Tribunal once again defended its interpretation of s47 of the 2006 Act in Ahmadi v SSHD [2012] UKUT 147 (which is subject to further appeal) observing that the interpretation does not produce any absurdity and it is not impossible for a s 47 decision to be made within the period specified within s 47.

Discussion and Determination

The Upper Tribunal did not accept Mr Malik’s argument for Mrs Adamally that the statute required that appeal to be either allowed or dismissed as a whole.  Mr Malik pointed out that sub-s (3) of s 86 precedes sub-s (5), and argued that the effect was that if there was any ground for allowing the appeal, it fell to be allowed: only if there were no grounds for allowing the appeal should it be dismissed. The Tribunal took the view that they see nothing in the wording of s 86 which prevents a judge from disposing of the appeal by deciding that in so far as the appeal before him is against a decision made purportedly under s 47 it is allowed, but in so far as the appeal relates to a decision refusing variation of leave, it is dismissed. The Tribunal explained its reasons for taking this view on the above Section in paragraph 24 of the determination. The Tribunal held that to dispose of the appeal in such a way as to suggest to the SSHD that a new removal decision ought to be made is quite wrong.

The Tribunal in the end held that both the First-tier Tribunal judges erred in law by failing to appreciate the need to determine the appeal in so far as it related to each of the included decisions and remitted both cases to the First-tier Tribunal with the directions. For Mr Jaferi’s case the Upper Tribunal directed the FTT to allow the appeal in so far as it relates to the decision under s 47, and determine the grounds of appeal raised in relation to the refusal to vary Mr Jaferi’s leave, and decide whether the appeal falls to be allowed or dismissed in so far as it relates to that decision.

For Mrs Adamally’s case the Upper Tribunal directed the FTT to allow the appeal in so far as it relates to the decision under s 47, and to determine the grounds of appeal raised in relation to the refusal of vary Mrs Adamally’s leave, and to decide whether the appeal falls to be allowed or dismissed in so far as it relates to that decision.

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Legal Profession in England and Wales

In England and Wales we all know more or less when and why we need lawyers. What non-lawyers usually do not know is the different kinds of lawyers in England and Wales and their organisation, regulation, rolls, responsibilities and powers, and this article aims at explaining this to a non-lawyer in a simple language.

The students at colleges and universities are also usually unaware of the variety of options that are available for becoming a lawyer in England and Wales. The article therefore also explains the general entry requirements and route for each kind of lawyers and thus is equally helpful for students and prospective lawyers.

Lawyers are allowed to undertake reserved legal activity that a non-lawyer is not legally allowed to do on behalf of a client. The reserved legal activity is the provision of legal advice, assistance or representation in connection with the application of the law or any form of resolution of legal disputes.

The reserved legal activity in England and Wales includes; the exercise of Rights of Audience (i.e. appearing as an advocate before a court), the conduct of litigation (i.e. issuing proceedings before a court and commencing, prosecuting or defending those proceedings), reserved instrument activities (i.e. dealing with the transfer of land or property under specific legal provisions), probate activities, notarial activities and the administration of oaths (i.e. taking oaths, swearing affidavits etc.).

Legal Services Board is an independent oversight body made up of mostly non-lawyers responsible for approving regulators in the legal profession in England and Wales.

There are eight approved regulators in England and Wales namely; the Law Society, the Bar Council, the Chartered Institute of Legal Executives, the Association of Costs Draftsmen, the Council of Licensed Conveyancers, the Institute of Trademark Attorneys, Intellectual Property Regulation Board and Master of Faculties which are authorised to regulate individuals who carry out the aforementioned reserved legal activities. An individual may be a member of one or more than one of the above approved regulator at one time. Each of the approved regulators above is required by the Legal Services Act 2007 to separate their representative functions from their regulatory functions. The following provides further information about the each category.



Who regulates Barristers?

The Bar Council of England and Wales is the Representative body and The Bar Standards Board is the Independent regulatory arm of the Bar Council.

What do Barristers do?

Barristers are lawyers in England and Wales who provide specialist legal advice and represent their clients in court as advocates and through written legal advice. They offer advice on legal issues and are on the front line, representing clients in court. They usually receive their information and instructions through a client’s solicitor. They have rights of audience in any Court in England and Wales and can also accept direct instructions from clients now. They are usually self-employed (about 80%) and work in set of Chambers (as tenants).

How Many Barristers are currently practising?

15,204 Barristers in 2012

What is the general route to becoming a Barrister?

Academic stage

Qualifying Law Degree (Normally 3 years full-time, two years intensive course at some places)

Any Degree followed by a Conversion Course

Vocational Training Stage

One year full-time or two years part-time Bar Professional Training Course

Work Experience Stage

One year’s Pupillage in chambers

Transfer from other Jurisdictions/Approved Regulators

Qualified foreign lawyers, European Lawyers and Legal academics can transfer to the Bar and become a Barrister. Solicitors in England and Wales can transfer to the Bar and become a Barrister

Specialist Barristers

There are 24 Specialist Bar Associations dedicated to the interests of groups of Barristers within specific practice areas and geographical regions. There are also specialist sets of Chambers which are experts in particular areas of law.



Who regulates Solicitors?

The Law Society of England and Wales is the Professional representative body for Solicitors and Solicitors Regulation Authority is the Independent regulatory arm of the Law society

What do Solicitors do?

A Solicitor is a lawyer who can deal with any legal matter including conducting proceedings in the court accepting direct instructions from any client. They also have rights of audience in lower courts, however, in order to attain the same rights of audience in the higher courts as a Barrister they need to do further training course and can thereby become Solicitor Advocates. They are the first point of contact for people and bodies seeking skilled legal advice and representation. Most solicitors work together in private practice, while others work in central and local government, or in-house in a commercial or industrial organisation.

How Many Solicitors are currently practising?

120,202 Solicitors in 2012

What is the general route to becoming a Solicitor?

Academic stage

Qualifying law degree (Normally 3 years full-time, two years intensive course at some places)

Common Professional Examination/Graduate Diploma in Law

Vocational Training Stage

One year full-time or two years part-time Legal Practice Course

Work Experience Stage

Two years’ training contract

Transfer from other Jurisdictions/Approved Regulators

Qualified foreign lawyers and England and Wales Barristers can transfer through Qualified Lawyers Transfer Scheme in order to become a Solicitor in England and Wales. Chartered Legal Executives can become Solicitors by completing LPC and not required to complete a training contract.

Specialist Solicitors

Law Society has many different Accreditation Schemes where Solicitors can specialize in a particular area(s) of law.


Chartered Legal Executives

Who regulates Chartered Legal Executives?

Chartered Institute of Legal Executives is the professional representative body and CILEX Professional Standard Board is the Independent regulatory arm of the CILEX.

What do Chartered Legal Executives do?

Legal Executives are specialist lawyers usually practising in one or more areas of law and employed by law firms. They are usually fee earners and can act as Commissioners for Oaths. They also have limited rights of audience when trained as Legal Executive Advocates.

How Many Chartered Legal Executives are currently practising?

7,907 CILEX practising members in 2012

What is the general route to becoming a Chartered Legal Executive?

Vocational Training Stage

Level 3 and Level 6 Diplomas of CILEX

Work Experience Stage

5 years qualifying Employment, minimum 2 years after completion of level 6 diploma

Transfer from other Approved Regulators

Solicitors and Barristers can transfer to become a Fellow of CILEX.

Specialist Legal Executives

Chartered Legal Executives are almost always Specialist Lawyers in one or more areas of law.


Licensed Conveyancers

Who regulates Licensed Conveyancers?

Council for Licensed Conveyancers is the regulatory body for Licensed Conveyancers in England and Wales.

What do Licensed Conveyancers do?

Conveyancing is the process of legally transferring title or ownership of property from one person to another. A licensed conveyancer is a specialist property lawyer qualified in all aspects of property law in England and Wales. A licensed conveyancer is also a Commissioner of Oaths and an increasing number offer additional services such as probate.

 How Many Licensed Conveyancers are currently practising?

1,071 Licensed Conveyancers in 2012

What is the general route to becoming a Licensed Conveyancer?

The basic entry requirement is four GCSE Grade A-C passes (or equivalent) in English Language and three other approved subjects. If you do not meet the entry criteria, but are currently working in the office of a licensed conveyancer or solicitor and are over 18 years of age, you may still apply. There is also an option to apply as a mature student (aged 25 and over). Once you become a licensed conveyancer you will also have the opportunity to qualify as a probate practitioner.

Transfer from other Approved Regulators

Solicitors and Chartered Legal Executives can apply for the Conveyancing License


Costs Lawyers

Who regulates Costs Lawyers?

Association of Costs Lawyers is the Professional representative body and Costs Lawyer Standard Board is the independent regulatory arm of the Association of Costs Lawyers

What do Costs Lawyers do?

Three of the main areas in which Costs Lawyers may become involved are: Costs payable “between the parties”; Solicitor and “own client” costs and; Publicly-funded (legal aid) costs. Costs Lawyers are often involved at all stages of the process known as “detailed assessment” during litigation. In addition, Costs Lawyers are often engaged by solicitors during the litigation to advise on costs budgeting or to assist with interim applications for costs. Where a solicitor is representing a publicly-funded client, a detailed bill is usually required to be assessed either by the court or the Legal Services Commission before payment can be made out of public funds to the solicitor. Costs Lawyers are often engaged to prepare such bills.

 How Many Costs Lawyers are currently practising?

565 Authorised Law Costs Draftsmen in 2012

What is the general route to becoming a Costs Lawyer?

You need to complete The Modular Training Course of ACL. The course consists of 3 modules: The first module covers general legal principles, general legal procedures and general principles of costs law and practice. The second module covers civil costs law and practice including between-the- parties costs, litigation funding, detailed assessment procedures and advocacy. It will include practical skills training. The third module covers public funding (legal aid) and non-contentious costs. Criminal costs will be included as will Court of Protection/PGO costs together with solicitor and own client costs. The module will include training in the completion of LSC claim forms and bill drafting.


Trade Mark Attorneys

Who Regulates Trade Mark Attorneys?

Institute of Trade Mark Attorneys is the professional representative body and Intellectual Property Regulation Board is the independent regulatory arm of this body.

What do Trade Mark Attorneys do?

A Trade Mark Attorney Provides advice on the suitability of a word or logo, for example, as a trade mark and undertakes searches, nationally and internationally, to see if others are already using the same sign. He/she advises on in which countries the trade mark might be protected and the most cost effective way of achieving this and help secure License agreements so that others might use the trade mark to the mutual advantage of the parties. He/she gives advice on the action needed to safeguard a protected trade mark and on how to deal with any infringements by another party and offers strategic advice on what to file, when to file and when to take action to ensure suitable protection, whilst helping to develop brand enlargement. Some Trade Mark Attorneys are also qualified litigators and have litigators’ rights in the Patent Court and the High Court.

 How Many Trade Mark Attorneys are currently practising?

639 Registered Trade Mark Attorneys in 2012

What is the general route to becoming a Trade Mark Attorney?

If you have passed both the foundation and advanced level trade mark exams and are listed on the Register of Trade Mark Agents.

Transfer from other Approved Regulators

If you are a UK barrister or solicitor who is engaged in practice as a Trade Mark Attorney or Agent, have at least two years’ full-time practice in the field of IP and have the support of two Corporate Members of ITMA.


Registered Patent Attorneys

Who Regulates Registered Patent Attorneys?

Chartered Institute of Patent Attorneys is the professional representative body and Intellectual Property Regulation Board is the independent regulatory arm of this body.

What do Registered Patent Attorneys do?

A patent attorney is a member of a small profession qualified by examination in the intellectual property law of the United Kingdom and abroad. Patent attorneys are specially trained and experienced in the art of drafting patents and in knowledge of intellectual property law.

How Many Registered Patent Attorneys are currently practising?

1687 UK Registered Patent Attorneys in 2012

What is the general route to becoming a Registered Patent Attorney?

Both patent attorneys and registered trade mark attorneys qualify by taking appropriate examinations in accordance with the Regulations of IPReg. The examinations for entry on the Regsiter of Patent Attorneys are set by the Joint Examination Board, a body set up and controlled by CIPA and ITMA.

Transfer from other Approved Regulators

Solicitors and Barristers can carry out the activities carried out by the Registered Patent Attorneys.



Who regulates notaries?

Master of Faculties is the regulatory body.

What do Notaries do?

A Notary Public is a legal officer who prepares and executes documents for use abroad, attests the authenticity of deeds and writings and protests bills of exchange.

How many Notaries are currently practising?

There are 858 Notaries on the Roll in England and Wales according to 2012 statistics.

What is the general route to becoming a Registered Patent Attorney?

The qualification and appointment of notaries in England and Wales is regulated by the Notaries (Qualification) Rules 1998

















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UK Point Based System switching Scheme

UK Point Based System switching Scheme

Made by Asad Maksud at Maxim Law

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Point Based System migrants: You might have had a second bite at the cherry in past, but not any more.

Are you a PBS Tier 1, Tier 2, Tier 4 or Tier 5 migrant with valid leave to remain in the UK? If so, and if you are thinking about applying for your next visa extension to the UKBA yourself without any expert help this is the article which will help you decide about taking such an important step on your own.

It will help you balance the risk and the costs by explaining currently available limited options of rectifying your mistakes in any such PBS extension applications. It will explain to you how the changes in the law last year has deprived the PBS applicants of a “second bite at the cherry” and the draconian consequences of a small omission when you are making a PBS application.

Alam & Ors v Secretary of State for the Home Department [2012] EWCA Civ 960 (13 July 2012) is an important case of three International students Alam (Bangladeshi national), Anwar (Pakistani national) and Eghan (Ghanaian National) each of whom failed to send a particular mandatory document (e.g. correct bank statement, educational document, etc.) in support of their relevant PBS Tier 4 General extension applications.

Before their hearing dates in the relevant First-tier Tribunals, s19 of the UK Borders Act 2007 had already introduced s85A of Nationality, Immigration and Asylum Act 2002 and therefore they were prevented by the Upper Tribunal (even where initially allowed appeals by the relevant FT) to rely on these documents in support of their PBS leave to remain applications.

All three appellants appealed against the decisions of the Upper Tribunal in the Court of Appeal in Alam & Ors v Secretary of State for the Home Department [2012] EWCA Civ 960. The Court started with an introduction of the PBS system and then referred to the rules and policy guidance where specific documents are required.

The Court then explained the background of the statutory scheme that when deciding whether the decisions to refuse the applications were in accordance with the immigration rules the Immigration Tribunal was, prior to 23rd May 2011, given a wide discretion to admit new evidence by section 85(4) of the Nationality Immigration and Asylum Act 2002.

Section 85(4) was subject to the exceptions in subsection (5), but those exceptions did not apply to PBS appeals. Thus, if a PBS application had been refused by the Secretary of State because the applicant had failed to produce a specified document, or documents, the applicant could remedy the omission on appeal to the Tribunal. Some 63% of successful PBS appeals were allowed because the appellant produced new evidence, which had not been submitted with the application, at the hearing of the appeal before the Tribunal.

The Government believed that the ability to produce new evidence at the appeal stage threatened to undermine the operation of the PBS. In order to address this problem the Secretary of state made an Order on Tuesday 17th May 2011 bringing section 19 of the UKBA 2007 into force on the following Monday, 23rd May 2011 which introduced s85A of Nationality, Immigration and Asylum Act 2002 with the effects as mentioned in paragraph 3 above.

The court referred to Art 3 of this Order and Shahzad (85A commencement) [2012] UKUT 81 (IAC) where two Tier 1 (General) applicants (Shahzad, Kunal), one Tier 4 applicant (Malik) found themselves in the similar situation and the Upper Tribunal held that in order to avoid any other retrospective effect, Article 2  of the above Order is to be interpreted as having effect only where the appellant’s extension application was made on or after 23 May 2011. These applicants were therefore allowed to use the new evidence since they had fortunately made their applications before 23rd May 2011.

In Alam the Court said that if Shahzad is correctly decided these appeals must be allowed as in each case the application to the Secretary of State was made before the 23rd May 2011. Mr. Swift submitted that it was not correctly decided.

The Court in discussion accepted that the Article 3 of the above Order is not as unclear as the Upper Tribunal held in Shahzad and not so bizarre that Art 3 must be disregarded. Applying Lord Mustill’s approach in a 1994 case the Court in Alam did not consider that the consequences of applying article 2 of the order, subject to the transitional provision in article 3 (see above), to all appeals as from the 23rd May 2011 are “so unfair” that the article must be interpreted as having effect only where the applicant’s application to the Secretary of State was made on or after 23rd May 2011. The Court also held that the new evidential scheme is not so unfair that the imposition of a general duty on the Secretary of State to request missing documents in the PBS application can be justified. The Court in Alam & Ors v Secretary of State for the Home Department [2012] EWCA Civ 960 held that Shahzad was wrongly decided, and dismissed all three appeals.

You may have been lucky to be one of the 63% successful appellants having made such omission in past in your PBS applications. Or you may have been luckier (if not very well prepared and up-to-date with all legal changes) not to have made any mistake or omission in past in your PBS extension applications in view of the ever-changing immigration rules. However, considering the above changes it is wise not to rely on luck anymore, and be competent and careful when making PBS applications for yourself or on behalf of someone else.

We here at Maxim Law understand that for some PBS migrants it is not always affordable to have their applications (Postal or premium) represented to the UKBA, we therefore not only provide affordable representation but also provide alternative options where PBS applicants may seek legal advice and documents check service at a much lower cost from our caseworkers in order to ensure that they have included everything required in your file.

If your extension is due or the visa expiry date is approaching contact us today for free generalist advice and the options we have for you.

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RT (Zimbabwe) & Ors v Secretary of State for the Home Department [2012] UKSC 38

Can you require an asylum seeker to lie and feign loyalty to a regime in order to avoid the persecutory ill-treatment to which he would otherwise be subjected? The question was answered in this judgement-where four asylum seekers (RT, SM, KM and AM) from Zimbabwe are involved-which is a sequel to the decision of UKSC in HJ (Iran) v Secretary of State for the Home Department [2011] 1 AC 596 in which it was held that a gay man was entitled to live freely and openly in accordance with his sexual identity under the Refugee Convention and it was no answer to the claim for asylum that he would conceal his sexual identity in order to avoid the persecution that would follow if he did not do so.
The Court of Appeal decided for the appellants and the Secretary of State sought an order that the decisions of the Tribunal should be restored in all three cases, alternatively that the claims should be remitted for further consideration of the sole issue of whether each claimant would be able to prove loyalty to the regime.
The court dealt with two principles that it considered arising from this case; first whether the HJ (Iran) apply to the situation in this case where there is no political belief; secondly would the appellants be persecuted for imputed political belief. Lord Dyson delivered the leading judgment dismissing the appeals of the Secretary of State in the cases of RT, SM and AM and allowing the appeal of KM.

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Ukus (discretion: when reviewable) [2012] UKUT 00307(IAC)

This Upper Tribunal Case sheds light on the effects of strong compassionate circumstances on the discretion given to the Entry Clearance officer by Immigration rules. The First-tier Tribunal Judge concluded by finding that there were strong compassionate circumstances which the Entry Clearance Officer had failed to take into account sufficient for the discretion contained in paragraph 320(18) to have been exercised differently. He proceeded to allow the appeal under the Immigration Rules.
The Entry clearance officer before the Upper Tribunal contended that rule 320(18) affords a discretion, the Judge, having concluded that the Entry Clearance Officer had failed to reach a decision in accordance with the law should have “remitted the matter for reconsideration” instead of allowing the appeal.

The Upper Tribunal in deciding this case made a reference to s.84(i)(e) and (f) of the Nationality, Immigration and Asylum Act, 2002 and held that the provisions make clear that where the decision maker has a discretion which is vested in him under the Immigration Rules, the exercise of that discretion is appealable before the Tribunal, however only, once the decision maker has exercised his discretion in the making of the decision.
If the decision maker fails to exercise his discretion, that failure renders his decision ‘not in accordance with the law’ and, because it is a discretion which is primarily vested in the Secretary of State, the Immigration Officer or the Entry Clearance Officer, the appropriate course is to require the decision maker to complete his task by reaching a lawful decision on the outstanding application.
However, noticing the ECO’s decision making process the Upper Tribunal held that the decision is the one in which lawful discretion was exercised by the ECO and therefore appropriately reviewed by the FTT.
The UT provided four possible situations where the Tribunal is considering an appeal arising from the exercise of a discretionary power and held that it is for a Tribunal to decide into which of those four a decision falls to be determined. The tribunal held that in the present case the situation falls to be determined in the fourth category given in this case and held that by the exercise of his discretion and, in doing so, to reach a conclusion different from that of the Entry Clearance Officer, the FTT Judge made no error on a point of law. And The Entry Clearance Officer’s appeal was dismissed. (Commentary by Asad Maksud)
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