Between the sunny weather and freak thunderstorms and floodings, Brexit is rumbling along and further changes have been introduced to the Windrush Generation applications.
The Tribunal services have for the first time open the doors to awarding costs against the Home Office for their unreasonable behaviour. I never imagined the Tribunal would do this considering the Tribunal Services have always been reluctant to open the floodgates.
I think this is going to change the way the Home Office deal with appeals now as it will no longer be acceptable for the Home Office to sit on new evidence for months and then the day before the hearing concede and grant the applicant leave to remain. By this point everyone is ready for the appeal and the applicant loses all those costs.
Tier 1 Highly skilled migrants are being systematically refused indefinite leave to remain by the Home Office by applying a discretionary regulation for minor discrepancies.

And finally for all of you who will be mesmerised by world cup fever over the coming weeks (or subjected to it like me) I hope your chosen teams do well.


All the best Narinder

New details on the Windrush Generation

The Home Office has announced a formal application process that became live on the 30th May 2018 to help long term residents to secure the correct documentation to prove their right to live in the UK.


The Home Secretary, Sajid Javid, says that this more formalised system will make it easier for those concerned to receive the support they need. Most applicants will be considered under existing law and policy. However some elements of the scheme are underpinned by the Immigration and Nationality (Requirements for Naturalisation and Fees)(amendment) Regulation 2018. This has replaced the helpline introduced by Amber Rudd.


There has been some chatter on forums and websites claiming an amnesty has been introduced. This is not the case and applicants can be refused, where they do not qualify.


Citizens of commonwealth countries who were living in the UK before 1st January 1973 and have stayed since then will be issued with proof of their British citizenship. If they are not all ready British they will be considered for naturalisation and although they will not need to sit the Life in the UK test or attend a citizenship ceremony, they will have to meet the residence and good character requirements. The applications for citizenship will be free, but the application for a first British passport will not be free and applicants will need to pay to secure a passport.


The nationality status document or certificate of naturalisation under the hostile environment will not be sufficient evidence to prove a person has a right to work, rent or access public services. Therefore they will have no choice but to secure a British passport.

Proof of residence

Those who do not qualify for British citizenship or do not want it will be assessed to see if they have a right of abode. Those who may not qualify for a right of abode maybe issued with a no time limit permit instead.

The Home Office have said that those Commonwealth citizens who were settled in the UK before 1st January 1973 may have let their right lapse if they left the country for more than two years. If they have, then the applicant maybe granted indefinite leave to remain, where they can demonstrate that they have a close and continuing ties to the UK, unless they are subject to deportation for criminal or other bad behaviour.


Those living aboard

Commonwealth citizens who lived in the UK before 1st January 1973 but now live aboard and do not have proof of their right can check if they have a right of abode.  If they do not have a right of abode, applicants can apply for a returning resident visa to come back to the UK and eventually naturalise. The Home Secretary has said that the rules on this visa will be interpreted generously in respect of the Windrush generation. Those who do not wish to return to the UK can apply for a 10-year multi visit visa to allow them access to the UK. Again no fees are being charged for these applications.


Children of Windrush generation

Children of the Windrush generation who were born in the UK or arrived as children and have lived in the UK continuously will be considered for British citizenship held by law, British citizenship by registration, British citizenship by naturalisation, right of abode, no time lime permit or indefinite leave to remain.

It appears the Home Office will work down the list until the applicant meets one of the entitlements. However it appears that the child’s status will only be resolved once the parents’ status has been resolved.


Migrants in the UK, or any Nationality, who arrived before 1988


Certain non – commonwealth citizens can also benefit from the scheme:


·         People of any other nationality who arrived in the UK and had indefinite leave to remain before the 1st January 1973


·         People of any nationality who arrived in the UK before 1st January 1973 with limited leave but settled between then and the 31st December 1988


·         People of any nationality, who arrived in the UK between 1st January 1972 and 31st December 1988 and who have settled status


Again the Home Office will consider their entitlement to British citizenship already held by law, right of abode and no time limit permit. All applications will be free accept securing the passport.


Applications refused

Although the Home Office has indicated they will take a holistic approach to these applications, where applications are refused there is no right of appeal or administrative review for these applications.


Although the guidance seems to be flexible and the Home Office have indicated a flexible approach, the fact that these applications have no right to appeal or administrative review is a cause for concern and legally questionable. The only redress to applicants who are refused would be judicial review, which is a costly process.

Tribunal opens door to award costs against the Home Office for unreasonable behaviour


Sitting together, President Clements of the first – tier and then President McCloskey of the Upper Tribunal heard the linked appeals of Awuah(no2) (8th December 2017) follow up to the previous related case Awuah (2017).


In the earlier case the Tribunal found that wasted costs could not be awarded against the Home Office presenting officers for very poor conduct of litigation but could be awarded against representatives of appellants. The inequality of sanctions created by the decision is considerably mitigated by the newer decision.


The Presidents outlines circumstances where it might be appropriate for an Immigration Judge to award costs against the Home Office. These include:


·         Defending an appeal which is, objectively assessed, irresistible or obviously meritorious and

·         Where the Home Office fails to undertake an initial assessment of the viability of defending an appeal within a reasonable time of it being lodged, normally within six weeks, or

·         Where the Home Office fails to reassess the merits of an appeal following material developments such as the service of important new evidence


Unreasonable costs can be awarded for limited periods or stages of the case. Only time will tell whether individual judges will be willing to consider awarding costs against the Home Office but hopefully the threat of potential costs being awarded will encourage the Home Office to improve the manner in which they handle appeals.

Paragraph 322(5) refusals of highly skilled migrants

Tier 1(General) was aimed at highly skilled migrant who could take up employed or self-employed work in the UK without a sponsor. The route has since been closed however there are many applicants who under the five or ten year route are now applying for indefinite leave to remain.


The Home Office has used paragraph 322(5) that says

“ The undesirability of permitting the person concerned to remain in the UK in the light of his conduct (including convictions which do not fall within paragraph 322(1c), character or associations or the fact that he represents a threat to national security”.


The Home Office has relied on this paragraph to argue that applicants who have submitted tax returns to HMRC that reflect different incomes to the ones indicated on their applications forms demonstrates applications are deflating their income with HMRC to pay less tax but then inflating their income with the Home Office to be granted leave. The Home Office therefore considered their conduct undesirable to permit them to remain.


The refusals are controversial because paragraph 322(5) is discretionary and the Home Office is under no obligation to refuse these applications where they fall under this paragraph. Instead the Home Office has the discretion to grant these applications. It appears the Home Office is using this paragraph to turn down anyone who has declared different incomes or amended their tax returns even where explanations have been forthcoming.


Sajiv Javid on the 29 May 2018 in a letter to the Home Affairs Committee, has said that applications for indefinite leave to remain (ILR) by highly skilled migrants that could face refusal under paragraph 322(5) of the Immigration Rules have been put on hold pending the findings of a Home Office review.


This is good news for applicants who would else face the prospect of having to leave the UK for minor discrepancies. The approach to these applications also indicates the direction of the Home Office approach to applications in general and I am sure this overzealous approach is not limited to these applications and will probably extend to other applications.


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