UK Immigration Update Spring-Summer 2019

We thought that the UK was going to leave the EU at the end of March but, because of some “political difficulties”, Brexit has been postponed. The question that some people ask is – is Brexit going to happen at all? But not the Home Office, which has confidently ploughed ahead with the new “Pre-Settled” and “Settled” EU immigration statuses. These applications are remarkably straightforward by Home Office standards and large numbers have successfully applied.

What, we wonder, will happen if the UK does not leave the EU after all? It seems difficult to imagine that the Home Office will dismantle these new immigration statuses that it has so carefully created, so very likely they will stay in place, which means that EEA nationals and their family members will hold immigration status under British law, not EU law.

And some rather uncomfortable recent news for Tier 1 Entrepreneurs: the Court of Appeal seems to think that they can only invest funds into their businesses by way of director’s loan or share capital, not direct investment, and the High Court evidently does think that if they can’t provide real time information evidence about their employees’ earnings and tax then it is right that their extension visa applications should be refused – even if they are exempt from registering for PAYE. (This latter item sounds rather technical but those who are in the habit of paying wages will know what we mean.)

We are a bit confused about this, and we can only hope that the new entrepreneur visas – the Start-Up visa and Innovator visa – which were introduced in March, will not throw up such strange complexities, but it’s early days yet.

Australians, Canadians, Japanese, New Zealanders, Singaporeans, South Koreans and Americans are no doubt pleased that since late April they have no longer have to fill in airline landing cards, and Chinese students have achieved the huge number of successful visa applications in the year to March 2019 of 100,057, far ahead of nearest rivals India who have a mere 21,165.

Potential primary carers of British citizens received a nasty shock, after a combined assault by the Court of Appeal and the Home Office. The legal position now appears to be that they can’t apply for a visa under the Zambrano rules if there is any other potential visa route “available” to them.

We are a bit confused about this as well but, moving on to firmer ground, the High Court gave a definite No to the Russian Government’s request for extradition of Mr Alexey Shmatko on the basis of alleged criminality. The Russian justice and prison systems are, the court said, not up to scratch.

And, talking of the High Court, it recently declared that the Home Office’s “right to rent” scheme is incompatible with human rights principles. The last we heard the Home Office is currently appealing to the Court of Appeal.

Finally, an interesting little story from the First-Tier Immigration Tribunal. An asylum-seeker’s application had been refused by the Home Office. He went to appeal before the First-Tier Immigration Tribunal and the judge told him at the end of the appeal that his appeal had been successful. But when the written decision arrived it said that his appeal had been unsuccessful.

This was not quite to the Appellant’s taste and he appealed to the Upper Tribunal. The Upper Tribunal said that the judge could not change his mind in this way: the verbal decision was “the decision” and it could not be undermined by any further decision.

This was a good and fair result for the migrant concerned but, overall, what with extraordinary uncertainty about Brexit and the outlook for future EEA immigration and puzzling decisions from the courts we are certainly living in interesting times at the moment.