Preparing for OISC Assessment

Immigration Advice Service

OISC Level 1
July 2021

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Training Material © Edward Mynott Tribunal Advocate, July 2021, except Appendixes.

Although great care has been taken to ensure the accuracy of these materials, the author and training
provider cannot in any circumstances accept responsibility for any errors or omissions.

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 Contents

Page
Nos
Introduction Statutory regulation, competence and 5-20
accreditation
Chapter 1. Immigration law 21-50
Chapter 2. Article 8 of the European Convention on 51-66
Human Rights
Chapter 3. The EU Settlement Scheme and the end of 67-116
free movement
Chapter 4 Asylum and International Protection 117-124
Chapter 5 British Nationality Law 125-144
Chapter 6 Appeal Rights and Administrative Review 145-150
Chapter 7 Professional Conduct and Ethics 151-158
Appendix A OISC Sample Immigration Papers 159-178

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4
Introduction: Statutory regulation, competence and accreditation
The provision of immigration advice in the UK is subject to statutory regulation. Section 84 (1) of the
Immigration and Asylum Act 1999 (IAA 1999) provides that:

No person may provide immigration advice or immigration services unless he is a qualified person.

Immigration advice and immigration services are defined within Section 82(1) of the IAA 1999:

immigration advice” means advice which—

(a)relates to a particular individual;

(b)is given in connection with one or more relevant matters;

(c)is given by a person who knows that he is giving it in relation to a particular individual and
in connection with one or more relevant matters; and

(d)is not given in connection with representing an individual before a court in criminal
proceedings or matters ancillary to criminal proceedings;

“immigration services” means the making of representations on behalf of a particular

individual—

(a)in civil proceedings before a court, tribunal or adjudicator in the United Kingdom, or

(b)in correspondence with a Minister of the Crown or government department,

In essence, a ‘qualified person’ must either be registered with and regulated by the Office of the
Immigration Services Commissioner (OISC), or must be a member, or working under the supervision
of a member, of one of the designated qualifying regulators or designated professional bodies listed
in Section 86(1) of the IAA 1999:

• General Council of the Bar

• Law Society of England and Wales (including solicitors regulated by the Solicitors Regulation
Authority)

• Chartered Institute of Legal Executives

• Faculty of Advocates

• Law Society of Scotland

• General Council of the Bar of Northern Ireland

• Law Society of Northern Ireland

Solicitors in England and Wales and OISC regulation

Where a solicitor holds a current practising certificate and is working in a traditional law firm, an SRA
regulated Alternative Business Structure (ABS) or an authorised non-SRA firm (meaning firms that are

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authorised by another approved regulator under the Legal Services Act 2007) neither the organisation,
nor the individual solicitor or any non-solicitor advisers who are supervised by the solicitor (whether
or not under a contract of employment), need apply to the OISC for regulation.

Solicitors who provide immigration advice and/or services only in an ‘in house’ capacity within an
organisation, providing no immigration advice and services to the public, do not need to be regulated
by the OISC. If the organisation also provides no immigration advice and/or services to the public, it
also does not need to seek regulation from the OISC as an organisation.

However, some solicitors or organisations that employ solicitors, do require OISC regulation. Law
centres and other non-commercial advice services will require regulation by the OISC where they
provide immigration advice and/or services to the public and are not regulated as an ABS. Individual
solicitors in England and Wales who hold a practising certificate and work in a Law Centre or other
non-commercial advice service, will be regulated by the SRA. Any non-solicitor advisers within the
organisation will however need to seek OISC authorisation and the organisation will need to seek OISC
regulation.

This is a very complex area of regulation and further detail is provided by OISC in its guidance on ‘OISC
regulation and solicitors’ at:

https://www.gov.uk/government/publications/oisc-regulation-and-solicitors

Barristers in England and Wales and OISC regulation

For most self-employed barristers, the position is straightforward. Where a self-employed barrister
holds a current practising certificate and is working in a set of chambers, or as a sole practitioner, the
barrister is regulated by the BSB. In this case, neither the barrister nor any person they supervise needs
to apply to the OISC for regulation.

However, some employed barristers who work in a non-authorised entity may need to be regulated
by OISC. Further detail is provided in ‘The OISC and barristers’ which is an agreed note issued by the
Bar Standards Board and the OISC: https://www.gov.uk/government/publications/oisc-regulation-
and-barristers

Solicitors, barristers and advocates in Scotland and Northern Ireland

Organisations which employ solicitors, barristers or advocates practicing in Scotland and Northern
Ireland should check with the respective Law Societies for confirmation whether the legal professional
is directly regulated by the relevant designated professional body to provide immigration advice
and/or services to the public.

Other qualified persons and ministerial exemptions

Section 84(2)(c) of the IAA 1999 defines qualified persons to include those who are authorised to
practice in the UK by an equivalent designated professional body based in another European Economic
Area state. (Although the Act has not yet been amended, the UK’s exit from the EU and the end of the
transition period by 1 January 2021 may well change this in the future.)

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The Immigration Act 2014 removed OISC’s power to exempt voluntary and community organisations
from regulation. Approximately 250 previously exempt organisations were moved by OISC onto an
annual continued registration cycle.

Limited ministerial exemptions also exist for staff within licensed sponsors to advise on matters arising
in the context of Tier 2 and Tier 4, without being OISC-regulated.

Criminal offences

A person who provides immigration advice or services without being a qualified person as defined in
section 84 of the IAA 1999 is committing a criminal offence as provided for under section 91:

91 Offences.

(1)A person who provides immigration advice or immigration services in contravention of

section 84 or of a restraining order is guilty of an offence and liable—

(a)on summary conviction, to imprisonment for a term not exceeding six months or to
a fine not exceeding the statutory maximum, or to both; or

(b)on conviction on indictment, to imprisonment for a term not exceeding two years
or to a fine, or to both.

It should be noted that s82(2) makes clear that statutory regulation refers to the provision of
immigration advice and services by a person:

(a)in the United Kingdom (regardless of whether the persons to whom they are provided are
in the United Kingdom or elsewhere); and

(b)in the course of a business carried on (whether or not for profit) by him or by another person.

The OISC is highly proactive in seeking prosecutions of those who provide immigration advice and
services when not legally entitled to do so. The OISC website regularly reports on prosecutions.
Convictions for providing unregulated immigration advice typically carry custodial sentences,
sometimes but not always suspended, as well as fines and other non-custodial orders. Prosecutions
are undertaken of those who are not solicitors or barristers and have failed to become OISC-regulated.
Many cases involve incompetence and financial exploitation of vulnerable people.

In April 2019 following multiple complaints from clients and investigation by OISC, the company
officers of the firm DDR Legal were successfully prosecuted on the basis that the key individual in the
firm was not qualified as an EU registered lawyer and therefore the firm and its franchises were
providing immigration advice and services contrary to s91 IAA 1999. DDR Legal had confidently
advertised their legal structure as being fully compliant with UK law. That turns out not to have been
correct.

However, prosecutions are also undertaken of those whose OISC regulation has been suspended as
part of disciplinary proceedings but who, nonetheless, continue to practice; and of those whose advice
is competent but who have simply failed to become regulated by OISC. For example, in January 2015
OISC reported that a Moldovan accountant was fined £2000 and ordered to pay £2430 costs for
submitting work permit applications to the Home Office. She was convicted despite not having
profited financially, nor had she prejudiced the lives of the applicants.

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OISC Assessment

The OISC regulatory scheme registers “organisations” and authorises “individuals” within those
organisations to provide immigration advice and/or services. For most individuals, this will involve
undergoing the OISC’s formal written competence assessment. Individuals will be invited by OISC to
undertake a competence assessment only once that individual has applied to be an adviser within
an existing OISC organisation or to set up their own OISC-regulated organisation.

The Training Provider ‘HJT Training’ has a contract with the OISC to draft and mark the assessment
papers. The OISC scheme also requires an applicant to show knowledge of the OISC ‘Code of
Standards’. From 1 April 2016 a new Code of Standards came into effect. (An applicant must
demonstrate knowledge and adoption of certain minimum professional standards and business
practices, but those matters are not covered in this training. Full explanation is to be found at:
https://www.gov.uk/government/organisations/office-of-the-immigration-services-commissioner.

According to the OISC Guidance on Competence 2021, in force from 1 July 2021:

The OISC has divided immigration advice and services into three Levels depending on the type and
complexity of the work involved. The competence requirements increase with the intricacy of the work.
A summary of the work permitted at each OISC Level is given on page 8. Details of the types of work
permitted at each Level begins on page 9.

OISC Advice Levels

The three OISC Levels of immigration advice and services are as follows:

• Level 1 – Advice and Assistance

• Level 2 – Casework

• Level 3 – Advocacy and Representation

The Guidance on Competence gives very useful details about what work can and cannot be carried
out at each level. The 2021, 2017 and 2012 versions can be found at:

https://www.gov.uk/government/publications/competence-oisc-guidance-2012

For those who are solicitors or acting under the supervision of solicitors there is no requirement to
undertake any specific competence assessment. Issues of professional standards and competence are
regulated by the Solicitors Regulation Authority.

The process of competence assessment

All OISC assessments have been online since the coronavirus pandemic and will remain so. The OISC
has a great deal of useful information on its website:

https://www.gov.uk/government/publications/how-to-become-a-regulated-immigration-adviser

https://www.gov.uk/government/collections/competence-assessments-immigration-and-asylum-
advisers

Under the OISC scheme each Level has its own syllabuses. At OISC Level 1 there is only a ‘Level 1
Immigration Syllabus’ given the restrictions on the work permitted at that level. At OISC Levels 2 and
3, OISC provides both an Immigration Syllabus and an ‘Asylum and Protection Syllabus’. Clearly the

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relevant syllabus is an invaluable starting point for those preparing to undertake the OISC competence
assessments. Updated versions of each syllabus, with slight amendments, were published in July 2021.

OISC has also developed two ‘Exam Resource Books’ for candidates taking the assessments. The
Resource Books are regularly updated. The Level 1 Exam Resource Book contains all the relevant
statutory material, rules and regulations which may need to be referred to during the assessment for
candidates taking the Level 1 assessment only. OISC suggests that candidates taking a Level 1
assessment as a prelude to taking a higher level exam, should only print the Level 2 and 3 Exam
Resource Book as this contains all the statutory material, rules and regulations they may need for both
the Level 1 and Level 2 or 3 assessments. It is nonetheless useful to compare the Resource Books
online to check what material is excluded from the OISC Level 1 Booklet.

The OISC website also provides examples of past questions and model answers.

At OISC Level 1 assessment is by Multiple Choice and a scenario-based test. The OISC document ‘The
Competence Assessment Process’ was amended in June 2021 by the addition of the emboldened
paragraph below:

The level 1 assessment has 2 sections, section 1 consists of 20 multiple choice questions and
section 2 consists of scenario based questions which require written answers. If an applicant
passes both sections in one or two attempts, they will pass the assessment overall.

The pass mark for the Level 1 OISC assessment is 60% and candidates have one attempt per
application in which to pass their assessment. If a candidate fails their Level 1 test, their
application for registration will be refused on competence so all applicants are urged to
prepare for their assessments as fully as possible.

Applicants applying to work at level 2 or 3 must initially pass the level 1 assessment…

The OISC ‘Guidance on Competence’ explains how it is possible to achieve competence in either or
both of the ‘immigration’ and ‘asylum and protection’ categories at Levels 2 and 3. However, being
qualified under one category but not the other, does impact on the nature of work the adviser is
permitted to undertake once registered:

While advisers do not need to be competent in both categories at their particular Level, all
Level 2 and 3 advisers must be competent in both categories at Level 1, regardless of the areas
of their competence at Level 2 or 3. This means, for example, that a business immigration
specialist working at Level 2 or 3 must be competent in both Immigration and Asylum and
Protection at Level 1. However, a Level 1 adviser does not need to be competent in both
categories.

Advisers regulated to provide advice and services at a particular Level are not required to do
everything that can be done at that Level. For example, while a Level 3 adviser can appear at
appeals before the Tribunal Service Immigration and Asylum (TSIA), they do not have to do this
to be an authorised Level 3 adviser.

Regulated advisers are reminded of Code 6 [of the OISC Code of Standards] which states:

Advisers must not operate beyond the level of competence approved by the Commissioner or
in categories that have not been approved.

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 Thus, for example, an adviser authorised at Level 2 in the category of immigration may carry
out bail and detention work for immigration cases. However, they cannot do so for bail and
detention work in asylum and protection cases.

https://www.gov.uk/government/publications/competence-oisc-guidance-2012

‘Open book’ exam

The OISC Immigration Papers and Asylum and Protection Papers are all ‘open book’ meaning that
hard copies of any published text or the candidate’s own prepared notes can be consulted during
the examination.

Applicants taking the test are invigilated through proctoring software which records them taking the
assessment through the webcam of their computer or laptop. Applicants should not leave the scope
of the camera during the test.

Applicants cannot use online resources during the exam. They will be able to access the relevant
OISC Exam Resource book which they will be able to use in digital format in the exam environment.

Judicial Review Case Management

From 1 June 2017, OISC advisers registered at Level 3 are able to apply for authorisation in Judicial
Review Case Management (JRCM). JRCM work includes:

• Advising on the merits of judicial review proceedings and any costs or risks involved

• Explaining the various stages associated with a judicial review application

• Drafting written instructions for counsel to represent a client in proceedings

• Assisting in the gathering of information and documents to support the claim

• Supporting in the preparation of skeleton arguments and the substantive hearing bundle

• Instructing where an urgent application is required

A JRCM caseworker cannot conduct judicial review litigation but must instead instruct counsel who
has litigation rights as well as rights of audience.

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The Immigration and Asylum Accreditation Scheme

A particular requirement arises for those solicitors’ firms (and bodies regulated by the OISC) in England
and Wales who have a contract to provide publicly funded legal advice and representation in the
‘immigration and asylum’ category. The Legal Aid Agency (LAA - formerly the Legal Services
Commission) requires any adviser working under a legal aid contract in immigration and asylum law
to be accredited under the Law Society’s Immigration and Asylum Accreditation Scheme.

The Immigration and Asylum Accreditation Scheme (IAAS) is the responsibility of the Law Society. The
operation of the IAAS is explained in the Law Society’s Immigration and Asylum Accreditation –
Senior Caseworker, Casework Assistant and Trainee casework assistant: Application form guidance
notes, which are regularly updated. For relevant documents, see:
https://www.lawsociety.org.uk/career-advice/individual-accreditations/immigration-and-asylum-
law-accreditation

STOP PRESS
On 31 August 2020 Central Law Training (CLT) England ceased trading. The Law Society has
decided to extend any Senior Caseworker accreditations which were due to expire. The exams
are now being administered by the Law Society.

The IAAS has traditionally had four different levels of membership:

• Probationary
• Level 1 (accredited)
• Level 2 (senior)
• Level 3 (advanced)

The Law Society re-branded the Level 3 (advanced) qualification as the ‘Immigration Law Advanced
Accreditation Scheme’. There is also an additional Supervisor membership available only for Level 2
or Immigration Law Advanced members.

The Law Society also produces an extremely useful document which is regularly updated: Immigration
and Asylum Accreditation: Candidate Guidance. This explains the examination format and content,
and the syllabus.

Previously the IAAS comprised three examinations at Levels 1 and 2: a ‘written’ exam which tested
legal knowledge; a ‘drafting’ exam which tested drafting skills; and a mock client interview. Since 2016
these have been replaced with one written exam for which Advanced Materials are released
approximately one week before the exam date.

Unlike the OISC competence assessments, the accreditation exams are no longer ‘open book.’ Only
one textbook is permitted in the exam, Margaret Phelan & James Gillespie Immigration Law
Handbook. Other specified sources of law can also be taken in, as listed in the Candidate Guidance.

Gross Professional Error

The IAAS, just like the OISC scheme, includes both competency standards and a requirement to meet
‘fitness and propriety standards.’ These standards are met by passing the vetting checks carried out
by the Law Society. However, the IAAS scheme also tests fitness and propriety within the assessment
examinations by including questions which require the examinee to understand professional ethics

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and criminal offences. Importantly, if a candidate gives an answer which is adjudged to constitute a
‘gross professional error’ this results in a mandatory failure of the exam. A gross professional error is
defined as: ‘a serious departure from, or breach of, the standards of professional conduct and ethics.’

Even though the assessment examinations are now set and administered by the Law Society, not CLT,
it should be noted that notification that a candidate has passed the IAAS assessment examinations
does not in itself result in membership of the scheme. A paid application to the Law Society is required.
The Law Society grants membership of the Scheme on condition that the competency standards have
been demonstrated by the applicant passing the relevant examinations and the applicant has satisfied
the fitness and propriety checks which are conducted by the Law Society. Only then will membership
of the scheme be granted.

Re-accreditation

Membership of the Scheme lasts for three years at the end of which re-accreditation must be
undertaken. Re-accreditation applies only to senior caseworkers since the other levels of the scheme
have become temporary. To renew accreditation, an applicant needs to:

• complete at least six hours of professional development in immigration and asylum law in
each of the three years before they apply for re-accreditation

• complete the mandatory online training and assessment through the Law Society Professional
Development Centre

• submit their re-accreditation application form

Example scenarios and questions are included at the end of each eLearning module. The online course
is divided into three modules, each lasting 1.5 hours.

Following completion of the mandatory course, an applicant needs to complete an online assessment
via the CPD Centre. A minimum of 60 per cent is required to pass each module. Scenarios and
questions are in the same style as those used in the mandatory course.

Applicants must complete online assessments themselves, without assistance from any person or
device, and without any cheating, collusion or assistance by any other unfair means, on pain of
accreditation status being revoked and a reference made to relevant regulatory and prosecution
authorities.

Applicants can re-sit the online assessment if they do not pass on the first attempt. If an applicant fails
after the second attempt, they may request the opportunity to take a third or subsequent assessment.
Permission will only be granted in exceptional circumstances which include, but are not limited to,
long-term illness or bereavement. If the applicant does not pass the re-sit(s), the application for re-
accreditation will not be successful and membership of the IAAS will be terminated. To regain
membership, an applicant will need to complete the initial accreditation process.

https://www.lawsociety.org.uk/career-advice/individual-accreditations/immigration-and-asylum-
law-accreditation/re-accreditation

The Law Society has published the Immigration and Asylum Handbook - A Guide to Publicly Funded
Legal Work under the Immigration and Asylum Accreditation Scheme (ed. Mark Symes) 2016. It
provides practical guidance for all professionals working in immigration and asylum law. Like all
printed sources, care must be taken as some of the law and practice contained will have become out
of date.

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Public Funding

The Legal Aid Sentencing and Punishment of Offenders Act (LASPO 2012) radically altered the
provision of Legal Aid. Schedule 1 of LASPO 2012 specifies which matters remain in scope (ie which
matters can be funded) for immigration practitioners:

• Judicial Review
• Special Immigration Appeals Commission (SIAC)
• Detention under immigration powers
• Victims of domestic violence
• Asylum claims
• Asylum support
• Victims of trafficking
(If a particular category of work is in scope, advocacy will be permitted.)

Section 10 of LASPO 2012 allows for ‘exceptional case determinations’ more usually known as
Exceptional Case Funding (ECF). Section 10(3) of LASPO 2012 defines exceptional case determination
for funding purposes:

…an exceptional case determination is a determination—

(a)that it is necessary to make the services available to the individual under this Part because
failure to do so would be a breach of—

(i)the individual's Convention rights (within the meaning of the Human Rights Act
1998), or

(ii)any rights of the individual to the provision of legal services that are
enforceable EU rights, or

(b)that it is appropriate to do so, in the particular circumstances of the case, having regard to
any risk that failure to do so would be such a breach.

Following a successful challenge to the ECF regime in R (Gudaviciene) v Director of Legal Aid Casework
[2014] EWCA Civ 1622 the Lord Chancellor has provided guidance on ECF at:

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/477317/legal-aid-
chancellor-non-inquests.pdf. Since Gudaviciene there has been a significant rise in the proportion of
applications for ECF which have succeeded. For further details see Chapter 8 of the Immigration and
Asylum Handbook.

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Two parallel schemes

Both the OISC competence assessments and the IAAS have used the language of ‘Levels 1-3’ but each
scheme means something different by the same terms. This has created significant confusion among
practitioners and clients seeking services. This matters because under each scheme the level of
competence or accreditation of an adviser determines the type of work they are permitted to carry
out. Traditionally the levels of the OISC and IAAS schemes broadly corresponded as follows:

OISC IAAS
(Competence assessments contracted to HJT (Law Society / Legal Aid Agency.
Training) Formerly administered by Central Law Training)
Level 1 Advice and Assistance Probationer

Level 2 Casework Level 1 (accredited caseworker)

Level 3 Advocacy and Representation Level 2 (senior caseworker)

No equivalent Immigration Law Advanced (Formerly Level 3 -

advanced caseworker)

September 2018 changes to the Immigration and Asylum Accreditation Scheme

Changes to the IAAS were timed to coincide with the commencement of the new Immigration Legal
Aid contract on 1 September 2018. The Law Society has explained the changes:

There are significant changes to terminology, the time that members can remain at each stage of
accreditation and the work they can perform at each stage.

New terminology

Changes have been made to terminology to better describe the status of caseworkers at all levels:

Previous title: Changed to:

Trainee casework assistant

Probationer [Also referred to as: Assistant
Caseworker]

Casework assistant [Also

Level 1 referred to as: Assistant
Caseworker]

level 2 Senior caseworker

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 Level 2
Supervising senior caseworker
supervisor

Level 3 Advanced caseworker

The previous levels of accreditation; probationer, level 1, level 2, supervisor, level 3 (advanced) will be
replaced by interim, full and advanced accreditation.
It remains the case that practitioners may apply for full accreditation as a senior caseworker without
having been previously accredited.

Time that members can remain at each stage of accreditation

Trainee casework assistants may remain at this stage for up to six months. There is no re-
accreditation at this stage. They must become accredited as a casework assistant or a senior
caseworker in order to be paid by the Legal Aid Agency (LAA) for work conducted under the 2018
Standard Civil Contract.

Casework assistants may remain at this stage for up to one year. There is no re-accreditation at this
stage. They must become accredited as a senior caseworker in order be paid by the Legal Aid Agency
for work conducted under the 2018 Standard Civil Contract.

Senior caseworkers will have to seek re-accreditation every three years. This is unchanged.

Supervising senior caseworkers will have to seek re-accreditation as a senior caseworker, every three
years. This is unchanged.

Duties at each level

Casework assistants and trainee casework assistants who have passed the exam

• Cannot have conduct of cases/matters.

• Can conduct tasks delegated by senior caseworkers from their own case-load,
except in reserved matters. Delegated tasks are supervised by, and remain the
responsibility of, the senior caseworker who has conduct of the matter.

Senior caseworkers

• Senior caseworkers have conduct of all matters.

• Senior caseworkers should delegate tasks to casework assistants, but remain responsible for
the progress and overall conduct of the matter.

Supervising senior caseworkers

Supervising senior caseworkers and senior caseworkers must delegate tasks to casework assistants
(CA) and trainee casework assistants (TCA). Contract-holders must maintain ratio of a maximum 2

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FTE CAs or TCAs to every 1 FTE senior caseworker or supervising senior caseworker. Supervising
senior caseworkers can have conduct of all matters.

Supervising senior caseworkers have responsibility for:

• Supervision of up to 4 supervisees (FTE).

• Supervision and training of casework assistants and trainees, including ensuring that the
allocation of tasks is appropriate by reference to capability, capacity and progress towards
accreditation as a senior caseworker.
• Supervision and training of senior caseworkers.
• Allocation of matters to senior caseworkers, including to themselves.

Legal Aid Agency work restrictions - reserved matters and tasks.

To be conducted only by senior caseworkers. These cannot be delegated:

• All matters for unaccompanied asylum-seeking children and other minors.

• All matters for those who lack capacity within the meaning of section 2 of the Mental
Capacity Act 2005.
• All matters for clients detained at an IRC (Immigration Removal Centre).
• Exercise of delegated function to grant CLR (including when this is conducted at legal help
level).

The Legal Aid Agency has confirmed to the Law Society that tasks in CLR matters can be delegated to
casework assistants, provided the matter or task is not reserved.

The above restrictions apply only to work undertaken under the new civil contract commencing on
1 September 2018. Work carried out after 1 September 2018 under earlier civil contracts will be
subject to current restrictions.

(Previously available at:

https://www.lawsociety.org.uk/support-services/accreditation/immigration-and-
asylum/immigration-and-asylum-accreditation-changes/)

Please note that the most recent documents sometimes refer to ‘assistant caseworker’,
‘caseworker’ and ‘senior caseworker’ but appear to be referring to the same three-level scheme.

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The Accreditation Scheme as a ‘passport’ to OISC competence

In the April 2018 edition of OISC News, a change was announced to OISC’s former policy of generally
allowing those who were members of the accreditation scheme to be exempted from passing the
OISC assessment:

OISC and the IAAS

We have recently changed our operating policy in relation to assessing the competence of
applicant advisers. Previously applicant advisers seeking authorisation from the
Commissioner, who had the Law Society’s Immigration and Asylum Accreditation Scheme
(IAAS) endorsement, were not normally required to take equivalent OISC assessments.
However, the content of the IAAS assessments has greatly changed in recent times. The areas
of knowledge now assessed by the IAAS scheme no longer reflect the OISC syllabus for
applicants who apply for authorisation in our ‘Immigration’ category at any Level. As such
applicants who wish to apply for authorisation in ‘Immigration’ will now need to take OISC
assessments even if they have IAAS accreditation.

ANNOUNCEMENT

Prospective advisers who are seeking authorisation only in the category of Asylum and
Protection and have successfully completed the Law Society IAAS examinations and gained
IAAS accreditation, are not required to sit the corresponding Level OISC competence
assessment. These include:

• IAAS level 1 accredited caseworker > OISC Level 2 assessment (Asylum and Protection)
• IAAS level 2 senior caseworker > OISC Level 3 assessment (Asylum and Protection)
• IAAS level 2 supervisor > OISC Level 3 assessment (Asylum and Protection)
For OISC exemption at Level 2, the minimum requirement is IAAS accredited caseworker. For
Level 3, it is IAAS senior caseworker or supervisor.

The relevant certificate must be enclosed with your application for regulation. Please ensure
that one certificate for each accredited adviser is submitted. For example, if only one
applicant has IAAS accreditation, the others need to sit OISC assessment.

Further exemptions from assessments may be given to organisations who have IAAS
accreditation at accredited or senior caseworkers level, or supervisor level, who provide
immigration advice and services which are entirely limited to work that falls within scope for
Legal Aid (for example Domestic Violence and Immigration Bail applications). Such
exemptions will be decided on a case by case basis

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Conclusions about the process of competence assessment and accreditation

From the materials published by OISC and those published by the Law Society and Central Law
Training in relation to the accreditation exams, it is clear that the schemes are structured and
assessed in a similar way.

• The purpose of both schemes has always been to formulate scenarios which are as close to
real-life as possible. The questions are designed to permit the candidate to show what they
would advise clients, what they would submit in representations or appeal grounds and
what they would do in practice, rather than an academic understanding of asylum and
immigration law or an attempt to catch the candidate out.
• Both schemes adopt a system where one requires more specialised knowledge to progress
through the ascending levels of assessment.
• Both schemes have adopted a system where candidates’ papers are marked according to a
strict marking scheme with little opportunity to score bonus marks.

The most important differences are:

• The subject matter of the accreditation scheme is restricted to the areas ‘in scope’ of Legal
Aid. By contrast, the OISC assessments cover the full spectrum of immigration and asylum
law.
• Under the IAAS, the pass mark in the trainee casework assistant exam is 60 per cent and in
the casework assistant and senior caseworker exams is 50 per cent, whereas the pass mark
in the OISC assessments is 60 per cent at Level 1 and 65 per cent at levels 2 and 3.
• OISC is open book but the accreditation exam is not.
• The accreditation exam supplies advance scenarios for 2 of the 4 scenario questions while
the OISC assessment supplies no advance scenarios.
• The OISC assessment does not require renewal whereas the accreditation scheme requires
re-accreditation every three years.

How training can help

No training provider can provide IAAS accreditation or OISC registration. Only the Law Society and
OISC, respectively, can do that. What training can do, however, is to explain:

• How assessment and accreditation works as a process. This includes what standard of
comprehension is required at each level, what skills are tested, how examinations are
structured and so on.
• The substantive law on which candidates will be tested.

The candidate who both understands the substantive law and adopts techniques gained from an
understanding of the assessment process, is much more likely to pass the relevant competence
assessment or accreditation exam.

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 Exercise - Scenarios

In pairs, discuss whether a person authorised at OISC Level 1 can advise or represent in the
following situations:

(a) You receive a call from a detained asylum seeker, Mr A, who wants to make a bail
application.

(b) Mrs B is an asylum seeker and has come to your office to ask for advice before her asylum
interview. She says she does not have a representative at present.

(c) Mr C is a student. He has completed his degree and has been accepted on a Master’s course.
While he was making the application, his leave to enter expired. It is only a few days after the expiry
and he wants to make an in-country extension application.

(d) Ms D is from Bangladesh. She is present in the UK as a visitor and since she arrived, to visit
family, has been told that she is a British citizen because her grandfather lived and worked in the UK
in the 1960s.

(e) Mr E is an asylum seeker. His application has been refused and he is appealing to the First-
tier Tribunal (IAC). He has been relocated to Cardiff by the Home Office and his representatives in
London are difficult to contact. He has always complied with the reporting conditions of his
immigration bail and he would like those conditions to be relaxed from weekly to monthly and for
the reporting centre to be moved to Cardiff from London.

(f) Mrs F is from Nigeria and she would like help with an application to bring her new husband
over from Nigeria. He is 20 years younger than her.

(g) Ms G is a student with a family life in the UK and her application for an extension of her
leave was refused last week. She wants help with lodging a human rights appeal.

(h) Mr H is a student with current leave seeking to switch to partner status. As he cannot meet
the financial requirements for the new application, he is seeking to rely on the Article 8 provision in
the rules which exempts him from the financial requirement where there are insurmountable
obstacles to the couple living in another country.

19
20
1 Immigration Law
The fundamental rule of immigration control is that it operates an exclusionary principle. Everyone is
excluded from lawful entry or residence unless they are either exempted from control or have
permission. The terms used in the Immigration Acts for permission granted to an individual by the UK
government are ‘leave to enter’ and ‘leave to remain’.

1.1 To whom does immigration control apply?

To understand immigration law, it is important to comprehend the nature and extent of controls, and
who is and is not affected. Immigration control applies to those without the ‘right of abode‘: see s.1
of the Immigration Act 1971:

(1) All those who are in this Act expressed to have the right of abode in the United Kingdom
shall be free to live in and to come and go into and from, the United Kingdom without let or
hindrance…

(2) Those not having that right may live, work and settle in the United Kingdom by permission
and subject to such regulation and control of their entry into, stay in and departure from the
United Kingdom as is imposed by this Act…

1.1.1 Right of abode

The right of abode is mainly limited to British citizens. Confusingly, some British nationals are not
British citizens. There are six types of British nationality, only one of which is full British citizenship.
You will only rarely come across the other five, which are largely connected to former colonies and
protectorates. (However, it should be noted that British Nationals (Overseas) who obtained ‘BN(O)’
status through a connection with Hong Kong before its reversion to China in 1997, have a specific
route to settlement in the UK under the Immigration Rules from 31 January 2021.)

A person with the right of abode is totally exempt from immigration control and therefore has a right
to enter the UK (i.e. does not need permission to do so). However, there are other categories of person
without the right of abode that have significant degrees of freedom of movement into the UK.

1.1.2 Nationals of the European Economic Area who resided in the UK before 2021

Nationals of the European Economic Area (EEA) - which includes all the EU member states plus
Norway, Iceland and Liechtenstein - together with Swiss nationals, have ‘freedom of movement’
within the geographical area covered by these countries. That freedom of movement extended to the
UK until 11pm on 31 December 2020.

Section 7 of the Immigration Act 1988 exempted EEA nationals and their families from the
requirement to hold leave to enter or remain until it was repealed by the Immigration and Social
Security Co-ordination (EU Withdrawal) Act 2020. From 1 January 2021 EEA nationals seeking to enter
the UK for the first time, have become subject to immigration control just as non-EEA nationals are.

For those EEA nationals who resided in the UK before 2021, the withdrawal agreement between the
UK and the EU enables them to retain their residence in the UK, provided for via the EU Settlement
Scheme under which indefinite or limited leave can be granted, depending on the individual’s history
in the UK. EEA free movement law and the EU Settlement Scheme are dealt with in more detail in
Chapter 3 of the notes.

21
1.1.3 Indefinite Leave to Enter or Remain (ILE/R)

ILE/R, also called ‘settlement’, is permanent permission to stay in the UK. For example, a spouse will
be granted ILR once the probationary period is over - providing he or she meets the other criteria such
as knowledge of the English language and life in the UK. No conditions can be attached to ILR once it
is granted.

ILR can be lost, however. It can be revoked through the deportation process, normally as a result of a
criminal conviction. It can also be lost if the holder stays outside the UK for over two years and then
seeks re-admission (dealt with at paragraphs 16-19 of the Immigration Rules). Absences of less than
two years do not cause problems. ILR can also be revoked if the person is found to have used deception
or withheld material information when applying for Leave.

1.2 What is immigration control?

Immigration control is about the regulation of who does and does not enter the United Kingdom and
who is expelled from the United Kingdom. Immigration controls are the mechanisms used to achieve
that regulation. Since the first piece of immigration legislation in the UK, the Aliens Act 1905,
successive governments have adhered to the principle that the free movement of people into the UK
should not be permitted and that some classes of people should be excluded. Control has become
increasingly tight over the years and since the late 1960s the philosophical approach has been to
exclude everyone unless they fit into a group that is specifically included. This is why the Immigration
Rules abound with very narrow immigration categories.

There are two principal legal means of carrying out immigration control, although considerable
enforcement paraphernalia are necessary to oversee this:

Entry Clearance: this is granted outside the UK and is often colloquially referred to as a ‘visa‘. It is
usually now granted in the form of a sticker (or ‘vignette‘) that is placed in the holder‘s passport. In
some cases a Biometric Residence Permit will then be issued once the person has arrived in the UK.

Entry clearance is permission to travel to the UK and, since 1999, it usually also acts as leave to enter
or remain, (see r.25A of the Immigration Rules). An online application is made, documents and
biometrics are provided to the Visa Application Centre overseas, and an Entry Clearance Officer (ECO
– see Personnel of immigration control, below) assesses and decides the application. Not everyone
needs a visa to visit the UK, only nationals of the ‘visa national’ countries which are listed at Appendix
2 of Appendix V of the Immigration Rules, but everyone who wants to enter and remain for six months
or more requires a visa.

Leave to enter or remain: this is needed by all those who do not possess the right of abode if they
want physically to enter the UK. It is usually either granted (or in the case of entry clearance as leave
to enter, endorsed) by an Immigration Officer on arrival at a port in the UK. It can also be issued by
Home Office caseworkers to someone who is already inside the UK, usually as an extension or variation
application, where a particular type or duration of leave to enter has been granted and the person is
applying for it to be renewed or to change their immigration status. It will almost always now take the
form of a Biometric Residence Permit. There is no real difference between leave to enter and leave to
remain, other than that the former is granted at a port and the latter is granted in-country. Leave to
enter or remain can be limited leave, which is time-limited to, for example, one year or three years,
or can be indefinite leave, which is not time-limited.

The Immigration Act 1971 still provides the framework for immigration control, although it has been
heavily amended over the years and very little of the original text remains. It operates, for example,

22
by granting Immigration Officers the powers they require to police the system of immigration control,
including arrest and detention powers and empowering the Secretary of State to make Immigration
Rules, which govern who is and is not allowed to enter the UK.

It is worth noting that the 1971 Immigration Act has been amended and re-written on numerous
occasions, most significantly in 1981 (British Nationality Act, implemented in 1983) and further
immigration acts have followed in 1988, 1993, 1996, 1999, 2002, 2004, 2006, 2007, 2008, 2009, 2014,
2016, 2018 and 2020.

Since April 2013, immigration officials have operated within a number of separate units of the Home
Office:

• the UK Visa and Immigration Service

• the Immigration Enforcement Directorate
• the UK Border Force.

The first two previously operated as the UK Border Agency (abbreviated to ‘UKBA’). The UK Border
Force was split off from the UKBA in March 2012. The UK Border Force is responsible for controls at
the border such as passport checks, and juxtaposed controls operating from various ports abroad, as
well as being responsible for customs.

The functions of these new bodies were previously performed mainly by the Immigration and
Nationality Directorate (‘IND’) of the Home Office, briefly known as the Border and Immigration
Agency (‘BIA’).

Entry clearance work abroad was in previous years carried out by an organisation called UK Visas, a
joint operation between the Home Office and Foreign and Commonwealth Office. The separate
identity for UK Visas was abandoned and it was merged into the UK Border Agency. References to all
these predecessor organisations, particularly the UKBA, will often be encountered in immigration
work.

The Points Based System also introduced requirements for employers and educational institutions
which sponsor overseas workers and students to enforce immigration control on those they sponsor
on pain of being penalised if those they employ or allow to study with them breach immigration laws.

1.3 Personnel of immigration control

There are various personnel, ‘the immigration authorities’, who administer the system:

Entry Clearance Officers (ECOs): ECOs traditionally worked at British diplomatic posts - consulates,
embassies and High Commissions (in Commonwealth countries) - abroad. They deal with entry
clearance applications, almost all of which must now be made on-line. ECOs are managed by Entry
Clearance Managers (ECMs) and complaints should normally be directed to these more senior officials.

Duties include: biometrics, issuing or refusing visas, interviewing applicants at British consulates,
embassies and High Commissions abroad.

Inspectors, Chief Immigration Officers, and Immigration Officers: Most of these staff are immigration
officers. Those who have responsibility for entry at the port, i.e. when people arrive in the UK, fall
within the UK Border Force. Immigration Officers who are involved in the enforcement of immigration
control, principally the administration of immigration bail, detention and removal of persons not
permitted to be in the UK, fall within the Immigration Enforcement Directorate.

23
Duties include: checking and stamping passports, granting and refusing leave to enter the UK, setting
conditions on limited leave, detecting illegal entrants, interviewing asylum applicants at ports and
airports, granting immigration bail or detaining persons not granted entry to the UK.

Caseworkers of the UK Visa and Immigration Service: These officials are responsible for ‘after entry‘
immigration controls. They will deal with applications for extensions to remain in the UK & for
variation of leave. They also deal with applications from asylum seekers and other overseas nationals
who want to remain in the UK. The Home Office in Liverpool consider applications for British
nationality.

Duties include: interviewing asylum seekers, making decisions on asylum claims and considering
representations made on behalf of claimants, considering extensions and variations of leave to remain
applications

Home Office Presenting Officers (HOPOs): HOPOs are a type of Home Office caseworker who present
asylum and immigration appeals before the First-tier Tribunal and Upper Tribunal at hearing centres
around the country.

1.5 The Immigration Rules

The Immigration Rules, officially known as HC395 (House of Commons paper 395), set out who can
and cannot enter and remain in the UK and on what terms. If a person is subject to immigration
control, he or she must usually satisfy the requirements of the Rules in order to enter or remain in the
UK, unless the Secretary of State or one of his officials can be persuaded to exercise discretion in that
person‘s favour (which is increasingly rare). Hence Leave may be granted within the Rules or outside
the Rules. Claims which assert that a decision to remove or exclude a person would breach the Human
Rights Act 1998 (in particular because the decision would breach Article 8 of the European Convention
on Human Rights which provides for a qualified right to respect for private and family life) used to be
dealt with outside the Rules until July 2012. Since then Article 8 claims have been dealt with, in the
first instance, under the Rules before consideration is given to exercising discretion outside of the
Rules.

The Rules have a unique legal status in that they are not statutory instruments or Orders and therefore
not secondary legislation as such. Hence the Home Office decision-maker retains discretion to grant
leave outside the Rules. The Home Office cannot act more restrictively than is set out in the Rules
because, assuming there is a right of appeal, the decision will be overturned on appeal or failing that
would be susceptible to judicial review. The Immigration Rules are made under section 3(5) of the
1971 Act. Where the Secretary of State stipulates that certain requirements must be met in order to
succeed in an application made under the Immigration Rules, all those requirements, including the
requirement to provide specified evidence in support of the application, must appear within the
Immigration Rules themselves. This was held to be the case in Alvi [2012] UKSC 33:

94 … a rule is any requirement which a migrant must satisfy as a condition of being given
leave to enter or leave to remain, as well as any provision "as to the period for which
leave is to be given and the conditions to be attached in different circumstances"…

Consequently, much of the content of the Home Office policy guidance which steered caseworkers
and ECOs on how the Immigration Rules should be applied and the supporting documentation that
had be provided, was cut and pasted into the Immigration Rules. This resulted in the Rules being
extremely detailed, complex and unwieldy.

24
The Immigration Rules were heavily amended and somewhat simplified at the end of 2020 but they
remain extremely long and very detailed. The only comprehensive and authoritative version of the
immigration rules is to be found at: https://www.gov.uk/guidance/immigration-rules
The full index is reproduced below:

Immigration Rules: Index

The rules are divided into different documents. The index page will help you find the part you need.

Immigration Rules: introduction

This contains an explanation of who’s covered by the Immigration Rules, dates of effect and
definitions/interpretations of the terms used.

Immigration Rules part 1: leave to enter or stay in the UK

General provisions regarding entry clearance, leave to enter or remain in the United Kingdom
(paragraphs 7 to 39E).

Immigration Rules part 2: transitional provisions

Transitional provisions Part 2 and Appendix V: Immigration Rules for Visitors.

Immigration Rules part 3: students

Persons seeking to enter or remain in the United Kingdom for studies.

Immigration Rules part 4: work experience

Persons seeking to enter or remain in the United Kingdom in an "au pair" placement, as a working
holidaymaker or for training or work experience (paragraphs 122 to 127).

Immigration Rules part 5: working in the UK

Persons seeking to enter or remain in the United Kingdom for employment (paragraphs 128A to 199B).

Immigration Rules part 6: self-employment and business people

Persons seeking to enter or remain in the United Kingdom as a businessman, self-employed person,
investor, writer or composer or artist (paragraphs 200A to 237).

Immigration Rules part 6A: the points-based system

Points-based system (paragraphs 245AAA to 245ZZE).

Immigration Rules part 7: other categories

Other Categories (paragraphs A246 to 276BVI).

Immigration Rules part 8: family members

Family members (paragraphs A277 to 319Y).

Immigration Rules part 9: grounds for refusal

Grounds for the refusal

Immigration Rules part 10: registering with the police

Registration with the police (paragraphs 325 to 326).

Immigration Rules part 11: asylum

Asylum (paragraphs 326A to 352H).

25
Immigration Rules part 11A: temporary protection
Temporary protection

Immigration Rules part 11B

Asylum

Immigration Rules part 12: Procedure and rights of appeal

Procedure and rights of appeal

Immigration Rules part 13: deportation

Deportation (paragraphs A362 to 400).

Immigration Rules part 14: stateless persons

Stateless persons

Immigration Rules Appendix 2: police registration

Countries or territories whose nationals or citizens are relevant foreign nationals for the purposes of
Part 10 of these Rules

Immigration Rules Appendix 7: overseas workers in private households

Statement of the terms and conditions of employment required for overseas domestic workers in
private households in the UK.

Immigration Rules Appendix A: attributes

Points needed for attributes for applicants in Tiers 1, 2, and 5 of the points-based system.

Immigration Rules Appendix AR: administrative review

Administrative Review

Immigration Rules Appendix AR (EU)

Administrative Review for the EU Settlement Scheme

Immigration Rules Appendix Armed Forces

Rules for members of the armed forces, civilian employees and their families.

Immigration Rules Appendix B: English language

English Language

Immigration Rules Appendix C: maintenance (funds) Tier 1 (Entrepreneur)

Maintenance (funds)

Immigration Rules Appendix E

Appendix E applies only to applications as a dependent partner or dependent child of a Tier 1
(Entrepreneur) Migrant

Immigration Rules Appendix ECAA: Extension of Stay

Appendix ECAA: Extension of Stay

Immigration Rules Appendix ECAA Settlement

ECAA nationals and settlement

26
Immigration Rules Appendix EU
EU, other EEA and Swiss citizens and family members

Immigration Rules Appendix EU (Family Permit)

Appendix EU (Family Permit)

Immigration Rules Appendix F: archived Immigration Rules

Archived Immigration Rules

Immigration Rules Appendix FM: family members

Family members

Immigration Rules Appendix FM-SE: family members specified evidence

Family members - specified evidence

Immigration Rules Appendix KoLL

Knowledge of language and life.

Immigration Rules Appendix M: sports governing bodies

Sports governing bodies for Tier 2 (Sportsperson) and Tier 5 (Temporary Worker - Creative and
Sporting) applications.

Immigration Rules Appendix N: authorised exchange schemes

Approved Tier 5 government authorised exchange schemes.

Immigration rules Appendix O: approved English language tests

List of English language tests that have been approved by the Home Office for English language
requirements for limited leave to enter or remain under the Immigration Rules.

Immigration Rules Appendix SN: Service of notices

Service of notices

Immigration Rules Appendix T: tuberculosis screening

Tuberculosis screening.

Immigration Rules Appendix V: Visitor

Immigration Rules for Visitors

Immigration Rules Appendix Visitor: Permitted Activities

Permitted Activities for visitors

Immigration Rules Appendix Visitor: Visa national list

List of nationalities requiring entry clearance prior to travel to the UK as a visitor, or for any other
purpose for less than six months

Immigration Rules Appendix Visitor: Permit Free Festival List

List of Permit Free Festivals

Immigration Rules Appendix Visitor: Transit Without Visa Scheme

Immigration rules for Visa Nationals transiting the UK landside without a visa.

27
Immigration Rules Appendix S2 Healthcare Visitor
Immigration Rules for S2 Healthcare Visitors

Immigration Rules: Appendix Student

Student route

Immigration Rules Appendix Short-term Student (English language)

Immigration Rules for Short-term Students

Immigration Rules Child Student

Immigration Rules for Child Students

Immigration Rules Appendix Parent of a Child Student

Parent of a Child Student

Immigration Rules Appendix Graduate

This route is for a Student in the UK who wants to work, or look for work, following the successful
completion of an eligible course of study at UK bachelor’s degree-level or above. The study must have
been with a higher education provider with a track record of compliance.

Immigration Rules Appendix Skilled Worker

The Skilled Worker route is for employers to recruit people to work in the UK in a specific job. A Skilled
Worker must have a job offer in an eligible skilled occupation from a Home Office-approved sponsor.

Immigration Rules Appendix Intra-Company Routes

Intra-Company Routes

Immigration Rules Appendix Skilled Occupations

Eligible occupation codes and going rates for Skilled Workers and Intra-Company Transfers

Immigration Rules Appendix Shortage Occupation List

Shortage Occupations for the Skilled Worker route

Immigration Rules Appendix T2 Minister of Religion

This route is for a person who has a key leading role within their faith-based organisation or a religious
order in the UK.

Immigration Rules Appendix T2 Sportsperson

Immigration Rules for T2 Sportsperson

Immigration Rules Appendix Representative of an Overseas Business

Immigration Rules for Representative of an Overseas Business

Immigration Rules Appendix UK Ancestry

Immigration Rules for UK Ancestry

Immigration Rules Appendix Global Talent

The Global Talent route is for people aged 18 or over in the field of science, engineering, humanities,
medicine, digital technology or arts and culture who can show they have exceptional talent or
exceptional promise.

28
Immigration Rules Appendix Global Talent: Prestigious Prizes
Global Talent: Prestigious Prizes

Immigration Rules Appendix Start-up

The Start-up route is for a person seeking to establish a business in the UK for the first time.

Immigration Rules Appendix Innovator

The Innovator route is for a person seeking to establish a business in the UK based on an innovative,
viable and scalable business idea they have generated, or to which they have significantly contributed.

Immigration Rules Appendix Overseas Domestic Worker

Overseas Domestic Worker

Immigration Rules Appendix Domestic Workers in a Private Household

Immigration Rules Appendix Domestic Workers in a Private Household

Immigration Rules Appendix Domestic Worker who is a Victim of Modern Slavery

Appendix Domestic Worker who is a Victim of Modern Slavery

Immigration Rules Appendix Domestic Worker Statement

Appendix Domestic Worker Statement

Immigration Rules Appendix T5 (Temporary Worker) Seasonal Worker

This route is for workers in edible horticulture doing seasonal work in the UK with a sponsor.

Immigration Rules Appendix T5 (Temporary Worker) Youth Mobility Scheme

The Youth Mobility Scheme provides a cultural exchange programme that allows a person aged
between 18 and 30, from participating countries and territories, to experience life in the UK for up to
2 years.

Immigration Rules Appendix Youth Mobility Scheme: eligible nationals

Countries and Territories participating in the T5 (Temporary Worker) Youth Mobility Scheme and
annual allocation of places for 2020

Immigration Rules Appendix T5 (Temporary Worker) Creative or Sporting Worker

The Creative or Sporting Worker route is for a person who wants to work within the creative or sporting
sector.

Immigration Rules Appendix T5 (Temporary Worker) Religious Worker

The Religious Worker route is for a person who wants to support the activities of religious institutions
in the UK by conducting religious work such as working in a religious order or undertaking non-pastoral
work for a religious organisation.

Immigration Rules Appendix T5 (Temporary Worker) Charity Worker

The Charity Worker route is for a person who wants to come to the UK to do voluntary work for no
more than 12 months.

Immigration Rules Appendix T5 (Temporary Worker) International Agreement Worker

The International Agreement Worker route is for a person who wants to come to the UK to provide a
service covered under international law, such as private servants in diplomatic households, employees

29
of overseas governments and international organisations, or under the General Agreement on Trade
in Services (GATS) or another agreement under which the UK has commitments.

Immigration Rules Appendix T5 (Temporary Worker) Government Authorised Exchange Worker

route
The Government Authorised Exchange Worker route is for a person who wants to come to the UK on
an approved scheme for a period of no more than 12 or 24-months (depending on the scheme). A
dependent partner and dependent children can apply on this route. The Government Authorised
Exchange route is not a route to settlement.

Immigration Rules Appendix T5 Creative Workers Codes of Practice

Where a person is applying under Appendix T5 (Temporary Worker) Creative or Sporting Worker, as a
creative worker or part of and their entourage, operating in dance, theatre, film and television, or as
a model in the fashion industry, their sponsor must follow the relevant code of practice specified below
and comply with the other requirements.

Immigration Rules Appendix Service Providers from Switzerland

The Service Providers from Switzerland route allows eligible employers, companies or self- employed
individuals to execute contracts with a party based in the UK for a period not exceeding 90 days per
calendar year.

Immigration Rules Appendix Hong Kong British National (Overseas)

The Hong Kong British National (Overseas) route has two routes – the BN(O) Status Holder route and
the BN(O) Household Member route.

Immigration Rules Appendix ATAS: Academic Technology Approval Scheme (ATAS)

The ATAS requirement is a requirement to obtain a valid ATAS certificate, issued by the Counter
Proliferation and Arms Control Centre, and to provide it with an application to study any of the
specified subjects listed in this Appendix.

Immigration Rules Appendix English Language

This Appendix sets out how the English language requirement is met.

Immigration Rules Appendix KOL UK

This Appendix sets out how the Knowledge of Life in the UK requirement is met by a person applying
for settlement.

Immigration Rules Appendix Finance

This Appendix sets out how the financial requirement must be met.

Immigration Rules Appendix Continuous Residence

This Appendix sets out how the continuous residence requirement is met.

The selection of the Rules and Appendixes for the OISC Resource Books
There are 14 parts and 65 separate appendixes of the Rules (up from 26 appendixes pre-simplification)
but only some feature in the OISC Level 1 Exam Resource Book. All those which appear (in full or in
part) in the OISC Level 1 Exam Resource Book are underlined in the list which appears above.

It should be noted that the Immigration Rules are regularly amended more often than the OISC
Resource Book is issued. The Rules are amended on average around 12 times per year, while the OISC
Resource Book is updated two or three times per year.

30
So, when advising in real cases, only the current version of the Rules on the gov.uk website is to be
relied on; whereas, for the purposes of OISC assessment exams:
the exam will be based on immigration law as it exists or existed on the date on this document [the
OISC Exam Resource Book]

https://www.gov.uk/government/publications/oisc-competence-assessment-process/the-
competence-assessment-process

There are many categories in the Rules. Traditionally each category included the following:
• Whether entry clearance is required
• The criteria for initial admission to the UK for the first time
• The criteria for applying for an extension of leave in that category, including whether it is
possible to switch into that category from another for a person already in the UK
• What type of leave will be granted and for how long
• What conditions will apply to the grant of leave
• Whether indefinite leave to remain could be obtained

More recently, each category of the Rules tends to contain:

• Validity requirements (pre-requisites and procedures for applying)
• Suitability requirements (character, conduct and criminality which can lead to refusal)
• Eligibility requirements (what must be proven; may include duration and conditions of leave)
• Settlement requirements (what must be proven in order to be granted ILR - if available)
• Dependents’ requirements (rules for partners and minor children to join – if permitted)

Despite, or perhaps because of, the complexity of the Rules, the Home Office still produces policy
guidance which provides an explanation of what some of the terms mean, how they will be interpreted
by officials and what processes and procedures will be followed. The main ones are:
• Entry Clearance Guidance (previously known as the Diplomatic Service Procedures): these are
instructions to Entry Clearance Officers.
• Immigration Staff Guidance: brings together the guidance previously found in the
Immigration Directorate Instructions (IDIs) and the Modernised Guidance. These are directed
at officials in the UK deciding in-country immigration and EEA cases.
• Asylum Policy (formerly ‘APIs’): concerns asylum-related decision-making.
• Enforcement: Directed mainly at Immigration Officers
• Nationality Guidance: Updated version of previous Nationality Instructions

These documents can sometimes hide important concessions and policies. It is essential to consider
the guidance when advising clients or preparing applications as these important documents should
guide caseworkers making decisions. Along with the rest of the Home Office website, Home Office
policy guidance was transferred to the gov.uk website in 2014. For the purposes of assessment and
accreditation, HJT Training and the Immigration Law Practitioners Association jointly publish a
compendium of historic Home Office policies and regularly run a joint training session with materials
to keep the publication up to date.

1.6 Making applications

From November 2018 a new online system for Leave applications made within the UK was introduced.
The detailed mandatory requirements about how applications are to be made are found in different
parts of the Immigration Rules:

31
 • The general requirements about ‘How to make a valid application for leave to remain in the
UK’ are found in Part 1 of the Immigration Rules, paragraph 34-34G.
• For many categories, there are also specific procedural requirements under the ‘validity’
section of the category.
Under the UK Visa and Citizenship Application Service (UKVCAS) process, an application is made and
paid for online before the applicant is redirected to the website of commercial partner Sopra Steria to
book an appointment to attend a VCAS centre to enrol biometric information. A ‘standard service’,
‘Priority service’ and ‘super priority service’ (with higher fees leading to a quicker decision) have
replaced Premium Service Centres.

Automatic extension of leave (also known as ‘continuing leave’, ‘3C leave’ or ‘statutorily extended
leave’)

Applications for an extension of leave should be made whilst the applicant has current leave to enter
or remain – an ‘in-time application’. The Home Office recommends the application is made no earlier
than 28 days before the current leave expires.

The Home Office takes weeks, months and sometimes longer to make a decision on an application for
an extension of leave. During this time it appears, naturally enough, to most observers that the
person’s leave expires after the expiry date recorded on the vignette or found in the Biometric
Residence Card or stamped in the passport. But it would be unfair for a person to become an
overstayer, where they have made an in-time application, due to the Home Office not making an
immediate decision on it.

Section 3C of the Immigration Act 1971 addresses this problem by automatically extending Leave while
an in-time application is pending. If a decision is made to refuse the application, Section 3C further
extends the Leave to allow the applicant to lodge an appeal with the First-tier Tribunal (IAC). Leave is
further extended if an in-time appeal is lodged and remains pending. It also extends the conditions
attached to the previous grant of leave.

A similar provision (Section 3D of the Immigration Act 1971) used to automatically extend the leave
of those whose leave was curtailed whilst they appealed against the curtailment. Following the
changes in appeal rights by the Immigration Act 2014, decisions to curtail or revoke leave no longer
give rise to a right of appeal. Section 3D therefore continues to apply only to people whose leave was
revoked or curtailed before 6 April 2015 and who have appeals pending against the decision to revoke
or curtail their leave (under the pre 6 April 2015 appeals system).

Section 3C was amended by the Immigration Act 2014 and subsequently to provide that in cases where
a right of appeal to a Tribunal has been replaced by a right to apply for Administrative Review, leave
is statutorily extended until the Secretary of State makes an Administrative Review decision. Following
amendment by the Immigration Act 2014. The Act now provides:

Section 3C

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

32
 (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, is pending (within the meaning of section 104 of that Act),

(ca) an appeal could be brought under the Immigration (Citizens' Rights Appeals) (EU Exit)
Regulations 2020 ("the 2020 Regulations"), 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),

(cb) an appeal under the 2020 Regulations against that decision, brought while the appellant
is in the United Kingdom, is pending (within the meaning of those Regulations), or

(d) an administrative review of the decision on the application for variation—

(i) could be sought, or

(ii) is pending.

The effect of S3C, as amended, is that if an application is submitted before a person’s leave is due to
expire and the application is then considered and refused before the expiry of leave, the leave is no
longer statutorily extended beyond the original expiry date. That is so even where an appeal is made
to the First-tier Tribunal or an application made to the Home Office for administrative review. Clearly
an adviser will need to discuss the timing of any application and how it might affect the extension of
their leave under s3C.

Overstaying and the Para 39E exceptions

It remains vital to make an in-time application wherever possible despite the fact that the Immigration
Rules allow applications to be made where the applicant has overstayed. ‘Overstaying’ is defined in
paragraph 6 of the Immigration Rules as staying beyond the latest of:

(i) the time limit attached to the last period of leave granted, or

(ii) beyond the period that his leave was extended under sections 3C or 3D of the Immigration
Act 1971

Paragraph 39E of the Immigration Rules provides exceptions for overstayers:

39E. This paragraph applies where:

(1) the application was made within 14 days of the applicant’s leave expiring and the Secretary
of State considers that there was a good reason beyond the control of the applicant or their
representative, provided in or with the application, why the application could not be made in-
time; or

(2) the application was made:

33
 (a) following the refusal of a previous application for leave which was made in-time;
and

(b) within 14 days of:

(i) the refusal of the previous application for leave; or

(ii) the expiry of any leave extended by section 3C of the Immigration Act 1971;
or

(iii) the expiry of the time-limit for making an in-time application for
administrative review or appeal (where applicable); or

(iv) any administrative review or appeal being concluded, withdrawn or

abandoned or lapsing.

(3) the period overstaying was between 24 January and 31 August 2020; or

(4) where the applicant has, or had, permission on the Hong Kong BN(O) route, the period of
overstaying was between 1 July 2020 and 31 January 2021.

This paragraph took effect from 24 November 2016, but only applies to applications made on or after
24 November 2016. For a number of years previously, the Rules had allowed a 28 day period of
overstaying during which an application for further leave would still be treated as valid. (It will
therefore always be necessary to carefully consider the dates of a person’s overstaying when making
an application.)

But however long the period of permitted overstaying – 14 days or 28 days – while an application
made within that period is being considered under the Rules in the normal way, the applicant will still
have become an overstayer and will remain so unless or until they are granted leave. Overstaying is a
criminal offence, though not one which is normally prosecuted. More seriously, a person who works
while not having leave to remain will be committing a criminal offence. The 14 day disregard should
be relied on only where there is no other option.

‘Invalid applications’

If an application is returned to an applicant as ‘invalid’ this is not the same thing as the application
being refused. It means that the application has not complied with the requirements for a valid
application as set out in the Immigration Rules. The decision on whether an application is valid is made
before a substantive consideration of the merits of the application.

A notice that an application for leave or an application for administrative review) is invalid must be
served in accordance with Appendix SN: Service of notices of the immigration rules. Further details
about the Home Office approach to validity and invalidity is to be found in the guidance Validation,
variation and withdrawal of applications.

Invalid applications are returned to applicants or their advisers, endorsed with the defects which need
remedying on a ‘Notice of Invalidity’. However, because applications can only be submitted no more
than 28 days before the expiry of existing leave (and often are submitted shortly before expiry) any
decision to treat an application as invalid can mean that it is returned to the applicant after their leave
has expired, thus resulting in the applicant becoming an overstayer from the point they receive the
Notice of Invalidity, with the serious consequences discussed above. Clearly, it is vitally important that
the application is validly made according to the rules and policies governing the application system.

34
There are circumstances where a valid application may not be insisted upon by the Home Office. This
is rare and might arise where a person has been notified of an intention to remove them and makes a
claim under Article 8 of the European Convention on Human Rights (Paragraph 400 of the Immigration
Rules). A different procedure also applies where a fresh human rights claim is being made ie where a
previous claim was made, refused and any appeal rights were exhausted.

1.7 Application forms and fees

Because it is vital in practice to identify the correct application form and provide the correct fee, the
assessment and accreditation schemes have awarded marks to candidates who demonstrate this
knowledge. There is no substitute for knowing where to identify this information and ensuring that it
is up to date, given that fees are re-set annually and a new online system is now in force for most kinds
of applications.

Applicable fees for immigration and nationality applications can be found at:
https://www.gov.uk/government/publications/visa-regulations-revised-table

At the time of writing, a full list of the forms applicable to each immigration and nationality application,
can be found at: https://www.gov.uk/government/collections/uk-visa-forms. Most entries now lead
to the online application system.

Those applying for leave or extensions on Article 8 grounds will have to pay a fee, though they can
apply for a fee exemption. Detailed Home Office guidance is found in Fee waiver: Human Rights-
based and other specified applications.

The sole consideration on whether someone is eligible for a fee waiver is an affordability test to assess
whether the individual has credibly demonstrated that they cannot afford the fee. Fee waivers should
be granted if the applicant has credibly demonstrated that they meet the affordability test or are
destitute or at imminent risk of destitution.

Applications must be made using the online form located alongside the FLR (FP) application form.

35
1.8 Criminal offences

There are a number of criminal offences in the field of immigration and asylum. Some may be
committed by immigrants or asylum seekers, some by advisers or others. A summary of the main
offences is set out below, but this list is not definitive – the original text of the legislation must be
consulted to fully understand the offences. Note that, for OISC level 1 advisers, this section of the
notes exists for information only: OISC level 1 advisers are not permitted to engage in any work
relating to offences and so must signpost or refer appropriately. Often a client charged with an
immigration offence will need an immigration lawyer and a criminal lawyer as few firms specialise in
both but the client will require advice relating to both problems. Two referrals for the same client may
therefore be necessary.

Offences by immigrants or asylum seekers

• Illegal entry (s.24 1971 Act): entering UK illegally (without leave) or breaching terms of leave
(time or other conditions of leave). Does not apply to British citizens.

• Deception (s.24A of 1971 Act): obtaining leave or avoiding enforcement action by means of
deception. Does not apply to British citizens.

• Illegal working (s.24B of 1971 Act): working at a time when the worker knows or has
reasonable cause to believe they are disqualified from working by reason of their immigration
status. Disqualification from working is defined to include where a migrant has not been
granted leave to enter or remain in the UK, or their leave to enter/remain is invalid, has ceased
to have effect or is subject to a condition preventing work of that kind. ‘Working’ is broadly
defined which is intended to capture any migrant who works in the UK without the necessary
immigration permission to do so, whether that illegal working is on an employed, self-
employed or other basis will not be material.

The offence carries a maximum term of imprisonment of up to six months or a fine, or both.
Further, a confiscation order may be made under section 70 of the Proceeds of Crime Act 2002
to seize the earnings of the convicted illegal worker.

• Entering UK without immigration document (s.2 of 2004 Act): offence is not possessing or
producing an immigration document when one is needed, but there are various defences,
including reasonable excuse (although destroying under instructions of agent is not
reasonable unless can show it would be unreasonable to expect non-compliance with agent’s
instructions), proving travel all the way to UK on false immigration document or proving that
never possessed an immigration document.

• Failing to co-operate with removal or deportation (s.35 of 2004 Act): offence is to fail to take
an action in connection with removal that is requested by the Secretary of State, such as giving
fingerprints, providing information or documents, making an application to a consulate and
others.

Offences by advisers, facilitators, smugglers, traffickers or others

• Assisting unlawful immigration to an EU Member State (s.25 of 1971 Act): knowingly

facilitating breach of an immigration law. Applies to British citizens, including if done abroad.

36
 • Helping asylum seeker to enter UK (s.25A of 1971 Act): knowingly and for gain facilitating
arrival of an asylum seeker in the UK. Anyone acting for an organisation which aims to assist
asylum seekers and does not charge for its services is exempt.

• Assisting entry to UK in breach of deportation or exclusion order (s.25B of 1971 Act): exactly
what it says!

• Trafficking people for exploitation (s.4 of 2004 Act): facilitating arrival of person in UK where
intend to exploit or believe another person likely to exploit. Exploitation includes slavery and
forced labour, Human Organ Transplant Act 1989 offences, providing services or benefits
through force, threats or deception, undertaking any activity where selected because of
mental or physical illness, disability, youth or family relationship, where would otherwise not
do so.

General offences

General offences in connection with administration of 1971 Act (s.26 of 1971 Act): this is broad and
requires detailed explanation. Applies to anyone. Offences include:
• without reasonable excuse, failing to submit to examination by an Immigration Officer or
failing to provide information or documents as required
• making false statement under examination by Immigration Officer
• altering any immigration document of any kind
• obstructing an Immigration Officer

Forging or altering an Asylum Registration Card (ARC) (s.26A of 1971 Act): exactly what it says

Possession of an immigration stamp (s.26B of 1971 Act): includes making or forging one

Civil Penalties for illegal working

Fines of up to £20,000 per worker can be, and regularly are, levied on employers who employ migrants
who are not lawfully entitled to work in the U.K. It is a defence for employers to show that they have
followed prescribed procedures to check on an employee’s right to work.

Amendments made by Immigration Act 2016

From 12 July 2016 amendments were made to the existing offence of employing an illegal worker
(Section 21 Immigration, Asylum and Nationality Act 2006.) Prior to amendment, in order to be guilty
of the offence, an employer had to have known that an employee did not have leave carrying a right
to work. Following amendment, the offence may be committed by an employer who either knows or
has reasonable cause to believe that a person is working without permission. The test for culpability
was lowered and the maximum penalty raised from two years’ imprisonment to five.

This offence is in addition to the civil penalties contained in Section 15 of the Immigration, Asylum and
Nationality Act 2006.

37
1.9 Enforcement

Enforcement matters cannot be conducted by advisers authorised at OISC Level 1 so, for such advisers,
the following is for information purposes only. There are two main ways in which a person without
the right of abode can be removed from the UK: deportation and administrative removal. It is
important to understand the difference between deportation and removal.

Deportation

Deportation is the colloquial term used for all removals, but now only refers to a specific type of the
removal of those whose presence here is decided by the Secretary of State or statute to be ‘not
conducive to the public good’ - often ‘foreign national prisoners’ following completion of a period of
imprisonment. A deportation order prevents a person from applying for entry clearance to come back
to the UK, though the Order can sometimes be revoked by application after many years have passed.

The only circumstances in which a deportation can take place are:

• where the Secretary of State deems a person’s deportation is ‘conducive to the public good’
(s.3(5) of 1971 Act); or

• where a court recommends deportation following conviction for a criminal offence (s.3(6) of
1971 Act); or

• where the automatic deportation provisions of section 32 of UK Borders Act apply (where a
person has been sentenced to imprisonment for 12 months or more for a single offence).

The process involved in deportation is as follows:

1. Having identified an individual as being under consideration for deportation, the Secretary of
State (usually the ‘Criminal Casework Team’ of the Home Office) will write to the person
requesting reasons why a decision to deport should not be made.

2. Following consideration of the representations if any, a notice of a decision to deport is usually

served on the person concerned (unless the Secretary of State changes his mind).

3. A deportation notice no longer triggers a right to appeal. The right to appeal is only triggered
if the deportation notice constitutes the refusal of a human rights claim. A human rights claim
under Article 8 ECHR may be certified. This includes certifying (under s94B of the Nationality,
Immigration and Asylum Act) that a person’s human rights would not be breached if that
person were removed from the UK pending their appeal.

4. If the appeal is unsuccessful, a deportation order will be signed, served and carried out.

38
Administrative removal

Administrative removals take place under s.10 of the 1999 Act as amended by the Immigration Act
2014 or under paragraphs 8 to 10 of Schedule 2 of the 1971 Act. The Secretary of State can remove
under s.10:

if the person requires leave to enter or remain in the United Kingdom but does not have it.

A decision to remove cancels any existing leave. Since the amendments to the statutory appeal
provisions brought in by the Immigration Act 2014, the removal decision does not in itself trigger a
right of appeal.

Illegal entrants (the vast majority of asylum seekers, for example) are removed under paragraph 8 of
Schedule 2 of the 1971 Act. ‘Illegal entrant’ is defined at s.33 of the 1971 Act and is a person who
enters the UK:

• without being examined by an Immigration Officer – e.g. in the back of a lorry

• in breach of a deportation order

• using deception – the deception has to be material

The legal power to administratively remove someone is not the same as the actual reality of being
able to do so. Some failed asylum seekers cannot be removed in practice although in law they can be.

Appeals

An appeal against deportation or removal will only succeed if it can show that the deportation is:

• Contrary to the Refugee Convention

• Contrary to the UK’s obligations to grant Humanitarian Protection
• Unlawful under s6 of the Human Rights Act (contrary to the ECHR).

39
1.10 Detention

An OISC level one adviser cannot assist with a bail or other release application. However, Bail for
Immigration Detainees (BID) has produced some very useful information and guidance intended for
detainees themselves, which is available for free on their website (www.biduk.org). A detainee can
make his or her own application for bail and an OISC level one adviser can make the materials available
to a detainee or a friend or relative of a detainee.

The information below is important for a contextual understanding of the situation many immigrants
and asylum seekers find themselves in, even if you cannot give advice on these issues.

Criteria for detention

According to the law, detention may be used:

• to effect removal or deportation; or

• initially to establish a person’s identity and/or basis of claim;
• where there Is reason to think the person will fail to comply with conditions attached to the
grant of immigration bail (i.e. abscond)

Detention was also used for the fast-track asylum processes to make an initial decision on an asylum
claim and during the fast-track appeal process although the fast-track asylum process was declared
unlawful by the courts in 2015. The Home Office policy, in line with Article 5 of the European
Convention of Human Rights (the right to liberty), is that there is a presumption of liberty and
detention will only be used where necessary. There must therefore be strong reasons why detention
is justified.

Often, a decision to detain will seem quite arbitrary and the reasons given justifying detention in a
particular case will be very generalised. In such cases, detention can and should be vigorously
challenged using the remedies to detention discussed below.

The Enforcement Guidance on Detention and Temporary Release (formerly Chapter 55 of the Home
Office Enforcement Instructions and Guidance) set out the principles of when detention will be lawful.
There is a presumption in favour of temporary release, but detention will be lawful if it is to effect
removal and because there is reason to believe a person may fail to comply with conditions of
temporary admission / release (now immigration bail).

A person may have more incentive to comply with reporting restrictions if he has an appeal or
representations outstanding.

Chapter 55.2 sets out the source of the power to detain:

• Paragraph 16(2) of Schedule 2 to the 1971 Act (as applied by section 10(7) of the Immigration
and Asylum Act 1999);

• Section 62 of the Nationality, Immigration and Asylum Act 2002

The guidance recognises: Detention can only lawfully be exercised under these provisions where there
is a realistic prospect of removal within a reasonable period.

EIG Chapter 55.3 states:

40
1. There is a presumption in favour of temporary admission or temporary release – there must be
strong grounds for believing that a person will not comply with conditions of temporary admission or
temporary release for detention to be justified.

2. All reasonable alternatives to detention must be considered before detention is authorised.

At 55.3.1 the EIG sets out the factors influencing a decision to detain. These act as a useful checklist
for any representations seeking TA or a bail application:

• What is the likelihood of the person being removed and, if so, after what timescale?
• Is there any evidence of previous absconding?
• Is there any evidence of a previous failure to comply with conditions of temporary release or
bail?
• Has the subject taken part in a determined attempt to breach the immigration laws? (For
example, entry in breach of a deportation order, attempted or actual clandestine entry).
• Is there a previous history of complying with the requirements of immigration control? (For
example, by applying for a visa or further leave).
• What are the person's ties with the UK? Are there close relatives (including dependants)
here? Does anyone rely on the person for support? If the dependant is a child or vulnerable
adult, do they depend heavily on public welfare services for their daily care needs in lieu of
support from the detainee? Does the person have a settled address/employment?
• What are the individual's expectations about the outcome of the case? Are there factors
such as an outstanding appeal, an application for judicial review or representations which
might afford more incentive to keep in touch than if such factors were not present? (See also
55.14).
• Is there a risk of offending or harm to the public (this requires consideration of the likelihood
of harm and the seriousness of the harm if the person does offend)?
• Is the subject under 18?
• Is the subject an adult at risk? See the separate guidance in Chapter 55b - Adults at risk in
immigration detention

41
1.11 Immigration Bail

Significant changes to immigration detention powers and a new status called “immigration bail” came
into force on 15 January 2018. The Immigration Act 2016 (Commencement No. 7 and
Transitional Provisions) Regulations 2017 commence sections 61(1) and (2) and 66 of the
Immigration Act 2016 and most of the immigration bail provisions set out in Schedule 10. As
the explanatory note explains:

Schedule 10 introduces a new framework for immigration bail, replacing a legal framework
containing six different legal statuses (including immigration bail and temporary admission)
with a single power of immigration bail.

This power to grant bail is conferred on both the Secretary of State and the First-tier Tribunal, in the
former case by paragraph 1(1) and (2) of Schedule 10 and in the latter case by paragraph 1(3).
The difference is that the Secretary of State may grant bail where a person is not detained but
is liable to detention but there is no equivalent power for the tribunal.

Immigration detainees are now held in Immigration Removal Centres (IRCs), Residential and Non
Residential Short Term Holding Facilities (STHFs), and Holding Rooms either based at or near
ports of entry and reporting centres.

Process of Seeking Release from Detention

Most of the immigration bail provisions contained in Schedule 10 to the Immigration Act 2016 (IA
2016) came into force on 15 January 2018. The Immigration Act 2016 (Consequential
Amendments) (Immigration Bail) Regulations 2017, SI 2017/1242 came into force on the same
date and makes a range of minor consequential amendments to secondary legislation.

Before 15 January 2018, a person who had been examined or detained under immigration powers
could be released or provided with a temporary form of status by the Secretary of State for
the Home Department (SSHD) under a range of different powers (ie temporary admission,
temporary release, Tribunal bail, immigration officer bail and restriction orders).

The effect of Schedule 10 to IA 2016 is to unify these six different temporary legal powers into a single
power of ‘immigration bail’, which allows for a person to reside in the UK on a temporary basis
and subject to one or more bail conditions. In practice, bail is granted by either a Chief
Immigration Officer (CIO) on behalf of the SSHD or the First-tier Tribunal (Immigration and
Asylum Chamber).

Persons on temporary admission, release and bail prior to 15 January 2018 are treated as being on
immigration bail from 15 January 2018.

The Home Office has published an IEGI Immigration bail from which the following is taken:

Eligibility for Immigration Bail

Any person detained, or liable to be detained, under any of the following provisions is
eligible to be granted immigration bail by the Secretary of State:
• paragraph 16(1), (1A) or (2) of Schedule 2 to the Immigration Act 1971
(detention by immigration officers of persons liable to examination or removal)
• paragraph 2(1), (2) or (3) of Schedule 3 to that Act (detention pending
deportation)

42
• section 62 of the Nationality, Immigration and Asylum Act 2002 (detention by
Secretary of State of persons liable to examination or removal)
• section 36(1) of the UK Borders Act 2007 (detention pending automatic
deportation)
A person who is liable to be detained under any of the above provisions can be
granted, and remain on, immigration bail even if that person can no longer be
lawfully detained (for example, because there is no realistic prospect of the person’s
removal taking place within a reasonable time).
A person against whom the Secretary of State is considering making a deportation
order under section 5(1) of the Immigration Act 1971 can remain on immigration bail
even if that person is no longer liable to be detained.
[p8]
…
The statutory power to grant immigration bail is in paragraph 1 of Schedule 10.
The power to grant immigration bail is available to the Secretary of State (in practice,
a person acting on behalf of the Secretary of State, including an immigration officer)
if a person is:
• detained under any of the detention powers listed in the bullet points in
Eligibility for immigration bail
• liable to be detained under any of the detention powers listed in the bullet
points in Eligibility for immigration bail

The Secretary of State may consider granting immigration bail to a person if the
Secretary of State thinks this is appropriate, whether or not the person has submitted
an application for immigration bail. If a detained person wishes to apply to the
Secretary of State for a grant of immigration bail, the person must do so using the
official immigration bail application form - BAIL 401 (which can be found on DocGen
on CID). In most cases, bail will be granted using the notification of grant/variation of
immigration bail form - BAIL 201 (which can be found on DocGen on CID). However,
some casework refusal notices also contain the option for granting immigration bail.
The power to grant immigration bail is available to the First-tier Tribunal if a person is
already detained under any of the powers in paragraph 1(1) of Schedule 10 (for
further information see: Eligibility for immigration bail). The Tribunal has no power to
grant immigration bail to a person who is liable to detention but not detained. For
further information, see Statutory limitations on First-tier Tribunal power to grant
immigration bail.

A detained person who wishes to be granted bail by the Tribunal must submit an
application in writing to the Tribunal using Form B1.

The fact that a person has been granted immigration bail does not prevent the
person’s possible arrest and subsequent detention under one of the provisions
mentioned in Eligibility for immigration bail. This allows a person on immigration bail
to be detained pending an enforced removal, for example, where the person has
been granted bail whilst waiting for a travel document which then becomes available.

Duration of immigration bail

A person is on immigration bail from when a grant of immigration bail starts to when
it ends. These events are defined in paragraphs 1 and 3 of Schedule 10.

A grant of immigration bail starts from the time that is stated on the notice granting it.

43
The notice may state that bail is conditional on certain arrangements being in place,
and that it starts once those arrangements have been made.

A grant of immigration bail ends when the person to whom it is granted is:
• no longer liable to be detained and the Secretary of State is not considering
whether to make a deportation order against the person
• granted leave to enter or remain in the UK
• detained under one of the provisions mentioned in Eligibility for immigration bail
• removed from, or otherwise leaves, the UK
…
Conditions of immigration bail
…
The grant of immigration bail to a person must be subject to at least one of the
following:
• a condition requiring the person to appear before the Secretary of State or the First-
tier Tribunal at a specified time and place
• a condition restricting the person’s work, occupation or studies in the UK
• a condition about the person’s residence
• a condition requiring the person to report to the Secretary of State or other
person specified
• an electronic monitoring condition
• such other condition as the person granting the immigration bail sees fit (for
example: curfew; requirement to notify the Home Office of change in
circumstances)

Decision makers may also impose a financial condition but this must be in addition to
– and attached to – one or more of the above conditions.

When setting a condition of immigration bail, the Secretary of State must be satisfied
that the individual will be able to comply with that condition from the start of a grant
of immigration bail.

The number and type of immigration bail conditions to impose will vary depending on
the circumstances of the individual case. For example, a person being granted
immigration bail from detention while barriers to removal are resolved may require
more stringent bail conditions than a person being granted immigration bail from a
position of liberty (for example, on arrival at a port of entry or on submission of an incountry
application) while an outstanding application is considered. This is because, at their
respective stages of the process, the latter would generally have more of an incentive
to cooperate with the authorities than the former. In reaching a decision on
appropriate bail conditions, decision makers must have regard to the matters listed
under Exercising the power to grant immigration bail.

The conditions imposed must:

• take into account the facts of the individual case
• enable the Home Office to maintain appropriate levels of contact with the
individual
• reduce the risk of non-compliance, including absconding
• minimise potential delay in the Home Office becoming aware of any noncompliance
• be in furtherance of facilitating the individual’s return

44
 Decision makers should be aware that breach of bail conditions gives rise to the
possibility of criminal proceedings and a fine or imprisonment (for further information,
see Non-compliance with immigration bail: criminal penalties). Decision makers must
therefore keep this in mind when setting conditions, particularly “other” conditions
(the gravity of the breach should be such that prosecution could be a proportionate
outcome).
[p9-12]

Bail Applications

Applications are made on form BAIL401 (for applications to the SSHD) or form B1 for applications to
the tribunal.

The SSHD and the tribunal must consider the following factors when determining whether to
grant bail and what conditions a person’s immigration bail should be subject to:

• the likelihood that the person will fail to comply with a bail condition

• whether the person has been convicted of an offence (within or outside the UK)

• the likelihood of the person committing an offence while on immigration bail

• the likelihood of the person’s presence in the UK while on immigration bail causing a
danger to public health or a threat to public order

• whether the person’s detention is necessary in that person’s interests or for the
protection of any other person, and

• any other relevant matters

Bail Applications to the First-tier Tribunal

Updated Guidance on immigration bail for judges of the First-tier Tribunal was issued in January 2018
and is available on the Courts and Tribunal Judiciary website. It highlights the fundamental
nature of the right to liberty and the need to consider the duration of detention and its effect
on a person and their family. The section on ‘General Principles’ states:

GENERAL PRINCIPLES
4. Liberty is a fundamental right of all people and can only be restricted if there is no
reasonable alternative. This principle applies to all people in the UK, including foreign
nationals.

5. Immigration detention cannot be used as punishment, as a deterrent or for any

coercive purpose. Immigration detention cannot be used to prevent or restrict the
establishment of family or private life, or to prevent or restrict an applicant from
pursuing lawful action to remain in the UK.

6. When considering whether to grant bail, judges are not deciding whether continued
detention is lawful.

45
 7. It is generally accepted that detention for three months would be considered a
substantial period and six months a long period. Imperative considerations of public
safety may be necessary to justify detention in excess of six months.

8. Judges should be slow to interfere in cases where a person is detained for the
expedited examination of an immigration application, such as a protection claim,
where detention can be shown to be necessary and justified and there is no
reasonable alternative. However, judges should not tolerate delays in such actions.

Bail cannot be granted by the tribunal to a person who is liable to examination or removal at port until
at least eight days have passed beginning with the date of their arrival in the UK.

Where a person is subject to removal directions on a date that is within 14 days of the date on which
bail is decided by the SSHD, the tribunal cannot grant bail to that person without the SSHD’s
consent.

The bail summary produced by the SSHD in these circumstances must include:

• details of the notice of removal (including notice of removal window, removal

directions or limited notice of removal as applicable)

• contact details for the primary and secondary contact senior civil servant who acts on
behalf of the SSHD for the purposes of consent and who will be available to give
instructions to the Presenting Officer if the tribunal grants bail, and

• evidence that the removal directions are in force (ie where required, evidence that
the notice of removal has been served on the detainee)

The current version of the Tribunal’s Procedure Rules provides that bail applications may include
applications to vary conditions, continue or forfeit recognisance (now known as the financial
condition, ie the sum of money pledged by persons supporting the bail application). Bail
applications that do not seek the release of the applicant from detention may be dealt with
on the papers, without a hearing.

Automatic Referral for Consideration of Bail

A requirement now exists for the SSHD to refer consideration of a person’s immigration bail to the
tribunal where they have been detained for a period of four months without having had a bail
application considered by the tribunal (or without having withdrawn an application made
under this referral procedure).

The category of detainees to whom this requirement applies is restricted. The SSHD is under a duty to
refer a person for bail only if that person is detained for the purposes of examination or
removal. No duty is owed to those detained pending deportation or consideration of
deportation. A person may also opt-out of the procedure.

Scottish Bail

This is a very different system and if anyone asks for help with a Scottish detained case, particularly
when the Cautioners (equivalent to sureties) are based in Scotland, you must ensure they are referred
to a Scottish advice agency or firm.

46
 Immigration bail

Version 7.0

Published for Home Office staff 15 January 2021

Immigration bail conditions: restrictions on work, occupation or studies

Work or occupation

If the person being granted immigration bail does not have any leave to enter or remain in the UK, it
will be appropriate to impose a bail condition restricting work in the majority of cases.

It may be appropriate to impose an immigration bail condition that restricts a person’s work or
occupation if that person had leave permitting these activities, but that leave has been curtailed. It
may also, depending on the facts of the individual case, be appropriate for European Economic Area
citizens who are granted immigration bail pending deportation action.

An asylum seeker, or a failed asylum seeker with outstanding protection-based further submissions,
whose claim has been outstanding for more than 12 months through no fault of their own, may be
granted permission to work. Those who are allowed to work are restricted to jobs on the Shortage
Occupation List.

Study

In this context, “study” is taken to mean primary and secondary school for children and young adults
up to and including the age of 18, and courses which may lead to a qualification for adults, including
English for Speakers of Other Languages (ESOL) courses. However, children up until the age of 18 are
entitled to education, and so should be set a condition permitting study.

A person does not have to be given a study condition permitting or prohibiting study. They must
have at least one other condition of bail. If there is any doubt over whether study should be
restricted, no study condition should be applied. Either leave the box on the BAIL 201 notice (or
relevant refusal notice) blank, or delete the study condition.

Bail conditions prohibiting study must be authorised at a minimum grade of HEO/CIO equivalent
grades. Consideration must be given to whether the individual is already studying or wishes to
commence a course, the length of course or whether the individual is undertaking significant
exams, for example “A” levels or their equivalents or university finals, and what the timescale is
when taking removal action into account, and therefore the impact of a study restriction.

Children

Children can access education services until the age of 18, and they must be permitted to study up to
and including the final year of school in which they turn 18. You should not set a study condition that
they must attend school. However, you can, where dealing with a family group, specify that a child
may only attend a named school (the one they already attend or will be attending) to ensure a family
stays within a particular location.

Where Border Force officers refuse entry to children at the border who are coming to the UK to study
at state schools but who do not have the correct Entry Clearance (EC), then if they are being granted

47
immigration bail, no study condition should be applied to them. This is because all children under the
age of 18 are entitled to free education, even where they are liable for removal from the UK

Asylum seekers

There is nothing in the Immigration Rules to prevent asylum seekers studying. Therefore, anyone who
claims asylum should not have a study condition applied to them.

A condition prohibiting study may be applied at the point an asylum seeker becomes appeal rights
exhausted, if considered necessary on the facts of the individual case. The decision maker must have
due regard to the matters under Exercising the power to grant immigration bail. This includes those
asylum seekers who are also immigration offenders (for example, illegal entrants via clandestine
entry), but see below for steps to take to check if they are former unaccompanied asylum seeking
children (UASC) or unaccompanied children.

If an asylum seeker who has exhausted their appeal rights submits further representations and these
are accepted as a fresh claim, the decision maker must lift any study restriction applied to the person.
If an asylum seeker who has exhausted their appeal rights submits further representations and a
decision on whether these constitute a fresh claim remains pending beyond the usual period of time
for making such a decision, the decision maker must consider lifting any study restriction applied to
the person.

Former UASC care leavers who have turned 18 and who have an application or appeal pending or
with ongoing litigation in respect of a decision in relation to their asylum claim, must be permitted to
study. They should continue to be permitted to study until they become appeal rights exhausted
(ARE). This includes those who did not receive an adverse decision on their application until after
turning 17 and a half and so were not granted temporary UASC leave, but still have a right of appeal.

In all cases where someone becomes ARE and consideration is being given to prohibiting study,
decision makers must take the following steps:

1. Check whether the individual arrived in the UK as a UASC/unaccompanied child (and therefore may
still be in receipt of ‘leaving care’ support, including education, from the local authority (LA)). You can
do this by checking if there is an ‘unaccompanied minor’ special condition flag on CID.

2. If they have arrived in the UK as a UASC, then confirm with the individual whether they are still in
receipt of ‘leaving care’ support, including support in education. If so, then do not apply any study
condition. If there is doubt about whether the LA is still providing ‘leaving care’ support, then you
should exercise caution and should not apply a study condition to them at that time pending further
enquires with the LA.

3. If they have not arrived as a UASC/unaccompanied child then they will not be in receipt of ‘leaving
care’ support and a ‘no study’ condition may be applied when they become ARE.

4. Consider the impact of a study restriction on the facts of the individual case.

Admissions to higher education (HE) institutions are a matter for the institutions concerned with
policies varying between institutions.

Under section 71 of the Nationality, Immigration and Asylum Act 2002, decision makers can apply a
study condition to individuals who claim asylum when they have valid leave to enter or remain in
another category. This should be in line with the person’s leave, so a Tier 4 student must be

48
permitted to study. These individuals may be restricted to studying at a particular institution. For
further information see Asylum claims from persons with leave.

Immigration offenders

Non-asylum seeking adult immigration offenders who are liable to removal should normally be
prohibited from studying.

Deportation cases

Where a person is granted bail pending deportation (this includes pending the making of a
deportation order (DO) as well as in pursuit of a DO), if they are under 18 or turning 18 in their final
school year, they must not be prohibited from studying.

If they are over 18, they should normally be prohibited from studying, unless they are an asylum
seeker with an application or appeal pending and the DO is not signed and in force. However, if a
licence condition requires attendance on a course, they must be given permission to study, but
limited to “as specified in your licence conditions”. Any decision to prohibit a person from studying
who is subject to a deportation order must be made on the basis of the particular facts of the case.

The study condition can also be used in national security cases where a restriction on studying may
be imposed as part of a package to manage those with whom an individual is able to associate.

49
50
2 Article 8 of the European Convention on Human Rights
Every practitioner needs to be able to identify when a client can make an Article 8 claim and the
prospects of success of doing this, as well as be conscious of the need to evidence all the facts relied
upon. This skill is tested in the OISC competence assessments.

Advisers at OISC Level 1 are permitted to make basic applications within the Immigration Rules. OISC
therefore treats most applications which contain an Article 8 element – such as the ten year route to
settlement on private life grounds, or on family life grounds as a parent or partner, or relying on the
Exceptional Circumstances provisions of Appendix FM – as complex applications for which the adviser
should be authorised at OISC Level 2. Nonetheless advisers at OISC level 1 ought to have an up-to-date
understanding of at least the principles which will inform an application containing an Article 8
element, even though they are not permitted to make such an application themselves.

Article 8 ECHR

Article 8 ECHR provides:

(1) Everyone has the right to respect for his private and family life, his home and his
correspondence.

(2) There shall be no interference by a public authority with the exercise of this right except
such as is in accordance with the law and is necessary in a democratic society in the interests
of national security, public safety or the economic well-being of the country, for the prevention
of disorder or crime, for the protection of health or morals, or for the protection of the rights
and freedoms of others.

Clearly Article 8 is a qualified right not an unconditional right. Interference with the right is justifiable
under certain circumstances. Nonetheless, if an applicant can demonstrate a breach of their rights by
the Home Office and the breach is unlawful by virtue of s 6 of the Human Rights Act 1998 (HRA 1998),
leave to enter or remain will be granted.

In Razgar [2004] UKHL 27 the late Lord Bingham proposed a structured approach to Article 8 decision
making by identifying the likely questions which would have to be answered by an adjudicator (the
forerunner to a Judge of the First-tier Tribunal):

• Will the proposed removal be an interference by a public authority with the exercise of the
applicant’s right to respect for his private or (as the case may be) family life?

• If so, will such interference have consequences of such gravity as potentially to engage the operation
of art 8?

• If so, is such interference in accordance with the law?

• If so, is such interference necessary in a democratic society in the interests of national security,
public safety or the economic well-being of the country, for the prevention of disorder or crime, for
the protection of health or morals, or for the protection of the rights and freedoms of others?

• If so, is such interference proportionate to the legitimate public end sought to be achieved?’

In 2012 the Home Office incorporated tests into the Immigration Rules which set out to define the
circumstances under which an Article 8 right to respect for private and family life would be breached.

51
Private life and family life were dealt with separately. Private life was addressed in paragraph 276ADE
and family life in Section EX of Appendix FM:

Requirements to be met by an applicant for leave to remain on the grounds of private life

276ADE (1). The requirements to be met by an applicant for leave to remain on the grounds of
private life in the UK are that at the date of application, the applicant:

(i) does not fall for refusal under any of the grounds in Section S-LTR 1.1 to S-LTR 2.2. and S-
LTR.3.1. to S-LTR.4.5. in Appendix FM; and

(ii) has made a valid application for leave to remain on the grounds of private life in the UK;
and

(iii) has lived continuously in the UK for at least 20 years (discounting any period of
imprisonment); or

(iv) is under the age of 18 years and has lived continuously in the UK for at least 7 years
(discounting any period of imprisonment) and it would not be reasonable to expect the
applicant to leave the UK; or

(v) is aged 18 years or above and under 25 years and has spent at least half of his life living
continuously in the UK (discounting any period of imprisonment); or

(vi) subject to sub-paragraph (2), is aged 18 years or above, has lived continuously in the UK
for less than 20 years (discounting any period of imprisonment) but there would be very
significant obstacles to the applicant’s integration into the country to which he would have to
go if required to leave the UK.

276ADE (2). Sub-paragraph (1)(vi) does not apply, and may not be relied upon, in
circumstances in which it is proposed to return a person to a third country pursuant to Schedule
3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004.

EX.1. This paragraph applies if

(a)

(i) the applicant has a genuine and subsisting parental relationship with a child who-

(aa) is under the age of 18 years, or was under the age of 18 years when the applicant
was first granted leave on the basis that this paragraph applied;

(bb) is in the UK;

(cc) is a British Citizen or has lived in the UK continuously for at least the 7 years
immediately preceding the date of application ;and

(ii) taking into account their best interests as a primary consideration, it would not be
reasonable to expect the child to leave the UK; or

(b) the applicant has a genuine and subsisting relationship with a partner who is in the UK and is a
British Citizen, settled in the UK, or in the UK with refugee leave, or humanitarian protection, in the UK
with limited leave under Appendix EU in accordance with paragraph GEN.1.3.(d), or in the UK with
limited leave as a worker or business person under Appendix ECAA Extension of Stay in accordance

52
with paragraph GEN.1.3.(e), and there are insurmountable obstacles to family life with that partner
continuing outside the UK.

EX.2. For the purposes of paragraph EX.1.(b) “insurmountable obstacles” means the very significant
difficulties which would be faced by the applicant or their partner in continuing their family life
together outside the UK and which could not be overcome or would entail very serious hardship for the
applicant or their partner.

(Rules as they came into force 10 August 2017)

Under both paragraphs, a successful applicant receives 30 months Leave in the first instance putting
the applicant onto a ‘10 year route’ to settlement – so-called because if they successfully renew their
leave in subsequent blocs of 30 months, they become eligible for Indefinite Leave to Remain after 120
months.

With regard to paragraph EX.1 the paragraph is not free-standing (Sabir (Appendix FM – EX.1 not free
standing) [2014] UKUT 63 (IAC)) that is to say, an applicant is still required to meet the suitability,
immigration status and relationship requirements as a necessary pre-cursor to paragraph EX.1 being
considered.

Crucially, the structure of the Immigration Rules means that paragraph EX.1 plays no part in the
assessment of entry clearance applications.

The Supreme Court speaks: MM and Agyarko

Although the Tribunal and the courts have issued a series of decisions explaining and elaborating the
post-2012 system for considering Article 8 rights, in February 2017 the UK Supreme Court issued two
linked decisions – MM and Agyarko - which set out the framework within which Article 8 claims will
need to be analysed, prepared and decided. (The November 2016 Supreme Court decision in Hesham
Ali (Iraq) v Secretary of State for the Home Department [2016] UKSC 60 was concerned with the
operation of Article 8 in cases of deportation of “foreign criminals” as defined in the UK Borders Act
2007, which raises a different set of issues which are not dealt with here.)

In MM and others v Secretary of State for the Home Department [2017] UKSC 10 a number of entry
clearance cases were heard together. The Court was asked to consider the legality of the Immigration
Rules as such, principally the Minimum Income Requirement, rather than simply their application to
individual cases. The Court upheld the Minimum Income Requirement. There was nothing unlawful,
in principle, about such a requirement. However, the Court also considered two further issues:

i) The treatment of children under the Immigration Rules and in the Home Office guidance (IDIs);

ii) The treatment of alternative sources of funding in the Rules and the guidance.

The Court declared that with respect to the treatment of children ‘both the rules and the instructions
are unlawful.’ [92] Its reasoning was that Appendix FM did not sufficiently take into account the
Secretary of State’s duties in respect of children under Section 55 of the Borders, Citizenship and
Immigration Act 2009. A decision-maker’s duties under Section 55 are two-fold and inter-related:

• to have regard to the need to safeguard and promote the welfare of any children involved in
the factual matrix in question; and
• to have regard to the statutory guidance published in November 2009, entitled “Every Child
Matters: Change for Children”.

53
Section 55 applies directly only to children in the UK but the Secretary of State has long accepted that
the same duties should apply to the welfare of children outside the UK (Mundeba [2013]
UKUT88(IAC)). The Court also held that the IDIs did not adequately fill the gap left by the Rules.

On the treatment of alternative sources of funding the Court held that ‘while the rules as such are not
open to challenge, there are aspects of the instructions to entry clearance officers which require
revision to ensure that the decisions made by them are consistent with their duties under the HRA.’
[101] The strictness of the Rules regarding the sources of financial support which an applicant can rely
on might seem harsh or capricious but they were not irrational. However:

99. Operation of the same restrictive approach outside the rules is a different matter,
and in our view is much more difficult to justify under the HRA. This is … because it is
inconsistent with the character of evaluation which article 8 requires. As has been seen,
avoiding a financial burden on the state can be relevant to the fair balance required by the
article. But that judgment cannot properly be constrained by a rigid restriction in the rules.
Certainly, nothing that is said in the instructions to case officers can prevent the tribunal on
appeal from looking at the matter more broadly. These are not matters of policy on which
special weight has to be accorded to the judgment of the Secretary of State. There is nothing
to prevent the tribunal, in the context of the HRA appeal, from judging for itself the reliability
of any alternative sources of finance in the light of the evidence before it.

The Supreme Court also found that in the case previously heard by the Court of Appeal the Secretary
of State for the Home Department v SS (Congo) & Ors [2015] EWCA Civ 387: ‘The crucial finding was
that there were insurmountable obstacles to the couple living together in DRC’ to which there had
never been any challenge. That was sufficient to allow the appeal. SS was married to a man who, like
her, was from the Democratic Republic of the Congo (DRC), but who had been granted refugee status
in the UK and later became a naturalised British citizen.

In Agyarko and Ikuga, R (on the applications of) v Secretary of State for the Home Department [2017]
UKSC 11 the Supreme Court was concerned with applications made by foreign nationals, residing
unlawfully in the UK, for leave to remain here as the partners of British citizens with whom they have
formed relationships during the period of their unlawful residence. The Court adopted the same
approach as the European Court of Human Rights and held at [41] that: ‘Ultimately… the question for
the European court is whether a fair balance has been struck.’ The definition of ‘insurmountable
obstacles’ as defined in paragraph EX.2 of Appendix FM was ‘consistent with the meaning which can
be derived from the Strasbourg case law.’ [44]

In cases where there are no insurmountable obstacles ‘leave to remain can nevertheless be granted
outside the Rules in “exceptional circumstances”…’ [45] Immigration control is ‘an intensely political
issue’ [46] and in considering how the balance is struck under Article 8 in individual cases the courts
must ‘attach considerable weight’ to the Secretary of State’s policy [47] – that is to say, to paragraph
EX of Appendix FM. If the insurmountable obstacles test is not met ‘but the refusal of the application
would result in unjustifiably harsh consequences, such that refusal would not be proportionate, then
leave will be granted outside the Rules on the basis that there are "exceptional circumstances" [48]’. It
remains the position that the ultimate question is how a fair balance should be struck between the
competing public and individual interests involved, applying a proportionality test. This is not a ‘test
of exceptionality’ in the sense of a requirement that the case should exhibit some highly unusual
feature, over and above the application of the test of proportionality.

54
Commencing from 10 August 2017, amended paragraphs of Appendix FM and Appendix FM-SE of
the Immigration Rules give effect to the Supreme Court decisions. The new rules govern all decisions
made on or after 10 August 2017.

Immigration Rules Appendix FM: family members

Family members

Section GEN: General…

Exceptional circumstances

GEN.3.1.(1) Where:

(a) the financial requirement in paragraph E-ECP.3.1., E-LTRP.3.1. (in the context of an
application for limited leave to remain as a partner), E-ECC.2.1. or E-LTRC.2.1. applies, and is
not met from the specified sources referred to in the relevant paragraph; and

(b) it is evident from the information provided by the applicant that there are exceptional
circumstances which could render refusal of entry clearance or leave to remain a breach of
Article 8 of the European Convention on Human Rights, because such refusal could result in
unjustifiably harsh consequences for the applicant, their partner or a relevant child; then

the decision-maker must consider whether such financial requirement is met through taking
into account the sources of income, financial support or funds set out in paragraph 21A(2) of
Appendix FM-SE (subject to the considerations in sub-paragraphs (3) to (8) of that
paragraph).

(2) Where the financial requirement in paragraph E-ECP.3.1., E-LTRP.3.1. (in the context of an
application for limited leave to remain as a partner), E-ECC.2.1. or E-LTRC.2.1. is met
following consideration under sub-paragraph (1) (and provided that the other relevant
requirements of the Immigration Rules are also met), the applicant will be granted entry
clearance or leave to remain under, as appropriate, paragraph D-ECP.1.2., D-LTRP.1.2., D-
ECC.1.1. or D-LTRC.1.1. or paragraph 315 or 316B of the Immigration Rules.

GEN.3.2.(1) Subject to sub-paragraph (4), where an application for entry clearance or leave
to enter or remain made under this Appendix, or an application for leave to remain which has
otherwise been considered under this Appendix, does not otherwise meet the requirements
of this Appendix or Part 9 of the Rules, the decision-maker must consider whether the
circumstances in sub-paragraph (2) apply.

(2) Where sub-paragraph (1) above applies, the decision-maker must consider, on the basis
of the information provided by the applicant, whether there are exceptional circumstances
which would render refusal of entry clearance, or leave to enter or remain, a breach of Article
8 of the European Convention on Human Rights, because such refusal would result in
unjustifiably harsh consequences for the applicant, their partner, a relevant child or another
family member whose Article 8 rights it is evident from that information would be affected
by a decision to refuse the application.

(3) Where the exceptional circumstances referred to in sub-paragraph (2) above apply, the
applicant will be granted entry clearance or leave to enter or remain under, as appropriate,
paragraph D-ECP.1.2., D-LTRP.1.2., D-ECC.1.1., D-LTRC.1.1., D-ECPT.1.2., D-LTRPT.1.2., D-
ECDR.1.1. or D-ECDR.1.2.

55
 (4) This paragraph does not apply in the context of applications made under section BPILR or
DVILR.

GEN.3.3.(1) In considering an application for entry clearance or leave to enter or remain

where paragraph GEN.3.1. or GEN.3.2. applies, the decision-maker must take into account,
as a primary consideration, the best interests of any relevant child.

(2) In paragraphs GEN.3.1. and GEN.3.2., and this paragraph, “relevant child” means a
person who:

(a) is under the age of 18 years at the date of the application; and

(b) it is evident from the information provided by the applicant would be

affected by a decision to refuse the application.

Appendix FM:SE…

Other sources of income, financial support or funds in exceptional circumstances

21A(1). Where paragraph GEN.3.1.(1) of Appendix FM applies, the decision-maker is required

to take into account the sources of income, financial support or funds specified in sub-
paragraph (2).

(2) Subject to sub-paragraphs (3) to (8), the following sources of income, financial
support or funds will be taken into account (in addition to those set out in, as
appropriate, paragraph E-ECP.3.2., E-LTRP. 3.2., E-ECC.2.2. or E-LTRC.2.2. of
Appendix FM):

(a) a credible guarantee of sustainable financial support to the applicant or

their partner from a third party;

(b) credible prospective earnings from the sustainable employment or self-

employment of the applicant or their partner; or

(c) any other credible and reliable source of income or funds for the applicant
or their partner, which is available to them at the date of application or
which will become available to them during the period of limited leave
applied for.

56
The Nationality, Immigration and Asylum Act Part 5A: Public Interest Considerations

Overall, then, the Home Office’s approach continues to involve an attempt to pre-determine
proportionality within the Rules while more clearly recognising that this cannot oust the more
comprehensive assessment of proportionality as the culmination of a structured assessment - as
mandated by domestic case law and taking account of Strasbourg jurisprudence. The real shift has
come in the elaboration, first of all within the Rules, of where the public interest lies and the weight
to be accorded to factors such as criminal offending, absence of leave to remain during the
establishment of private and family life and reliance on the public purse; and secondarily founding
that elaboration of the public interest in statute.

Part 5A Nationality, Immigration and Asylum Act 2002: Defining the public interest

S19 of the Immigration Act 2014 inserted Part 5A into the 2002 with the result that Part 5A applies to
any decision of a court or tribunal from 28 July 2014. That the public interest considerations also apply
to SSHD decisions is confirmed by GEN.1.1 of the Rules which provides that Appendix FM ‘reflects the
relevant public interest considerations as set out in Part 5A…’

PART 5A
ARTICLE 8 OF THE ECHR: PUBLIC INTEREST CONSIDERATIONS

117AApplication of this Part

(1)This Part applies where a court or tribunal is required to determine whether a decision made under the
Immigration Acts—

(a)breaches a person's right to respect for private and family life under Article 8, and

(b)as a result would be unlawful under section 6 of the Human Rights Act 1998.

(2)In considering the public interest question, the court or tribunal must (in particular) have regard—

(a)in all cases, to the considerations listed in section 117B, and

(b)in cases concerning the deportation of foreign criminals, to the considerations listed in section
117C.

(3)In subsection (2), “the public interest question” means the question of whether an interference with a
person's right to respect for private and family life is justified under Article 8(2).

117BArticle 8: public interest considerations applicable in all cases

(1)The maintenance of effective immigration controls is in the public interest.

(2)It is in the public interest, and in particular in the interests of the economic well-being of the United
Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English,
because persons who can speak English—

(a)are less of a burden on taxpayers, and

(b)are better able to integrate into society.

(3)It is in the public interest, and in particular in the interests of the economic well-being of the United
Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent,
because such persons—

(a)are not a burden on taxpayers, and

(b)are better able to integrate into society.

57
(4)Little weight should be given to—

(a)a private life, or

(b)a relationship formed with a qualifying partner, that is established by a person at a time when
the person is in the United Kingdom unlawfully.

(5)Little weight should be given to a private life established by a person at a time when the person's
immigration status is precarious.

(6)In the case of a person who is not liable to deportation, the public interest does not require the person's
removal where—

(a)the person has a genuine and subsisting parental relationship with a qualifying child, and

(b)it would not be reasonable to expect the child to leave the United Kingdom.

117CArticle 8: additional considerations in cases involving foreign criminals

(1)The deportation of foreign criminals is in the public interest.

(2)The more serious the offence committed by a foreign criminal, the greater is the public interest in
deportation of the criminal.

(3)In the case of a foreign criminal (“C”) who has not been sentenced to a period of imprisonment of four
years or more, the public interest requires C's deportation unless Exception 1 or Exception 2 applies.

(4)Exception 1 applies where—

(a)C has been lawfully resident in the United Kingdom for most of C's life,

(b)C is socially and culturally integrated in the United Kingdom, and

(c)there would be very significant obstacles to C's integration into the country to which C is
proposed to be deported.

(5)Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a
genuine and subsisting parental relationship with a qualifying child, and the effect of C's deportation on the
partner or child would be unduly harsh.

(6)In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four
years, the public interest requires deportation unless there are very compelling circumstances, over and
above those described in Exceptions 1 and 2.

(7)The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is
considering a decision to deport a foreign criminal only to the extent that the reason for the decision was
the offence or offences for which the criminal has been convicted.

117D Interpretation of this Part

(1)In this Part—

“Article 8” means Article 8 of the European Convention on Human Rights;

“qualifying child” means a person who is under the age of 18 and who—

(a) is a British citizen, or

(b) has lived in the United Kingdom for a continuous period of seven years or more;
“qualifying partner” means a partner who—

(a) is a British citizen, or

(b) who is settled in the United Kingdom (within the meaning of the Immigration Act 1971
— see section 33(2A) of that Act).

58
(2)In this Part, “foreign criminal” means a person—

(a)who is not a British citizen,

(b)who has been convicted in the United Kingdom of an offence, and

(c)who—

(i)has been sentenced to a period of imprisonment of at least 12 months,

(ii)has been convicted of an offence that has caused serious harm, or

(iii)is a persistent offender.

(3)For the purposes of subsection (2)(b), a person subject to an order under—

(a)section 5 of the Criminal Procedure (Insanity) Act 1964 (insanity etc),

(b)section 57 of the Criminal Procedure (Scotland) Act 1995 (insanity etc), or

(c)Article 50A of the Mental Health (Northern Ireland) Order 1986 (insanity etc),

has not been convicted of an offence.

(4)In this Part, references to a person who has been sentenced to a period of imprisonment of a certain
length of time—

(a)do not include a person who has received a suspended sentence (unless a court subsequently
orders that the sentence or any part of it (of whatever length) is to take effect);

(b)do not include a person who has been sentenced to a period of imprisonment of that length of
time only by virtue of being sentenced to consecutive sentences amounting in aggregate to that
length of time;

(c)include a person who is sentenced to detention, or ordered or directed to be detained, in an

institution other than a prison (including, in particular, a hospital or an institution for young
offenders) for that length of time; and

(d)include a person who is sentenced to imprisonment or detention, or ordered or directed to be

detained, for an indeterminate period, provided that it may last for at least that length of time.

(5)If any question arises for the purposes of this Part as to whether a person is a British citizen, it is for the
person asserting that fact to prove it.

Part 5A builds on case law unhelpful to those with ‘precarious’ family life (for example Nagre [2013]
EWHC 720 (Admin)) by placing on a statutory footing the allocation of little weight to private or family
life established when the person is in the UK unlawfully; and little weight to their private life if their
immigration status is ‘precarious’.

The term ‘precarious’ is not defined in the statute itself. Home Office guidance, Family life (as a
partner or parent), private life and exceptional circumstances, v5.0 considers a person to have
precarious status not only where they require leave but do not have it (ie in the UK unlawfully) but
also where they:

• are in the UK with limited leave but without settled or permanent status,

• have obtained leave fraudulently, or

• have been notified that they are liable to deportation or administrative removal.

59
The Upper Tribunal had effectively upheld the Home Office position in the decision of AM (S 117B)
Malawi [2015] UKUT 260 (IAC), and Deelah and others (section 117B - ambit) (Rev 1) [2015] UKUT
515 (IAC).

This question was definitively answered by the UK Supreme Court in Rhuppiah v SSHD [2018] UKSC
58:

44. The answer to the primary question posed by the present appeal is therefore that everyone
who, not being a UK citizen, is present in the UK and who has leave to reside here other than
to do so indefinitely has a precarious immigration status for the purposes of section 117B(5).

…46. Another helpful feature of the Upper Tribunal’s decision in the AM case was its conclusion
that the concept of a precarious immigration status under section 117B(5) did not include the
situation of a person present in the UK unlawfully: see para 39(b) above. It is well arguable in
principle that a person unlawfully present has an immigration status to that effect and that,
of course, it is precarious. But in subsections (4) and (5) of section 117B Parliament has drawn
a clear distinction between unlawful presence and a precarious immigration status. In relation
to a person unlawfully present, subsection (4) covers all the ground (indeed, at (4)(b), more
than all the ground) which subsection (5) would cover; and there is nothing to indicate that,
notwithstanding the clear distinction, Parliament intended subsection (5) to overlap with
subsection (4).

Part 5A does not replace the familiar assessment of proportionality, as the Upper Tribunal has made
clear:

1…(e) sections 117A-117D do not represent any kind of radical departure from or “override” of previous
case law on Article 8 so far as concerns the need for a structured approach. In particular, they do not
disturb the need for judges to ask themselves the five questions set out in Razgar [2004] UKHL
27. Sections 117A-117D are essentially a further elaboration of Razgar’s question 5 which is essentially
about proportionality and justifiability.

(Headnote Dube (ss.117A-117D) [2015] UKUT 90 (IAC))

The best interests of the child

S55 of the Borders Citizenship and Immigration Act 2009 provides:

(1) The Secretary of State must make arrangements for ensuring that –

(a) the functions mentioned in sub-section (2) are discharged having regard to the
need to safeguard and promote the welfare of children who are in the United Kingdom
….

(2) The functions referred to in sub-section (1) are –

(a) any function of the Secretary of State in relation to immigration, asylum or

nationality;

(b) any function conferred by or by virtue of the Immigration Acts on an

Immigration Officer …

60
 (3) A person exercising any of those functions must, in exercising the function, have
regard to any guidance given to the person by the Secretary of State for the purpose of sub-
section (1).

In ZH (Tanzania) v SSHD [2011] UKSC 4 the Supreme Court held that a parent’s poor immigration
history or precarious status could not be held against the child in the consideration of the child’s best
interests.

Nor should the intrinsic importance of British citizenship be played down:

[I]t will hardly ever be less than a very significant and weighty factor against moving children
who have that status to another country with a parent who has no right to remain here,
especially if the effect of doing this is that they will inevitably lose those benefits and
advantages for the rest of their childhood.

Lord Kerr went furthest by holding that:

'what is determined to be in a child's best interests should customarily dictate the outcome of
cases such as the present'.

However, the apparent universality of that formulation was subsequently explained by the court in
Zoumbas to apply specifically to cases involving British children rather than to all cases involving
children.

In Zoumbas v Secretary of State for the Home Department [2013] 1 WLR 3690 [10], the Supreme
Court considered the interplay between the best interests of the child and Article 8 ECHR, rehearsing
what might be termed a code devised by Lord Hodge comprising seven principles:

(1) The best interests of a child are an integral part of the proportionality assessment under
Article 8 ECHR;

(2) In making that assessment, the best interests of a child must be a primary
consideration, although not always the only primary consideration; and the child's best
interests do not of themselves have the status of the paramount consideration;

(3) Although the best interests of a child can be outweighed by the cumulative effect of
other considerations, no other consideration can be treated as inherently more significant;

(4) While different judges might approach the question of the best interests of a child in
different ways, it is important to ask oneself the right questions in an orderly manner in order
to avoid the risk that the best interests of a child might be undervalued when other important
considerations were in play;

(5) It is important to have a clear idea of a child's circumstances and of what is in a child's
best interests before one asks oneself whether those interests are outweighed by the force of
other considerations;

(6) To that end there is no substitute for a careful examination of all relevant factors when
the interests of a child are involved in an Article 8 assessment; and

(7) A child must not be blamed for matters for which he or she is not responsible, such as
the conduct of a parent.

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In Zoumbas the Court also contrasted the way in which the issues had arisen in the context of
extradition cases with the way the issues would usually arise in the context of immigration cases:

it is not likely that a court would reach in the context of an immigration decision what Lord
Wilson described in H(H) (at para 172) as the "firm if bleak" conclusion in that case, which
separated young children from their parents.

The Upper Tribunal has strongly emphasised the need for a proper assessment of a child’s best
interests:

[T]he best interests of children exercise, where it falls to be performed, is one of unmistakable
importance and gravity. It is not enough to pay lip service to the evidence bearing on this issue.

(Abdul (section 55 - Article 24(3) Charter : Nigeria) [2016] UKUT 106 (IAC) [14])

A decision-maker’s duties under section 55 are two-fold and inter-related:

(i) to have regard to the need to safeguard and promote the welfare of any children
involved in the factual matrix in question; and
(ii) to have regard to the statutory guidance published in November 2009, entitled “Every
Child Matters: Change for Children”.
(JO and Others (section 55 duty) Nigeria [2014] UKUT 517 (IAC))

In summary, then, the complex interplay of statute, rules and policy guidance creates winners and
losers. Factors such as having British children, not being a burden on taxpayers and being integrated
(however problematic the latter categories may be) enhance an applicant’s prospects of success.
Establishing a family whilst not enjoying leave, past or putative reliance on public funds and conduct
such as dishonesty or deception (even when not subject to criminal prosecution) damage an
applicant’s prospect of success. Practitioners will need to identify the relevant matters which arise
within the Rules and outside the Rules and advise applicants on the evidence required to pursue their
claims most effectively. That will require keeping one eye on the representations and evidence most
likely to persuade the initial decision-maker and the other eye on protecting the client’s interests and
maximising her prospects of success in any subsequent challenge.

One effect of the legal complexity which has arisen around Article 8 is that practitioners are required
to prepare any application involving an Article 8 claim in such a way as to address the requirements
of the Rules and then to address the issues which arise from the structured assessment familiar from
Huang and Razgar, read in light of Part 5A of the Nationality, Immigration and Asylum Act 2002, s55
BCIA and the case law which has interpreted these provisions.

Decisions of the Courts and Upper Tribunal in 2018

Amongst the more significant cases of 2018 were:

• Charles (human rights appeal: scope) [2018] UKUT 89 (IAC)

• TZ (Pakistan) and PG (India) v The Secretary of State for the Home Department [2018] EWCA
Civ 1109 (17 May 2018)

Both cases gave guidance on how article 8 claims should be dealt with on appeal. It was noteworthy
that both suggested that where a decision was not in accordance with the law – either because of a
statutory provision or because the Immigration Rules had actually been met, the appeal fell to be

62
allowed not under step three of the five Razgar steps but under step five. That is to say that the
decision would not be unlawful under step 3 because it would still be lawfully made in a procedural
sense but the decision would be disproportionate.

In SR (subsisting parental relationship - s117B(6)) Pakistan [2018] UKUT 334 (IAC), the Tribunal held:

1. If a parent ('P') is unable to demonstrate he / she has been taking an active role in a child's
upbringing for the purposes of E-LTRPT.2.4 of the Immigration Rules, P may still be able to
demonstrate a genuine and subsisting parental relationship with a qualifying child for the
purposes of section 117B(6) of the Nationality Immigration and Asylum Act 2002 ('the 2002
Act'). The determination of both matters turns on the particular facts of the case.

2. The question of whether it would not be reasonable to expect a child to leave the United
Kingdom ('UK') in section 117B(6) of the 2002 Act does not necessarily require a consideration
of whether the child will in fact or practice leave the UK. Rather, it poses a straightforward
question: would it be reasonable "to expect" the child to leave the UK?

[Headnote]

There were also two long awaited judgments by the UK Supreme Court.

In summary, in KO (Nigeria) and Others v Secretary of State for the Home Department [2018] UKSC
53, it was held that in an assessment of the reasonableness of requiring a child to leave the UK, the
conduct of the parent is irrelevant to that assessment of the impact on the child (as was held in
Zoumbas). Para 276ADE(1)(iv) does not require consideration of misconduct or criminality by a parent
BUT the immigration status of the parent(s) is indirectly relevant. Endorsing the approach in EV
(Philippines) [2014] EWCA Civ 874: Thus the ultimate question will be: is it reasonable to expect the
child to follow the parent with no right to remain to the country of origin? The same approach applies
to s117B NIAA 2002. There is also a discussion of s117C.

In Rhuppiah v Secretary of State for the Home Department [2018] UKSC 58, the Court defined the
meaning of ‘precarious’ as discussed above. In addition, regarding the meaning of ‘financially
independent’ in s117B(3) NIAA 2002: financial independence in section 117B(3) means an absence of
financial dependence upon the state.

Lord Wilson also points out that s117A(2)(a) requires judges to “have regard” to the considerations in
section 117B, and this allows some flexibility:

the provisions of section 117B cannot put decision-makers in a strait-jacket which constrains
them to determine claims under article 8 inconsistently with the article itself. Inbuilt into the
concept of “little weight” itself is a small degree of flexibility.

Decisions of the Courts and Upper Tribunal in 2019

Amongst the more significant cases of 2019 were:

JG (s 117B(6): "reasonable to leave" UK) Turkey [2019] UKUT 72 (IAC) Rev 1Home Office guidance

Section 117B(6) of the Nationality, Immigration and Asylum Act 2002 requires a court or tribunal to
hypothesise that the child in question would leave the United Kingdom, even if this is not likely to be
the case, and ask whether it would be reasonable to expect the child to do so. [Headnote]

SSHD v AB (Jamaica) & Anor [2019] EWCA Civ 661 essentially upheld the Tribunal decisions in JG
(Turkey) and in SR, but with some differences in reasoning.

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GM (Sri Lanka) v SSHD (Rev 1) [2019] EWCA Civ 1630. Provided an overview of the key recent UK
Supreme Court decisions, emphasising the significance of being on a ‘pathway to settlement’.

Lal v SSHD [2019] EWCA Civ 1925. The Court of Appeal provided a helpful approach to the meaning
of insurmountable obstacles and the interpretation of s117B NIAA 2002.

Decisions of the Courts and Upper Tribunal in 2020

Uddin v SSHD [2020] EWCA Civ 338. Emphasised substance over form in assessing family life, holding
that a 13 year old boy placed with foster carers did enjoy family life with them.

SD (British citizen children – entry clearance) Sri Lanka [2020] UKUT 43 (IAC). The Tribunal held in an
entry clearance appeal that having a British citizen child is ‘not necessarily a powerful factor.’

Younas (section 117B(6)(b); Chikwamba; Zambrano) [2020] UKUT 129 (IAC). Chikwamba does not
obviate the need to address s117B(1) NIAA 2002; and the length of time a child is likely to be outside
the UK is relevant to deciding whether it is unreasonable to expect a child to leave the UK.

Home Office Immigration staff guidance

The Immigration staff guidance: Family life (as a partner or parent), private life and exceptional
circumstance covers both 5 year and 10 year routes to settlement and addresses whether it would be
reasonable to require a child to leave the UK. Prompted by KO, it jettisoned its former policy:

Where the child is a British citizen

Where the child is a British citizen, it will not be reasonable to expect them to leave the UK with
the applicant parent or primary carer facing removal. Accordingly, where this means that the
child would have to leave the UK because, in practice, the child will not, or is not likely to,
continue to live in the UK with another parent or primary carer, EX.1.(a) is likely to apply.
Now the Guidance makes no distinction in principle between British citizen children and those who
have lived continuously in the UK for 7 years:
Is it reasonable for the child to leave the UK?

Where you decide that the answer to this first stage is yes – there is a genuine and subsisting
relationship to a child, then they must go on to consider secondly, whether, taking into account the
child’s best interests as a primary consideration, it is reasonable to expect the child to leave the UK.
In doing so you must carefully consider all the information provided by the applicant, together with
any other relevant factor and information of which you are aware.

In accordance with the findings in the case of AB Jamaica (Secretary of State for the Home
Department v AB (Jamaica) & Anor [2019] EWCA Civ 661), consideration of whether it is reasonable
to expect a child to leave the UK must be undertaken regardless of whether the child is actually
expected to leave the UK.

The starting point is that we would not normally expect a qualifying child to leave the UK. It is
normally in a child’s best interest for the whole family to remain together, which means if the child is
not expected to leave, then the parent or parents or primary carer of the child will also not be
expected to leave the UK.

In the caselaw of KO and Others 2018 UKSC53, with particular reference to the case of NS (Sri Lanka),
the Supreme Court found that “reasonableness” is to be considered in the real-world context in which
the child finds themselves. The parents’ immigration status is a relevant fact to establish that
context. The determination sets out that if a child’s parents are both expected to leave the UK, the

64
child is normally expected to leave with them, unless there is evidence that that it would not be
reasonable.

This assessment must take into account the child’s best interests as a primary consideration.

You must carefully consider all the relevant points raised in the application and carefully assess any
evidence provided. Decisions must not be taken simply on the basis of the application’s assertions
about the child, but rather on the basis of an examination of all the evidence provided. All relevant
factors need to be assessed in the round.

There may be some specific circumstances where it would be reasonable to expect the qualifying
child to leave the UK with the parent(s). In deciding such cases you must consider the best interests of
the child and the facts relating to the family as a who+le. You should also consider any specific issues
raised by the family or by, or on behalf of the child (or other children in the family).

It may be reasonable for a qualifying child to leave the UK with the parent or primary carer where for
example:

• the parent or parents, or child, are a citizen of the country and so able to enjoy the full
rights of being a citizen in that country

• there is nothing in any country specific information, including as contained in relevant

country information which suggests that relocation would be unreasonable

• the parent or parents or child have existing family, social, or cultural ties with the country
and if there are wider family or relationships with friends or community overseas that can
provide support:

o you must consider the extent to which the child is dependent on or requires support
from wider family members in the UK in important areas of their life and how a
transition to similar support overseas would affect them

o a person who has extended family or a network of friends in the country should be
able to rely on them for support to help (re)integrate there

o parent or parents or a child who have lived in or visited the country before for
periods of more than a few weeks. should be better able to adapt, or the parent or
parents would be able to support the child in adapting, to life in the country

o you must consider any evidence of exposure to, and the level of understanding of,
the cultural norms of the country

o for example, a period of time spent living amongst a diaspora from the country
may give a child an awareness of the culture of the country

o the parents or child can speak, read and write in a language of that country, or are
likely to achieve this within a reasonable time period

o fluency is not required – an ability to communicate competently with sympathetic

interlocutors would normally suffice

• removal would not give rise to a significant risk to the child’s health

• there are no other specific factors raised by or on behalf of the child

65
The parents’ situation is a relevant fact to consider in deciding whether they themselves and
therefore, their child is expected to leave the UK. Where both parents are expected to leave the UK,
the natural expectation is that the child would go with them and leave the UK, and that expectation
would be reasonable unless there are factors or evidence that means it would not be reasonable.

Conclusion

It is possible to summarise the ways in which the law around Article 8 has now developed:

1. For reasons of good administration and consistency, the Immigration Rules set out tests for
when Article 8 will be breached. Those Rules are the starting point for assessing the claim
but the possibility remains that claims might succeed outside the Rules, requiring the
Secretary of State to exercise her discretion. The original intention of the Secretary of State
in 2012 to formulate Rules which constitute an inflexible and exhaustive codification of
Article 8 was, in the end, unsustainable.

2. If a claim does not succeed under the Rules it must be considered outside the Rules. The thrust
of the approach taken by the Supreme Court and the House of Lords dating back to Razgar
(2004) and Huang (2007) remains good law. A structured assessment has to be undertaken
which establishes the facts of private and family life on the one hand and the public interest
factors which justify interference on the other. A decision-maker must take into account
relevant statutory provisions such as s55 BCIA 2009 as well as conventions such as the UN
Convention on the Rights of the Child and Home Office policy. The ultimate issue is whether a
fair balance has been struck between individual and public interests, taking account the
various factors identified.

3. Nonetheless, the circumstances under which the public interest in interference with Article 8
rights will tend to take precedence have been more clearly delineated, both in the Rules and
in Part 5A NIAA 2002. The criminality thresholds and the Minimum Income Requirement are
two examples. Tribunals and Courts will give particular deference to those public interest
factors when assessing the proportionality of any interference.

4. When assessing where the public interest lies, courts and tribunals must consider, in
particular, the matters identified in Part 5A, Sections 117A-D, of NIAA 2002. They are not a
checklist of requirements and there may be other relevant considerations. However, the
provision in Section 117B(6) is determinative of an Article 8 claim: there will be no public
interest in the removal of the parent with a subsisting parental relationship with a qualifying
child where it is unreasonable to expect that child to leave the UK.

5. Overall, the law has developed so that:

• Effective immigration control is deemed to be in the public interest.

• On balance, family life attracts greater protection than private life.
• In family life cases, criminality and a precarious immigration status when entering into a family
relationship will tend to make it more difficult to challenge any interference.
• The presence of children strengthens a claim, but their best interests are not a ‘trump card’.
• The Minimum Income Requirement is lawful and hits hardest those who simply lack the
necessary financial resources. But a person who can demonstrate equivalent resources, albeit
not in the way prescribed under the Rules, may well be able to demonstrate a lack of public
interest in interference.

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3 The EU Settlement Scheme and the end of free movement

3.1 Introduction

At 11pm on 31 January 2020 the UK ceased to be a member state of the European Union. This date is
‘exit day’ for the purposes of the UK’s statutes and those parts of the immigration rules which deal
with the consequences of the UK leaving the EU. Under the Withdrawal Agreement1 between the UK
and the EU a transition period (referred to in legislation as the ‘implementation period’ or ‘IP’) ran
from ‘exit day’ until 31 December 2020. During this transition period EU law continued to apply, so
free movement for EEA nationals continued, still implemented primarily by the Immigration
(European Economic Area) Regulations 2016.

The transition period ended at 11pm on 31 December 2020 and since that date EU free movement
law has not applied in the UK. EEA nationals seeking to enter the UK for the first time, have become
subject to immigration control just as non-EEA nationals are. (Apart from Irish nationals who do not
need leave to enter or remain.)

However, for those EEA nationals who resided in the UK before 2021, the Withdrawal Agreement
between the UK and the EU enables them to retain their residence in the UK, provided for via the
EU Settlement Scheme. Applicants must show only that they resided in the UK, not that they were
exercising their free movement rights.

Under the Scheme, applicants can be granted either indefinite leave (often referred to as ‘settled
status’) or a five-year period of limited leave (often referred to as pre-settled status) which puts them
on a route to Indefinite Leave. Family members can also apply - but rules for eligibility vary according
to the type of family relationship.

The ‘grace period’

The six-month period between 1 January and 30 June 2021 is known as the ‘grace period’. Although
the deadline for having commenced residence in the UK in order to be eligible to apply under the EU
Settlement Scheme is 11 pm on 31 December 2020, the deadline for making an application by right
was 30 June 2021 (which is in line with the Withdrawal Agreement). During the grace period, the
Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020 make
relevant savings to the Immigration (EEA) Regulations 2016 so that persons who were exercising their
free movement rights in the UK before 2021 continued to enjoy rights of admission and residence.
The regulations also saved rights of admission for persons within their scope using EEA residence
documents.

Free movement rights finally expire

Since the grace period has ended, all rights of admission and residence – including the right of
permanent residence - have ended for the vast majority of those who were still enjoying them during
the grace period. Only where an application was made under the EU Settlement Scheme before the
end of the grace period, by a person enjoying free movement rights, will the rights extend beyond the
grace period:
• while the outcome of the application is under consideration; and
• while any administrative review or appeal against a refusal could be made or is being
pursued.

1
The UK reached equivalent agreements with Norway, Iceland and Liechtenstein and Switzerland.

67
Document checks
Until the end of the grace period, the Citizens’ Rights (Application Deadline and Temporary
Protection) (EU Exit) Regulations 2020 protected the rights of those EEA nationals and their family
members who were lawfully resident in the UK at the end of the transition period, but who had not
yet been granted status under the EUSS. This meant that EEA nationals were able to use their passport
or national identity card to evidence their right to work and right to rent.

Following the end of the grace period, all EEA nationals (other than Irish nationals) are required to
demonstrate they have a right to work through evidence of their immigration status, rather than their
nationality. Irish nationals are still able to rely on showing their passport as proof of their right to work
and rent.

EEA citizens granted leave under the EUSS will have been provided status in digital form - what the
Home Office calls an eVisa. They can only prove their right to work using the Home Office online
service ‘prove your right to work to an employer’. Individuals must provide employers with a share
code and their date of birth which will enable their immigration status to be checked.

EEA citizens who do not have leave granted under the EUSS will be required to evidence their UK
immigration status for the purposes of right to work, using documents as set out in legislation. These
are:
• Frontier Worker Permits
• Service Provider of Switzerland visas
• Outstanding applications to UK EUSS made before the end of the grace period, evidenced
by a Certificate of Application, usually in digital form
• Outstanding applications to Crown Dependency EUSS
• EEA citizens with Indefinite Leave to Enter/Remain
• Points-Based System visas, including eVisas

EEA citizens who did not apply to the EUSS by 30 June 2021 and who have no other leave to remain in
the UK will have no right to work and will not pass a right to work check by an employer. Home Office
guidance (see below) is that they ‘should not be employed’.

There is no mandatory requirement for retrospective checks to be undertaken on EEA nationals who
were employed on or before 30 June 2021. Employers will maintain a continuous statutory excuse
against a civil penalty in the event of illegal working if an initial right to work check was properly
undertaken. Employers may, however, choose to carry out retrospective checks.
For full details on right to work checks, see Home Office: An employer's guide to right to work checks:
1 July 2021).

For those EEA nationals and their family members who erroneously believe that they do not need to
have leave granted under the EUSS – perhaps because they have EEA residence documents with an
expiry date which has not yet been reached – it may well be a document check by a new or existing
employer or landlord, or some other encounter with officialdom, which brings home to them that they
have been living in the UK without leave and without a right of residence since the end of the grace
period.

EEA residence documentation

It ceased to be possible to apply for EEA residence documentation inside the UK at the end of the
transition period. From the end of the grace period, it has no longer been possible to apply for EEA
Family Permits and it is not possible to travel to the UK using an EEA Family Permit.

68
The EU Settlement Scheme: the deadline and the ‘reasonable grounds’ for missing it

Deadline

The EU Settlement Scheme had a deadline for most types2 of initial application of 30 June 2021, the
last day of the grace period - but this is not an absolute deadline. Appendix EU of the Immigration
Rules contains the concept of a ‘required date’. For those who do not have leave under the Scheme
and who are making their initial application, this must be made before 1 July 2021 except:

‘where the Secretary of State is satisfied that there are reasonable grounds for the person’s failure to
meet the deadline’.

In such cases, a deadline which is considered reasonable by the Secretary of State will be notified to
the person in writing.

Before considering what might constitute reasonable grounds, a word of warning is needed. Anyone
who failed to apply before 1 July 2021, even if they had retained their free movement rights during
the grace period, found themselves on that date without rights of residence and without leave to
remain. They will be a person without immigration status, with all the potential detriments which
attach to such a status.

Reasonable grounds

Home Office guidance on EU Settlement Scheme: EU, other EEA and Swiss citizens and their family
members gives a broad and non-exhaustive list of potential reasonable grounds. The scope to make a
late application exists indefinitely.

The current Home Office guidance is Version 12.0, 21 May 2021 and is available at:

https://www.gov.uk/government/publications/eu-settlement-scheme-caseworker-guidance

Examples of reasonable grounds are set out as follows:

• Children (including children in care and care leavers)

• Physical or mental capacity and/or care or support needs

• Serious medical condition or significant medical treatment

• Victim of modern slavery

• Abusive or controlling relationship or situation

• Other compelling practical or compassionate reasons

• Ceasing to be exempt from immigration control

• Existing limited leave to enter or remain

• Existing indefinite leave to enter or remain

• Document or status under the EEA Regulations

2
Some ‘Surinder Singh’ applications, for example, have a deadline of 29 March 2022.

69
While the 30 June 2021 deadline was not absolute, there is a significant shift from the position before
the end of the grace period, where people have the right to have their application considered, to the
position after the grace period where an application can be made only at the discretion of the Home
Office.

In the short term, the Home Office policy makes clear that discretion is likely to be exercised positively
and the benefit of the doubt will be given to potential applicants who have missed the deadline. The
guidance states that any change in this approach will be reflected in a revision of the guidance.

Yet even the current guidance signals an increasingly restrictive approach as time goes by:

In general, the more time which has elapsed since the deadline applicable to the person under the
scheme, the harder it will be for them to satisfy you that, at the date of application, there are
reasonable grounds for their failure to meet that deadline. [p28]

The fact that a more restrictive policy on exercising discretion is likely to come into force at some
stage, reinforces the message that any application should be made at the earliest opportunity - even
after the end of the grace period.

Deadlines for those who already have status under Appendix EU or other parts of the rules

The Scheme will continue to remain open for many years into the future to cater for:

• those with limited leave under the Scheme (pre-settled status) who need to apply for
indefinite leave or to extend their leave

• those who have come into the UK with an EUSS Family Permit and thereafter need to apply
for limited leave under the Scheme

• those who are eligible but who were granted leave under some other part of the Immigration
Rules and now want to switch into leave under the EUSS.

The usual practice applies whereby a person with limited leave must apply, at the latest, before their
current leave expires. If they become eligible for indefinite leave before their current limited leave
expires (for example, by clocking up 5 years residence in the UK) they can make an application before
their current leave expires. If their leave expires they may still be able to apply but only if the Home
Office is satisfied there are ‘reasonable grounds’ and, in the meantime, they would be overstayers
lacking the statutorily extended leave bestowed under S3c of the Immigration Act 1971.

The rules address the issue of deadlines under the ‘required date’ heading in Annex 1 of Appendix EU,
with further explanation in the policy guidance.

70
Who can still apply under the Scheme after the grace period?

The Scheme operates as a category under the Immigration Rules governed by Appendix EU and
Appendix EU (Family Permit). Both Appendixes appear in the OISC Exam Resource Books.
Unfortunately, these Appendixes have been repeatedly amended to create such an arcane level of
drafting that the rules have become ludicrously complex.

What follows is an attempt to present the main features of the scheme in as accessible a way as
possible.

For EEA nationals and family members who are already in the UK, applications will continue to be
made for leave under the Scheme, as provided for by Appendix EU of the Immigration Rules. Of course,
if an initial application is being made after the grace period, the Home Office will need to be satisfied
there are ‘reasonable grounds’ to allow it to go forward.

For ‘joining family members’ (defined below) it would appear that everyone in this category, including
joining family members who are EEA nationals, will need to apply for an EUSS family permit from 1
July 2021. This is not to be confused with an EEA Family Permit previously issued under the EEA
Regulations!

Relevant EEA citizens

EEA citizens are defined as nationals of the following countries: Austria, Belgium, Bulgaria, Croatia,
Republic of Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary,
Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway,
Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden or Switzerland.3

The EUSS is restricted to relevant EEA citizens. This means those who were resident in the UK4 before
11pm, 31 December 2020 (known as the ‘specified date’). EEA citizens must have been such
‘throughout any continuous qualifying period relied upon.’ So it is simply residence in the UK before
2021 which brings the EEA Citizen within scope of the Scheme. It does not matter whether the EEA
citizen was exercising their free movement rights under the EU treaties by working, jobseeking,
studying etc.

An EEA Citizen who arrives in the UK for the first time after 11pm on 31 December 2020 will not be
eligible to apply under the Scheme.

In order to be considered a relevant EEA citizen, no minimum period of residence is stipulated; but
residence must have been for a continuous qualifying period. A period is considered to have been
broken by an absence from the UK which exceeded a total of six months in any 12 month period,
unless those absences are for important reasons such as pregnancy, serious illness etc, in which case
up to 12 months is permitted – longer for military service. (Annex 1 contains the full definition.)

There is also a concession for Covid-related absences, which was updated in June 2021, following
litigation. According to CJ McKinney’s report on the Free Movement website:

In a nutshell, the guidance now allows for people with EU pre-settled status to be out of the
UK for up to 12 months for “any coronavirus related reason” without breaking their continuous
residence. This includes where they remain abroad by choice.

3
Appendix EU, Annex 1
4
To be precise, the reference to ‘UK’ includes the ‘Islands’, ie the Channel Islands and the Isle of Man.

71
https://www.freemovement.org.uk/eu-settlement-scheme-coronavirus-policy-relaxed/

No supporting evidence is necessary other than a declaration by the applicant.

The previous Home Office guidance required that a person had been forced to remain outside the UK,
but that stricter test now applies only where the absence is longer than 12 months. Individuals will
need to supply evidence that they were ‘prevented from, or advised against, returning to the UK’ by
coronavirus.

The guidance for applicants is available at: https://www.gov.uk/guidance/coronavirus-covid-19-eu-

settlement-scheme-guidance-for-applicants#evidence

Immigration Staff Guidance on Coronavirus (COVID-19): EU Settlement Scheme has laso been
published which is available at:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file
/992928/covid-19-caseworker-guidance-v1.0.pdf

Suitability
As well as being eligible, applicants must also meet suitability requirements but in practice the
threshold for refusal of an application is sufficiently high that this will very rarely provide a reason
for refusal. (The suitability requirements must also be met by family members who apply.)

Annex 3 to Appendix EU provides for leave to be cancelled, curtailed or revoked – including on or

before a person’s arrival in the UK. In April an amended Annex 3 came into force. In summary, the
grounds are:
• leave granted under Appendix EU must be cancelled on or before arrival in the UK where
the person’s presence in the UK is not conducive to the public good because of conduct
committed after the specified date
• leave granted under Appendix EU may be cancelled on or before arrival in the UK if it is
proportionate to cancel that leave where:
(a) the cancellation is justified on grounds of public policy, public security or public health
in accordance with regulation 27 of the Immigration (European Economic Area)
Regulations 2016
(b) the cancellation is justified on grounds that false or misleading information,
representations or documents were submitted which was material to the decision to
grant the applicant leave
• limited leave granted under Appendix EU may be cancelled on or before arrival in the UK if
it is proportionate, where they cease to meet the requirements of this Appendix
• limited leave granted under Appendix EU may be curtailed if it is proportionate, where:
(a) Curtailment is justified on grounds false or misleading information, representations or
documents were submitted which was material to the decision to grant leave; or
(b) Curtailment is justified on grounds of entering (or attempting to enter, or assist
another person to enter) into a marriage of convenience; or
(c) The person ceases to meet the requirements of this Appendix
• indefinite leave granted under Appendix EU may be revoked if it is proportionate, where:
(a) The person is liable to deportation, but cannot be deported for legal reasons; or
(b) The indefinite leave was obtained by deception.
The general grounds for refusal under Part 9 of the Immigration Rules do not apply to Appendix EU
or Appendix EU (Family Permit).

72
Family members5 who have entered the UK on or before 31 December 2020
The Scheme permits the following family members who have entered the UK on or before 31
December 2020 to still make applications under the Scheme.
• Spouses and civil partners (excluding those who are party to a marriage or civil partnership
of convenience)
• Durable partners (who usually require two years of cohabitation and must not be durable
partners of convenience). This may include durable partners whose partnership was durable
by 31 December 2020, who have no residence documentation but were in the UK lawfully.
Otherwise, the durable partner must hold an EEA Family Permit or residence document issued
under the EEA Regulations. Since 1 January 2021 it has no longer been possible to apply for
Residence Cards.
• Children, grandchildren or great-grandchildren who are under 21.
• Children, grandchildren or great-grandchildren who are 21 or over and dependent on the
relevant EEA Citizen or their spouse or civil partner.
• Parents, grandparents or great-grandparents who are dependent on the relevant EEA Citizen
or their spouse or civil partner.
• Dependent relatives of a relevant EEA Citizen or their spouse or civil partner. These relatives
must hold an EEA Family Permit or residence document issued under the EEA Regulations.

Experienced immigration practitioners have struggled to interpret the opaque definition of ‘durable
partner’ in Annex 1 of Appendix EU. A common question is whether durable partners in the UK who
have not been issued with a ‘relevant document’ (residence Card or other documentation under the
EEA Regulations) by 31 December 2020 can nonetheless obtain leave under the EUSS?

According to the Home Office guidance published on 21 May 2021 (p82-83) from 1 January 2021
onwards, the default position remains that a durable partner can provide a document issued to them
as a durable partner under the EEA Regulations but must also provide evidence that the partnership
remains durable.

Otherwise, a durable partner who did not hold a relevant document by 31 December 2020 and ‘did
not otherwise have a lawful basis of stay’ is excluded from qualifying as a joining family member under
the Scheme.

The effect is that where a person was resident on 31 December 2020 but did not hold a relevant
document as a durable partner:
they must (unless they otherwise had a lawful basis of stay in the UK and Islands for that
period, for example as a student) break their continuity of residence in the UK and Islands
before they can apply as a joining family member and the durable partner of the relevant
sponsor.

In terms of the evidence such an applicant could then rely on, they must prove that the partnership
was durable by the 31 December 2020 and remains durable. The wording and structure of the
guidance does not indicate that any relevant document issued under the EEA Regulations is required.
There is also guidance regarding those who had been resident in the UK before 31 December 2020
but had subsequently broken the continuity of their leave via absence or imprisonment; and those
who had been present with a right of permanent residence but had thereafter been absent for more
than five consecutive years. In these cases, the durable partner must prove that the partnership was
durable by the 31 December 2020 and remains durable.

5
‘Family members’ here refers to both EEA citizens and non-EEA Citizens but it will usually be non-EEA
Citizens who seek to rely on their status as family members.

73
Dependency
The definition of dependency for a child, grandchild etc aged 21 or over is that:
having regard to their financial and social conditions, or health, the applicant cannot, or (as the case
may be) for the relevant period could not, meet their essential living needs (in whole or in part) without
the financial or other material support of the [sponsor].

This general definition also applies to dependent parents etc who must have been dependent at 31
December 2020. Before 1 July 2021, as long as the EEA Citizen or the spouse or civil partner on whom
they are dependent is an adult, dependency ‘is assumed’. This provision meant that dependency must
actually exist; it simply did not require to be proven by evidence. Note that the dependency of parents
is no longer assumed in any application made from 1 July 2021 onwards. It now needs to be evidenced.

The category of ‘dependent relatives’ transposes into the EUSS the categories defined under
‘extended family members’ under Regulation 8 of the EEA Regulations (other than durable partners
who are dealt with separately). That is to say:
• a relative who is, or was, a dependant of the sponsoring person, a member of their household
or in strict need of personal care on serious health grounds
• a person subject to a non-adoptive legal guardianship order in favour of an eligible EEA citizen
• a child, grandchild or adopted child, (who is under the age of 18), of the durable partner of a
relevant EEA citizen.

Family members of a ‘relevant naturalised British citizen’

EEA citizens who exercised their EU Treaty rights in the UK before naturalising as British citizens cannot
apply under the Scheme and have no reason to. But they are included within the definition of relevant
EEA Citizen and so their non-British family members can apply.

A relevant person of Northern Ireland

Since August 2020 the Scheme has included a ‘relevant person of Northern Ireland’. Such persons will
usually have little reason to apply themselves, but family members are eligible.

A family member who has retained the right of residence

In summary, these family members have retained their right of residence as a result of divorcing their
sponsor or their sponsoring partner or parent’s death or departure from the UK. It transposes Reg 10
of the EEA Regulations.

Requirement for EEA Citizen to have leave once the grace period ends
Appendix EU has been amended so that it has two definitions of ‘relevant EEA citizen’ – one for
applications made during the grace period and one for applications made after the grace period from
1 July 2021 onwards. During the grace period, the sponsoring EEA citizen did not have to have their
own indefinite or limited leave under the EU Settlement Scheme, as long as they could show that they
would be granted it were they to apply. It was more straightforward if the sponsoring EEA citizen did
have such leave before the family member applied, but it was not obligatory. Following the end of the
grace period, from 1 July 2021, only those EEA citizens with indefinite or limited leave under the
Scheme are able to sponsor their family members under the Scheme.

74
‘Joining family members’: those who have not entered the UK by 31 December 2020

Appendix EU contains a definition of a ‘joining family member of a relevant sponsor’. If a family

member of an EEA citizen has not entered the UK by 31 December 2020 - or they had a previous
residence the continuity of which was broken by an extended absence – they may nonetheless be
eligible to apply from overseas, but they will need to be sponsored by their EEA citizen relative in
the UK.

So the purpose of creating a definition of ‘joining family member’ is to demarcate this group of
family members from those ‘family members of a relevant EEA citizen’ who were resident in the
UK before the end of the transition period.

Apart from children born after 31 December 2020, the definition in Appendix EU requires that the
family member was not resident as the family member of a relevant EEA citizen before 31 December
2020; or they had been resident but their qualifying residence had been broken, or a supervening
event had occurred, and they had not returned to the UK before the end of the transition period on
31 December 2020.

After the end of the grace period the ‘joining family member’ category appears to be restricted to
those who have entered the UK with an EUSS Family Permit. There is no fixed date after which a
person can no longer be treated as a ‘joining family member’. Rather there is a deadline after the
joining family member has entered the UK. The deadline is within 3 months of the date they arrived
in the UK, unless the Home Office is satisfied that there are reasonable grounds for the person’s
failure to meet that deadline.

The ‘joining family member’ must fall within one of the following categories:

• Spouse or civil partner of a relevant sponsor where the marriage or civil partnership was
contracted by 31 December 2020
• Specified spouse or civil partner of a Swiss citizen (specific rules apply)
• Durable partner of a relevant sponsor where the partnership was durable before 31
December 2020 and remains durable at the date of application
• Child of a relevant sponsor or their spouse or civil partner, including a child born after 31
December 2020. Child has the meaning of ‘direct descendent’ as elsewhere in the Scheme
rules and where the child is 21 or over, they must be dependent
• Dependent parent of a relevant sponsor or their spouse or civil partner.

Note that dependent relatives are absent.

Relevant sponsors
Turning to the definition of ‘relevant sponsor’ a distinction is drawn between applications made
before 1 July 2021 and applications made on or after 1 July 2021 ie during and after the grace period.

During the grace period an EEA Citizen who was resident in the UK by 31 December 2020 could be
a relevant sponsor whether or not they have yet been granted leave under the EU Settlement
Scheme (indefinite or limited). After the grace period an EEA Citizen must have been granted either
limited or indefinite leave under the EU Settlement Scheme.

75
In common with the rest of the Scheme, there are also other groups who can be relevant sponsors:

During the grace period these were:

• A relevant naturalised British citizen
• A relevant person of Northern Ireland
• A person exempt from immigration control
• A frontier worker.

After the grace period these are:

• An Irish citizen who would have been eligible for leave under the Scheme had they applied
before 1 July 2021
• A relevant naturalised British citizen who would have been eligible for leave had they not
been a British citizen
• A relevant person of Northern Ireland
• A person exempt from immigration control
• A frontier worker

A frontier worker is an EEA citizen living outside the UK who had worked in the UK by 31 December
2020 and has kept working in the UK at least once every 12 months since they started work in the
UK. Applicants can apply online, without charge, for a Frontier Worker Permit. Frontier workers will
need a Frontier Worker Permit to enter the UK to work from 1 July 2021. A passport or national
identity card can be used until then.
A detailed explanation of this route is given by Joanna Hunt at
https://www.freemovement.org.uk/frontier-worker-permit/

Where the ‘joining family member of a relevant sponsor’ is an EEA citizen applying from outside the
UK, as they will be in most cases, they will be able to use the ‘required application process’ – ie the
settled status app.

Could a family member come as a visitor and apply in-country under the EUSS?
For any applicant considering coming to the UK as a visitor and then applying under the EU
Settlement Scheme from within the UK, this is prevented by amendments to Appendix EU at
paragraphs 11A and 14A.

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Family members who can apply for an EU Settlement Scheme Family Permit

From the end of the grace period those family members who were not resident by the end of the
transition period they may be eligible for an EU Settlement Scheme Family Permit. This is provided
for under Appendix EU (Family Permit) rather than Appendix EU. There is no deadline or ‘required
date’ before which an application for an EUSS Family Permit must be made.

If the family member applies successfully and enters the UK with an EUSS Family Permit, they
become eligible to apply for limited leave (pre-settled status) under Appendix EU by meeting the
definition of a ‘joining family member of a relevant sponsor’ as discussed above. Family members
who enter the UK holding an EUSS Family Permit after 1 April 2021 will have three months to apply
for limited leave, unless the Home is satisfied there are reasonable grounds to permit a later
application.

Note that this EUSS Family Permit refers to an application for a specific type of entry clearance under
UK immigration law rather than an application for an EEA Family Permit under the EEA Regulations.
EEA Family Permits could still be applied for by some family members until the end of the grace
period on 30 June 2021. For details see guidance at:
https://www.gov.uk/government/publications/eu-settlement-scheme-family-permits.

Appendix EU (Family Permit) has the familiar structure of validity requirements (involving a ‘required
application process’ which is online, free and has no immigration health charge), eligibility
requirements and suitability requirements. As with Appendix EU there is an Annex 3 which provides
for the cancellation and curtailment of the leave to enter granted by virtue of the Family Permit. The
grounds mirror those in Annex 3 of Appendix EU.

Who can apply?

The Applicant must be family member of a relevant EEA citizen. (In terms of their nationality, the
applicant must be either a non-EEA citizen or a ‘specified EEA citizen’ – defined as an EEA citizen
who is not also a British citizen.)

Family members fall into the following categories:

• Spouse or civil partner of a relevant sponsor where the marriage or civil partnership was
contracted by 31 December 2020
• Specified spouse or civil partner of a Swiss citizen (specific rules apply)
• Durable partner of a relevant sponsor where the partnership was durable before 31
December 2021 and remains durable at the date of application
• Child of a relevant sponsor or their spouse or civil partner, including a child born after 31
December 2020. Child has the meaning of ‘direct descendent’ as elsewhere in the Scheme
rules and where the child is 21 or over, they must be dependent
• Dependent parent of a relevant sponsor or their spouse or civil partner
• Family member who has retained the right of residence (as defined in Annex 1 to Appendix
EU) or is a family member entitled to indefinite leave after the death of a sponsor who was
a worker or self employed (transposing Reg 15(1)(e) of the EEA Regulations). In such cases
the person must satisfy the Entry Clearance Officer that they would be granted indefinite or
limited leave under Appendix EU, or would have been granted such leave if they apply after
the grace period, from 1 July 2021.

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A ‘relevant EEA citizen’
Turning to the definition of a ‘relevant EEA citizen’, just as with relevant sponsors of joining family
members (discussed above) a distinction is drawn between applications made before 1 July 2021 and
applications made on or after 1 July 2021 ie during and after the grace period.

During the grace period an EEA Citizen who was resident in the UK by 31 December 2020 could be a
relevant sponsor whether or not they have yet been granted leave under the EU Settlement Scheme
(indefinite or limited).

After the grace period an EEA Citizen must have been granted either limited or indefinite leave under
the EU Settlement Scheme.

In common with the ‘relevant sponsors’ the same range of other groups can also be relevant EEA
citizens.

Family members who enter the UK holding an EU Settlement Scheme Family Permit after 1 April 2021
will have three months to apply for limited leave.

EU Settlement Scheme Travel Permit

Appendix EU (Family Permit) also contains rules for the issue of an EU Settlement Scheme Travel
Permit which is a replacement document for non-EEA Citizens who were previously granted leave
under the EUSS and issued with a document under the EEA Regulations, or with a biometric residence
card under Appendix EU, but they have reported to the Home Office that that document or card has
been lost or stolen. The EUSS Travel Permit allows them to travel back to the UK.

78
Family members who can apply under Appendix FM
From the end of the transition period, the Appendix FM partner route has been amended so that a
person in the UK with limited leave under Appendix EU can now sponsor a partner.
• For entry clearance, see the eligibility requirement at para E-ECP.2.1 (d).
• For leave to remain, see the eligibility requirement at para E-LTRP.1.2 (d).

Note that not every person with limited leave (‘pre-settled status’) can be a sponsor. The relevant
definition is given at paragraph GEN.1.3(d):

(d) references to a person being “in the UK with limited leave under Appendix EU” mean an EEA
national in the UK who holds valid limited leave to enter or remain granted under paragraph
EU3 of Appendix EU to these Rules on the basis of meeting condition 1 in paragraph EU14 of
that Appendix

For the purpose of calculating the financial requirement which must be met when applying as a
partner, a child will not be counted if they are ‘in the UK with valid limited leave to enter or remain
granted under paragraph EU3 or EU3A of Appendix EU.’ This applies in both entry clearance and
further leave applications.

A bereaved partner application can be made if the sponsor with limited leave under Appendix EU
(as defined in paragraph GEN.1.3(d)) dies.

An application as a victim of domestic abuse can be made if the applicant was first granted leave as
the partner of a sponsor with limited leave under Appendix EU (as defined in paragraph GEN.1.3(d)).
In such cases, an initial application under the destitute domestic violence concession is also possible.

An application as a parent can be made where the child has limited leave under Appendix EU (as
defined in paragraph GEN.1.3(d)). If the child is living with the other parent, that parent can be a
person with limited leave under Appendix EU.

An application as an adult dependent relative can be made where the sponsor is an adult with
limited leave under Appendix EU (as defined in paragraph GEN.1.3(d)).

Family members of qualifying British citizens (Surinder Singh cases)

These notes do not deal with Surinder Singh family members.

Persons with a derivative right to reside and a Zambrano right to reside

Where persons with a derivative right to reside or a Zambrano right to reside were resident in the
UK by the end of the transition period, they remain eligible to apply under the EU Settlement
Scheme in the same way as relevant EEA citizens and their family members.
But they do not fall under the definition of a ‘joining family member of a relevant citizen’ for the
purpose of applications made under Appendix EU during the grace period or for the purpose of
applications for EUSS Family Permits.

79
Amendments to the British Nationality Act 1981 as a result of the EU Settlement Scheme

On 1 July 2021, the British Nationality Act 1981 (Immigration Rules Appendix EU) (Amendment)
Regulations 2021 (SI 2021 No. 743) introduced a new section 10A to the British Nationality Act 1981.

Section 10A is entitled Acquisition in connection with immigration rules Appendix EU. Its purpose is to
ensure that where a child is born from 1 July 2021 onwards to a parent who qualified for indefinite
leave under Appendix EU before that date, but the parent is only granted indefinite leave after the
child is born, the child will acquire British citizenship automatically at the point the parent is granted
indefinite leave. No application for registration as a British citizen will need to be made on behalf of
the child. British citizenship will be acquired by operation of law.

Section 10A contains three mandatory conditions. If all three are met by either one of the parents (P),
the child (C) becomes a British citizen:

(3) Condition 1 is that, on or after 1st July 2021, P is granted—

(a) UK related indefinite leave under paragraph EU2 of Appendix EU to the UK immigration
rules;

(b) Isle of Man related indefinite leave under paragraph EU2 of Appendix EU to the Isle of Man
immigration rules,

and the date of grant of such leave is referred to in this section as “the relevant date”.

(4) Condition 2 is that—

(a) P is granted the leave described in subsection (3)(a) or (b) pursuant to an application made
before 1st July 2021, or

(b) immediately before 1st July 2021, P would have met the eligibility requirements for—

(i) UK related indefinite leave within paragraph EU11 or EU12 of Appendix EU to the UK
immigration rules, or

(ii) Isle of Man related indefinite leave within paragraph EU11 or EU12 of Appendix EU to the
Isle of Man immigration rules,

if an application had been made at that time.

(5) Condition 3 is that P is ordinarily resident in the United Kingdom on the relevant date.

Section 10A applies both to situations where an application was made to the EUSS before 1 July 2021
but not decided until later and to situations where a late application was made to EUSS by successfully
asserting there were reasonable grounds to miss the deadline.

In order to prove British citizenship a passport application for the child will be required. The Passport
Office is likely to introduce guidance on such applications in due course.

Section 10A does not apply to situations where parents acquire indefinite leave to remain under other
parts of the Immigration Rules.

Those granted limited leave (pre-settled status) under the EUSS who have children in the UK from 1
July 2021 onwards can apply to register their child as British under section 1(3) of the British
Nationality Act 1981 once they are granted indefinite leave (settled status) under the EUSS.

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3.2 EEA free movement law as at the end of the transition period

Until 1 May 2004 the member states of the European Union were:

Austria Germany Luxembourg

Belgium Greece Portugal
Denmark Holland Spain
Finland Ireland Sweden
France Italy UK

On 1 May 2004, 10 new states acceded to the EU. Nationals of 8 of these states were subject to
transitional restrictions which ceased to have effect from 1 May 2011. Known as the A8 (or ‘Accession
8) countries, they were:

Czech Republic Lithuania

Estonia Poland
Hungary Slovakia
Latvia Slovenia

Cyprus and Malta also acceded to the EU on 1 May 2004, but their nationals were not subject to any
restrictions. On 1 January 2007, Romania and Bulgaria acceded to the EU and are often known as the
A2 states. Their nationals remained subject to restrictions which continued until 1 January 2014. On 1
July 2013 Croatia joined the EU. Since 1 July 2018 they have had full free movement rights. All these
member states of the EU along with Norway, Iceland and Lichtenstein form the European Economic
Area (EEA). Since 2002 Swiss nationals have enjoyed free movement rights by agreement with the EU.

Dual nationals
From 2012 to 2018, the Immigration (EEA) Regulations defined an ‘EEA national’ as ‘a national of an
EEA State who is not also a British citizen’. However, in the case of C-165/16 Lounes, the CJEU found
instead that EU citizens who move to the UK and later naturalise as British citizens retain their free
movement rights under EU law, even though they have become British. The EEA Regulations were
amended in July 2018 to reflect the judgment in Lounes. Dual nationals can rely on EU law so long as
they exercised treaty rights before naturalising as British citizens. This principle was confirmed in the
case of Kovacevic (British citizen - Art 21 TFEU) Croatia [2018] UKUT 273 (IAC). Dual nationals are
now defined at Regulation 9A and the definition of an EEA national in Regulation 2 has been amended.

3.3 Rights of Admission and Rights of Residence of Qualified Persons

All EEA nationals and their family members (as defined in the Regulations) have a right of admission
to the UK (Regulation 11) and an initial right of residence for a period not exceeding three months
(Regulation 13.) A qualified person enjoys an extended right of residence (Regulation 14). ‘Qualified
Person’ is the term used in the Regulations for a person exercising Treaty rights. Qualified persons are
listed at Regulation 6(1) and defined at Regulation 4(1):
6(1)
(a)a jobseeker;
(b)a worker;
(c)a self-employed person;
(d)a self-sufficient person; or
(e)a student.

81
A worker does not have to be employed full time or have a permanent contract. The Upper Tribunal
discussed the definition, with reference to relevant authorities, in Begum (EEA – worker – jobseeker)
Pakistan [2011] UKUT 00275(IAC):

5…A fuller and more recent discussion of Community law relating to who is a worker can be
found in Barry v The London Borough of Southwark [2008] EWCA Civ 1440. It is to that
judgment we turn for authority on the first issue arising in this appeal.

6. The Court of Appeal there examines the jurisprudence of the Court of Justice of the
European Union (formerly the European Court of Justice). Reliance was placed in particular on
the decisions in D M Levin v Staatssecretaris van Justitie (case no. 53/81) and Lawrie-Blum v
Land Baden-Wurttemberg (case no. 66/85). The Court of Appeal identifies the following
features for a Union citizen to be regarded as a worker.

a. The terms ‘worker’ and ‘activity as an employed person’ have a Community

meaning and may not be defined by reference to the national laws of the Member States
(see para. 11 of Levin, citied in para. 18 of the judgment).

b. Since it defines the scope of freedom of movement, the Community concept of a

'worker' must be interpreted broadly (see para. 16 of Lawrie-Blum, cited in para. 39 of the
judgment).

c. The right of residence as a worker is not subject to any condition relating to the type
of employment or to the amount of income derived from it (see para. 14 of Levin, citied in
para. 18 of the judgment).

d. A worker is a person who pursues effective and genuine activities, to the exclusion
of activities on such a small scale as to be regarded as purely marginal and ancillary (see
para. 17 of Levin, citied in para. 18 of the judgment).

e. The concept of ‘worker’ must be defined in accordance with objective criteria which
distinguish the employment relationship by reference to the rights and duties of the persons
concerned. The essential feature of an employment relationship is that for a period of time
a person performs services for and under the direction of another person in return for which
he receives remuneration (see para. 17 of Lawrie-Blum, cited in para. 39 of the judgment).

f. Such activities must have economic value to the employer (see para. 19 of Lawrie-
Blum, cited in para. 39 of the judgment).

In its Immigration Staff Guidance on European Economic Area nationals: qualified persons, the Home
Office discusses how to assess whether work is genuine and effective as opposed to marginal and
ancillary:
Marginal means the work involves so little time and money that it is unrelated to the lifestyle
of the worker. It is supplementary because the worker is clearly spending most of their time
on something else, not work.
For example a student who gets a job behind the student union bar for two hours a week is
actually a student, their work is marginal and supplementary to their actual role as a student.

Relevant considerations include:

• whether there is a genuine employer-employee relationship
• whether there is an employment contract

82
 • whether the work is regular or intermittent
• how long the EEA national has been employed for
• number of hours worked
• level of earnings

The Guidance makes reference to the HMRC Primary Earnings Threshold (PET) which is the point at
which employees must pay class 1 National Insurance contributions. It comments:
If an EEA national is earning below PET you must make a further enquiries into whether the
activity relied upon is genuine and effective.

The PET is updated each financial year. For 2020-2021 the figure is £183 per week, £792 per month
and £9,500 per year.

Whether the approach adopted by the Home Office in her Immigration Staff Guidance is lawful may
be debatable. However, advisers must be aware that this is the approach which an initial decision-
maker will take and advise potential applicants accordingly.

It may be helpful to consider two different judgments issued by the Upper Tribunal (Administrative
Appeals Chamber) which dealt with whether a seller of the Big Issue was engaged in self-employment
which was genuine and effective rather than marginal and ancillary.

In Bristol City Council v FV (HB) [2011] UKUT 494 (AAC) the Big Issue seller had undertaken this work
for over three years. She generally worked at least 16 hours a week increasing to 24. Based on the
revised schedules the appellant’s profit in the period from August to the beginning of November 2010
was around £45 a week. From early November 2010 to the end of December 2010 the average was
around £150 a week, with the average for the period from August to the end of December around £90
a week. Apart from two weeks when she did not work the appellant worked in all the other weeks
and in most weeks she bought at least 50 magazines. She did not submit tax returns or pay national
insurance contributions as her earnings were below the relevant threshold.

The Upper Tribunal upheld the decision of the First-tier Tribunal that:
6…14. The tribunal considered that the work [w]as genuine and effective. The hours worked
of 16 to 24, the level of remuneration between £45 and £150 a week depending on which
period was used and the regularity of the work all led to the conclusion that the work was
genuine and effective.

The First-tier Tribunal had also considered the earlier case of TG v SSWP [2009] UKUT 258 (AAC) in
which:
6…11…a claimant who had been working for two months as a self-employed interpreter,
working only three or four hours a week and for the rest of his time marketing and making no
profit was held to be self-employed. In R(IS) 12/98 an au pair who worked for 13 hours a week
for a low wage and board and lodging was a worker.

By contrast, in DV v Secretary of State for Work and Pensions (European Union law – free movement)
[2017] UKUT 155 (AAC) a Big Issue seller worked 40 hours per week selling the magazine and by June
2015 had built up her sales to 40 magazines per week which had remained constant up to the date of
hearing. She made a profit of £1.25 per magazine or £50 per week. She had registered her self-
employed business with HMRC, had submitted a tax return and made a claim for tax credits. Her
earnings were below the threshold for national insurance contributions. The tribunal recorded that
she was “content with her self employment and has no intention of registering as a job seeker or
seeking other or more remunerative work.” The First-tier Tribunal had found as follows:

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 10…19. I considered the totality of the appellant’s family financial circumstances. The
appellant’s rent was met by Housing Benefit and she claims Tax Credits of about £150 per
week. The appellant’s earnings from selling the Big Issue make up the remainder of the family
income and I hold on the balance of probabilities that the appellant’s self employment is not
genuine in the sense that it generates a meaningful income. I hold the appellant’s self
employment to be a means of demonstrating economic activity for the purposes of qualifying
for benefits to which the appellant would otherwise not be entitled to as a person from abroad.
In my view earnings of £50 per week plus tips less costs, if any, of travelling to and from work
are so low that they must properly be described as marginal and ancillary and therefore the
appellant’s self employment cannot be considered to be effective.

The Upper Tribunal upheld that decision and also upheld the First-tier Tribunal’s conclusion that the
Appellant’s business was ‘not viable’.
16…[A]lthough motive is irrelevant where the economic activity is genuine and effective, the
reason for continuing with an activity, particularly where that activity is not economically
viable, can be relevant to the decision whether it is genuine and effective. The tribunal noted
that the Appellant had said that she was not interested in earning more, whether through
employment or other self-employment. On the evidence, she did not need to do so because of
the state benefits that she received.

17. It was open to the tribunal to conclude, in the light of all the evidence, that the business
was a means to obtaining benefits and that the income from it was no more than a “useful
and necessary addition” to that income…

Jobseekers
Unlike the Regulations which are opaque in the extreme, the Home Office interpretation of the
Regulations is easy to follow and is found in its Immigration Staff Guidance European Economic Area
nationals qualified persons:

A jobseeker is defined in regulation 6(5) of the Immigration (EEA) Regulations 2016

(the regulations) as an EEA national who:
• enters the UK in order to seek employment
• is present in the UK seeking employment, immediately after enjoying a right to
reside as a:
o worker
o self-employed person
o self-sufficient person
o student
• can provide evidence they are seeking employment and have a genuine
chance of being employed

Seeking employment
Evidence of seeking employment may include:
• job application forms
• letters of invitation to interviews
• rejection letters from employers
• Jobcentre Plus registration documents including the claimant commitment which outlines
what jobseeking actions the claimant must carry out while receiving benefits (this alone is not
sufficient)
• letters and emails written by the applicant to employers or employment agencies seeking
work

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Semi-skilled or unskilled people
Evidence of semi-skilled or unskilled people may include activities such as:
• regularly visiting their local Jobcentre Plus office
• reading and applying for jobs advertised in the situations vacant pages of local newspapers

Highly skilled or qualified people

Evidence of highly skilled or qualified people may include activities such as:
• consulting job advertisements in professional magazines
• registering with a specialist employment agency

Simply registering as a job seeker with Job Centre Plus or another employment office is not in itself
sufficient to meet the requirement to be seeking employment and have a genuine chance of being
employed.

Genuine chance of being employed

The prospect of the EEA national gaining employment will depend on their skills, qualifications and
types of jobs for which they are applying and the local labour market conditions.
In all cases you should look to see if the EEA national’s academic or professional qualifications and
experience compare to the type of employment for which they are applying. Language skills may also
be relevant. You may wish to consider:
• what field and location the person will be looking for work
• whether they have relevant skills, training or qualifications
• whether they successfully worked in that capacity in another member state
• any relevant language skills the may hold (may be relevant depending on the field)
• how they will be looking for work
• whether they have demonstrated that they are familiar with where jobs in their chosen field
are usually advertised
• what they have done already to look for work in the UK including whether they have:
o contacted any employers from outside the UK
o set up any interviews

For example, an EEA national is applying for jobs caring for small children. The EEA national has no
prior experience of working in this field in any member state, has no relevant qualifications in child
care or child learning and development and has very limited knowledge of English. In this case it is
unlikely that the EEA national has a genuine chance of finding work in this field.

Seeking work for longer than the relevant period

An EEA national may not be a jobseeker for longer than the relevant period unless they can provide
compelling evidence that they are continuing to seek employment and have a genuine chance of being
engaged.

Relevant period
For jobseekers, the relevant period is 91 days (3 months) minus the total of any days during which the
person concerned previously enjoyed a right to reside as a jobseeker, unless that previous period was
prior to a continuous absence from the UK of more than 12 months.

An EEA national who enters the UK to look for work will have the initial 3 month, unconditional period
of residence, conferred by regulation 13 and then the period of 91 days as a jobseeker, providing they
are actively seeking work and have a genuine chance of being engaged. In other words an EEA national
who enters the UK to look for work will usually have a 3 month initial right of residence, followed by

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91 days (3 months) as a jobseeker, provided the criteria are met. A jobseeker may have access to
benefits for this 91 day period of residence as a jobseeker. At the end of the 91 day period as a jobseeker
the person will be required to provide compelling evidence, that they are actively seeking work and
have a genuine chance of being engaged. If the person cannot satisfy this requirement then they cease
to have a right of residence as a jobseeker and consequently cease to have access to benefits.

An EEA national who has not entered the UK as a jobseeker but who is already resident in the UK and
becomes a jobseeker immediately after enjoying a right to reside in another capacity (for example a
student who ends their course of study and looks for work) will have a right of residence as a jobseeker
for 91 days (3 months.) This is providing they are actively seeking work and have a genuine chance of
being engaged.

If an EEA national has previously had a right of residence in the UK as a jobseeker, that previous period
of residence should be deducted from the relevant period, unless it was prior to a continuous absence
from the UK for more than 12 months.

Repeat periods of residence as a jobseeker

An EEA national who has previously completed a period of 91 days residence as a jobseeker, but who
ceased to have a right of residence in that capacity will only be able to remain a jobseeker under certain
conditions. These are that they haven’t since then, been continuously absent from the UK for at least
12 months and can immediately demonstrate that they can provide compelling evidence that they are
seeking work and have a genuine chance of being engaged.

Compelling evidence
Compelling evidence represents a higher threshold than the requirement to prove that a person is
actively seeking work and has a genuine chance of finding work. For example we would expect to see
a recent job offer. Or evidence the EEA national has very recently significantly improved their prospect
of finding work by successfully completing a vocational course which is directly relevant to the field in
which they are hoping to work and which significantly increases the prospect of an imminent job offer.
In this case a person may temporarily continue to have a right of residence as a jobseeker.

In relation to jobseekers, EU law does not provide for a strict cut off point after which they cease to
be a qualified person. The EEA Regulations used to define a ‘jobseeker’ as ‘a person who enters the
United Kingdom in order to seek employment and can provide evidence that he is seeking employment
and has a genuine chance of being engaged.’ That reflected the decision in Antonissen [1991] ECR I-
745, in which the then European Court of Justice established that a job seeker could qualify as a worker
but the case also made clear that the period of time allowed for the job-seeker to find employment
was not indefinite.

In AG and others (EEA-jobseeker-self-sufficient person-proof) Germany [2007] UKAIT 00075, the AIT
held that:
(iii) In considering what period of time a jobseeker has to find work, 6 months may be a general
rule of thumb, but there is no fixed time limit. The ECJ in Antonissen [1991] ECR I-745, Case C-
344/95 decided that the period must be a "reasonable period" and the assessment of what is
"reasonable" must be made in the context of each individual case. Thus it may sometimes be
less, sometimes more, than 6 months. In all cases, however, the period in question must start
from the date of the person's arrival in the United Kingdom.

Regulation 6(2) and (3) deal with workers who retain their status as workers for a limited period:
(2) A person who is no longer working must continue to be treated as a worker provided that the
person—

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 (a)is temporarily unable to work as the result of an illness or accident;
(b)is in duly recorded involuntary unemployment after having been employed in the United
Kingdom for at least one year, provided the person—
(i)has registered as a jobseeker with the relevant employment office; and
(ii)satisfies conditions A and B;
(c)is in duly recorded involuntary unemployment after having been employed in the United
Kingdom for less than one year, provided the person—
(i)has registered as a jobseeker with the relevant employment office; and
(ii)satisfies conditions A and B;
(d)is involuntarily unemployed and has embarked on vocational training; or
(e)has voluntarily ceased working and has embarked on vocational training that is related to
the person’s previous employment.

(3) A person to whom paragraph (2)(c) applies may only retain worker status for a maximum of six
months.
(In KH v Bury MBC and SSWP [2020] UKUT 50 (AAC) it was held that EU citizens do not need to prove
that they have a ‘genuine chance of being engaged’ in order to retain worker status under EU law.)

Self-employed
The Home Office’s Immigration Staff Guidance European Economic Area nationals qualified persons
interprets the Regulations on self-employment as follows:

A self-employed person is an EEA national, exercising their free movement rights in the UK by working
for themselves and generating an income in a self-employed capacity.

You must consider a number of factors, although not all the factors will be relevant to every
application. You must decide each application after analysing all the relevant circumstances.
Applicants must provide evidence to show they meet the factors listed below:
• economic activity
• responsibility and personal freedom
• genuine and effective self employment
• registration with HM Revenue & Customs (HMRC)

In addition the two factors below will only apply depending on the type of self-employment:
• permanence and stability
• membership of a professional body

Reasonable evidence of self-employment may include:

• proof of registration for tax and National Insurance (NI) purposes with HMRC for
example:
o letter of self-employed status
o letter confirming payment of tax and NI contributions

• invoices for work done

• a copy of their business accounts
• an accountant’s letter
• leases on business premises (if applicable)
• advertisements for their business
• business bank statements.

Any evidence submitted must be dated no more than six months before the application date.

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The Home Office will also assess whether the self-employment is genuine and effective and not
marginal or ancillary.

Students
Note that for those who are qualified persons by virtue of being a student, Regulation 4 defines which
courses entitle a person to be considered a ‘student’ and sets out the additional requirements of
comprehensive sickness insurance and not becoming a burden on the social assistance system which
have to be met by students and self-sufficient persons – requirements which do not apply to workers,
jobseekers or the self-employed.

The Home Office defines comprehensive sickness insurance (CSI) in its Immigration Staff Guidance:

You can accept an EEA national or their family member as having CSI if they hold any form of insurance
that will cover the costs of the majority of medical treatment they may receive in the UK.

You must take a proportionate approach when you consider if an insurance policy is comprehensive.
For example, a policy may contain certain exemptions but if the policy covers the applicant for medical
treatment in the majority of circumstances you can accept it.

The definition of CSI does not include:

• cash back health schemes, such as:
o dental
o optical, or
o prescription charges
• travel insurance policies
• access to the UK’s National Health Service (NHS).

The Immigration Staff Guidance also discusses the documentation which must be submitted. Although
it draws a distinction between applications for documentation which certifies permanent residence
and other EEA documentation, the list of possible documents for all applications includes a European
Health Insurance Card (EHIC) issued by a member state other than the UK (as well as a comprehensive
private medical insurance policy document). The EHIC can be relied on in applications for permanent
documentation but in applications for residence cards and registration certificates the EHIC card must
be accompanied by a statement of intent that the residence in the UK is temporary (unless the
temporary nature of the residence is clear from the application itself).

The Courts in the UK have repeatedly refused to accept that the availability of National Health Service
treatment can act as the equivalent of comprehensive sickness insurance. The most recent case was
Ahmad v SSHD [2014] EWCA Civ 988. But in Ahmad the court also recorded that: ‘It is common ground
that if there were reciprocal arrangements with the EEA national's own state that would be sufficient
to constitute comprehensive insurance cover.’ [53]

Self-sufficient persons
According to the Home Office Immigration Staff Guidance
A self-sufficient person is an EEA national who is exercising their free movement rights in
the UK. They must be able to provide proof that they have:
• enough money to cover their own and any family member’s living expenses without
becoming a burden on the social assistance system in the UK, and
• comprehensive sickness insurance in the UK for themselves and any family members.

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In assessing whether a person has sufficient resources not to become a burden on the social assistance
system in the UK, the Immigration Staff Guidance says:

When deciding if an EEA national and their family members have sufficient resources you must
first check if they exceed the maximum level of resources which a British citizen and their family
members can have before they no longer qualify for social assistance under the UK benefit
system.

If they do exceed the maximum level then you must accept that they have sufficient resources.
…
You must take into account the personal situation of the applicant and their family
members.

In most cases it will be clear if an applicant exceeds the maximum level of resources which
a British citizen and their family members are allowed to have before they no longer qualify
for social assistance.

The applicant will exceed this level if they provide documents showing they have enough
resources to cover their essential outgoings. For example the applicant can provide evidence
of resources by providing one or more of the following:
• bank statements showing savings
• evidence of pension payments
• receipt of educational grants from overseas
• income of a partner, spouse or other family member to which they have
regular access, for example:
o parental funding
o a spouse’s salary earned through lawful working in the UK

This is not a complete list of all the types of evidence. Applicants can provide any other
evidence showing that they and their family members have enough resources available to
them to take them above the level of resources which a British citizen and their family
members may possess before they are no longer eligible for social assistance under the UK
benefit system. You must assess each case on an individual basis.

Taking into account the personal situation of the applicant and any family members
If an EEA national and their family member’s resources do not exceed the maximum levels
of resources a British citizen and their family members can have before they no longer
qualify for social assistance, you must take into account their personal situation to see if
their resources are nonetheless sufficient on the facts of the case. This means assessing
their:
• financial commitments, such as:
o rent
o mortgage
o utilities
o loans
o credit cards
o other personal debt

• additional costs, such as

o travel

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 o food costs

This is not a complete list and evidence must be assessed on a case-by-case basis.

One approach to estimating whether an applicant exceeds the maximum level of resources before a
British citizen and their family would no longer qualify for social assistance would be to operate the
same calculation as that for assessing under the Immigration Rules whether there would be adequate
maintenance and accommodation without recourse to public funds. The test is found at paragraph 6
of the Immigration rules: [A]fter income tax, national insurance contributions and housing costs have
been deducted, there must be available to the family the level of income that would be available to
them if the family was in receipt of income support. In addition, rules regarding entitlement to welfare
benefits generally provide that a person with more than £16,000 will not be eligible for Income
Support. However, despite its attraction, this approach is not adopted in the Immigration Staff
Guidance nor is there any authority for it.

Finally, it is important to bear in mind that even where an EEA national is not a qualified person by
virtue of being a worker, self-employed, student or jobseeker, they may be able to show self-
sufficiency by virtue of their non-EEA family member’s income or financial resources (Regulation 4(2)).
In such a case, however, the EEA national would also have to have comprehensive sickness insurance
covering all family members.

3.4 Family members and ‘extended family members’

It is important to distinguish between what the Regulations call ‘family members’ in contrast to
‘extended family members’. The distinction is important because family members, by virtue of that
status, acquire a right to join or reside with an EEA national exercising treaty rights. Family members
are defined at Regulation 7(1) and extended family members at Regulation 8:

“Family member”

7.—(1) In these Regulations, “family member” means, in relation to a person (“A”)—

(a)A’s spouse or civil partner;

(b)A’s direct descendants, or the direct descendants of A’s spouse or civil partner who are
either—
(i)aged under 21; or
(ii)dependants of A, or of A’s spouse or civil partner;
(c)dependent direct relatives in A’s ascending line, or in that of A’s spouse or civil partner.

(2) Where A is a student residing in the United Kingdom otherwise than under regulation 13 (initial
right of residence), a person is not a family member of A under paragraph (1)(b) or (c) unless—

(a)in the case of paragraph (1)(b), the person is the dependent child of A or of A’s spouse or
civil partner; or
(b)A also falls within one of the other categories of qualified person mentioned in regulation
6(1).
(3) A person (“B”) who is an extended family member and has been issued with an EEA family permit,
a registration certificate or a residence card must be treated as a family member of A, provided—

(a)B continues to satisfy the conditions in regulation 8(1A), 8(2), (3), (4) or (5); and
(b)the EEA family permit, registration certificate or residence card remains in force.

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(4) A must be an EEA national unless regulation 9 applies (family members of British citizens).

Regulation 7(2) limits the definition of family member for those who are students to the spouse and
‘dependent child’ of the student unless the family member is also a qualified person in their own right.
For all other qualified persons, where a direct descendent is under 21, they do not have to
demonstrate dependency. This includes children and grandchildren. But descendents who are 21 or
over must prove dependency.

Dependency in EU free movement law is a matter of fact and to be assessed as present or not.
Motivation is irrelevant, unlike under the Immigration Rules where it matters whether a person chose
to be dependent (SM (India) v ECO [2009] EWCA Civ 1426).

In Lim (EEA -dependency) Malaysia [2013] UKUT 437 (IAC) the Tribunal held:
Subject to there being no abuse of rights, the jurisprudence of the Court of Justice allows for
dependency of choice. Whilst the jurisprudence has not to date dealt with dependency of
choice in the form of choosing not to live off savings, it has expressly approved dependency of
choice in the form of choosing not take up employment (see Centre Publique d’Aide Social de
Courcelles v Lebon [1987] ECR 2811(“Lebon”) at [22]) and it may be very difficult to discern any
principled basis for differentiating between the two different forms of dependency of choice
when the test is a question of fact and the reasons why there is dependency are irrelevant.
[Headnote]

However, on appeal the Court of Appeal held in Lim v Entry Clearance Officer Manila [2015] EWCA
Civ 1383 that:

the reason why the party cannot support himself or herself is irrelevant; the fact that he or she
cannot do so is critical… the critical question is whether the claimant is in fact in a position to
support himself or not…[24, 32]

Unlike spouses and descendants under 21, who acquire their rights simply by virtue of being family
members of a person exercising treaty rights, extended family members must be recognised as such
by the Home Office before acquiring any rights. In this sense, any application by an extended family
member for documentation is akin to an application by a person subject to immigration control for
Leave to Remain.

When does a family member become and remain a family member?

In Metock v Ireland (Case C-127/08) the Court of Justice of the EU established that a family member
has an unconditional right to accompany or join the EEA national exercising treaty rights regardless of
whether the family member had previously resided in another EEA state, or had lawfully entered the
member state in question, or the date or place of the marriage. The Home Office’s Entry Clearance
Guidance (which has since been replaced) explained the decision in Metock:

EUN2.5 What did the ECJ judgment on Metock say in relation to issuing EEA family permits?
The ECJ judgement on Metock in July 2008 prohibited Member States from having a general
requirement for non EEA spouses of EEA nationals to be lawfully resident in another EEA
member state before they can benefit from a right to reside under the EU Free Movement of
Persons Directive. Therefore, we can no longer apply the lawful residence requirement (which
was based on the case of Akrich) or our own domestic legislation (the Immigration Rules) to
family members seeking first admission to the EEA from outside the EEA.

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The Upper Tribunal has held that the ‘residing with’ requirement found in the Regulations does not
refer to a need for cohabitation between the EEA national and their family member - PM (EEA – spouse
–“residing with”) Turkey [2011] UKUT 89 (IAC):
The “residing with” requirement relates to presence in the UK; it does not require living in a
common family home.

Sham marriages and marriages of convenience

The major caveat to family members acquiring rights simply by virtue of being family members is that
such rights are not acquired in cases of sham marriages or marriages of convenience. In any marriage
which is entered into solely to gain immigration advantage, the spouse of the EEA national, although
legally married, is not treated as a family member because under Regulation 2(1): ‘“spouse” does not
include a party to a marriage of convenience.’ In Rosa v SSHD [2016] EWCA Civ 14 the Court of Appeal
held that:

the legal burden lies on the Secretary of State to prove that an otherwise valid marriage is a
marriage of convenience so as to justify the refusal of an application for a residence card under
the EEA Regulations. The reasoning to that effect in Papajorgji, as endorsed in Agho, is
compelling. [24]

The Home Office Immigration Staff Guidance on Free Movement Rights: Direct family members of
European Economic Area (EEA) nationals (p27) accepts that the burden of proving a marriage of
convenience is on the Home Office and the standard of proof is the balance of probabilities. The
guidance relies on Recital 28 of Directive 2004/38/EC (the Directive) which defines a marriage of
convenience as ‘a relationship contracted for the sole purpose of enjoying the right of free
movement and residence.’ It then sets out a four stage process which a decision-maker will undertake
(although some of the guidance has been deemed sensitive and removed):

Stage 1: Factors which may indicate a marriage or civil partnership of convenience. These factors are
not disclosed! After considering Stage 1, the caseworker must move to stage 2.

Stage 2: Factors leading to referral to senior caseworker. Some evidence may make it difficult to
prove the marriage or civil partnership is one of convenience. The case must be referred to a senior
caseworker if:
• there is a child of the relationship – children from previous relationships must
be excluded
• there appears, for any other reason, little prospect of sustaining a refusal at
appeal when all the evidence on file is considered.

The decision-maker can accept the marriage as genuine. But if there are doubts about the authenticity
of the documents provided, the decision-maker must continue to stage 3.

Stage 3: Referring the case to a senior caseworker to recommend conducting a marriage interview.
All requests for a marriage interview must be approved by a senior caseworker who will decide if it is
appropriate for a marriage interview to be arranged. If there is insufficient evidence, the case will be
returned to the decision-maker to decide without a marriage interview. If the senior caseworker
agrees to recommend a marriage interview, the case will be allocated to a caseworker who is trained
to conduct marriage interviews.

Stage 4: Making a decision following an interview. The decision-maker will consider:

• the answers given during any interviews

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 • the evidence that led to doubts about the reasons for entering into the
marriage or civil partnership
• any other documentary evidence they have provided

Discrepancies must be assessed and personal circumstances of the relationship taken into account:
For example, it may be reasonable for someone not to be able to answer detailed questions about their
spouse’s parents if they have never met them but it would be reasonable to expect them to be able to
answer basic questions about them….
If the applicants attended the interview and a significant number of their answers were the same and
they were able to show an in-depth knowledge of each other, this would outweigh evidence that led
to doubts about the relationship.
You must accept the marriage is not one of convenience and that the direct family member is related
to the EEA national sponsor as claimed.

Failure to attend a marriage interview on at least two occasions, if so invited, can lead to a conclusion
that the person does not have a right to reside but only if there is additional evidence on which to
base that conclusion.

The Home Office’s Entry Clearance Guidance (EUN 2.10) currently guides ECOs as follows:
The ECO should not consider the following cases as marriages / civil partnerships of convenience
where:

• there is a child of the relationship;

• there is evidence to suggest cohabitation.

https://www.gov.uk/government/publications/eea-family-permits-eun02/eea-family-permit-eun02

Hitherto it has usually been assumed that a sham marriage and a marriage of convenience are the
same thing. That was not accepted by the High Court in Molina, R (On the Application Of) v The SSHD
[2017] EWHC 1730 (Admin). A sham marriage is defined at s24(5) of the Immigration and Asylum Act
1999. One of its defining features is that: ‘there is no genuine relationship between the parties to the
marriage.’ By contrast, marriage of convenience is defined in Reg 2(1) of the EEA Regulations 2016
as ‘marriage entered into for the purpose of using these Regulations, or any other right conferred by
the EU Treaties, as a means to circumvent

(a) Immigration Rules applying to non-EEA nationals (such as an applicable requirement

under the 1971 Act to have leave to enter or remain in the United Kingdom); or

(b) Any other criteria that the party to the marriage of convenience will otherwise have to
meet in order to enjoy a right to reside under these Regulations or the EU Treaties; …

Consequently, while a sham marriage can only be established if there is no genuine relationship
between the parties, the Court held that:

a “marriage of convenience” may exist despite the fact that there is a genuine relationship
and in the absence of any deception or fraud as to its existence. The focus is upon the
intention of one or more of the parties and, in the present context, whether the sole aim is to
gain an immigration advantage. (73)

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Molina was subsequently set aside – although its reasoning survived. Also in 2017 the UK Supreme
Court decided another case involving an alleged marriage of convenience, Sadovska & Anor v SSHD
(Scotland) [2017] UKSC 54. Although not apparently the subject of argument, the Court treated a
marriage of convenience as synonymous with a ‘sham marriage’.

On the question of the burden of proof:

One of the most basic rules of litigation is that he who asserts must prove. It was not for Ms
Sadovska to establish that the relationship was a genuine and lasting one. It was for the
respondent to establish that it was indeed a marriage of convenience. [28]

On the main question, the Court held:

29. For this purpose, “marriage of convenience” is a term of art. Although it is defined
in the Directive and the 2009 Communication as a marriage the sole purpose of which is to
gain rights of entry to and residence in the European Union, the 2014 Handbook suggests a
more flexible approach, in which this must be the predominant purpose. It is not enough that
the marriage may bring incidental immigration and other benefits if this is not its predominant
purpose. Furthermore, except in cases of deceit by the non-EU national, this must be the
purpose of them both. Clearly, a non-EU national may be guilty of abuse when the EU national
is not, because she believes that it is a genuine relationship.

30. In the case of a person exercising EU law rights, the tribunal must also be satisfied
that the removal would be a proportionate response to the abuse of rights established. So it
would be one thing to find that the proposed marriage had been shown to be one of
convenience, and therefore that it was right to prevent it, but quite another thing to find that
expelling Ms Sadovska from the country where she had lived and worked for so long and had
other family members living was a proportionate response to that.

3.5 Extended Family Members

Regulation 8 provides that extended family members include other family members who are
dependents or members of the household of the EEA national; or whose serious health grounds strictly
require personal care by the EEA national; or who are partners in a ‘durable relationship duly attested’.

“Extended family member”

8.—(1) In these Regulations “extended family member” means a person who is not a family member
of an EEA national under regulation 7(1)(a), (b) or (c) and who satisfies a condition in paragraph (1A),
(2), (3), (4) or (5).

(1A) The condition in this paragraph is that the person—

(a)is under the age of 18;
(b)is subject to a non-adoptive legal guardianship order in favour of an EEA national that is
recognised under the national law of the state in which it was contracted;
(c)has lived with the EEA national since their placement under the guardianship order;
(d)has created family life with the EEA national; and
(e)has a personal relationship with the EEA national that involves dependency on the EEA
national and the assumption of parental responsibility, including legal and financial
responsibilities, for that person by the EEA national.

(2) The condition in this paragraph is that the person is—

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 (a)a relative of an EEA national; and
(b)residing in a country other than the United Kingdom and is dependent upon the EEA national
or is a member of the EEA national’s household; and either—
(i)is accompanying the EEA national to the United Kingdom or wants to join the EEA
national in the United Kingdom; or
(ii)has joined the EEA national in the United Kingdom and continues to be dependent
upon the EEA national, or to be a member of the EEA national’s household.

(3) The condition in this paragraph is that the person is a relative of an EEA national or the spouse or
civil partner of the EEA national and on serious health grounds, strictly requires the personal care of
the EEA national.

(4) The condition in this paragraph is that the person is a relative of an EEA national and would meet
the requirements in the immigration rules (other than those relating to entry clearance) for indefinite
leave to enter or remain in the United Kingdom as a dependent relative of the EEA national.

(5) The condition in this paragraph is that the person is the partner (other than a civil partner) of, and
in a durable relationship with, an EEA national or the child (under the age of 18) of that partner, and
is able to prove this to the decision maker.

(6) In these Regulations, “relevant EEA national” means, in relation to an extended family member—

(a)referred to in paragraph (2), (3) or (4), the EEA national to whom the extended family
member is related;
(b)referred to in paragraph (5), the EEA national who is the durable partner of the extended
family member.

(7) In paragraphs (2), (3) and (4), “relative of an EEA national” includes a relative of the spouse or civil
partner of an EEA national.

(8) Where an extensive examination of the personal circumstances of the applicant is required under
these Regulations, it must include examination of the following—
(a)the best interests of the applicant, particularly where the applicant is a child;
(b)the character and conduct of the applicant; and
(c)whether an EEA national would be deterred from exercising their free movement rights if
the application was refused.

In Dauhoo (EEA Regulations – reg 8(2)) [2012] UKUT 79 (IAC) the Upper Tribunal explained that under
reg 8(2): It is not necessary to show prior and present connection in the same capacity. A person can
succeed in any one of four different ways, each of which requires proving a relevant connection both
prior to arrival in the UK and in the UK:
i. prior dependency and present dependency
ii. prior membership of a household and present membership of a
household
iii. prior dependency and present membership of a household;
iv. prior membership of a household and present dependency.

In relation to whether a relationship between unmarried partners is ‘durable’ the Home Office is
precluded from simply applying the same test that appears in the unmarried partners Immigration
Rule which requires two years cohabitation and refusing if that test is not met. The test of durability
will be a factual assessment but one where the burden is on the family member to provide sufficient

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proof. The Home Office Immigration Staff Guidance Extended family members of EEA nationals
explains the approach which a decision-maker will take:
Evidence required for durable partners
The applicant and the EEA national sponsor must have been living together in a relationship
similar to marriage which has subsisted (continued in existence) for at least two years. The
evidence the applicant can provide may include (but is not limited to):
• Proof that any previous relationship has permanently broken down:
o degree absolute for marriages
o dissolution order for civil partnerships.
• Evidence of cohabitation for at least two years:
o bank statements or utility bills in joint names at the same address
o rent agreements
o mortgage payments
o official correspondence which links them at the same address.
• Evidence of joint finances, joint business ventures and joint commitments:
o tax returns
o business contracts
o investments.
• Evidence of joint responsibility for children such as a birth certificate or custody
agreement demonstrating that the two parties claiming to be in a durable relationship
are cohabiting and sharing responsibility for children.
• Photographs of the couple.
• Other evidence demonstrating their commitment and relationship

You must always consider the individual circumstances of the application and consider
whether it is appropriate to use discretion. For example there may be instances when the
two year rule is not satisfied but the couple have a child together. In these circumstances
you can use your discretion if there is enough evidence. For example, a birth certificate
showing shared parentage has been provided with evidence of living together.

3.6 ‘Surinder Singh’: Family members of British citizens

Normally, British citizens in the UK are not treated as EEA nationals for free movement purposes. The
exception is when a British Citizen has exercised treaty rights in another member state. They then
acquire the right to be accompanied in the UK by family members. This principle was established in
the ECJ case of Surinder Singh C-370-90 in which the ECJ held that free movement laws:

require a Member State to grant leave to enter and reside in its territory to the spouse, of
whatever nationality, of a national of that State who has gone, with that spouse, to another
Member State in order to work there as an employed person as envisaged by Article 48 of the
Treaty and returns to establish himself or herself as envisaged by Article 52 of the Treaty in the
State of which he or she is a national. A spouse must enjoy at least the same rights as would
be granted to him or her under Community law if his or her spouse entered and resided in
another Member State.

The Surinder Singh principle is now given effect by Regulation 9 of the EEA Regulations 2016 which
came into effect on 25 November 2016 and has been amended since:

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 Family members and extended family members of British citizens

9.—(1) If the conditions in paragraph (2) are satisfied, these Regulations apply to a person who
is the family member (“F”) of a British citizen (“BC”) as though the BC were an EEA national.

(1A) These Regulations apply to a person who is the extended family member (“EFM”) of a BC as
though the BC were an EEA national if—

(a)the conditions in paragraph (2) are satisfied; and

(b)the EFM was lawfully resident in the EEA State referred to in paragraph (2)(a)(i).

(2) The conditions are that—

(a)BC—

(i)is residing in an EEA State as a worker, self-employed person, self-sufficient person

or a student, or so resided immediately before returning to the United Kingdom; or

(ii)has acquired the right of permanent residence in an EEA State;

b)F or EFM and BC resided together in the EEA State; *

(c)F or EFM and BC’s residence in the EEA State was genuine.

(d)either—

(i)F was a family member of BC during all or part of their joint residence in the EEA State;

(ii)F was an EFM of BC during all or part of their joint residence in the EEA State, during which
time F was lawfully resident in the EEA State; or

(iii)EFM was an EFM of BC during all or part of their joint residence in the EEA State, during
which time EFM was lawfully resident in the EEA State;

(e)genuine family life was created or strengthened during F or EFM and BC's joint residence in
the EEA State and

(f)the conditions in sub-paragraphs (a), (b) and (c) have been met concurrently

(3) Factors relevant to whether residence in the EEA State is or was genuine include—

(a)whether the centre of BC’s life transferred to the EEA State;

(b)the length of F or EFM and BC’s joint residence in the EEA State;

(c)the nature and quality of the F or EFM and BC’s accommodation in the EEA State, and whether
it is or was BC’s principal residence;

(d)the degree of F or EFM and BC’s integration in the EEA State;

(e)whether F’s or EFM's first lawful residence in the EU with BC was in the EEA State.

(4) This regulation does not apply—

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 (a)where the purpose of the residence in the EEA State was as a means for circumventing any
immigration laws applying to non-EEA nationals to which F or EFM would otherwise be
subject (such as any applicable requirement under the 1971 Act to have leave to enter or
remain in the United Kingdom)

(5) Where these Regulations apply to F or EFM, BC is to be treated as holding a valid passport
issued by an EEA State for the purposes of the application of these Regulations to F or EFM.

(6) In paragraph (2)(a)(ii), BC is only to be treated as having acquired the right of permanent
residence in the EEA State if such residence would have led to the acquisition of that right under
regulation 15, had it taken place in the United Kingdom.

(7) For the purposes of determining whether, when treating the BC as an EEA national under
these Regulations in accordance with paragraph (1), BC would be a qualified person—

(a)any requirement to have comprehensive sickness insurance cover in the United Kingdom
still applies, save that it does not require the cover to extend to BC;

(b)in assessing whether BC can continue to be treated as a worker under regulation 6(2)(b) or
(c), BC is not required to satisfy condition A;

(c)in assessing whether BC can be treated as a jobseeker as defined in regulation 6(1), BC is

not required to satisfy conditions A and, where it would otherwise be relevant, condition C.
In summary, a residence card will be issued to a family member of a British citizen where:
▪ the British citizen exercised free movement rights as a worker, self-employed person, self-
sufficient person or student in an EEA host country immediately before returning to the UK,
or had acquired the right of permanent residence in the EEA host country, and
▪ the British citizen would satisfy the conditions for being a qualified person if they were an EEA
national, and
▪ the family member and British citizen resided together in the other EEA member State and
that residence was genuine, and
▪ the purpose of the residence in the EEA host country was not as a means to circumvent any
UK immigration law applying to non-EEA nationals (e.g. the Immigration Rules)

Reg 9 was amended in 2019 to include extended family members because in SSHD v Banger [2018]
EUECJ C-89/17 it was held that an unmarried partner could benefit from a Surinder Singh right. Banger
also held that unmarried partners would not automatically acquire Surinder Singh rights. A refusal can
follow an extensive examination of the applicant’s personal circumstances.

It seems doubtful that Regulation 9 properly gives effect to the important judgment of the CJEU on
the Surinder Singh principle in O and B v Netherlands Case C‑456/12 in which it held:

Article 21(1) TFEU must be interpreted as meaning that where a Union citizen has created or
strengthened a family life with a third‑country national during genuine residence, pursuant to
and in conformity with the conditions set out in Article 7(1) and (2) and Article 16(1) and (2) of
Directive 2004/38/EC… in a Member State other than that of which he is a national, the
provisions of that directive apply by analogy where that Union citizen returns, with the family
member in question, to his Member State of origin. Therefore, the conditions for granting a

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 derived right of residence to a third‑country national who is a family member of that Union
citizen, in the latter’s Member State of origin, should not, in principle, be more strict than those
provided for by that directive for the grant of a derived right of residence to a third ‑country
national who is a family member of a Union citizen who has exercised his right of freedom of
movement by becoming established in a Member State other than the Member State of which
he is a national.

The judgment requires that family members have spent at least three months in a host member state,
during which time family life has been strengthened or created. Weekend visits and holidays do not
count as residence for this purpose. It also clearly widens the Surinder Singh principle to include
students and the self-sufficient. But it does state that abuse of rights is impermissible.

A significant difficulty for applicants is the requirement that a person is not attempting to circumvent
any immigration laws to which they would otherwise be subject. Yet EU law states that the intention
behind exercise of Treaty rights is irrelevant (see Akrich C-109/01) and abuse requires the accuser to
prove that the rules for a right are not really met and there was a deliberate intention artificially to
make it appear as if the rules were satisfied (Emsland‑Stärke C‑110/99). The difficulty seems to have
been recognised in Home Office guidance Free Movement Rights: family members of British citizens:

[I]f one of the reasons for moving to another Member State was to avoid the requirements of
the Immigration Rules but the residence in that Member State was in any case genuine (see
stage 3), then the intention to avoid the requirements of the Immigration Rules is not in itself
sufficient to refuse to issue a residence card.

In ZA (Reg 9. EEA Regs; abuse of rights) Afghanistan [2019] UKUT 281 (IAC) the Tribunal decided:

(i) The requirement to have transferred the centre of one's life to the host member state
is not a requirement of EU law, nor is it endorsed by the CJEU.

(ii) Where an EU national of one state ("the home member state") has exercised the right
of freedom of movement to take up work or self-employment in another EU state ("the host state"),
his or her family members have a derivative right to enter the member state if the exercise of Treaty
rights in the host state was "genuine" in the sense that it was real, substantive, or effective. It is for
an appellant to show that there had been a genuine exercise of Treaty rights.

(iii) The question of whether family life was established and/or strengthened, and whether
there has been a genuine exercise of Treaty rights requires a qualitative assessment which will be
fact-specific and will need to bear in mind the following:

(1) Any work or self-employment must have been "genuine and effective" and not
marginal or ancillary;

(2) The assessment of whether a stay in the host state was genuine does not involve an
assessment of the intentions of the parties over and above a consideration of whether what they
intended to do was in fact to exercise Treaty rights;

(3) There is no requirement for the EU national or his family to have integrated into the
host member state, nor for the sole place of residence to be in the host state; there is no requirement
to have severed ties with the home member state; albeit that these factors may, to a limited degree,
be relevant to the qualitative assessment of whether the exercise of Treaty rights was genuine.

(iv) If it is alleged that the stay in the host member state was such that reg. 9 (4) applies,
the burden is on the Secretary of State to show that there was an abuse of rights.

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3.7 Retention of rights by family members

Under EU free movement law, a spouse or civil partner retains that status until the decree absolute of
the marriage or the formal dissolution of the civil partnership (Diatta [1985] ECR 567). This contrasts
with the Immigration Rules where separation of a couple would indicate that there was no longer an
intention to reside together permanently thus breaching a condition of their Leave.

However, in some circumstances a third country family member can acquire their own residency rights
in the UK independently from the EEA national. This is important as otherwise the third country
national's right to reside in the UK would be entirely parasitic on the continued residence of the EEA
national qualified person and on the continuation of the family relationship.

Retaining a right of residence is covered at Regulation 10. It only applies where the family member is
themselves a worker, self-employed person or self-sufficient person. This is a more restrictive position
than previous ECJ case law such as Baumbast which can still be relied upon.

“Family member who has retained the right of residence”

10.—(1) In these Regulations, “family member who has retained the right of residence” means, subject to
paragraphs (8) and (9), a person who satisfies a condition in paragraph (2), (3), (4) or (5).

(2) The condition in this paragraph is that the person—

(a)was a family member of a qualified person or of an EEA national with a right of permanent residence
when the qualified person or the EEA national with the right of permanent residence died;

(b)resided in the United Kingdom in accordance with these Regulations for at least the year immediately
before the death of the qualified person or the EEA national with a right of permanent residence; and

(c)satisfies the condition in paragraph (6).

(3) The condition in this paragraph is that the person—

(a)is the direct descendant of—

(i)a qualified person or an EEA national with a right of permanent residence who has died;

(ii)a person who ceased to be a qualified person on ceasing to reside in the United Kingdom;

(iii)the spouse or civil partner of the qualified person or EEA national described in sub-paragraph (i)
immediately preceding that qualified person or EEA national’s death; or

(iv)the spouse or civil partner of the person described in sub-paragraph (ii); and

(b)was attending an educational course in the United Kingdom immediately before the qualified person or
the EEA national with a right of permanent residence died, or ceased to be a qualified person, and
continues to attend such a course.

(4) The condition in this paragraph is that the person is the parent with actual custody of a child who
satisfies the condition in paragraph (3).

(5) The condition in this paragraph is that the person (“A”)—

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(a)ceased to be a family member of a qualified person or an EEA national with a right of permanent
residence on the initiation of proceedings for the termination of the marriage or civil partnership of A;

(b)was residing in the United Kingdom in accordance with these Regulations at the date of the initiation of
proceedings for the termination;

(c)satisfies the condition in paragraph (6); and

(d)either—

(i)prior to the initiation of the proceedings for the termination of the marriage or the civil partnership, the
marriage or civil partnership had lasted for at least three years and the parties to the marriage or civil
partnership had resided in the United Kingdom for at least one year during its duration;

(ii)the former spouse or civil partner of the qualified person or the EEA national with a right of permanent
residence has custody of a child of that qualified person or EEA national;

(iii)the former spouse or civil partner of the qualified person or the EEA national with a right of permanent
residence has the right of access to a child of that qualified person or EEA national, where the child is
under the age of 18 and where a court has ordered that such access must take place in the United
Kingdom; or

(iv)the continued right of residence in the United Kingdom of A is warranted by particularly difficult
circumstances, such as where A or another family member has been a victim of domestic violence whilst
the marriage or civil partnership was subsisting.

(6) The condition in this paragraph is that the person—

(a)is not an EEA national but would, if the person were an EEA national, be a worker6, a self-employed
person or a self-sufficient person under regulation 6; or

(b)is the family member of a person who falls within paragraph (a).

(7) In this regulation, “educational course” means a course within the scope of Article 10 of Council
Regulation (EU) No. 492/2011(1).

(8) A person (“P”) does not satisfy a condition in paragraph (2), (3), (4) or (5) if, at the first time P would
otherwise have satisfied the relevant condition, P had a right of permanent residence under regulation 15.

(9) A family member who has retained the right of residence ceases to enjoy that status on acquiring a
right of permanent residence under regulation 15.
3.8 The right of permanent residence
15.—(1) The following persons acquire the right to reside in the United Kingdom
permanently—

6
See Gauswami (Retained right of residence, Jobseekers) [2018] UKUT 275 (IAC): For the purposes of
determining retained rights of residence, in regulation 10(6)(a) of both the Immigration (European Economic
Area) Regulations 2006 and the Immigration (European Economic Area) Regulations 2016, the reference to a
worker includes a jobseeker.

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 (a)an EEA national who has resided in the United Kingdom in accordance with these
Regulations for a continuous period of five years;
(b)a family member of an EEA national who is not an EEA national but who has resided in the
United Kingdom with the EEA national in accordance with these Regulations for a continuous
period of five years;
(c)a worker or self-employed person who has ceased activity;
(d)the family member of a worker or self-employed person who has ceased activity, provided—
(i)the person was the family member of the worker or self-employed person at the
point the worker or self-employed person ceased activity; and
(ii)at that point, the family member enjoyed a right to reside on the basis of being the
family member of that worker or self-employed person;
(e)a person who was the family member of a worker or self-employed person where—
(i)the worker or self-employed person has died;
(ii)the family member resided with the worker or self-employed person immediately
before the death; and
(iii)the worker or self-employed person had resided continuously in the United
Kingdom for at least two years immediately before dying or the death was the result
of an accident at work or an occupational disease;
(f)a person who—
(i)has resided in the United Kingdom in accordance with these Regulations for a
continuous period of five years; and
(ii)was, at the end of the period, a family member who has retained the right of
residence.
(2) Residence in the United Kingdom as a result of a derivative right to reside does not
constitute residence for the purpose of this regulation.
(3) The right of permanent residence under this regulation is lost through absence from the
United Kingdom for a period exceeding two years.
(4) A person who satisfies the criteria in this regulation is not entitled to a right to permanent
residence in the United Kingdom where the Secretary of State or an immigration officer has
made a decision under regulation 23(6)(b), 24(1), 25(1), 26(3) or 31(1), unless that decision is
set aside or otherwise no longer has effect.
3.9 Derivative right to reside
The principles in the CJEU cases of Chen, Teixeira, and Ruiz Zambrano were incorporated via Reg 16:
Derivative right to reside

16.—(1) A person has a derivative right to reside during any period in which the person—

(a)is not an exempt person; and

(b)satisfies each of the criteria in one or more of paragraphs (2) to (6).

(2) The criteria in this paragraph are that—

(a)the person is the primary carer of an EEA national; and

(b)the EEA national—

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 (i)is under the age of 18;

(ii)resides in the United Kingdom as a self-sufficient person; and

(iii)would be unable to remain in the United Kingdom if the person left the United
Kingdom for an indefinite period.

(3) The criteria in this paragraph are that—

(a)any of the person’s parents (“PP”) is an EEA national who resides or has resided in the
United Kingdom;

(b)both the person and PP reside or have resided in the United Kingdom at the same time,
and during such a period of residence, PP has been a worker in the United Kingdom; and

(c)the person is in education in the United Kingdom.

(4) The criteria in this paragraph are that—

(a)the person is the primary carer of a person satisfying the criteria in paragraph (3) (“PPP”);
and

(b)PPP would be unable to continue to be educated in the United Kingdom if the person left
the United Kingdom for an indefinite period.

(5) The criteria in this paragraph are that—

(a)the person is the primary carer of a British citizen (“BC”);

(b)BC is residing in the United Kingdom; and

(c)BC would be unable to reside in the United Kingdom or in another EEA State if the person
left the United Kingdom for an indefinite period.

(6) The criteria in this paragraph are that—

(a)the person is under the age of 18;

(b)the person does not have leave to enter, or remain in, the United Kingdom under the 1971
Act;

(c)the person’s primary carer is entitled to a derivative right to reside in the United Kingdom
under paragraph (2), (4) or (5); and

(d)the primary carer would be prevented from residing in the United Kingdom if the person
left the United Kingdom for an indefinite period.

(7) In this regulation—

(a)“education” excludes nursery education but does not exclude education received before
the compulsory school age where that education is equivalent to the education received at or
after the compulsory school age;

(b)“worker” does not include a jobseeker or a person treated as a worker under

regulation 6(2);

(c)an “exempt person” is a person—

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 (i)who has a right to reside under another provision of these Regulations;

(ii)who has the right of abode under section 2 of the 1971 Act(1);

(iii)to whom section 8 of the 1971 Act(2), or an order made under subsection (2) of
that section(3), applies; or

(iv)who has indefinite leave to enter or remain in the United Kingdom.

(8) A person is the “primary carer” of another person (“AP”) if—

(a)the person is a direct relative or a legal guardian of AP; and

(b)either—

(i)the person has primary responsibility for AP’s care; or

(ii)shares equally the responsibility for AP’s care with one other person who is not an
exempt person.

(9) In paragraph (2)(b)(iii), (4)(b) or (5)(c), if the role of primary carer is shared with another person in
accordance with paragraph (8)(b)(ii), the words “the person” are to be read as “both primary carers”.

(10) Paragraph (9) does not apply if the person with whom care responsibility is shared acquired a
derivative right to reside in the United Kingdom as a result of this regulation prior to the other
person’s assumption of equal care responsibility.

(11) A person is not be regarded as having responsibility for another person’s care for the purpose of
paragraph (8) on the sole basis of a financial contribution towards that person’s care.

(12) A person does not have a derivative right to reside where the Secretary of State or an
immigration officer has made a decision under regulation 23(6)(b), 24(1), 25(1), 26(3) or 31(1), unless
that decision is set aside or otherwise no longer has effect.

3.10 The Zambrano principle

In 2011 the Court of Justice gave judgment in Ruiz Zambrano (European citizenship) [2011] EUECJ C-
34/09. The operational part of the judgment was short:

42…Article 20 TFEU precludes national measures which have the effect of depriving citizens of
the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their
status as citizens of the Union (see, to that effect, Rottmann, paragraph 42).

43 A refusal to grant a right of residence to a third country national with dependent minor
children in the Member State where those children are nationals and reside, and also a refusal
to grant such a person a work permit, has such an effect.

44 It must be assumed that such a refusal would lead to a situation where those children,
citizens of the Union, would have to leave the territory of the Union in order to accompany
their parents. Similarly, if a work permit were not granted to such a person, he would risk not
having sufficient resources to provide for himself and his family, which would also result in the
children, citizens of the Union, having to leave the territory of the Union. In those
circumstances, those citizens of the Union would, as a result, be unable to exercise the
substance of the rights conferred on them by virtue of their status as citizens of the Union.

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 45 Accordingly, the answer to the questions referred is that Article 20 TFEU is to be
interpreted as meaning that it precludes a Member State from refusing a third country national
upon whom his minor children, who are European Union citizens, are dependent, a right of
residence in the Member State of residence and nationality of those children, and from refusing
to grant a work permit to that third country national, in so far as such decisions deprive those
children of the genuine enjoyment of the substance of the rights attaching to the status of
European Union citizen.

The EEA Regulations refer to a primary carer rather than parent and in that sense could be relied on
by adults on whom another adult is dependent. However, in most cases ‘primary carer’ will refer to a
parent and the dependency to be considered will be that of a child on a parent. Although the
Regulations restrict the Derivative Right to the primary carer of a British Citizen, the Tribunal in
Ahmed (Amos; Zambrano; reg 15A(3) (c) 2006 EEA Regs) Pakistan (Rev 1) [2013] UKUT 89 (IAC)
held that:

2. The principles established by the Court of Justice in Zambrano Case C-34-/09 [2011] ECR 1-
0000 and subsequent cases dealing with Article 20 of the Treaty on the Functioning of the
European Union (TFEU) have potential application even where the EEA national/Union citizen
child of a third-country national is not a national of the host Member State: the test in all cases
is whether the adverse decision would require the child to leave the territory of the Union.

There have now been a number of decisions of the CJEU which elaborate on the Zambrano principle
and effectively confine it to circumstances where an EU Citizen child will be required to leave the
territory of the EU with a parent where the parent is not exceptionally granted a right of residence.
There is now authority from the higher courts on the proper interpretation of the Zambrano principle.
Harrison (Jamaica) v Secretary of State for the Home Department [2012] EWCA Civ 1736 upholds the
earlier decision of the Tribunal in Sanade and Others v Secretary of State [2012] UKUT 48. In Harrison,
the Court held:

19 In my judgment by referring to action which deprives children of the "substance of the right"
the Court is intending to say that the right may be infringed if in practice the children will be
forced to leave with their ascendant relative even though they could in theory, as a matter of
strict law, remain in the state of which they are nationals. It would be no answer for the state
to say that the parents should be denied the right to remain because the children can be
adopted, for example. That approach of the Court is consistent with a fundamental tenet of
EU jurisprudence which is that it always looks at substance rather than form.

Turning to the CJEU case of Dereci:

27 When the case came before the Court of Justice it confirmed that the fact that the EU citizen
had not made use of the right of freedom of movement did not for that reason alone mean
that the Court was faced with a purely internal situation. After citing the principle laid down in
Zambrano, it emphasised that the principle applied only in the exceptional circumstances
where the children would be forced to leave the EU, and not simply where it would be
otherwise desirable for economic reasons or to keep the family together (paras 65-69):

Overall, the Court concluded:

Discussion.
63. I agree with Mr Beal QC, counsel for the Secretary of State, that there is really no basis for
asserting that it is arguable in the light of the authorities that the Zambrano principle extends
to cover anything short of a situation where the EU citizen is forced to leave the territory of

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 the EU. If the EU citizen, be it child or wife, would not in practice be compelled to leave the
country if the non-EU family member were to be refused the right of residence, there is in my
view nothing in these authorities to suggest that EU law is engaged. Article 8 Convention rights
may then come into the picture to protect family life as the Court recognised in Dereci, but that
is an entirely distinct area of protection.
…
66. Moreover, as the Upper Tribunal noted, the actual results in McCarthy and Dereci do not sit
happily with the submissions now advanced by the appellants. In both those cases the removal
of the husband or partner, who in Dereci was also the father, would inevitably mar the
enjoyment of the right of residence of wife and children. Even if the non-EU national is not
relied upon to provide financial support, typically there will be strong emotional and
psychological ties within the family and separation will be likely significantly to rupture those
ties, thereby diminishing the enjoyment of life of the family members who remain. Yet it is
plainly not the case, as Dereci makes clear and Mr Drabble accepts, that this consequence
would be sufficient to engage EU law. Furthermore, if Mr Drabble's submission were correct,
it would jar with the description of theZambrano principle as applying only in exceptional
situations, as the court in Dereci observed. The principle would regularly be engaged.

In May 2017 the CJEU issued judgment in Chavez-Vilchez and Others v Raad van Bestuur van de
Sociale Verbekeringsbank and Others (10 May 2017) (Case C-133/15) (Grand Chamber). Chavez-
Vilchez. It ruled that:
1. Article 20 TFEU must be interpreted as meaning that for the purposes of assessing whether
a child who is a citizen of the European Union would be compelled to leave the territory of the
European Union as a whole and thereby deprived of the genuine enjoyment of the substance
of the rights conferred on him by that article if the child’s third-country national parent were
refused a right of residence in the Member State concerned, the fact that the other parent,
who is a Union citizen, is actually able and willing to assume sole responsibility for the primary
day-to-day care of the child is a relevant factor, but it is not in itself a sufficient ground for a
conclusion that there is not, between the third-country national parent and the child, such a
relationship of dependency that the child would indeed be so compelled were there to be such
a refusal of a right of residence. Such an assessment must take into account, in the best
interests of the child concerned, all the specific circumstances, including the age of the child,
the child’s physical and emotional development, the extent of his emotional ties both to the
Union citizen parent and to the third-country national parent, and the risks which separation
from the latter might entail for the child’s equilibrium.

2. Article 20 TFEU must be interpreted as not precluding a Member State from providing
that the right of residence in its territory of a third-country national, who is a parent of a minor
child that is a national of that Member State and who is responsible for the primary day-to-
day care of that child, is subject to the requirement that the third-country national must
provide evidence to prove that a refusal of a right of residence to the third-country national
parent would deprive the child of the genuine enjoyment of the substance of the rights
pertaining to the child’s status as a Union citizen, by obliging the child to leave the territory of
the European Union, as a whole. It is however for the competent authorities of the Member
State concerned to undertake, on the basis of the evidence provided by the third-country
national, the necessary enquiries in order to be able to assess, in the light of all the specific
circumstances, whether a refusal would have such consequences.

This was argued in some quarters to represent somewhat of a change to the proper interpretation of
the Zambrano principle which may make it easier to succeed in particular cases. However, Chavez-
Vilchez was reviewed and applied by the Court of Appeal in Patel v The Secretary of State for the

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Home Department [2017] EWCA Civ 2028, with the court concluding, per Irwin, LJ that the underlying
principle in Zambrano was undisturbed by Chavez-Vilchez:
72. In my judgment, the decision in Chavez-Vilchez represents no departure from the principle
of EU law laid down in Zambrano, although it does constitute a reminder that the principle
must be applied with careful enquiry, paying attention to the relevant criteria and
considerations, and focussing not on whether the EU citizen child (or dependant) can remain
in legal theory, but whether they can do so in practice. There is no alteration in the test of
compulsion.

So the Zambrano principle is only engaged where an EU Citizen is forced to leave the EU. In Zambrano
that was the case because neither parent had permission to reside in Belgium. In the UK it is much less
common that a British child would have both parents without status. For the Court of Appeal in Patel,
where there is a parent with lawful status, even a hypothetical ability on their part to care for the child
prevents its enforced departure, creating a major obstacle to the Zambrano principle taking effect.

However, the two linked appeals of Patel v SSHD, SSHD v Shah [2019] UKSC 59, [2019] All ER (D) 77
(Dec) were appealed to the Supreme Court which gave guidance in respect of Zambrano cases and the
nature of the ‘compulsion’ test. The Patel case had concerned an Indian national who cared for his
adult British parents whereas the Shah case concerned a Pakistani national who was the primary carer
of his British infant son, Mrs Shah was also a British national but she worked full-time.

The Supreme Court relied upon the CJEU decision in KA v Belgium Case C-82/16, [2018] 3 CMLR 28
continuing to hold that what lies at the heart of the Zambrano jurisprudence is the requirement that
the EU citizen be compelled to leave the EU territory if the third-country national, with whom the EU
citizen has a relationship of dependency, is removed [22]. In KA the CJEU drew a distinction between
an adult Union citizen and a Union citizen who is a child concluding that it will only be in “exceptional
circumstances” that such a case would succeed [27]. The Patel appeal therefore failed.

In Shah the Supreme Court found that the overarching question was whether the son would be
compelled to leave with his father, who was his primary carer, because of his dependency on his
father. In answering that question, the Supreme Court had to take into account the child’s bests
interests and his relationship with each parent (Chavez-Vilchez para 71). The compulsion test is
practical. It is to be applied to the actual facts. The First-tier Tribunal found the son would be
compelled to leave. That is sufficient compulsion for the purposes of Zambrano [30]. The Shah case
was therefore successful and the Court of Appeal decision overturned.

In MA and SM (Zambrano : EU children outside EU) Iran [2013] UKUT 380 it was held that the
Zambrano principle applies where an EU Citizen child is overseas and a non-British parent or carer is
seeking entry clearance.

In SSHD v CS Case C 304/14, 13 September 2016 the CJEU held that Article 20 TFEU precluded the
member state from expelling a Zambrano parent, where the child would be forced to leave the EU.
owever, in exceptional circumstances a Member State may adopt an expulsion measure. provided that
it is founded on the personal conduct of that third-country national, which must constitute a genuine,
present and sufficiently serious threat adversely affecting one of the fundamental interests of the
society of that Member State, and that it is based on consideration of the various interests involved,
matters which are for the national court to determine.

In May 2019 the Home Office announced a major change of policy through its Immigration Staff
Guidance on ‘Derivative rights of residence’. Henceforth a Zambrano application must be refused
where ‘it is open to [applicants] to apply under Appendix FM to the Immigration Rules.’

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3.11 ‘Chen’ cases: children exercising treaty rights

In Chen [2004] EUECJ C200/02, the ECJ held that a non-EEA national primary carer or relative may live
in the UK with their EEA national infant child when the child is exercising a treaty right. The parent
must be self-sufficient. In GM & AM (EU national: establishing self sufficiency) France [2006] UKAIT
00059 the Tribunal held that the parent or carer resides with the child to assist the child to exercise a
right, not to establish a right. The accompanying parent cannot work to provide the resources to
establish the child’s self-sufficiency.

By contrast, according to the more recent decision of the CJEU in Adzo Domenyo Alokpa, v Ministre
du Travail, de l'Emploi et de l'Immigration [2013] EUECJ C-86/12 (10 October 2013) there is no
restriction on the source of the funds as long as the child is rendered self sufficient:
27 However, in the context of a case such as that at issue in the main proceedings, in which
a Union citizen was born in the host Member State and had not made use of the right to free
movement, the Court has held that the expression ‘have’ sufficient resources in a provision
similar to Article 7(1)(b) of Directive 2004/38 must be interpreted as meaning that it suffices
that such resources are available to the Union citizens, and that that provision lays down no
requirement whatsoever as to their origin, since they could be provided, inter alia, by a
national of a non-Member State, the parent of the citizens who are minor children at issue
(see, to that effect, concerning European Union law instruments pre-dating that directive, Case
C-200/02 Zhu and Chen [2004] ECR I-9925, paragraphs 28 and 30).

The Northern Ireland Court of Appeal in Bajratari v Secretary of State for the Home Department
[2017] NICA 74 (15 December 2017) considered Alokpa and referred two questions for decision by the
CJEU:

The Questions Referred

[i] Can income from employment that is unlawful under national law establish, in whole or
in part, the availability of sufficient resources under Article 7(1)(b) of the Citizens Directive?
[ii] If 'yes', can Article 7(1) (b) be satisfied where the employment is deemed precarious solely
by reason of its unlawful character?

The questions were answered by the CJEU in Bajratari (Citizenship of the Union - Right of residence
of a third-country national who is a direct relative - Judgment) [2019] EUECJ C-93/18 (02 October
2019). The Court held:
Article 7(1)(b) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April
2004 on the right of citizens of the Union and their family members to move and reside freely within
the territory of the Member States… must be interpreted as meaning that a Union citizen minor has
sufficient resources not to become an unreasonable burden on the social assistance system of the
host Member State during his period of residence, despite his resources being derived from income
obtained from the unlawful employment of his father, a third-country national without a residence
card and work permit.

The result confirms that earlier UK domestic cases on the issue were wrongly decided.

3.12 Applying for residence documents

In practice and for the purposes of the OISC competence assessment and the accreditation exams it
is important to be precise about the names of the documents which evidence rights to reside.

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 1. A ‘registration certificate’ is issued to an EEA qualified person or their family members
(Regulation 17). Application is made on form EEA(QP).
2. A ‘residence card’ is issued to a non-EEA family member (Regulation 18). Application is made
on form EEA(FM).
3. A registration certificate or a residence card (for a non-EEA national) can be issued to an
extended family member. Application is made on form EEA (EFM)
4. A ‘document certifying permanent residence’ is issued to an EEA qualified person and their
family members (Regulation 19). Application is made on form EEA(PR).
5. A ‘permanent residence card’ is issued to a non-EEA family member (Regulation 19).
Application is made on form EEA(PR).
6. An EEA family permit is issued to family members applying from outside the UK. Application
is made on form VAF5.
7. A ‘Derivative Residence Card’ which is issued to ‘persons residing in the UK who are claiming
a derivative right to reside in one of the following categories:
▪ Primary carer of a British citizen
▪ Primary carer of an EEA national child who is exercising treaty rights as a self-
sufficient person
▪ Primary carer of a child of an EEA national where that child is in
▪ education in the United Kingdom
▪ Dependant of a Primary carer in the above categories.
▪ Child of an EEA national where that child is in education in the United
Kingdom’

A small fee has been payable to the Home Office since mid 2013 for making any of the above
applications (they were previously free). The EEA application forms are to be found at:
https://www.gov.uk/government/collections/uk-visa-forms

There is no requirement on the part of an EEA national or their Reg. 7 family member to obtain a
document proving their right to reside in the UK but for non-EEA family members it will usually be
advantageous to do so. An important change introduced by Regulation 21 of the Immigration (EEA)
Regulations 2016 is that it is now mandatory to use the ‘relevant application form specified by the
Secretary of State on www.gov.uk’ or use the online process. The only exception is where there
are ‘circumstances beyond the control of an applicant for documentation.’ The form must be
‘complete’ and accompanied by the relevant supporting documentation. Detailed guidance is given in
the Home Office Immigration Staff Guidance Processes and procedures for EEA documentation
applications.

Prior to the coming into force of the EEA Regs 2016 it was not necessary for an applicant to complete
the Home Office application forms, although biometric information did have to be supplied. Given the
declaratory nature of EEA documentation the requirement to complete a specified application form
may well be unlawful. Yet, in practice, unless an applicant intends to litigate the point, they have no
real choice but to complete the forms – which run to almost 100 pages – or the application will be
treated as invalid.

In 2016 the Home Office introduced a European Passport Return Service. This service allowed an
applicant to request a participating local authority to photocopy their European Economic Area (EEA)
or Swiss passport and send a copy to the Home Office.
The service was available to those who applied before 1 April 2019, since when it has ceased to
operate.

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An online application was one where the gov.uk webpage generates the questions, the applicant types
the answers and then prints off the application form to post with supporting documents. If using the
European Passport Return Service the applicant then went to their local office, paid a small fee, the
local authority checked and copied the passport and the application was sent by post. The authority
did not 'check' the application for whether it complied with procedural or substantive
requirements.

3.13 Exclusion and Removal

The UK can exclude or remove a person and revoke or refuse to issue or renew residence
documentation, only on grounds of public policy, public security or public health. The relevant Part is
Part 4 of the EEA Regulations 2016:

Exclusion and removal from the United Kingdom

23.—(1) A person is not entitled to be admitted to the United Kingdom by virtue of regulation 11 if a
refusal to admit that person is justified on grounds of public policy, public security or public health in
accordance with regulation 27.
(2) A person is not entitled to be admitted to the United Kingdom by virtue of regulation 11 if that
person is subject to a deportation or exclusion order, except where the person is temporarily admitted
pursuant to regulation 41.
(3) A person is not entitled to be admitted to the United Kingdom by virtue of regulation 11 if the
Secretary of State considers there to be reasonable grounds to suspect that the person’s admission
would lead to the misuse of a right to reside under regulation 26(1).
(4) A person is not entitled to be admitted to the United Kingdom as the family member of
an EEA national under regulation 11(2) unless, at the time of arrival—
(a)that person is accompanying the EEA national or joining the EEA national in the United
Kingdom; and
(b)the EEA national has a right to reside.
(5) If the Secretary of State considers that the exclusion of the EEA national or the family member of
an EEA national is justified on the grounds of public policy, public security or public health in accordance
with regulation 27 the Secretary of State may make an order prohibiting that person from entering the
United Kingdom.
(6) Subject to paragraphs (7) and (8), an EEA national who has entered the United Kingdom or the
family member of such a national who has entered the United Kingdom may be removed if—
(a)that person does not have or ceases to have a right to reside under these Regulations;
(b)the Secretary of State has decided that the person’s removal is justified on grounds of public
policy, public security or public health in accordance with regulation 27; or
(c)the Secretary of State has decided that the person’s removal is justified on grounds of misuse
of rights under regulation 26(3).
(7) A person must not be removed under paragraph (6)—
(a)as the automatic consequence of having recourse to the social assistance system of the
United Kingdom; or

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 (b)if that person has leave to remain in the United Kingdom under the 1971 Act unless that
person’s removal is justified on the grounds of public policy, public security or public health in
accordance with regulation 27.
(8) A decision under paragraph (6)(b) must state that upon execution of any deportation order arising
from that decision, the person against whom the order was made is prohibited from entering the
United Kingdom—
(a)until the order is revoked; or
(b)for the period specified in the order.
(9) A decision taken under paragraph (6)(b) or (c) has the effect of terminating any right to reside
otherwise enjoyed by the individual concerned.

Refusal to issue or renew and revocation of residence documentation

24.—(1) The Secretary of State may refuse to issue, revoke or refuse to renew a registration certificate,
a residence card, a document certifying permanent residence or a permanent residence card if the
refusal or revocation is justified on grounds of public policy, public security or public health, or on
grounds of misuse of rights in accordance with regulation 26(3).
(2) A decision under regulation 23(6) or 32(4) to remove a person from the United Kingdom, or a
decision under regulation 31 to revoke a person’s admission to the United Kingdom invalidates a
registration certificate, residence card, document certifying permanent residence or permanent
residence card held by that person or an application made by that person for such a certificate, card
or document.
(3) The Secretary of State may revoke or refuse to renew a registration certificate or a residence card
if the holder of the certificate or card has ceased to have, or never had, a right to reside under these
Regulations.
(4) The Secretary of State may revoke or refuse to renew a document certifying permanent residence
or a permanent residence card if the holder of the certificate or card has ceased to have, or never had,
a right of permanent residence under regulation 15.
(5) An immigration officer may, at the time of a person’s arrival in the United Kingdom—
(a)revoke that person’s residence card if the person is not at that time the family member of a
qualified person or of an EEA national who has a right of permanent residence under
regulation 15, a family member who has retained a right of residence or a person with a right
of permanent residence under regulation 15;
(b)revoke that person’s permanent residence card if the person is not at that time a person
with a right of permanent residence under regulation 15.
(6) An entry clearance officer or an immigration officer may at any time revoke a person’s EEA family
permit, including one issued in electronic form, if
(a)the revocation is justified on grounds of public policy, public security or public health; or
(b)the person is not at that time the family member of an EEA national with the right to reside
in the United Kingdom under these Regulations or is not accompanying that EEA national or
joining that EEA national in the United Kingdom.
(7) Any action taken under this regulation on grounds of public policy, public security or public health
must be in accordance with regulation 27.

Cancellation of a right of residence

25.—(1) Where the conditions in paragraph (2) are met the Secretary of State may cancel a person’s
right to reside.
(2) The conditions in this paragraph are met where—
(a)a person has a right to reside in the United Kingdom as a result of these Regulations;
(b)the Secretary of State has decided that the cancellation of that person’s right to reside in
the United Kingdom is justified on the grounds of public policy, public security or public health

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 in accordance with regulation 27 or on grounds of misuse of rights in accordance with
regulation 26(3);
(c)the circumstances are such that the Secretary of State cannot make a decision under
regulation 24(1); and`
(d)it is not possible for the Secretary of State to remove the person from the United Kingdom
under regulation 23(6)(b) or (c).

Misuse of a right to reside

26.—(1) The misuse of a right to reside occurs where a person—
(a)observes the requirements of these Regulations in circumstances which do not achieve the
purpose of these Regulations (as determined by reference to Council Directive 2004/38/EC(1)
and the EU Treaties); and
(b)intends to obtain an advantage from these Regulations by engaging in conduct which
artificially creates the conditions required to satisfy the criteria set out in these Regulations.
(2) Such misuse includes attempting to enter the United Kingdom within 12 months of being removed
under regulation 23(6)(a), where the person attempting to do so is unable to provide evidence that,
upon re-entry to the United Kingdom, the conditions for a right to reside, other than the initial right of
residence under regulation 13, will be met.
(3) The Secretary of State may take an EEA decision on the grounds of misuse of rights where there are
reasonable grounds to suspect the misuse of a right to reside and it is proportionate to do so.
(4) Where, as a result of paragraph (2), the removal of a person under regulation 23(6)(a) may prevent
that person from returning to the United Kingdom during the 12 month period following removal,
during that 12 month period the person who was removed may apply to the Secretary of State to have
the effect of paragraph (2) set aside on the grounds that there has been a material change in the
circumstances which justified that person’s removal under regulation 23(6)(a).
(5) An application under paragraph (4) may only be made whilst the applicant is outside the United
Kingdom.
(6) This regulation may not be invoked systematically.

Decisions taken on grounds of public policy, public security and public health
27.—(1) In this regulation, a “relevant decision” means an EEA decision taken on the grounds of public
policy, public security or public health.
(2) A relevant decision may not be taken to serve economic ends.
(3) A relevant decision may not be taken in respect of a person with a right of permanent residence
under regulation 15 except on serious grounds of public policy and public security.
(4) A relevant decision may not be taken except on imperative grounds of public security in respect of
an EEA national who—
(a)has a right of permanent residence under regulation 15 and who has resided in the United
Kingdom for a continuous period of at least ten years prior to the relevant decision; or
(b)is under the age of 18, unless the relevant decision is in the best interests of the person
concerned, as provided for in the Convention on the Rights of the Child adopted by the General
Assembly of the United Nations on 20th November 1989(1).
(5) The public policy and public security requirements of the United Kingdom include restricting rights
otherwise conferred by these Regulations in order to protect the fundamental interests of society, and
where a relevant decision is taken on grounds of public policy or public security it must also be taken
in accordance with the following principles—
(a)the decision must comply with the principle of proportionality;
(b)the decision must be based exclusively on the personal conduct of the person concerned;
(c)the personal conduct of the person must represent a genuine, present and sufficiently
serious threat affecting one of the fundamental interests of society, taking into account past
conduct of the person and that the threat does not need to be imminent;

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 (d)matters isolated from the particulars of the case or which relate to considerations of general
prevention do not justify the decision;
(e)a person’s previous criminal convictions do not in themselves justify the decision;
(f)the decision may be taken on preventative grounds, even in the absence of a previous
criminal conviction, provided the grounds are specific to the person.
(6) Before taking a relevant decision on the grounds of public policy and public security in relation to a
person (“P”) who is resident in the United Kingdom, the decision maker must take account of
considerations such as the age, state of health, family and economic situation of P, P’s length of
residence in the United Kingdom, P’s social and cultural integration into the United Kingdom and the
extent of P’s links with P’s country of origin.
(7) In the case of a relevant decision taken on grounds of public health—
(a)a disease that does not have epidemic potential as defined by the relevant instruments of
the World Health Organisation or is not a disease listed in Schedule 1 to the Health Protection
(Notification) Regulations 2010(2); or
(b)if the person concerned is in the United Kingdom, any disease occurring after the three
month period beginning on the date on which the person arrived in the United Kingdom,
does not constitute grounds for the decision.
(8) A court or tribunal considering whether the requirements of this regulation are met must (in
particular) have regard to the considerations contained in Schedule 1 (considerations of public policy,
public security and the fundamental interests of society etc.).

Application of Part 4 to a person with a derivative right to reside

28.—(1) This regulation applies where a person—
(a)would, but for this Part of these Regulations, be entitled to a derivative right to reside (other
than a derivative right to reside conferred by regulation 16(3));
(b)holds a derivative residence card; or
(c)has applied for a derivative residence card.
(2) Where this regulation applies, this Part of these Regulations applies as though—
(a)references to “the family member of an EEA national” referred instead to “a person with a
derivative right to reside”;
(b)references to a registration certificate, a residence card, a document certifying permanent
residence or a permanent residence card referred instead to a “derivative residence card”;
(c)regulation 24(5) instead conferred on an immigration officer the power to revoke a
derivative residence card where the holder is not at that time a person with a derivative right
to reside; and
(d)regulations 24(4) and 27(3) and (4) were omitted.

3.14 A2 nationals: Bulgarians and Romanians

Since the end of the 7 year transitional period on 1 January 2014 Bulgarian and Romanian nationals
possess the same rights under EU law as every other national (excepting Croatians). However, the
previous restrictions remain relevant in a situation where the EEA national or their third country family
member seeks to obtain evidence of acquiring a right of retained residence or a right of permanent
residence. In such cases it will be necessary for the EEA national to demonstrate that they were living
in the UK ‘in accordance with the Regulations’ during the relevant period. That, in turn, will require
that the relevant Regulations were complied with. What follows, therefore, is a summary of the
restrictions which applied before 1 January 2014.

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A2 nationals were able to be qualified persons on the basis of self-employment or self-sufficiency. It
was as jobseekers and workers that restrictions were imposed. They had to register before starting
work with an employer. (The position of students is not dealt with in these notes).

A2 nationals had a right of admission and an initial right of residence for a period not exceeding three
months. Access to the UK was not limited – access to the labour market was. Despite this, they enjoyed
the same protection against expulsion as other EEA nationals.

Until 1 January 2007 there were Association Agreements in existence between Bulgaria and Romania
which allowed Bulgarian and Romanian nationals to come to the UK on the basis of self-employment.
When Bulgaria and Romania joined the EU, some restrictions were applied. The relevant Regulations
were the Accession (Immigration and Worker Authorisation Regulations) 2006, as amended.

With very limited exceptions, Bulgarians and Romanians had to have permission to work, in the form
of an Accession Worker authorisation card, before they start working. They also needed to get a work
permit in most cases. These were granted for categories roughly similar to those in the Immigration
Rules. It was very difficult for Bulgarians and Romanians to come to the UK to do low skilled work.
There were certain categories of permit-free employment. An Accession Worker authorisation card
was still needed, but no work permit. These were:

• Airport based operational ground staff of an overseas airline; and

• Au pair placements; and
• Domestic workers in a private household; and
• Ministers of religion, missionaries or members of a religious order; and
• Overseas government employment; and
• Postgraduate doctors, dentists and trainee general practitioners; and
• Private servants in a diplomatic household; and
• Representatives of an overseas newspaper; news agency or broadcasting agency; and
• Sole representatives; and
• Teachers or language assistants on an approved exchange scheme; and
• Overseas qualified nurses coming for a period of supervised practice.

A2 nationals who had leave to enter or remain at the date of accession of a kind without restrictions
on working (ILR or leave as a spouse) were not affected by the need to register. A2 nationals who had
been working legally for a UK employer for 12 months continuously could obtain a registration
certificate like any other EEA national and could enjoy all the same rights associated with free
movement.

There was no need for an A2 national to obtain worker authorisation if:

• They had Leave to Enter under the Immigration Act 1971 that did not place any restrictions
on taking employment in the UK;
• They had worked continuously for 12 months in the UK;
• They were providing services in the UK on behalf of an employer established elsewhere in the
EEA;
• They were the family member of an EEA national exercising treaty rights in the UK;
• They were the family member of an A2 national who was self-employed, self-sufficient or a
student;
• They were the spouse, civil partner, descendant under the age of 21 or the dependent of an
A2 national who was subject to work authorisation and held an Accession Worker card;
• They were the member of a diplomatic mission, the family member of a diplomat or the family
member of anyone who was entitled to diplomatic immunity.

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3.15 Croatia

Croatia joined the EU on 1 July 2013. Their nationals have free movement rights but, as was the case
with Bulgarian and Romanian nationals before 1 January 2014, Croatians’ access to the labour market
has been restricted. This has been done in the UK by requiring employers to sponsor their Croatians
employees under the provisions in Tiers 2 and 5 of the PBS for the first 12 months of their employment
in the UK. Croatians will not though have to apply for leave on this basis as they have the right of
admission, and residence.

The provisions relating to Croatian workers can be found in The Accession of Croatia (Immigration and
Worker Authorisation) Regulations 2013.

In early 2018 the UK government announced that the transitional arrangements would expire on 30
June 2018 as they could not lawfully be extended for the final two years of the potential 7 year period
during which transitional restrictions were potentially applicable.

3.16 The Turkish Association Agreement

The 1963 Association Agreement between the European Community /European Union and Turkey is
binding on member states of the EU. It has provisions which allow Turkish nationals who have entered
the UK lawfully and who have worked in the UK for one year to be allowed to obtain renewed
permission to work and ultimately a right of residence. Moreover, Article 41(1) of the Protocol to the
Ankara Agreement provides:
(1) The contracting parties shall refrain from introducing between themselves any new restrictions on
the freedom of establishment and the freedom to provide services.

A standstill clause of this kind has the effect of precluding a state from imposing greater restrictions
than exists at the nominated time.

The purpose of the Agreement was to enable eventual accession and so progressively abolish
restrictions on freedom of establishment and freedom to provide services. In Savas [2000] it was
established that Art 41(1) had direct effect and Turkish business people could therefore rely on the
rights it confers. The clause has the effect of prohibiting the introduction of new national restrictions
less favourable than those in force when the UK acceded to the EU in 1973. Thus any application by a
Turkish national to set up in business in the UK must be considered under the 1973 Immigration Rules.
At that time the Rules were much shorter, simpler and less restrictive. For example, whether an
applicant to set up a business had observed the time limit on his stay was 'relevant' rather than
overstaying being an automatic bar to success.

Thus Turkish nationals in Turkey or lawfully in the UK can apply to vary their leave to establish a
business under the Association Agreement if they can satisfy the tests that they are investing money
of their own, can bear their share of costs of running the business and will earn enough to support
themselves and any dependents from the business. It is possible to join an existing business if the
applicant can demonstrate that they will have an active part in running it and that there is a genuine
need for their investment and work in the business. The 1973 Immigration Rules did not require a
minimum level of investment in the UK business or the creation of two new jobs. Accounts will be
required. Leave is given for 12 months in the first instance and can be extended, providing a route to
settlement.

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Once it was established that Turkish nationals could benefit from the standstill clause, the Home Office
began to rely on the concept of fraud and abuse of rights to argue that irregular status, a false
application for leave (such as a dishonest asylum claim) and so on, prevented an applicant from relying
on the clause.

In Soysal [2009] EUECJ-228/06 the Court held that there was no restriction operating against those
whose claim for asylum had failed although a fraudulent claim could prevent a person from benefitting
from the Agreement - Aldogan [2007] EWHC 2586. The case of LF (Turkey) [2007] EWCA Civ1441
should be treated with caution following Soysal.

In Oguz Tural (case C-186/10) the Court of Justice decided that it should be left to national legislation
to protect against fraud. Hence it is likely that the Home Office will continue with its current approach.
In EK (Ankara Agreement - 1972 Rules) [2010] UKUT 425 (IAC) the Upper Tribunal emphasised the
flexible nature of the Immigration Rules then in force:

1. There is nothing in the 1972 Immigration Rules (HC 510) that provides that a person who
cannot come within one of the categories of the Immigration Rules is to be refused an
extension of stay for that reason alone. Rule 4 sets out the "main categories" of people who
may be given leave, recognising the possibility that there are other categories not specifically
set out that can be dealt with on a discretionary basis. Accordingly, it was open to the Home
Office to grant an extension of stay as a businesswoman to someone who had entered as an
au pair. The finding in OT (Turkey) [2010] UKUT 330 (IAC) that HC 510 prohibited switching to
business status by anyone other than a visitor is not considered correct. (See also now LE
(Turkey) [2010] CSOH 153).

2. Paragraph 28 of HC 510 does not require a person who had been given leave as a
businessman to demonstrate as a pre-condition for the exercise of discretion that in each or
any year in which they had been given leave in that capacity they had complied with particular
requirements of paragraph 21. Those requirements are directly relevant only to the first
application for permission to remain and the first extension of stay.

3. There is no precise code in HC 510 distinguishing between maintenance and

accommodation and precluding third party contributions to living expenses.
Business applications are considered on the basis of the Home Office Immigration Staff Guidance
‘Business applications under the Turkish EC Association’. Applications by Turkish workers are
considered on the basis of the Home Office guidance ‘ECAA Turkish employed applications’. Both
documents are currently located in the ‘working in the UK’ section of the Immigration Staff Guidance
documents:

https://www.gov.uk/government/collections/working-in-the-uk-modernised-guidance

Suspension of provision to grant Indefinite Leave to Remain

Until March 2018 applications for ILR could be made if an applicant could show they had spent
a continuous period of 4 years in the UK, of which the most recent period of leave was as a Turkish
ECAA businessperson. However, a 2017 judgment from the Upper Tribunal, Aydogdu v Secretary of
State for the Home Department (Ankara Agreement – family members – settlement) [2017] UKUT
00167 (IAC), found that the settlement of Turkish nationals and their dependants did not fall within
the scope of the provision of the European Community Association Agreement with Turkey (the
“standstill clause”). Consequently in March 2018 the Home Office introduced a new Appendix ECAA
into the Immigration Rules to provide a route to settlement for people in this situation.

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4 Asylum and International Protection

Part 1 of this chapter briefly summarises asylum and international protection law. The second part
examines it in detail.

Part 1

The Process of Claiming Asylum

An ‘asylum claim’ is defined at section 113 of the Nationality, Immigration and Asylum Act 2002;

"asylum claim" means a claim made by a person to the Secretary of State at a place designated
by the Secretary of State that to remove the person from or require him to leave the United
Kingdom would breach the United Kingdom's obligations under the Refugee Convention,

An application must be made in person. After the initial contact is made, there are a number of stages
to the process, which can be summarised as follows:

• Screening interview. Details of journey to the UK, family circumstances and brief details of
the claim are taken.
• Asylum interview. A Home Office caseworker interviews the applicant in detail, typically for
several hours.
• Decision. A successful international protection claim can take the form of a grant of refugee
status or a grant of humanitarian protection, each for five years. If refused, there is a right of
appeal to the First-tier Tribunal (Immigration and Asylum Chamber).

Inadmissibility
From 1 January 2021 the Home Office adopted a procedure of considering whether to treat a claim as
‘inadmissible’ because an applicant had been granted protection in a safe third country, or could have
sought protection in a safe third country, or has a connection to a safe third country. If found
inadmissible, the Home Office will not make a substantive decision but instead seek to remove the
applicant to a safe third country. See paragraphs 345A-D of the Immigration Rules.

Credibility
In practice, most asylum applications and appeals stand or fall on the ‘credibility’ of the asylum
seeker’s account. Establishing credibility is, in practice, paramount. An experienced adviser is
invaluable in this process.

Refugee definition
A refugee is defined at Article 1A(2) of the original 1951 Refugee Convention. A refugee is a person
who:
‘…owing to a well founded fear of being persecuted for reasons of race, religion, nationality,
membership of a particular social group or political opinion, is outside the country of his nationality
and is unable or owing to such fear, is unwilling to avail himself of protection of that country; or who,
not having a nationality and being outside the country of his former habitual residence is unable or,
owing to such fear, is unwilling to return to it.’

Well-founded fear
There are two elements to a well-founded fear:

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 Fear Well-foundedness

Does the claimant actually fear something
will happen to them on return to their
country?
Is the claimant’s account untrue such that
there is therefore no fear at all?
If genuinely held, is the fear of future harm
objectively well-founded?
Is there a real risk? What of state
protection?

Internal relocation

Even if the claimant is lying about some or

all of her claim, is there still a risk?

The refugee definition is forward looking. Past persecution may suggest future persecution, but it is a
risk of future persecution that makes one a refugee.

Of being persecuted
The treatment must be serious in nature. There is no simple definition of ‘persecution’ but it must be
a severe violation of a basic human right. Torture and rape, for example, will always be a severe
violation whereas discrimination alone will usually not be, unless it is particularly systematic and
harmful. The individual’s circumstances must be taken into account, i.e. what amounts to persecution
for one person need not necessarily for another and psychological suffering may amount to
persecution.

For a ‘Convention reason’

The well-founded fear of persecution must be for one of the Convention reasons:

Race: describes persons who share the same identity, common descent and/or ethnic origin. It is
interpreted in the widest sense to include persons who share identifiable socio-political characteristics
such as customs, philosophy, tradition and language. The test for race is whether the individuals or
the group regard themselves and are regarded by others in the community as having a particular
historical identity in terms of their racial, national or ethnic origins.

Religion: could include converting to a different faith (e.g. Apostasy in Iran), or carrying out what may
be deemed as anti-religious behaviour (women not complying with certain dress codes in certain
countries).

Nationality: self-explanatory but uncommon in modern asylum claims.

Membership of a particular social group (PSG):. Members of a PSG must share a common immutable
characteristic. Such a characteristic may be innate or non-innate. The group does not have to have the
characteristics of cohesiveness, interdependence, organisation or homogeneity. There is nothing in
principle to prevent the size of the PSG being large (e.g. women in a particular country).

Political opinion: may be actually held or may be ‘imputed’ or perceived by the agent(s) of
persecution, i.e. even though the victim is not at all political, he or she may be perceived to be political
for a variety of reasons. Political opinion relates to issues of governance or major power transactions.

Outside the country of nationality/former habitual residence

For most asylum claimants this is not likely to be a problem, as you are likely to encounter them inside
the UK. Most individuals who make a claim for asylum have left their country in fear. However, it is

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possible to become a refugee if one becomes fearful of persecution while living outside the country
of origin. For example, a person who is abroad when a coup d’etat takes place in their country may
fear persecution if they were to return. In these cases a person is claiming to be a ‘refugee sur place’.

Unable or, owing to such fear, unwilling to avail himself of protection of that country
This element of the definition concerns the availability of protection in the country of origin. If there
is protection available, there is no need for international protection to be granted under the auspices
of the Refugee Convention; this is why the Refugee Convention is sometimes said to provide
international surrogate protection where national protection is not available.
Where an individual has been persecuted by the State, it is very unlikely they can be expected to seek
protection from that same State. But where someone has been persecuted by ‘non-State agents’, they
will need to demonstrate that they are not able to avail themselves of the protection of the
authorities.

In the UK, the test to be applied in such cases has become known as the ‘sufficiency of protection’
test. Essentially, a victim of non-State persecution must demonstrate that there is no adequate system
of protection in his or her country of origin. If there is a functioning and generally effective system of
protection in place, the claimant will not be entitled to refugee status.

Internal Relocation
Sometimes protection or freedom from persecution is available in one part of a country but not
another. This is known as internal relocation or internal flight. It must be shown therefore that the
persecution is across the whole of a country or that it is unreasonable to expect the person to move
to another part of their own country.

Cessation
Article 1C of Refugee Convention provides that refugee status may be withdrawn in some
circumstances:
• If the refugee voluntarily re-avails themselves of the protection of the country of nationality or
voluntarily re-acquires his or her old nationality.
• If the refugee voluntarily acquires a new nationality eg when a recognised refugee naturalises as
a British citizen.
• If the refugee voluntarily re-establishes himself in his country of nationality.
• If there is a change in the circumstances which give rise to recognition as a refugee so that the
person no longer satisfies the criteria for recognition.

Exclusion clauses
Article 1F of the Refugee Convention states that protection does not apply where there are serious
reasons for considering that a refugee has committed:
• a war crime or a crime against humanity as defined in the relevant international instruments;
• an act contrary to the purposes and principles of the UN;
• a serious non-political crime committed outside the country of refuge prior to admission to that
country.
Under Article 33(2) of the Convention a person who is a danger to the security of the country which
they are in, or who constitutes a danger to the community of that country can be expelled from the
UK.
Those caught by these provisions are excluded from being recognised as refugees. However, as will be
seen below, it does not exclude them from protection under the Human Rights Act 1998.

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Human Rights Act 1998
The Human Rights Act 1998 came into force on the 2nd October 2000. Under this piece of legislation,
most of the rights under the European Convention on Human Rights (ECHR) were incorporated into
UK law. The Act makes it unlawful for a ‘public authority’ (which includes the immigration authorities
and the Tribunals) to act in a way that is incompatible with an incorporated ECHR right and allows the
‘victim’ of the breach of human rights to bring claims in the appropriate court against the ‘public
authority’ for actions that are in breach of the ECHR. In the field of immigration this is by bringing a
human rights appeal but in some circumstances it may be a claim for Judicial Review.

ECHR rights
The rights protected by the ECHR are as follows:

Article 2 Right to life

Article 3 Prohibition on torture, inhuman or degrading treatment or punishment
Article 4 Prohibition on slavery and forced labour
Article 5 Right to liberty and security
Article 6 Right to a fair trial
Article 7 Freedom from retrospective criminal offences and punishment
Article 8 Right to respect for private and family life
Article 9 Freedom of thought, conscience and religion
Article 10 Freedom of expression
Article 11 Freedom of assembly and association
Article 12 Right to marry
Article 14 Prohibition on discrimination in enjoying the above rights

The rights most commonly relied on in immigration and asylum cases are Article 3 and Article 8.
(Article 8 is dealt with in Chapter 2). Article 3 of the ECHR is very simple:

No-one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Article 3 is absolute and must never be breached under any circumstances. It operates regardless of
the reason why a person might be subject to Article 3 ill treatment. An Article 3 human rights claim is
therefore different from a claim under the Refugee Convention in the sense that no ‘Convention
reason’ has to be shown and a person cannot be excluded from its protection because of their own
activities.

In other respects, an Article 3 claim is the same as a refugee claim. The standard of proof is the same
– that of real risk or reasonable likelihood. As under the Refugee Convention, it remains necessary to
demonstrate that there will not be a sufficiency of protection and that internal relocation will not be
available.

Medical treatment cases

It is argued in some cases that a difference in medical treatment between the UK and the country to
which a person is to be removed will cause extreme suffering or death, and that removal would
consequently breach the person‘s Article 3 rights. In practice, this is an extremely difficult argument
to win as the highest courts have taken an extremely tough approach in this area. In N v SSHD [2005]
UKHL 31 the House of Lords examined the position of an AIDS sufferer being removed to a country
where inferior treatment to that she was receiving in the UK would be available. In this case the
country was Uganda. It was accepted that the claimant would die in unpleasant circumstances within
approximately one year if removed but she still lost her case:

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 [T]he test, in this sort of case, is whether the applicant's illness has reached such a critical stage
(ie he is dying) that it would be inhuman treatment to deprive him of the care which he is
currently receiving and send him home to an early death unless there is care available there to
enable him to meet that fate with dignity.

Although the threshold for Article 3 medical cases has been placed at an extremely high level, N v UK
left open the possibility of succeeding in cases where there are other exceptional distinguishing
features e.g. those involving children, organ transplant cases or other types of medical cases where
withdrawal from treatment might involve immediate death or excruciating pain, those who are
particularly vulnerable and might be destitute on return, and those returning to countries that are in
a state of serious upheaval.

In December 2016 a significant new decision was issued by the European Court of Human Rights which
revisited the approach to serious illness, medical treatment and Article 3 ECHR: Paposhvili v Belgium
(App No. 41738/10). In short, Paposhvili relaxed the extremely high threshold set in the cases of D
and N to a limited but significant degree.

The decision clarified, widened and provided guidance on the circumstances in which an alien
suffering from a serious illness can resist removal under art 3 ECHR; but it also gave rise to serious
questions as to whether the present UK jurisprudence is in step with the standards set in Strasbourg.

The proper interpretation of Paposhvili was considered by the Court of Appeal in AM (Zimbabwe) &
Anor v SSHD [2018] EWCA Civ 64. It held that the test for violation of Article 3 was relaxed ‘only to a
very modest extent’; but the UK Supreme Court subsequently held in AM (Zimbabwe) v SSHD [2020]
UKSC 17 that the Court of Appeal had been ‘unduly narrow’ in its interpretation and that the approach
in Paposhvili should be adopted, departing from the House of Lords 2005 decision in N.

Article 3 and destitution

Those facing destitution can, in some cases, succeed under Article 3. For example, the Tribunal
accepted in RN (Returnees) Zimbabwe CG [2008] UKAIT 00083, that:
General country conditions and living conditions for many Zimbabwean nationals have
continued to deteriorate since the summer of 2007. Some may be subjected to a complete
deprivation of the basic necessities of life, for example access to food aid, shelter and safe
water, the cumulative effect of which is capable of enabling a claim to succeed under article 3
of the ECHR.

In R (Adam, Limbuela and Tesema) v SSHD [2005] UKHL 66 the House of Lords held that legislation
denying social support to asylum seekers who failed to submit their claims as soon as “reasonably
practicable” constituted a breach of Article 3. In the words of the late Lord Bingham:
As in all article 3 cases, the treatment, to be proscribed, must achieve a minimum standard of
severity, and I would accept that in a context such as this, not involving the deliberate infliction
of pain or suffering, the threshold is a high one. A general public duty to house the homeless
or provide for the destitute cannot be spelled out of article 3. But I have no doubt that the
threshold may be crossed if a late applicant with no means and no alternative sources of
support, unable to support himself, is, by the deliberate action of the state, denied shelter,
food or the most basic necessities of life. It is not necessary that treatment, to engage article
3, should merit the description used, in an immigration context, by Shakespeare and others
in Sir Thomas More when they referred to "your mountainish inhumanity".

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Recognition as a refugee or person in need of humanitarian protection

When an asylum claim succeeds under the Refugee Convention, the applicant will be recognised as a
refugee and five years leave to remain will be granted (r.339Q(i)). Prior to 30 August 2005, ILR was
granted. The grant of refugee status will be made by way of a Biometric Residence Permit. There will
be no conditions on the grant of leave. The same period of Leave, without conditions, is given to a
person in need of humanitarian protection.

Refugee Family reunion

Under the Immigration Rules, certain members of the family of a recognised refugee or person granted
humanitarian protection, who were left behind at the time that the person fled his or her country of
origin, can apply for family reunion. These rules do not contain English language, financial or
maintenance and accommodation requirements but the general grounds of refusal can still be applied.
(It is important to recall that OISC Level 1 advisers are not permitted to make refugee family reunion
applications, however it will be necessary to understand how these rules differ from the rules found
in Appendix FM.)

The rules cover the following pre-existing family members:

• Spouses, civil partners, unmarried partners or same sex partners (paragraphs 352A)
• Minor children (paragraph 352D)

Family Reunion Requirements for leave to enter or remain as the partner of a refugee

352A. The requirements to be met by a person seeking leave to enter or remain in the United
Kingdom as the partner of a person granted refugee status are that:

(i) the applicant is the partner of a person who currently has refugee status granted under the
Immigration Rules in the United Kingdom; and

(ii) the marriage or civil partnership did not take place after the person granted refugee status left
the country of their former habitual residence in order to seek asylum or the parties have been
living together in a relationship akin to marriage or a civil partnership which has subsisted for two
years or more before the person granted refugee status left the country of their former habitual
residence in order to seek asylum; and

(iii) the relationship existed before the person granted refugee status left the country of their
former habitual residence in order to seek asylum; and

(iv) the applicant would not be excluded from protection by virtue of paragraph 334(iii) or (iv) of
these Rules or Article 1F of the Refugee Convention if they were to seek asylum in their own right;
and

(v) each of the parties intends to live permanently with the other as their spouse or civil partner
and the marriage is subsisting; and

(vi) the applicant and their partner must not be within the prohibited degree of relationship; and

(vii) if seeking leave to enter, the applicant holds a valid United Kingdom entry clearance for entry
in this capacity.

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 Paragraph 352AA has been deleted.

Requirements for leave to enter or remain as the child of a refugee

352D. The requirements to be met by a person seeking leave to enter or remain in the United
Kingdom in order to join or remain with the parent who currently has refugee status are that the
applicant:

(i) is the child of a parent who currently has refugee status granted under the Immigration Rules
in the United Kingdom; and

(ii) is under the age of 18; and

(iii) is not leading an independent life, is unmarried and is not a civil partner, and has not formed
an independent family unit; and

(iv) was part of the family unit of the person granted asylum at the time that the person granted
asylum left the country of their habitual residence in order to seek asylum; and

(v) the applicant would not be excluded from protection by virtue of paragraph 334(iii) or (iv) of
these Rules or Article 1F of the Refugee Convention if they were to seek asylum in their own right;
and

(vi) if seeking leave to enter, holds a valid United Kingdom entry clearance for entry in this capacity.

Interpretation

352G. For the purposes of this Part:

… (d) “Partner” means the applicant’s spouse, civil partner, or a person who has been living
together with the applicant in a relationship akin to a marriage or civil partnership for at least two
years prior to the date of application;

This new definition aligns the meaning of unmarried or same sex partner in the refugee family reunion
rules with that in Appendix FM. Two years of cohabitation is now necessary, not just two years of a
relationship at the end of which the parties cohabited. The Family Reunion guidance is now out of
date on this point.

Refugee family reunion outside the immigration rules

In AT and another (Article 8 ECHR - Child Refugee - Family Reunification) Eritrea [2016] UKUT 227
(IAC) the Upper Tribunal held that:

While the Immigration Rules make no provision for family reunification in the United Kingdom
in the case of a child who has been granted asylum, a refusal to permit the family members of
such child to enter and remain in the United Kingdom may constitute a disproportionate
breach of the right to respect for family life enjoyed by all family members under Article 8
ECHR. [Headnote]

In principle, Article 8 ECHR could be relied on in other cases where the family relationship is of a kind
not provided for in the Immigration Rules.

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In KF and others (entry clearance, relatives of refugee) Syria [2019] UKUT 413 (IAC) the parents and
younger siblings of an unaccompanied minor sought to join KF who had been recognised as a refugee
3 days after he turned 18. The Appeal succeeded on Article 8 grounds but set a high bar for success in
such cases.

British citizenship ends refugee status

It used to be possible for a refugee who had become a British citizen still to rely on these rules in order
to sponsor his or her family to enter the UK. The Supreme Court held that this was possible in the case
of ZN (Afghanistan) [2010] UKSC 21. However, the rules were subsequently amended to prevent this
for applications made after 22 October 2010.

In the case of MS (Somalia) v SSHD [2010] EWCA Civ 1236 the Court of Appeal held that a sponsor
under the refugee family reunion rules had to him or herself be recognised as a refugee following an
asylum claim, as opposed to being admitted themselves as the family member of another refugee.
Where a person granted leave under the family reunion rules wants themselves to sponsor a family
reunion application for other family members, they will have to apply for asylum.

The British Red Cross can assist where necessary with family tracing, and in making arrangements for
the family to travel to the UK, including travel costs.

‘Post flight’ and other family members

New and existing family members who are not entitled to family reunion under paragraphs 352AA-D
of the Rules can be sponsored under other provisions of the Immigration Rules.

Paragraphs 319X to 319XB set out the requirements for leave to enter or remain as the child under
the age of 18 of a relative who has refugee status or humanitarian protection in the UK.

Paragraphs 319L to 319WB (which have been closed to new applications since July 2012 and
incorporated into Appendix FM) apply only to those family members with limited leave granted before
the 9 July 2012 and those who applied before 9 July 2012 and have not been decided. Such cases are
likely to be extremely rare. These rules were exactly the same as for the family members of those
present and settled in the UK, but for the fact that the sponsor had only limited leave. Such family
members are still able to apply for ILR under paragraph 319W as soon as the sponsor is granted ILR.

For applications made on or after 9 July 2012, the post-flight family members of refugees and those
with humanitarian protection are provided for under Appendix FM.

Travel documents

Recognised refugees are entitled to a Refugee Convention Travel Document (CTD), under Article 28 of
the Convention.

These CTDs are blue in colour and resemble a passport in appearance. They can be used for travel to
any country that is a signatory to the Convention other than the country from which the holder is a
refugee.

Those granted humanitarian protection cannot apply for a CTD but instead can apply for a Certificate
of Travel. In practice, fewer countries accept this document than the CTD. Online applications on form
TD112BRP include an application for a biometric residence permit. The cost is £75.00 (£49 for a child
under 16). The document will be valid for the length of the refugee’s leave, or for 10 years if the
refugee is settled (5 years for a child). A Certificate of Travel is currently £280 for an adult and £141
for a child.

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5 British Nationality Law
5.1 A brief history of nationality law

It is useful to understand the development of British nationality law because much of the old
legislation still governs the nationality of some people. It also helps in understanding how nationality
law has become so complicated. The history is divided into three sections below, covering the periods
before 1948, between 1948 and 1981 and since 1981. These periods are defined by the principal, but
by no means the only important, pieces of nationality legislation, the British Nationality Act 1948 and
the British Nationality Act 1981.

Before 1948: British subjects and aliens

Until the 1948, there was no such thing as British nationality or citizenship. Instead, anyone born in
the UK or a British colony was a British subject and had an automatic right to reside in the UK.
Effectively, there was total freedom of movement and residence within the British Empire. In practice,
this freedom of movement was not much used by those living in the colonies to reside in the UK. It
was perhaps more common for people from one colony or dominion to move to another, as was the
case with those who became known as the East African Asians. When this freedom of movement was
later restricted and colonies became independent, these non- indigenous ethnic groups were left in
an invidious position.

1948 to 1983: Citizens of the UK and Colonies

The 1948 Act created a Citizenship of the United Kingdom and Colonies (CUKC) for residents of the UK
and colonies that were not yet independent. As colonies became independent, their residents usually
acquired citizenship of the new Commonwealth country. All CUKCs and, at first, all Commonwealth
citizens had a right of abode in the UK. The ‘right of abode‘ meant freedom from immigration control,
and therefore freedom to enter, live and work in the UK.

Between 1962 and 1971, various pieces of legislation restricted or removed the right of abode of
Commonwealth citizens and some CUKCs. The most controversial changes were the restriction of the
right of abode to CUKCs with a connection by birth or descent with the UK, and these were introduced
and then reinforced by the 1968 and 1971 Acts. Particularly controversial by modern standards was
the restriction of that link, called ‘patriality‘, to descent through the male line.

The Immigration Act 1971 consolidated the various pieces of legislation and provided a proper
legislative framework and appeal system. This Act continues to provide the framework for immigration
law today, even though it has been much amended.

Essentially, there was little explicit nationality legislation between 1948 and 1981, but the rights
attached to different sorts of nationality were radically changed and, for a lot of Commonwealth
citizens, drastically curtailed. A de facto distinction between nationality and citizenship was
introduced. In most countries the relationship between nationality and citizenship is clear,
understandable and philosophically sound: a citizen owes obligations to the country of his or her
nationality and in return enjoys various rights. Not so for some British citizens, who owe an
unconditional allegiance, duties without rights.

In summary, the following people born before 1 January 1983 are British Citizens:

• Those born in the UK pre 1 January 1983 (save the children of diplomats)
• Those born abroad pre 1 January 1983 whose father was born in the UK

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 • Those born abroad pre 1 January 1983 whose father was registered or naturalised as
British before their birth
• Those adopted in the UK by a British father.

1983 to the present day: British citizens and other British nationals

The British Nationality Act 1981 represented an attempt to consolidate and clarify nationality law and
put it onto a better legislative footing. However, there were so many types of nationality already and
so many different types of colony, ex-colony, dependent territory and dominions that this aim proved
elusive. The Act certainly fundamentally changed nationality law, but it did not necessarily simplify it.

CUKC status was abolished and replaced by new types of status, examined below. These were British
citizens, British Dependent Territory Citizens and British Overseas citizens. Only British citizens
enjoyed the right of abode. ‘Patriality‘ was redefined and given its current label of ‘right of abode‘.
This was to be passed through the male or female lines, so that dismal distinction was abolished. The
passing of nationality from one person to another was changed and clearly defined, and is examined
below. Essentially, it could be passed on through birth, descent or registration or acquired through
naturalisation.

5.2 Types of British nationality

The different types of British nationality are described below. Only British citizens and those who were
British Overseas Territory citizens (BOTCs) before 21 May 2002 possess the right of abode. Establishing
the status of an individual can be very difficult. Old British passports do not necessarily state what
type of nationality the bearer possesses. Section 5 concerns trying to establish or check nationality.

Note that some of these types of nationality cannot be passed on to the next generation and will
therefore eventually disappear. However, as with the whole of nationality law, there are exceptions
and provisions for new grants in some exceptional situations, most notably if the person will otherwise
be stateless.

British citizen: Enjoys the right of abode. People who have a connection with the UK through birth,
descent, registration or naturalisation (all of which are examined below in section 4).

British Overseas Territories Citizen: Until the British Overseas Territories Act 2002 called British
Dependent Territory citizens, these people are from the few remaining Overseas Territories (until
2002 called Dependent Territories). The Act turned almost all BDTCs/BOTCs into full British citizens on
21 May 2002.

The British Overseas Territories are: Anguilla, Bermuda, British Antarctica, British Indian Ocean
Territory, British Virgin Islands, Cayman Islands, Falkland Islands, Gibraltar, Montserrat, Pitcairn
Islands, St Helena and Dependencies, South Georgia and the South Sandwich Islands, Turks and Caicos
Islands and the Cyprus Sovereign Base Areas of Akrotiri and Dhekelia (people from the Cyrus bases
actually being excluded from the right of abode).

Note that anyone who was a BOTC by descent on 21 May 2002 became a British citizen by descent –
this is important, as British citizens by descent do not automatically pass on their citizenship to their
children (see below). Those who become BOTCs after 21 May 2002 can apply to be registered as British
citizens, but the registration is discretionary and not guaranteed.

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British Overseas Citizen: People who were CUKCs but do not qualify for either of the above forms of
status – generally East African Asians. This type of nationality is not transferred or passed on and will
therefore eventually die out and disappear.

British Nationals (Overseas): People from Hong Kong who applied for this status before 1997 but did
not or could not register as British citizens under the special Acts between 1990 and 1997. This type
of nationality is also not transferred or passed on and will eventually die out and disappear.

British Protected Persons: People from places that were protectorates rather than colonies, mainly in
Africa and the Indian subcontinent. This type of nationality is only carried by small numbers of middle-
aged or elderly people, is not passed on and is therefore dying out.

British Subjects: Formerly called British subjects without citizenship, these people are mainly from the
Indian subcontinent, were born before 1948 and did not become CUKCs or Indian or Pakistani citizens.
This type of nationality is again only carried by small numbers of middle-aged or elderly people, is not
passed on and is dying out.

5.3 Amendments to the British Nationality Act 1981

The British Overseas Territories Act 2002 renamed British Dependent Territories, British Overseas
Territories. People became British Overseas Territories Citizens automatically on 26 February 2002
and on the 21 May 2002 they all became British Citizens with a right of abode in the UK, with the
exception of those connected with the Sovereign bases.

The Nationality, Immigration and Asylum Act 2002 enlarged some categories of Citizenship and made
changes to entitlements to move between categories. Section 9 of the Act made unmarried fathers
the transmitters of British nationality just as much as unmarried mothers. This provision came into
force on 1 July 2006 and did not apply retrospectively to children born before that date.

The Immigration, Asylum and Nationality Act 2006 widened the power to deprive a person of
citizenship (s.56) or the right of abode (s.57) to include ‘conducive to public good’ and also removes
registration as a British citizen as of right by inserting a good character test for all applicants. An Order
passed in January 2010 also includes children aged 10 and over in the ‘good character requirement’.

The Borders, Citizenship and Immigration Act 2009 came into force 13 January 2010. The relevant
sections:

• Permit registration as British of the children born outside the UK of members of the armed
forces and confirms automatic British citizenship of children born in the UK of members of the
armed forces.
• Allow registration of children born outside the UK under s.3(2) of the BNA 1981 up to their
18th birthday (extended from 12 months after their birth or 6 years in exceptional
circumstances).
• Permit registration of otherwise stateless BN(O)s.
• Enable registration of those born before 7 February 1961 with British mothers, if they would
have become a British citizen at birth had women been able to pass on citizenship in the same
way as men.
The Immigration Act 2014 makes two changes to nationality law. It addresses historical gender bias in
the acquisition of British Citizenship under s65; and it provides new powers to deprive a person of
British Citizenship.

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In the original BNA 1981 while a mother was always defined as a parent, whether married or
unmarried, a father who was not married to the child’s mother was not included in the definition of
‘parent’. Following the changes made in the Immigration Asylum and Nationality Act 2006, Section 65
‘Persons unable to acquire citizenship: natural father not married to mother’ of the 2014 Act amended
the BNA 1981 so that children born before 1 July 2006 who would have acquired British Citizenship if
their parents were married, are now able to register as British Citizens. This has created a statutory
entitlement rather than the exercise of discretion by the Secretary of State. Section 65 commenced
on 6 April 2015 and relevant Home Office policy can be found at:

https://www.gov.uk/government/publications/children-of-british-citizen-fathers-become-a-british-
citizen

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5.4 Who is a British citizen?

The British Nationality Act 1981 came into effect on 1 January 1983, so the regime changed on that
date: anyone born on or after that date is affected by the 1981 Act. Anyone born in the UK before 1
January 1983 is a British citizen. The 1981 Act did not change this retrospectively. This does not apply
to the children of diplomats.

In addition, any person who was a CUKC with the right of abode in the UK under the old s.2 of the
1971 Act on 31 December 1982 became a British citizen under the 1981 Act. Those who became British
citizens on 1 January 1983 therefore include:

• Those born in the UK before commencement (became British citizens otherwise than by
descent)
• Those born outside the UK whose father was born in the UK (became British citizens otherwise
than by descent)
• Those born outside the UK whose father was registered or naturalised in the UK before their
birth (usually became British citizens by descent: see s.14(1)(b)(iii) of 1981 Act)
This list of entitlements is not exhaustive. Fransman‘s Nationality Law is the classic work of reference
especially for complex cases but reference should routinely be made the British Nationality Act 1981
itself.

Born a British citizen in the UK after 1981 Act

Since 1 January 1983, of those persons born in the UK only those born to a British citizen parent or
someone who is settled (has ILR) become British citizens at birth. Only one of the parents need be
British or settled in the UK.

Registration of children

There are provisions for children to be registered as British after their birth, although this is no longer
by right since the introduction of a good character test.

• If born in the UK since 1 January 1983 and one of the parents becomes settled (ILR) or if the
child remains in the UK for the first ten years of his or her life. There are also special provisions
for those who would otherwise be stateless: residence in the UK for five years.
• If born overseas to a parent who is a British citizen by descent, either within one year of birth
or after three years residence in the UK with ILR.
• At the discretion of the Secretary of State. This is used to operate concessions such as for
‘illegitimate‘ children of British fathers, but may also be used to register children considered
to have strong ties with and a future in the UK.

Children of EEA nationals

Children of EEA nationals born before 2 October 2000 are British but children born on or since that
date are generally not. If an EEA national acquires a right of permanent residence under EU law their
children can be registered as British and any children born after acquisition of the right of permanent
residence acquire British citizenship at birth.

Born a British citizen outside the UK after 1981 Act

Firstly, the definition of ‘parent‘ in nationality law used to be either the mother or the father if married
to the mother (or subsequently married after the birth of the child). British nationality was not

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therefore transmitted by fathers if they are not married to the mother of the child, although there is
a registration scheme for children of British unmarried fathers where the parentage is not in doubt.

From 1 July 2006, the definition of ‘parent‘ has been changed to include fathers who were not married
to the mother of the child in question, providing paternity can be established. This was brought about
by SI 2006/1498 (C.51) The Nationality, Immigration and Asylum Act 2002 (Commencement No. 11)
Order 2006, which belatedly brought into effect s.9 of the 2002 Act. It only applies to children born on
or after 1 July 2006, it does not apply retrospectively.

There are in fact two types of British citizen: (i) by descent and (ii) otherwise than by descent. This is
only important in determining whether nationality is transmitted from parent to child where the child
is born outside the UK. Inside the UK, any child born to a parent or parents who are present and settled
will be a British citizen. Outside the UK, after a certain number of generations, British nationality is
lost by the descendants. The basic rules of transmission outside the UK can be illustrated as follows:

Note that once a person has one type of citizenship, this may not be altered or upgraded (Ullah [2001]
EWCA 659).

5.5 Using the 1981 Act

Nationality law is complex, but the Act can be used to determine the nationality in many cases of
which you might not be certain. The basic structure of the Act is as follows:

Section 1: by birth or adoption in UK: Sets out how nationality is acquired by birth inside the UK after
the commencement of the Act (i.e. from 1 January 1983).

Section 2: by descent outside UK: Sets out how nationality is acquired outside the UK after
commencement. The reference to ‘otherwise than by descent‘ is explained at s.14

Section 3: registration by minors : Sets out the circumstances where children can register as British,
mainly for those born outside the UK

Sections 4 to 4C: registration by adults: Sets out various circumstances where adults can register as
British – applies to British nationals who are not British citizens

Section 11: becoming British citizens at commencement: Sets out the circumstances where CUKCs
became British citizens at commencement. Needs to be read in conjunction with original s.2 of 1971
Act

Section 14: meaning of ‘by descent‘: Defines a British citizen ‘by descent‘. Any other British citizen is
therefore ‘otherwise than by descent‘

Immigration Act 1971, Section 2

The original s.2 of the 1971 Act reads as follows:

Statement of right of abode, and related amendments as to citizenship by registration.

(1) A person is under this Act to have the right of abode in the United Kingdom if -

(a) he is a citizen of the United Kingdom and Colonies who has that citizenship by his
birth, adoption, naturalisation or (except as mentioned below) registration in the
United Kingdom or in any of the Islands; or

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 (b) he is a citizen of the United Kingdom and Colonies born to or legally adopted by a
parent who had that citizenship at the time of the birth or adoption, and the parent
either –

(i) then had that citizenship by his birth, adoption, naturalisation or (except as
mentioned below) registration in the United Kingdom or in any of the Islands;
or

(ii) had been born to or legally adopted by a parent who at the time of that
birth or adoption so had it; or

(c) he is a citizen of the United Kingdom and Colonies who has at any time been settled
in the United Kingdom and Islands and had at that time and while such a citizen been
ordinarily resident there for the last five years or more; or

(d) he is a Commonwealth citizen born to or legally adopted by a parent who at the

time of the birth or adoption had citizenship of the United Kingdom and Colonies by
his birth in the United Kingdom or in any of the Islands.

(2) A woman is under this Act also to have the right of abode in the United Kingdom if she is a
Commonwealth citizen and either –

(a) is the wife of any such citizen of the United Kingdom and Colonies as is mentioned
in subsection (1)(a), (b) or (c) above or any such Commonwealth citizen as is mentioned
in subsection (1)(d); or

(b) has at any time been the wife –

(i) of a person then being such a citizen of the United Kingdom and Colonies or
Commonwealth citizen; or

(ii) of a British subject who but for his death would on the date of
commencement of the British Nationality Act 1948 have been such a citizen of
the United Kingdom and Colonies as is mentioned in subsection (1)(a) or (b);

but in subsection (1)(a) and (b) above references to registration as a citizen of the United
Kingdom and Colonies shall not, in the case of a woman, include registration after the passing
of this Act under or by virtue of section 6(2) (wives) of the British Nationality Act 1948 unless
she is so registered by virtue of her marriage to a citizen of the United Kingdom and Colonies
before the passing of this Act.

(3) In relation to the parent of a child born after the parent‘s death, references in subsection
(1) above to the time of the child‘s birth shall be replaced by references to the time of the
parent‘s death; and for purposes of that subsection –

(a) ―parent‖ includes the mother of an illegitimate child; and

(b) References to birth in the United Kingdom shall include birth on a ship or aircraft
registered in the United Kingdom, or on an unregistered ship or aircraft of the
Government of the United Kingdom, and similarly with references to birth in any of the
Islands; and

(c) References to citizenship of the United Kingdom and Colonies shall, in relation to a
time before the year 1949, be construed as references to British nationality and, in

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 relation to British nationality and to a time before the 31st March 1922, ―the United
Kingdom‖ shall mean Great Britain and Ireland; and

(d) Subject to section 8(5) below, references to a person being settled in the United
Kingdom and Islands are references to his being ordinarily resident there without being
subject under the immigration laws t any restriction on the period for which he may
remain.

(4) In subsection (1) above, any reference to registration in the United Kingdom shall extend
also to registration under arrangements made by virtue of section 8(2) of the British
Nationality Act 1948 (registration in independent Commonwealth country by United Kingdom
High Commissioner), but, in the case of a registration by virtue of section 7 (children) of that
Act, only if the registration was effected before the passing of this Act.

(5) The law with respect to registration as a citizen of the United Kingdom and Colonies shall
be modified as provided by Schedule 1 to this Act.

(6) In the following provisions of this Act the word ―patrial‖ is used of persons having the right
of abode in the United Kingdom.

5.6 Requirements and procedure for naturalisation applications

In addition to length and continuity of residence and immigration status, the requirements under the
BNA 1981 are that an individual is of good character, has sufficient knowledge of the English, Welsh
or Scottish Gaelic language; and that they intend to make their principal home in the United Kingdom,
or, if they intend to live abroad, that they work in Crown service or for a UK enterprise.

An application for naturalisation as a British citizen is made on Form AN accompanied by the

appropriate fee.

Residence in non-spouse cases: For those not applying as spouses of British Citizens the requirements
are set out at Schedule 1 paragraph 2 of the BNA 1981.

(a) subject to subsection (3), that he was in the United Kingdom at the beginning of the period
of five years ending with the date of the application and that the number of days on which he
absent from the United Kingdom in that period does not exceed 450; and

(b) that the number of days on which he was absent from the United Kingdom in the period of
twelve months so ending does not exceed 90; and

(c) that he was not at any time in the period of twelve months so ending subject under the
immigration laws to any restriction on the period for which he might remain in the United
Kingdom;

(d) that he was not any time in the period of five years so ending in the United Kingdom in
breach of the immigration laws.

The Secretary of State does have discretion to treat these conditions as satisfied despite insufficient
periods of time being accumulated.

Residence in spouse cases: Section 6(2) deals with applications of persons "married to a British
citizen". The required residence period is 270 days, with the references to 5 years replaced by 3 years,
in sub-paragraphs (a) and (d).

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The restriction at 3(c) is lifted, so that there is no requirement to be free from immigration control
(i.e. to have indefinite leave to remain) for 12 months prior to the date of application, with the
practical consequence that a spouse can apply from the grant of indefinite leave to remain without
waiting for a further year.

There is no requirement to make the UK their permanent home, though they are expected to meet
the good character requirement, and the language requirement or to comply with the language test.
Naturalisation is a discretionary power. There is no right of appeal against a refusal of naturalisation.
However, reasons must be given and, subsequent to the amendments effected to the BNA 1981 (s.1
and s.44) by s.7 of the Nationality, Immigration and Asylum Act 2002, there is no limit on the scope of
judicial review of such a refusal

In breach of the immigration laws: Where there are qualifying periods to be met, periods spent in
the relevant territory “in breach of the immigration laws” do not count. The meaning of “in breach of
the immigration laws” for the specific purpose of calculating residence is set out in s.11 of the NIA
2002.

The government has explained that subsection (3) means that periods people (usually refugees) who
have not been illegal entrants or overstayers spent on temporary admission, immigration bail or in
detention before the decision to grant their application will not be treated as periods in the UK in
breach of immigration control for the calculations. The policy is that time taken from the application
(not entry to the UK) to the Home Office decision to allow the application is not treated as time spent
“in breach of the immigration laws” for the purposes of the calculation. Time spent in the UK without
leave prior to making the application will not count.

Any EEA national considering naturalisation having been granted indefinite leave (settled status)
under the EU Settlement Scheme cannot assume they will be able to rely on their past residence as
being lawful. Leave under the EUSS requires only proof of physical presence in the UK, not lawful
presence. A person who required comprehensive sickness insurance but did not have it, for example,
will not be considered to have been residing lawfully in the UK. The relevant Home Office nationality
guidance, Naturalisation as a British citizen by discretion, makes clear that decision makers may
exercise discretion in an applicant’s favour if sufficient evidence is submitted to persuade them to do
so.

Knowledge of Language and Life in the U.K. (KOLL): The precise requirements depend on when the
citizenship application was made.

For applications made on or after 28 October 2013, Appendix KOLL of the Immigration Rules applies.
In summary, since that date all those applying to naturalise must meet two requirements:

• passing the life in the UK test; and

• having a speaking and listening qualification in English at B1 CEFR or higher, or its equivalent.
Relevant guidance Knowledge of Language and Life in the UK is found in the ‘other cross-cutting
guidance’ section of the immigration staff guidance:

https://www.gov.uk/government/collections/other-cross-cutting-guidance-modernised-guidance

For applications made before 28 October 2013 the Home Office’s Nationality Instructions at Chapter
18 Annex E set out the requirements.

The Life in the UK test is based on a publication called Life in the United Kingdom: A Guide for New
Residents.

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 • The test is made up of 24 multiple choice questions
• Questions are chosen at random by computer
• Applicants are given 45 minutes to complete the test
• The pass mark is 75% (18 questions correct out of 24)
• Each attempt to pass the test costs £50
• The test is conducted at around 60 Life in the UK Test Centres across the UK
• The pass rate in 2011 (for the previous version of the test) was 77%
The Home Office retains discretion to waive the KOLL requirement in exceptional circumstances, for
example because of age or physical or mental condition.

Good character. There is no statutory definition of good character but the Home Office follows its
own Nationality: good character requirement nationality guidance. All criminal convictions, including
motoring offences have to be declared. Checks are made on financial solvency and a bankrupt is
unlikely to be considered of good character. Security risks will be taken into account and there can be
a police check. The Good Character guidance states states, inter alia:

Having a criminal record does not necessarily mean that an application will be refused. However, a
person who has not shown respect for, or is not prepared to abide by, the law is unlikely to be
considered of good character.

An applicant will normally be refused if they:

• have a criminal conviction which falls within the sentence-based thresholds

• are a persistent offender

• have committed an offence which has caused serious harm

• have committed a sexual offence or their details are recorded by the police on a register

When assessing an applicant’s criminal convictions, you must carefully consider all the relevant factors
raised by the applicant and carefully weigh any countervailing evidence of good character.

Applicants are required to disclose all convictions, regardless of whether or not they are ‘spent’ under
the Rehabilitation of Offenders Act 1974 (1974 Act) [except in Northern Ireland]. You may take into
account any past convictions regardless of when they took place, as nationality decisions are exempt
from section 4 of the 1974 Act that provides for certain convictions to become ‘spent’ after fixed
periods of time…

Sentence-based thresholds

An applicant will normally be refused if they have received:

• a custodial sentence of at least 4 years

a custodial sentence of at least 12 months but less than 4 years unless a period of 15 years has passed
since the end of the sentence

• a custodial sentence of less than 12 months unless a period of 10 years has passed since the end of
the sentence

• a non-custodial sentence or other out-of-court disposal that is recorded on their criminal record which
occurred in the 3 years prior to the date of application

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However, in the case of non-custodial sentences and other out-of-court disposals, if a person was
convicted within 3 years of submitting the application, but more than 3 years have passed on the date
the application is decided, the application must not be refused solely on this basis. However, where
there are other issues of concern, previous offences may be considered relevant when considering good
character as a whole.

The guidance on good character needs to be read as a whole however as some minor convictions may
be disregarded, and useful advice is given, for example, as to the effect of receiving a fixed penalty
notice. The good character requirement applies to children aged 10 and over.

Good character and previous illegal entry or overstaying

The Good Character guidance states:

Where a person overstayed at some point in the 10 years prior to an application for
citizenship, discretion to overlook this breach will normally only be considered if it is the sole
adverse factor weighing against the person’s good character; and

• the person’s application for leave to remain was made before 24 November 2016 and
within 28 days of the expiry of their previous leave, or

• the person’s application for leave to remain was made on or after 24 November 2016, and
the application did not fall for refusal on the grounds of overstaying because an exception
under paragraph 39E of the Immigration Rules applied, or

• the period without leave was not the fault of the applicant, for example where it arose
from a Home Office decision to refuse which is subsequently withdrawn or quashed or which
the courts have required the Home Office to reconsider.

…Illegal entry

If an applicant entered the UK illegally, an application for citizenship will normally be refused
if the illegal entry is confirmed as having occurred during the preceding 10 years. If the date
of entry cannot be confirmed, or if the person subsequently goes to ground, or absconds, the
period of 10 years starts from the date on which the person last brought themselves to or
came to the attention of the Home Office.

With respect to recognised refugees ‘there will be cases where refugees will normally be refused
citizenship because they entered illegally and chose not to claim asylum at the first available
opportunity, or only claimed after enforcement action was taken against them.’ However, because
Article 31 of the Refugee Convention must be taken into account but does not specify any minimum
time before a person should claim asylum, this will need to be considered on a case-by-case:

As a guide it is not unreasonable to expect that a person who enters the UK illegally, with the
intention of claiming asylum, should claim asylum within 4 weeks of arrival. An applicant
who, having entered illegally, delayed claiming asylum beyond this period will normally be
refused citizenship unless there is a reasonable explanation for the delay.

There is further discussion in the guidance but no mention of Article 34 of the Refugee Convention
which addresses naturalisation and states:

The Contracting States shall as far as possible facilitate the assimilation and naturalization of
refugees. They shall in particular make every effort to expedite naturalization proceedings
and to reduce as far as possible the charges and costs of such proceedings.

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Intention to live in the UK: This only applies to those not married to a British citizen. The provision is
to prevent people acquiring British passports as a matter of convenience. It is unusual to be turned
down on this ground, unless it has become obvious while the application is under consideration that
the applicant is not in the UK or does not plan to live in the UK.

Citizenship Ceremony and Oath of allegiance: Once the application for citizenship is accepted the
person receives by post an invitation to attend a citizenship ceremony. Anyone over the age of 18 who
wishes to acquire British Citizenship, whether by registration or naturalisation, will now do so at a
public ceremony and is required to swear the Oath of Allegiance and take the Citizenship Pledge. There
is an affirmation to be used by people of different religions and of none. (Some people are exempted
from the requirement by Section 42(2) of the 1981 Act.)

This is the last step in the process. If a person does not attend a citizenship ceremony within the usual
three month time limit permitted, it will not be possible to become a British citizen because the Home
Secretary is not able to register or naturalise a person who has not attended a ceremony and taken
an oath/pledge.

5.7 Registration

Some adults can register as British citizens, such as British nationals who are not British citizens. Before
the coming into force of s58 of the 2006 Act the difference between naturalisation and registration
was that registration was a right whereas naturalisation was discretionary. S.58 changed registration
so that a good character requirement almost always applies, even in child registration applications
where the child is over 10 years. Those adults able or entitled to register as British citizens are :

• A person who is a British overseas territories citizen, British National (Overseas), a British
Overseas citizen, a British subject or a British protected person may register as a full British
citizen if he or she meets the same residence requirement as for naturalisation and, since the
advent of the 2006 Act, a good character requirement.
• There is a discretion to register as a British citizen the above persons, even if the residence
requirements are not met (s.4(4) of 1981 Act).

Registration applications involve the completion of a specific form depending on the precise type of
application form. The forms are listed at: https://www.gov.uk/government/collections/uk-visa-forms

Applicable fees can be found at: found at: https://www.gov.uk/government/publications/visa-

regulations-revised-table

Applications for the registration of people living abroad will normally be made through a British
Diplomatic Post; consult the Foreign and Commonwealth Office website. Applications for people living
in the UK are made to the Home Office. Registration is evidenced by a certificate and the person can
subsequently apply for a British passport.

If on receipt of an application the Home Office detect that a person does not need to register because
they are already a British Citizen, they will inform the applicant of this and refund the application fee.
The Nationality, Immigration and Asylum Act 2002 amended the BNA 1981 so that those wishing to
acquire British Citizenship will now do so at a public ceremony. This applies also to applicants for
registration.

Registration is more commonly undertaken by children. The following children may apply for
registration:

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 • If born in the UK since 1 January 1983 and one of the parents becomes settled (ILR) or if the
child remains in the UK for the first ten years of his or her life. There are also special provisions
for those who would otherwise be stateless: principally, residence in the UK for five years.
• If born overseas to a parent who is a British citizen by descent if the British citizen parent had
spent, at some time before the birth, a period of three years in the U.K..
• At the discretion of the Secretary of State under s3(1) of the BNA 1981:
3(1) If while a person is a minor an application is made for his registration as a British
citizen, the Secretary of State may, if he thinks fit, cause him to be registered as such
a citizen.
This discretion may be used to register children considered to have strong ties with and a
future in the UK.

5.8 Deprivation of British citizenship

Section 66 of the Immigration Act 2014 widened further the power to deprive a person of their British
Citizenship and was commenced on 28 July 2014. Prior to the 2014 Act the Secretary of State could
issue an order depriving a person of British citizenship if deprivation was ‘conducive to the public good’
(BNA s40(2)) but had to be satisfied that the order would not make the person stateless (BNA s40(4)).
In Al-Jedda [2013] UKSC 62, [2013], the Supreme Court confirmed that ‘the question to be answered
is whether, at the point of making [a] determination, an individual is a national of the country or
countries in question’. IA 2014, s 66 introduces a new subsection 40(4A)

The Immigration Act 2014 introduces a new s40(4A) into the BNA 1981 which provides that the
Secretary of State will not be prevented from making an order to deprive a person of a citizenship
status if:

a) that person has become a citizen by naturalisation

b) the Secretary of State is satisfied that the deprivation is conducive to the public good
because the person, while having that citizenship status, has conducted him or herself in a
manner which is seriously prejudicial to the vital interests of the UK, any of the Islands, or any
British overseas territory, and

c) the Secretary of State has reasonable grounds for believing that the person is able under
the law of a country or territory outside the UK, to become a national of such a country or
territory

It is likely that the Home Office will amend the guidance provided in the Nationality Instructions,
Volume 1, Chapter 55 (‘Deprivation and Nullity of British citizenship’). Such guidance may be altered
by the Secretary of State without prior notice, and essentially at will.

It should be noted that the BNA prior to the Immigration Act 2014 provided (and still provides) for the
deprivation of British Citizenship acquired by registration or naturalisation if the Secretary of State is
satisfied that the Citizenship was obtained by means of:

a) fraud
b) false representation, or
c) concealment of a material fact
Guidance on the application of this power is found in Chapter 55 of the Nationality Instructions. The
Tribunal has summarised the law in Pirzada (Deprivation of citizenship: general principles:
Afghanistan) [2017] UKUT 196 (IAC).

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 British Nationality Act 1981 [Extracts]

Sections 1-3, 6, 50, Schedule 1

Acquisition after commencement

1 Acquisition by birth or adoption

(1) A person born in the United Kingdom after commencement, or in a qualifying territory on or after
the appointed day, shall be a British citizen if at the time of the birth his father or mother is—

(a) a British citizen; or

(b) settled in the United Kingdom or that territory.

(1A) A person born in the United Kingdom or a qualifying territory on or after the relevant day shall
be a British citizen if at the time of the birth his father or mother is a member of the armed forces.

(2) A new-born infant who, after commencement, is found abandoned in the United Kingdom, or on
or after the appointed day is found abandoned in a qualifying territory, shall, unless the contrary is
shown, be deemed for the purposes of subsection (1)—

(a) to have been born in the United Kingdom after commencement or in that territory on or
after the appointed day; and

(b) to have been born to a parent who at the time of the birth was a British citizen or settled
in the United Kingdom or that territory.

(3) A person born in the United Kingdom after commencement who is not a British citizen by virtue of
subsection (1), (1A) or (2) shall be entitled to be registered as a British citizen if, while he is a minor—

(a) his father or mother becomes a British citizen or becomes settled in the United Kingdom;
and

(b) an application is made for his registration as a British citizen.

(3A) A person born in the United Kingdom on or after the relevant day who is not a British citizen by
virtue of subsection (1), (1A) or (2) shall be entitled to be registered as a British citizen if, while he is a
minor—

(a) his father or mother becomes a member of the armed forces; and

(b) an application is made for his registration as a British citizen

(4) A person born in the United Kingdom after commencement who is not a British citizen by virtue of
subsection (1), (1A) or (2) shall be entitled, on an application for his registration as a British citizen
made at any time after he has attained the age of ten years, to be registered as such a citizen if, as
regards each of the first ten years of that person's life, the number of days on which he was absent
from the United Kingdom in that year does not exceed 90.

(5) Where—

(a) any court in the United Kingdom or, on or after the appointed day, any court in a
qualifying territory makes an order authorising the adoption of a minor who is not a British
citizen; or

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 (b) a minor who is not a British citizen is adopted under a Convention adoption, effected
under the law of a country or territory outside the United Kingdom,

that minor shall, if the requirements of subsection (5A) are met, be a British citizen as from the date
on which the order is made or the Convention adoption is effected, as the case may be.

(5A) Those requirements are that on the date on which the order is made or the Convention adoption
is effected (as the case may be)—

(a) the adopter or, in the case of a joint adoption, one of the adopters is a British citizen; and

(b) in a case within subsection (5)(b), the adopter or, in the case of a joint adoption, both of
the adopters are habitually resident in the United Kingdom or in a designated territory.

(6) Where an order or a Convention adoption in consequence of which any person became a British
citizen by virtue of subsection (5) ceases to have effect, whether on annulment or otherwise, the
cesser shall not affect the status of that person as a British citizen.

(7) If in the special circumstances of any particular case the Secretary of State thinks fit, he may for
the purposes of subsection (4) treat the person to whom the application relates as fulfilling the
requirement specified in that subsection although, as regards any one or more of the first ten years
of that person's life, the number of days on which he was absent from the United Kingdom in that
year or each of the years in question exceeds 90.

(8) In this section and elsewhere in this Act “settled” has the meaning given by section 50 . . ..

(9) The relevant day for the purposes of subsection (1A) or (3A) is the day appointed for the
commencement of section 42 of the Borders, Citizenship and Immigration Act 2009 (which inserted
those subsections).

2 Acquisition by descent

(1) A person born outside the United Kingdom and the qualifying territories after commencement
shall be a British citizen if at the time of the birth his father or mother—

(a) is a British citizen otherwise than by descent; or

(b) is a British citizen and is serving outside the United Kingdom and the qualifying territories
in service to which this paragraph applies, his or her recruitment for that service having
taken place in the United Kingdom or a qualifying territory; or

(c) is a British citizen and is serving outside the United Kingdom and the qualifying territories
in service under an EU institution, his or her recruitment for that service having taken place in
a country

which at the time of the recruitment was a member of the European Union.

(2) Paragraph (b) of subsection (1) applies to—

(a) Crown service under the government of the United Kingdom or of a qualifying territory;
and

(b) service of any description for the time being designated under subsection (3).

(3) For the purposes of this section the Secretary of State may by order made by statutory instrument
designate any description of service which he considers to be closely associated with the

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activities outside the United Kingdom and the qualifying territories of Her Majesty's government in
the United Kingdom or in a qualifying territory.

(4) Any order made under subsection (3) shall be subject to annulment in pursuance of a resolution of
either House of Parliament.

3 Acquisition by registration: minors

(1) If while a person is a minor an application is made for his registration as a British citizen, the
Secretary of State may, if he thinks fit, cause him to be registered as such a citizen.

(2) A person born outside the United Kingdom and the qualifying territories shall be entitled, on an
application for his registration as a British citizen made while he is a minor, to be registered as such a
citizen if the requirements specified in subsection (3) or, in the case of a person born stateless, the
requirements specified in paragraphs (a) and (b) of that subsection, are fulfilled in the case of either
that person's father or his mother (“the parent in question”).

(3) The requirements referred to in subsection (2) are—

(a) that the parent in question was a British citizen by descent at the time of the birth; and

(b) that the father or mother of the parent in question—

(i) was a British citizen otherwise than by descent at the time of the birth of the
parent in question; or

(ii) became a British citizen otherwise than by descent at commencement, or would

have become such a citizen otherwise than by descent at commencement but for his
or her death; and

(c) that, as regards some period of three years ending with a date not later than the date of
the birth—

(i) the parent in question was in the United Kingdom or a qualifying territory at the
beginning of that period; and

(ii) the number of days on which the parent in question was absent from the United
Kingdom and the qualifying territories in that period does not exceed 270.

(4) . . .

(5) A person born outside the United Kingdom and the qualifying territories shall be entitled, on an
application for his registration as a British citizen made while he is a minor, to be registered as such a
citizen if the following requirements are satisfied, namely—

(a) that at the time of that person's birth his father or mother was a British citizen by
descent; and

(b) subject to subsection (6), that that person and his father and mother were in the United
Kingdom or a qualifying territory at the beginning of the period of three years ending with
the date of the application and that, in the case of each of them, the number of days on
which the person in question was absent from the United Kingdom and the qualifying
territories in that period does not exceed 270; and

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 (c) subject to subsection (6), that the consent of his father and mother to the registration has
been signified in the prescribed manner.

(6) In the case of an application under subsection (5) of the registration of a person as a British
citizen—

(a) if his father or mother died, or their marriage or civil partnership was terminated, on or
before the date of the application, or his father and mother were legally separated on that
date, the references to his father and mother in paragraph (b) of that subsection shall be
read either as references to his father or as references to his mother; and

(b) if his father or mother died on or before that date, the reference to his father and mother
in paragraph (c) of that subsection shall be read as a reference to either of them; . . .

6 Acquisition by naturalisation.

(1) If, on an application for naturalisation as a British citizen made by a person of full age and
capacity, the Secretary of State is satisfied that the applicant fulfils the requirements of Schedule 1
for naturalisation as such a citizen under this subsection, he may, if he thinks fit, grant to him a
certificate of naturalisation as such a citizen.

(2) If, on an application for naturalisation as a British citizen made by a person of full age and
capacity who on the date of the application is married to a British citizen, or is the civil partner of a
British citizen the Secretary of State is satisfied that the applicant fulfils the requirements of Schedule
1 for naturalisation as such a citizen under this subsection, he may, if he thinks fit, grant to him a
certificate of naturalisation as such a citizen.

50.— Interpretation

(1) In this Act, unless the context otherwise requires—

(9) For the purposes of this Act a child's mother is the woman who gives birth to the child.

(9A) For the purposes of this Act a child's father is—

(a) the husband, at the time of the child's birth, of the woman who gives birth to the child, or

(b) where a person is treated as the father of the child under section 28 of the Human
Fertilisation and Embryology Act 1990 or section 35 or 36 of the Human Fertilisation and
Embryology Act 2008, that person, or

(ba) where a person is treated as a parent of the child under section 42 or 43 of the Human
Fertilisation and Embryology Act 2008, that person, or

(c) where none of paragraphs (a) to (ba) applies, a person who satisfies prescribed
requirements as to proof of paternity.

(9B) In subsection (9A)(c) “prescribed” means prescribed by regulations of the Secretary of State; and
the regulations—

(a) may confer a function (which may be a discretionary function) on the Secretary of State or
another person,

(b) may make provision which applies generally or only in specified circumstances,

(c) may make different provision for different circumstances,

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 (d) must be made by statutory instrument, and

(e) shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(9C) The expressions “parent”, “child” and “descended” shall be construed in accordance with
subsections (9) and (9A).

Schedule 1 REQUIREMENTS FOR NATURALISATION

Naturalisation as a British citizen under section 6(1)

(1) Subject to paragraph 2, the requirements for naturalisation as a British citizen under section 6(1)
are, in the case of any person who applies for it—

(a) the requirements specified in sub-paragraph (2) of this paragraph, or the alternative
requirement specified in sub-paragraph (3) of this paragraph; and

(b) that he is of good character; and

(c) that he has a sufficient knowledge of the English, Welsh or Scottish Gaelic language; and

(ca) that he has sufficient knowledge about life in the United Kingdom; and

(d) that either—

(i) his intentions are such that, in the event of a certificate of naturalisation as a
British citizen being granted to him, his home or (if he has more than one) his
principal home will be in the United Kingdom; or

(ii) he intends, in the event of such a certificate being granted to him, to enter into, or
continue in, Crown service under the government of the United Kingdom, or service
under an international organisation of which the United Kingdom or Her Majesty's
government therein is a member, or service in the employment of a company or
association established in the United Kingdom.

(2) The requirements referred to in sub-paragraph (1)(a) of this paragraph are—

(a) that the applicant was in the United Kingdom at the beginning of the period of five years
ending with the date of the application, and that the number of days on which he was absent
from the United Kingdom in that period does not exceed 450; and

(b) that the number of days on which he was absent from the United Kingdom in the period
of twelve months so ending does not exceed 90; and

(c) that he was not at any time in the period of twelve months so ending subject under the
immigration laws to any restriction on the period for which he might remain in the United
Kingdom; and (d) that he was not at any time in the period of five years so ending in the
United Kingdom in breach of the immigration laws.

(1) If in the special circumstances of any particular case the Secretary of State thinks fit, he may for
the purposes of paragraph 1 do all or any of the following things, namely—

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 (a) treat the applicant as fulfilling the requirement specified in paragraph 1(2)(a) or
paragraph 1(2)(b), or both, although the number of days on which he was absent from the
United Kingdom in the period there mentioned exceeds the number there mentioned;

(a) treat the applicant as fulfilling the requirement specified in paragraph 1(2)(b) although
the number of days on which the applicant was absent from the United Kingdom in a year of
the qualifying period exceeds 90;

(b) treat the applicant as having been in the United Kingdom for the whole or any part of any
period during which he would otherwise fall to be treated under paragraph 9(1) as having
been absent;

(ba) treat the applicant as fulfilling the requirement specified in paragraph 1(2)(c) where the
applicant has had a qualifying immigration status for only part of the qualifying period;

(bb) treat the applicant as fulfilling the requirement specified in paragraph 1(2)(d) where the
applicant has had probationary citizenship leave but it expired in the qualifying period;

(c) disregard any such restriction as is mentioned in paragraph 1(2)(c), not being a restriction
to which the applicant was subject on the date of the application;

(ca) treat the applicant as fulfilling the requirement specified in paragraph 1(2)(e) although
the applicant has not been in continuous employment since the date of the grant mentioned
there;

(d) treat the applicant as fulfilling the requirement specified in paragraph 1(2)(d) although he
was in the United Kingdom in breach of the immigration laws in the period there mentioned
qualifying period;

(e) waive the need to fulfil either or both of the requirements specified in paragraph 1(1)(c)
and (ca) if he considers that because of the applicant's age or physical or mental condition it
would be unreasonable to expect him to fulfil that requirement or those requirements.

(2) If in the special circumstances of a particular case that is an armed forces case or an exceptional
Crown service case the Secretary of State thinks fit, the Secretary of State may for the purposes of
paragraph 1 waive the need to fulfil all or any of the requirements specified in paragraph 1(2).

(3) An armed forces case is a case where, on the date of the application, the applicant is or has been
a member of the armed forces.

(4) An exceptional Crown service case is a case where—

(a) the applicant is, on the date of the application, serving outside the United Kingdom in Crown
service under the government of the United Kingdom; and

(b) the Secretary of State considers the applicant's performance in the service to be exceptional.

(5) In paragraph 1(2)(e) and sub-paragraph (1)(ca) of this paragraph, “employment” includes
selfemployment.

Naturalisation as a British citizen under section 6(2)

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Subject to paragraph 4, the requirements for naturalisation as a British citizen under section 6(2) are,
in the case of any person who applies for it—

(a) that he was in the United Kingdom at the beginning of the period of three years ending with the
date of the application, and that the number of days on which he was absent from the United
Kingdom in that period does not exceed 270; and

(b) that the number of days on which he was absent from the United Kingdom in the period of twelve
months so ending does not exceed 90; and

(c) that on the date of the application he was not subject under the immigration laws to any
restriction on the period for which he might remain in the United Kingdom; and

(d) that he was not at any time in the period of three years ending with the date of the application in
the United Kingdom in breach of the immigration laws; and

(e) the requirements specified in paragraph 1(1)(b), (c) and (ca).

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6 Appeal Rights and Administrative Review
What advisers can and cannot do

According to the OISC ‘Guidance on Competence’, for advisers regulated by the OISC at Level 1 there
is a prohibition on lodging notices of appeal and substantive appeals work including making
representations to or appearing before courts or tribunals. For caseworkers regulated by OISC at Level
2 there is a prohibition on ‘Substantive appeals work including making representations to or appearing
before courts or tribunals.’ However, work permitted by the OISC Level 2 adviser includes: ‘Lodging
Notices of Appeal and Statements of Additional Grounds’.

A representative qualified at OISC Level 3 is permitted to carry out ‘substantive appeals work, including
representation at First-tier and Upper Tribunal (Immigration and Asylum Chamber) hearings.’

Only those OISC advisers who are authorised in the category of Judicial Review Case Management are
permitted to advise clients who are undertaking judicial review and thereafter to provide
administrative support to any counsel who has litigation rights (not all do) and has been instructed by
the client to conduct judicial review proceedings.

What follows is a brief summary of the provisions for statutory rights of appeal to the First-tier Tribunal
which are found at Part 5 of the Nationality, Immigration and Asylum Act 2002, as amended.

The amended appeal provisions

The Immigration Act 2014 amended Part 5 of the Nationality, Immigration and Asylum Act 2002 in
such a way as to radically alter what kind of decision will attract a statutory right of appeal to the First-
tier Tribunal (Immigration and Asylum Chamber).

Appealable decisions

In a nutshell, the new s82 of the 2002 Act replaces the previous list of immigration decisions which
attracted a right of appeal with a much shorter list:

82 Right of appeal to the Tribunal

(1) A person (“P”) may appeal to the Tribunal where—

(a) the Secretary of State has decided to refuse a protection claim made by P,

(b) the Secretary of State has decided to refuse a human rights claim made by P, or

(c) the Secretary of State has decided to revoke P's protection status.

A protection claim is a claim for international protection which S82 defines as a claim that removal of
the person would breach the UK’s obligations under the Refugee Convention or the UK’s obligations
to grant humanitarian protection.

The definition of a human rights claim is found at s112 of the NIAA 2002:

“human rights claim” means a claim made by a person to the Secretary of State at a place designated
by the Secretary of State that to remove the person from or require him to leave the United Kingdom
or to refuse him entry into the United Kingdom would be unlawful under section 6 of the Human Rights
Act 1998 (c 42) (public authority not to act contrary to Convention).

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Grounds of appeal

In terms of the grounds of appeal which an appellant can plead under the amended s84, these have
also been reduced, mirroring the reduction in the number and type of decisions which are appealable.
An appeal against a refusal of a protection claim must be brought on one or more of the following
grounds:

(a) that removal of the appellant from the UK would breach the UK’s obligations under the
Refugee Convention;

(b) that removal of the appellant from the UK would breach the UK’s obligations in relation to
persons eligible for a grant of humanitarian protection;

(c) that removal of the appellant from the UK would be unlawful under section 6 of the Human
Rights Act 1998 (public authority not to act contrary to Human Rights Convention).

An appeal against the refusal of a human rights claim may only be brought on the ground that the
decision is unlawful under section 6 of the Human Rights Act 1998.

An appeal against the revocation of refugee status or humanitarian protection, for example an asylum
claim, may only be brought on the grounds that removal would breach the UK’s obligations under the
Refugee Convention or the UK’s obligations in relation to persons eligible for a grant of humanitarian
protection.

Grounds of appeal which were previously available but are no longer available include:

• that the decision is not in accordance with immigration rules;

• that the decision is otherwise not in accordance with the law.

Matters to be taken into consideration by the Tribunal

• Section 85 (as amended) provides that on an appeal against a decision, the Tribunal may
consider evidence about any matter which it thinks relevant to the substance of the decision,
including a matter arising after the date of the decision. This removes the previous restriction
on evidence pertaining to circumstances arising after an entry clearance decision or evidence
arising after an application made under the points based system.
• However, the Tribunal must not consider a ‘new matter’ unless the SSHD has given consent
for the Tribunal to do so. A ‘new matter’ does not mean new evidence. Rather, a matter is a
“new matter” if:-
(i) it constitutes a human rights or protection claim, and
(ii) the SSHD has not previously considered the matter.

Certification as clearly unfounded

The appeal provisions also contain powers by the SSHD to certify a claim.

A claim may be certified as ‘clearly unfounded’ under s94(1) NIAA 2002 if the SSHD believes it to be
so weak that it cannot succeed or because the claimant originates from a country where the
government believes claims generally will not succeed – the so-called ‘white list’. The consequence is
that the appeal can only be pursued from outside the UK. S94(1) can potentially be applied to all
protection and human rights claims.

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A claim may also be certified under s94(B) NIAA 2002 on the basis that it would not be unlawful under
s6 HRA 1998 to remove the appellant or require them to leave the UK or refuse them entry despite
their appeal not having been begun or not having been exhausted. In particular, it may be certified if
the appellant would not face ‘a real risk of serious irreversible harm’ if required to pursue their appeal
from outside the UK. In practice s94B certification applies to Article 8 claims rather than Article 3
claims as the risk of an Article 3 breach may be triggered immediately upon arrival in the country of
origin or rapidly thereafter.

Section 120 Notices

In cases where an application for Leave has been made or where a decision to remove or deport has
been taken, the person may be served a “one stop notice” under s120 NIAA 2002. If applied, this is a
provision which requires the person to make a ‘Statement of Additional Grounds’ other than those
already raised for why they wish to resist the decision taken by the SSHD and remain in the UK. The
purpose of the s120 Notice is to require a person to raise all their grounds at the earliest opportunity.
Under the current appeal provisions there is an ongoing duty to do so through the life of the appeal
proceedings and beyond.

Appeals against EEA decisions

The right to appeal to a Tribunal against an ‘EEA decision’ as defined in the Immigration (EEA)
Regulations 2016, as amended, now arises under Regulation 36 of the ‘EEA Regulations’. The sole
ground of appeal continues to be that ‘the decision breaches the appellant’s rights under the EU
Treaties in respect of entry to or residence in the United Kingdom’. It appears that an application
under s120 would be necessary to raise an additional ground but such grounds would be restricted to
the three grounds available in the amended s84.

The 2016 EEA Regulations do appear to envisage the possibility of pursuing the EU ground of appeal
and a ground available under s82 of NIAA 2002:

36…(11) Nothing in this Part prevents a person who has a right of appeal under this regulation from
appealing to the First-tier Tribunal under section 82(1) of the 2002 Act (right of appeal to the Tribunal),
or, where relevant, to the Commission pursuant to section 2 of the 1997 Act (jurisdiction of the
Commission: appeals)(2), provided the criteria for bringing such an appeal under those Acts are met.

However, to pursue a human rights ground it would be necessary to have made a human rights claim
prior to the EEA decision being taken; and for the decision to be a refusal of that claim. The door seems
to have been closed completely by the Tribunal’s decision in Munday (EEA decision: grounds of
appeal) [2019] UKUT 91(IAC) which held:

1. In an appeal against an EEA decision under the Immigration (EEA) Regulations 2016,
the sole ground of appeal is that the decision breaches the appellant's rights under the EU Treaties in
respect of entry to and residence in the UK (sched 2, para 1).

2. Consequently, in such an appeal an appellant may not rely on human rights grounds in the
absence of a s.120 notice and statement of additional grounds in which reliance is placed upon human
rights or there has been an additional decision to refuse a human rights claim.

This suggests that even where a human rights claim had been made as part of an EEA residence
document application, human rights grounds could not be pursued unless a one stop notice had been
served. In practice, the Home Office simply does not serve one stop notices when refusing EEA
residence documents.

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The EEA Regulations 2016 previously excluded a right of appeal in most cases where an EEA decision
had been taken regarding documentation to an extended family member (Reg 2). In March 2019 the
the EEA Regulations were amended to restore appeal rights to extended family members. It is also
now possible for EFMs who were refused a right of appeal under the 2016 Regulations to obtain one.

Appeal in relation to the EU Settlement Scheme

The Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 provide for a right of appeal
to the First-tier Tribunal against various decisions including:

• to refuse leave under the EUSS

• to refuse indefinite leave and only grant limited leave under the EUSS

• to curtail or cancel leave granted under the EUSS

In brief, an appellant can rely on the ground that the decision is not in accordance with the relevant
withdrawal agreement; and that it is not in accordance with the immigration rules or other relevant
legislative provision.

The appeal provisions exist alongside the right to administrative review - found in Appendix AR(EU) of
the Immigration Rules - rather than replacing it.

Rule 19 of the First-tier Tribunal Procedure Rules has been amended to provide that the existing
deadlines for lodging an appeal start to run from the refusal of administrative review IF the applicant
opted for that as an initial form of challenge. Alternatively, an applicant could lodge an appeal without
first attempting administrative review.

Section 3C of IA 1971 has also been amended so that leave is statutorily extended during any period
that a Citizens’ Rights Appeal could be brought or is pending.

Appeal against deprivation of citizenship

Where a person has been issued with an order depriving them of their British citizenship, that person
has a statutory right of appeal to the First-tier Tribunal under s40A(1) of the British Nationality Act
1981. Under s40A(2) the right of appeal does not arise if the Secretary of State certifies that the
deprivation decision was taken wholly or partly in reliance on information which in her opinion should
not be made public—

(a)in the interests of national security,

(b)in the interests of the relationship between the United Kingdom and another country, or

(c)otherwise in the public interest.

Phased introduction of amended appeal provisions

The amended (ie restricted) appeal provisions were not introduced for all cases at the same time. They
were applied in stages. The first phase started on 20 October 2014 and applied to persons who had
made an application on or after 20 October 2014 for leave to remain as a Tier 4 Migrant or as the
partner or minor child of a Tier 4 migrant under the points based system. It also applied to foreign
criminals who are being deported.

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The second phase started on 2 March 2015 and applies to persons who have made an application on
or after 2 March 2015 for leave to remain as a Tier 1, Tier 2 or Tier 5 Migrant under the points based
system, and to their partner or minor child.

On 6 April 2014 appeal rights other than against refusal of a human rights or protection claim or
against a decision to revoke protection status were removed from persons who have made an
application on or after that date.

Appeals Deadlines

It is absolutely vital that OISC Level 1 advisors (as well as Level 2 and 3) are aware of the deadlines
for lodging appeals so that they can identify urgent situations and make urgent referrals where
necessary. An appeal must be lodged online or by sending or faxing a Notice of Appeal to the First-
tier Tribunal (Immigration and Asylum Chamber). The appeals deadlines, under the Tribunal
Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 are as follows:

Notice of appeal

19.—(1) An appellant must start proceedings by providing a notice of appeal to the Tribunal.

(2) If the person is in the United Kingdom, the notice of appeal must be received not later than
14 days after they are sent the notice of the decision against which the appeal is brought.

(3) If the person is outside the United Kingdom, the notice of appeal must be received —

(a) not later than 28 days after their departure from the United Kingdom if the
person—

(i) was in the United Kingdom when the decision against which they are
appealing was made, and

(ii) may not appeal while they are in the United Kingdom by reason of a
provision of the 2002 Act; or

(b) in any other case, not later than 28 days after they receive the notice of the
decision.

The following paragraphs were added to Procedure Rule 19 upon the coming into force of the
Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 which provide for a right of appeal
in connection with refusal, cancellation or curtailment of leave under the EU Settlement Scheme:

(3A) But paragraphs (2) and (3) do not apply in relation to the bringing of an appeal against a
citizens' rights immigration decision. "A citizens' rights immigration decision" is a decision
which can be appealed against under the 2020 Regulations.

(3B) The notice of appeal in relation to an appeal against a citizens' rights immigration decision
must be received—

(a) if the person is in the United Kingdom, not later than 14 days after the appellant is sent the
notice of the decision;

(b) if the person is outside the United Kingdom, not later than 28 days after the appellant
receives the notice of the decision.

But this paragraph is subject to paragraph (3D).

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 (3C) Paragraph (3D) applies where—

(a) a person ("P") applies for an administrative review of a citizens' rights immigration decision
("the original decision") under the relevant rules, and

(b) P had not, before P receives notice of the decision on administrative review, started
proceedings in relation to the original decision.

(3D) Where this paragraph applies, the notice of appeal against the original decision must be
received—

(a) if P is in the United Kingdom, not later than 14 days after P is sent the notice of the decision
on administrative review;

(b) if P is outside the United Kingdom, not later than 28 days after P receives the notice of the
decision on administrative review.

(3E) In this rule, "the relevant rules" means residence scheme immigration rules or relevant
entry clearance immigration rules (within the meanings given in section 17 of the European
Union (Withdrawal Agreement) Act 2020).

There is provision in the Procedure Rules to make a late or ‘out-of-time’ appeal:

Late notice of appeal

20.—(1) Where a notice of appeal is provided outside the time limit in rule 19, including any
extension of time directed under rule 4(3)(a) (power to extend time), the notice of appeal must
include an application for such an extension of time and the reason why the notice of appeal
was not provided in time.

Administrative Review

Where a right of appeal to a Tribunal no longer exists, in many cases it has been replaced by a right to
seek ‘administrative review’ by the SSHD. Although carried out by a different team within the Home
Office from the original decision-maker, it is an internal review rather than an independent appeal by
a judge.

Publication of ‘A report on the inspection of the administrative review processes introduced following
the 2014 Immigration Act’ by the Chief Inspector of Borders and Immigration in May 2016 revealed
that the success rates were 22% and 21% for on-arrival (at the border) and overseas applications
respectively, but only 8% for in-country applications – significantly lower than the success rate had
been when appeal rights were available.

The operation of the administrative review system is governed principally by Appendix AR of the
immigration rules which defines which decisions attract a right of review, the time limits for applying,
the limited ground of challenge and the potential outcomes. Where there is no right to appeal to a
tribunal and no right to administrative review (or the application for administrative review is
unsuccessful) the only remedy is an application for judicial review to the Upper Tribunal.

The specified procedures for administrative review are governed by paragraph 34L-34X of the
Immigration Rules. Where the applicant is inside the UK, the deadline is no more than 14 calendar
days after receipt of the decision, except where detained the deadline is 7 calendar days. Where the
applicant is outside the UK, the deadline is 28 calendar days after receipt of the decision (Rule 34R(1)).

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7 Professional Conduct and Ethics
The provision of immigration advice is governed by the Immigration and Asylum Act 1999 (IAA 1999)
which requires that, with limited exceptions, any person providing immigration advice or immigration
services to individuals must be a ‘qualified person’.

This Chapter discusses issues of professional ethics and the regulatory frameworks applicable to the
following categories of qualified person advising individuals about their immigration matters:

1. All those who provide legal advice and representation and are regulated by the Solicitors
Regulation Authority of England and Wales (SRA). This category ranges from sole practitioners to
transnational companies and includes owners of firms and employees supervised by a solicitor, even
where the owners or employees are not themselves qualified solicitors. This category is referred to as
‘solicitors’, and

2. Advisers regulated by the Office of the Immigration Services Commissioner (OISC) and those
working under their supervision. This category is referred to as ‘OISC advisers’.

Both solicitors and OISC advisers have codes which regulate their professional behaviour. For
solicitors, the relevant code is the SRA Code of Conduct for Solicitors, RELs and RFLs which sits within
the SRA Standards and Regulations 2019. (RELs and RFLs are Registered European Lawyers and
Registered Foreign Lawyers.) For OISC advisers, the relevant code is the OISC’s Code of Standards.

Because, under the OISC regime, advisers are regulated according to their level of competence, a
person regulated at the entry-level OISC Level 1 would not be considered competent to advise an
illegal entrant or overstayer, as an OISC Level 1 adviser is not permitted to advise those without leave
or make immigration applications outside the Immigration Rules.

Under Code 3 of the OISC Code of Standards: ‘Organisations and advisers must only act according to,
and within, their authorisation.'

The OISC actively monitors compliance with its Code of Standards. Advising outside of the OISC
framework can lead to prohibition of the adviser or, in extreme circumstances, to criminal
prosecution.

The criminal law - an issue for clients and their advisers

Where a person is an illegal entrant or an overstayer, they will have committed a criminal offence by
entering without leave or remaining beyond the time limited by the leave (Immigration Act 1971, s
24(1)(a),(b) (IA 1971). The offence is punishable by a fine or imprisonment for up to 6 months, or both.
An illegal entrant or overstayer may also be removed and pending removal may be detained.

In practice, the Home Office rarely initiates prosecution for overstaying itself, preferring to bring about
early departure or removal. Where that is not practicable in the short term due to a pending
application, appeal or other obstacle, the Home Office will often prefer to grant immigration bail with
its associated residence and reporting conditions.

Clearly then, a person’s status as an illegal entrant or an overstayer has potential adverse
consequences for that individual, for which they require advice; but their ongoing status as a person
in breach of immigration law is also a factor which must be given careful consideration by a solicitor
or OISC adviser.

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Whatever the immigration status of the client, a solicitor or OISC adviser must ensure that nothing in
their advice could be construed as committing the criminal offence of assisting unlawful immigration
to a European Community member state. Under s 25(1) of the IA 1971, a person commits this offence
if they:

1. commit an act which facilitates the commission of a breach of immigration law by an

individual, who is not a citizen of the EU;

2. know, or have reasonable cause for believing, that the act facilitates the commission of a
breach of immigration law by the individual, and;

3. know, or have reasonable cause for believing, that the individual is not a citizen of the EU.

According to guidance by the Crown Prosecution Service (CPS):

The offence is defined broadly enough to encompass both the old offences of assisting illegal
entry (whether by smuggling someone in a vehicle or by providing false documents for
presentation at a port) or assisting someone to remain by deception (for example by entering
into a sham marriage) and other forms of assistance which facilitate a breach of the
immigration laws.

Although in most circumstances the provision of legal advice is unlikely to be construed as unlawful,
an adviser must take great care not to cross the line between providing advice and helping an
individual to deceive the authorities. The former is legitimate, the latter is not and potentially opens
up the adviser to criminal prosecution.

Since the creation of the new criminal offence of illegal working - s24B into the Immigration Act 1971
as inserted by s34 of the Immigration Act 2016 - it has become important to advise clients that illegal
working is a criminal offence and the potential severity of the consequences of working illegally in the
UK. This is in order to assist clients in avoiding illegal working occurring and recognising when they
need to seek further advice.

For those legal representatives who are paid privately by clients and come to know that the client is
committing the offence of illegal working, an issue arises of whether the legal representative may be
committing an offence under the Proceeds of Crime Act 2002. This issue has not yet been tested but
it is likely that a legal representative would have a defence. However, the possibility of prosecution
may well focus the representative’s mind on their duty to give complete advice to their client.

Professional ethics

Although OISC does pursue criminal prosecution of advisers, the more common issue confronted by
those who advise individuals without leave to enter or remain in the UK is how to discharge both of
their main professional duties and recognise if a conflict has arisen between those duties: the duty to
the client and the duty to uphold the law.

The SRA’s Standards and Regulations commence with the ‘SRA Principles’ which ‘comprise the
fundamental tenets of ethical behaviour that we expect all those that we regulate to uphold.’ Further:

Should the Principles come into conflict, those which safeguard the wider public interest (such
as the rule of law, and public confidence in a trustworthy solicitors' profession and a safe and
effective market for regulated legal services) take precedence over an individual client's
interests. You should, where relevant, inform your client of the circumstances in which your
duty to the Court and other professional obligations will outweigh your duty to them.

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The Principles are as follows:

You act:

1. in a way that upholds the constitutional principle of the rule of law, and the proper
administration of justice.

2. in a way that upholds public trust and confidence in the solicitors' profession and in legal
services provided by authorised persons.

3. with independence.

4. with honesty.

5. with integrity.

6. in a way that encourages equality, diversity and inclusion.

7. in the best interests of each client.

Although there are differences of emphasis in the OISC Code of Standards, the fundamentals are the
same:

1. Organisations and advisers must always act in accordance with UK law.

12. Organisations and advisers must always act in their clients’ best interests subject to
regulatory and legal requirements.

14. Organisations and advisers must:

a. show due respect, politeness and courtesy to all;

b. be prepared to provide to a member of the Tribunal Service staff, immigration judge

or government immigration and nationality staff, including those at posts abroad,
identification and confirmation of their authorisation by the Commissioner to provide
immigration advice or immigration services;

c. not mislead the Commissioner, government departments or any other statutory or

judicial body;

d. not knowingly or negligently permit themselves to be used in any deception; and

e. not seek to abuse any procedure operating in the UK in connection with immigration
or asylum, including any appellate or other judicial procedure, or advise any person to
do something which would amount to such abuse.

Acting in the best interests of a client without leave will typically involve advising them about the
prospects of regularising their stay in the UK or, alternatively, whether to leave the UK. It will include
advice that living in the UK without leave is a criminal offence. The client will also require advice about
the risk of criminal prosecution, detention and removal.

The common feature of all immigration advice to those without leave is that it is directed at assisting
the client to cease acting outside the law. Where a client seeks to regularise their stay or decides to
leave the UK, no conflict with other professional duties arises. However, if the client seeks to actively
deceive the immigration authorities and asks for advice or assistance to do so, a conflict does arise.

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The SRA Code of Conduct is clear about what must happen in the event of an ‘own interest conflict’
between the solicitor and the client:

6.1 You do not act if there is an own interest conflict or a significant risk of such a conflict.

Professional ethics when providing advice

In offering legal advice to a client who is already breaking the law, the adviser has a duty to explain
what the relevant legal provisions are, what the powers of the Home Office are and the likely
outcomes of making a particular type of application for regularisation. It will also be legitimate to
advise clients that certain types of behaviour are much more likely to attract criminal prosecution and
a possible custodial sentence. For example, those without leave to remain may be tempted to obtain
false identity documents in order to work or to try to leave the UK. Use of such documents is frequently
detected and routinely prosecuted (for instance, as the offence of using a false instrument under the
Forgery and Counterfeiting Act 1981). It is legitimate to warn a client that prosecution for such an
offence is virtually guaranteed, compared with the generally much lower risk of prosecution for
overstaying or remaining in the UK after the refusal of an asylum claim. Provision of good and
comprehensive advice to those without leave to enter or remain in the UK enables them to make
informed decisions about how to act. What the adviser cannot do is to encourage their client to
continue to break the law as this would breach the adviser’s professional duty to uphold the rule of
law.

A solicitor also owes the usual professional duty of confidentiality to their client:

Protection of confidential information is a fundamental feature of your relationship with

clients. It exists as a concept both as a matter of law and as a matter of conduct. This duty
continues despite the end of the retainer and even after the death of the client.

The solicitor ‘must keep the affairs of clients confidential unless disclosure is required or permitted by
law or the client consents'.

An OISC adviser also owes a professional duty of confidentiality and is obliged to ‘keep the affairs of
their clients and all information relating to their clients confidential, except where the adviser is
compelled to disclose information by reason of a legal or regulatory obligation’.

The circumstances under which client confidentiality can be breached are extremely limited. The SRA
Code of Conduct states only that confidentiality must be kept ‘unless disclosure is required or
permitted by law or the client consents.’ (Terrorism and money laundering, for example, require
disclosure.) The Code of Conduct gives no detailed guidance on when a solicitor will be required or
permitted to breach client confidentiality. However, the SRA’s Guidance which is intended to help
solicitors to understand how to meet the SRA’s current Standards and Regulations discusses a
number of situations where it is necessary to prevent an event which could lead to harm to the client
or a third party.

• Where a client has indicated their intention to commit suicide or serious self-harm
• Preventing harm to children or vulnerable adults
• Preventing the commission of a criminal offence
The guidance does not allow for disclosure after the event. It also states, not entirely reassuringly:

although there will be a breach of your duty, from a disciplinary point of view, the justification will be
taken into account and is likely to mitigate against regulatory action by the SRA. You will also need to
consider your other duties under law (for example data protection legislation).

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A solicitor or OISC adviser should note that the mere fact that the client is living without leave does
not justify disclosing information to the Home Office or anybody else without the permission of the
client. Any such practice would not only be a breach of the individual client’s confidentiality, but it
would tend to undermine public confidence that individuals can obtain independent, confidential legal
advice without fear of the legal adviser disclosing information to the authorities or the public. Such a
blatant breach of confidentiality would also arguably undermine the general administration of justice.

Professional ethics when acting

In practice, the risk of an ‘own interest conflict’ arising is increased when a solicitor or OISC adviser
moves from simply advising a client to acting on their behalf. Once the solicitor or OISC adviser begins
to act for the client, they enter into a relationship with the Home Office and, if appeal proceedings are
ongoing, with the court or tribunal. A legal representative retains their duty to uphold their client’s
best interests including a duty of confidentiality. If the solicitor or OISC adviser is asked by the Home
Office to disclose confidential information without the client’s consent, the Home Office should be
asked under which statutory provision the information requires to be disclosed. Only if the Home
Office can point to relevant statutory provisions should information be disclosed and only such as is
strictly required by law.

However, acting for a client brings into play the duty not to mislead or deceive. The Code of Conduct
for solicitors requires that:

1.4 You do not mislead or attempt to mislead your clients, the court or others, either by your
own acts or omissions or allowing or being complicit in the acts or omissions of others
(including your client).

In proceedings before courts, tribunals and inquiries, the Code of Conduct requires that:

2.1 You do not misuse or tamper with evidence or attempt to do so.

2.2 You do not seek to influence the substance of evidence, including generating false evidence
or persuading witnesses to change their evidence.

2.3 You do not provide or offer to provide any benefit to witnesses dependent upon the nature
of their evidence or the outcome of the case.

2.4 You only make assertions or put forward statements, representations or submissions to
the court or others which are properly arguable.

2.5 You do not place yourself in contempt of court, and you comply with court orders which
place obligations on you.

2.6 You do not waste the court's time.

2.7 You draw the court's attention to relevant cases and statutory provisions, or procedural
irregularities of which you are aware, and which are likely to have a material effect on the
outcome of the proceedings.

The Code of Conduct implies an equivalent duty to the Home Office whereas the OISC Code of
Standards goes further at Code 14, requiring a representative to ‘not knowingly or negligently permit
themselves to be used in any deception’ and not to mislead ‘government departments or any other
statutory or judicial body.’

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The Upper Tribunal has made abundantly clear how seriously it views behaviour by solicitors whom it
considers to have advanced unarguable cases in a professionally improper manner - as opposed to
advancing in a fair, professional and proper manner a case that is ultimately held to be unarguable:

[T]he overriding duty of all representatives is to the court, and in this context this means the
Tribunal. It is improper for any practitioner to advance arguments which they know to be false
or which they know, or should know, are inconsistent with their own evidence, including
medical or other expert evidence. It is also incumbent upon practitioners to ensure that the
Tribunal is provided with a fair and comprehensive account of all relevant facts, whether those
facts are in favour or against the legal representative’s client. It will not be treated as an
acceptable explanation for an alleged failure to say that this was inconsistent with the
representative’s duty to the client; that would be an abnegation of the representative’s duty
to the court and to the due administration of justice.

(Okondu & Anor, R (on the application of) v SSHD (wasted costs; SRA referrals; Hamid) IJR [2014]
UKUT 377 (IAC)

The Tribunal was echoing and endorsing the comments of the President of the Queen’s Bench Division,
Sir John Thomas in R (on the application of Hamid) v SSHD [2012] EWHC 3070 (Admin) criticising late,
meritless applications for judicial review of removal or deportation decisions by legal representatives
who failed to comply with the rules of the Court. The Court has required solicitors to attend in open
court to explain their deficiencies and raised the prospect of referring their conduct to the SRA. The
Tribunal in Okundu did in fact refer the solicitors in the linked application to the SRA and also disclosed
that the Administrative Court Office has maintained records of solicitors who may be treated as
“repeat offenders”:

In some circumstances files have been referred to the relevant regulatory authorities, including
the Legal Aid Authority [sic]. The Upper Tribunal’s decision in a recent case gave rise to a
request by the Legal Aid Agency to inspect the Tribunal's file, which was granted.

The Tribunal returned once more to the importance of representatives discharging their professional
duties in R (on the application of Hoxha and Others) v Secretary of State for the Home Department
(representatives: professional duties) [2019] UKUT 124 (IAC). As well as stressing the general
requirement to act only as authorised by the statutory scheme of regulation – and in particular to
abide by OISC’s rules about Judicial Review Case Managers – the Tribunal held, as summarised in its
headnote:

(3) Where a medical expert report is relied upon by a legal representative, the representative
has a duty to check the report for accuracy, including ensuring the report accurately reflects
the way in which the information in it came to be obtained.

(4) Failure to carry out properly professional duties as set out above, inter alia, may result in
the Upper Tribunal referring the legal representative / organisation to the relevant regulatory
body.

The Tribunal did, in this case, refer the representative to OISC on the issue of acting outside the limits
of his authorisation.

Withdrawal from representation

Where a solicitor or OISC adviser finds that an own interest conflict has arisen, they should consider
whether they must withdraw completely from acting. Withdrawal is never to be undertaken lightly,

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especially during any court or tribunal proceedings, but is sometimes the only way to resolve the
conflict.

The SRA Code of Conduct 2011 suggested that ceasing to act only with good reason and providing
reasonable notice would tend to indicate compliance with its mandatory principles (IB 1.26), but the
current Code does not appear to reproduce this approach.

Withdrawal for reasons of own-interest conflict does not obviate the solicitor’s duty to inform a client
in writing of the solicitor’s complaints procedure and the client’s right to complain to the legal
ombudsman and to provide full details on how to do so. Withdrawal for reason of own-interest conflict
does not remove the duty of confidentiality to the client which, according to the SRA Guidance:
‘continues despite the end of the retainer or the death of the client when the right to confidentiality
passes to the client's personal representatives.' The SRA Guidance is intended to help solicitors to
understand how to meet the SRA’s current Standards and Regulations.

The SRA Code of Conduct 2007 suggested that where a court hearing was imminent and the client was
unable to obtain alternative representation, the solicitor should normally attend the court and explain
the circumstances. The 2007 Code also suggested that on ceasing to act, 'a solicitor should try to
ensure the client’s position is not prejudiced’. What good practice requires will be specific to each
case.

The OISC Code of Standards requires of OISC organisations which are withdrawing from a case:

43. An organisation must not withdraw or threaten to withdraw from a case without good
reason.

44. An organisation that seeks to withdraw from a case should give the client at least three
working days’ notice of this together with written reasons for its decision. Where practicable,
the organisation should inform the client of other suitably qualified organisations which may
be able and willing to act for the client.

45. If an organisation withdraws from a case, it must inform all those involved in the case of
its withdrawal. A written note of the contact details of the client’s new representatives should,
where known, be placed on the copy of the client’s file kept by the organisation.

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158
OISC LEVEL 1 ASSESSMENT – 24 November 2016

SECTION 1: MULTIPLE CHOICE QUESTIONS

You have 1 hour and 15 minutes to complete this exam.

This examination is open book. You may refer to materials such as the OISC exam resource book,
published texts and your own notes.

Please note there is only ONE correct answer for each of the questions in Section 1 so a maximum of
ONE mark may be awarded for each.

Please ensure that you complete your answers in the grid as shown on the second page of your
answer book and do not mark your answers on the question paper

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OISC LEVEL 1 ASSESSMENT – 24th NOVEMBER 2016

Part 1 Multiple Choice Questions

1. By what process does the Secretary of State amend the Immigration Rules?

(a) By publishing an Immigration Bill

(b) By publishing new Immigration Regulations

(c) By publishing a Statement of Changes

(d) Simply by updating the rules on the gov.uk website without prior notice

2. In which of these circumstances will your client become an overstayer?

(a) She makes an application for an extension of stay before her leave runs out, but her leave
runs out before she gets a decision on that application

(b) She makes an application for an extension of stay before her leave runs out, but after her
leave has run out, the Home Office returns the application to her with a notice of invalidity

(c) She makes an application for an extension of stay before her leave runs out, but after her
leave has run out the Home Office makes a decision to refuse that application, with a right of
administrative review

(d) She makes an application for an extension of stay before her leave runs out, but after her
leave has run out the Home Office makes a decision to refuse that application, with a right of
appeal

3. Your client’s leave is about to run out. You have prepared her application for an extension, but
she does not have a passport. She sent her old passport to her country’s embassy, and is awaiting
a new one to be issued. It is not likely to arrive until her leave has run out. How do you advise her?

(a) She should not make the application until she has the passport, however long that takes,
even if this means applying as an overstayer

(b) She will need to wait for the passport to arrive, and then go home to apply for entry
clearance to come back to the UK

(c) There is no requirement to submit a passport with an application as the Home Office will
already have a copy of her passport on her file

(d) She should apply before her leave runs out explaining why the passport is not enclosed
and then send the passport to the Home Office as soon as it arrives

4. Which of the following guidance documents can be found in the Operational Guidance section
of the gov.uk website?

(i) Modernised Guidance

(ii) Immigration Directorate Instructions

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 (iii) Guidance to Applicants

(iv) Entry Clearance Guidance

(a) (i) and (ii) only

(b) (i), (ii), and (iii) only

(c) (iii) only

(d) (i), (ii), and (iv) only

5. What is the deadline for lodging an appeal with the First-tier Tribunal (IAC) if the right of appeal
is from within the UK

(a) 10 working days after the Home Office refusal decision is received

(b) 10 working days after the Home Office refusal decision is sent

(c) 14 calendar days after the Home Office refusal decision is received

(d) 14 calendar days after the Home Office refusal decision is sent

6. Your client, a British citizen, has a British citizen child and another child who has Indefinite
Leave to Remain. She wants to sponsor her husband to come to the UK as her partner. What
financial requirement will she need to meet?

(a) £18,600

(b) £22,400

(c) £24,800

(d) ‘adequate maintenance without recourse to public funds’

7. If your above client is receiving disability living allowance, what financial requirement will she
have to meet?

(a) £18,600

(b) £22,400

(c) £24,800

(d) ‘adequate maintenance without recourse to public funds’

8. Your above client’s husband was fined following a minor criminal conviction six months ago.
How will you advise him?

(a) He is likely to be refused a visa unless he waits a further six months before making the
application

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 (b) Minor convictions are usually ignored by the Home Office so there will be no need to
delay the application

(c) He will be refused unless he waits 5 years from the date of conviction

(d) He does not have to declare criminal convictions abroad, unless they resulted in
imprisonment, so it is irrelevant to his application

9. What level of NHS debt will normally lead to a refusal of entry clearance as a visitor?

(a) £100

(b) £500

(c) £1000

(d) £5000

10. Which of the following activities can a visitor to the UK undertake?

(a) Volunteering for the entire period of the visit

(b) Negotiate and sign deals and contracts

(c) Studying English language with a private tutor

(d) Private medical treatment arranged after arriving in the UK

11. Your client has made an application for an extension of stay under the Tier 1 (Entrepreneur)
category. She awaits a decision. She realises that the electronic bank statements she submitted
are unlikely to be accepted by the Home Office because they were not stamped by the bank. How
will you advise her?

(a) She cannot now submit appropriate bank statements as the Home Office will
onlyconsider documents submitted with the application. The application is likely to be
refused. When that happens she can make a fresh application

(b) She need do nothing now as the Home Office will write to her to give her an opportunity
to provide the correct bank statements

(c) Although the Home Office should write to her to give her an opportunity to provide the
correct bank statements, she should submit them in any case without waiting for the Home
Office letter

(d) To be on the safe side, she should make a fresh application for an extension and submit
the correct bank statements with that application

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12. An applicant under Tier 2 (General) will need to be paid an appropriate salary to score the
required points for Attributes. Where will you find the appropriate salary for the job your client
has been offered?

(a) Minimum income legislation

(b) Appendix A to the Immigration Rules

(c) Appendix J to the Immigration Rules

(d) On the Jobcentre Plus website

13. What level of English language is required for an applicant under the Tier 5 (Temporary
worker) category?

(a) Adequate English without recourse to a dictionary

(b) There is no English language requirement for this category

(c) Level A1, CEFR

(d) Entry level 3, ESOL

14. Your EEA national client approaches you for advice about applying for naturalisation. How will
you advise him?

(a) It will always be a good idea to apply for naturalisation as soon as possible given the UK’s
plan to leave the EU

(b) There is no benefit in applying for British citizenship as EEA nationals with permanent
residence will be in exactly the same position as British citizens when the UK leaves the EU

(c) He needs to consider the implications for any family members that are with him in the UK
or plan to join him before naturalising, as this may affect their right to reside

(d) It is entirely up to the client whether he chooses to naturalise or not and an adviser
should not seek to influence that decision

15. Who of the following is not an ordinary family member of an EEA national under EU law?

(a) A 19 year old child in fulltime employment living independently from their parents

(b) A fit and healthy parent who is financially dependent on the EEA national

(c) The EEA national’s financially dependent father-in-law

(d) The long-term cohabiting partner of the EEA national

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16. Your EEA national client arrives in the UK and works for six months. Their temporary contract
then comes to an end. How long will they have to find another job before losing their right to
reside as a worker?

(a) A maximum of six months

(b) Initially six months but they can extend that period by providing compelling evidence of
looking for a work and of having a genuine chance of being engaged

(c) 91 days

(d) They will lose their right to reside immediately on the contract coming to an end

17. An EEA national qualified person can apply for which document to evidence their status?

(a) A QP card

(b) A residence card

(c) A registration certificate

(d) A worker’s registration document

18. When can a child born in the UK apply for registration as a British citizen on the basis of their
residence in the UK?

(a) At the age of 6

(b) At the age of 7

(c) At the age of 10

(d) In the first year of their birth

19. What, if anything, is the difference between ‘removal’ and ‘deportation’?

(a) Removal is for those with no leave, deportation is for those whose presence in the UK is
not conducive to the public good

(b) There is no real difference

(c) Removal is a voluntary process, but deportation is not

(d) EEA nationals are removed, non-EEA nationals are deported

20. Where will you find the procedure for applying for an Administrative Review?

(a) Appendix AR

(b) Part 1 of the Immigration Rules

(c) Appendix FM

(d) The Tribunal Procedure (First-tier Tribunal) (IAC) Rules 2014

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OISC LEVEL 1 ASSESSMENT, NOVEMBER 2015

MARK SCHEME AND SAMPLE ANSWERS

SECTION 1: MULTIPLE CHOICE QUESTIONS

This examination is open book. You may refer to materials such as the OISC exam resource book,
published texts and your own notes.

Please note there is only ONE correct answer for each of the questions in Section 1 so a maximum
of ONE mark may be awarded for each.

Please ensure that you complete your answers in the grid as shown on the second page of your
answer book and do not mark your answers on the question paper.

1. The new government has pledged to do which ONE of the following?

(a) Extend the 10 year long residence rule to 12 years

(b) Repeal the Human Rights Act 1998

(c) Close Tier 2 (General)

(d) Simplify the immigration rules

2. An appeal against the refusal of an application will initially be heard in the:

(a) First-tier Tribunal (Immigration and Asylum Chamber)

(b) Administrative Court

(c) Court of Appeal

(d) Asylum and Immigration Tribunal

3. The UKVI pages of the GOV.UK website contain the immigration rules, guidance to applicants
and, separately, guidance to Home Office caseworkers. Which of the following statements most
accurately reflects an adviser’s use of this material?

(a) When giving advice to a client, the starting point will be the guidance to applicants. It will rarely
be necessary to look at the immigration rules or the guidance to Home Office caseworkers as this
simply reflects the guidance to applicants but in a more complicated way.

(b) Most advisers can give appropriate advice to clients by working solely with the applications forms
and guidance notes accompanying the forms. It will not usually be necessary to consider any other
information on the GOV.UK website.

(c) After looking at the immigration rules, it will often be useful to look at the guidance to Home
Office caseworkers to see how the rules will be applied in a particular case.

(d) It really is a question of how the adviser’s firm prefers to operate. There is no right or wrong
approach.

4. A grant of ILR will lapse where the person has been outside the UK :

(a) For a continuous period of two years or more

(b) For more than 180 days in any one year

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(c) For a continuous period of more than two years

(d) For more than 450 days in a five year period

5. Before rejecting an application that is invalid, the Home Office should contact the applicant to
give them an opportunity to correct any omission or error. This is due to:

(a) Provisions in Part 1 of the immigration rules

(b) Provisions in the Immigration Act 2014

(c) Procedural fairness

(d) The HO policy of evidential flexibility

6. In certain circumstances, a person applying for entry clearance under the partner category of
Appendix FM will not need to meet the minimum gross annual income requirement. This will be
where:

(a) The applicant relies on paragraph EX1

(b) The partner is living with the applicant outside the UK

(c) The partner is in receipt of particular disability related benefits

(d) The partner is a refugee

7. When submitting bank statements in support of the financial requirements under Appendix FM,
they will need to show the closing balance:

(a) At a date no earlier than 31 days before the date of application

(b) At a date no earlier than 28 days before the date of application

(c) On the date of application

(d) Within 6 months of the application date

8. A Tier 4 migrant in the UK seeking an extension of stay as the fiancé of a British citizen will be
able to do so:

(a) If they were previously granted leave for more than 6 months

(b) If they earn a minimum income of £18,600

(c) Only if they are a non-visa national

(d) None of the above

9. On which form will a person apply for settlement under the 10-year long residence category?

(a) SET(O)

(b) FLR(FP)

(c) SET(P)

(d) SET(LR)

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10. If the wrong form is used for an application, the Home Office is likely to:

(a) Decide the application is invalid

(b) Refuse the application

(c) Give the applicant one opportunity to remake the application on the correct form

(d) Ignore the application

11. Recent amendments to paragraph 6 of the Immigration (EEA) Regulations 2006 are designed
to:

(a) Restrict access to benefits

(b) Restrict the right of admission

(c) Restrict the rights of dual nationals

(d) Restrict the rights of Croatian nationals

12. When considering whether your EEA national client is permanently resident, having spent five
years in the UK, in which of the following circumstances will they have automatically broken their
continuity of residence during that period:

(a) They spent six months absent from the UK in a 12 month period

(b) They spent 12 months outside the UK due to pregnancy and childbirth

(c) They were removed from the UK under the Regulations, but returned immediately and began
work

(d) They were made redundant, but registered with the jobcentre and found work three months
later

13. An EEA national will have which of the following rights under the Free Movement regime?

(a) A right of abode

(b) Automatic leave to enter

(c) A right of admission and residence

(d) A right to ILR after 5 years of residence

14. A person will have continuing leave under section 3C of the Immigration Act 1971 in which of
the following circumstances?

(a) They have applied to extend their stay so long as they have not overstayed by more than 28 days
at the date of application

(b) They make a postal application to extend their stay on the final day of their leave

(c) The leave they were granted has not yet expired

(d) They apply to extend their stay, having overstayed their leave, and the application is granted

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15. A child born in the UK to parents who are neither British nor settled can apply to register as a
British citizen when they have had how many years of residence in the UK?

(a) 5 years

(b) 7 years

(c) 10 years

(d) Only if a parent becomes British or settled in the UK

16. A person who uses deception in an application for leave to enter:

(a) Will face an entry ban of 10 years

(b) Will face an entry ban of 10 years unless applying to enter under the provisions of Appendix FM

(c) Will face a lifetime ban from the UK

(d) May face an entry ban of 10 years at the discretion of the Entry Clearance Officer

17. The Resident Labour Market Test:

(a) Requires an employer test the skills of a prospective employee they wish to sponsor under Tier 2

(b) Requires an employer to pay their Tier 2 employee a salary comparable to that which would be
paid to a UK national in a similar job

(c) Requires an employer to employ non-EEA nationals only in jobs on the Shortage Occupation List

(d) Requires an employer to advertise the post in the UK before offering it to a non-EEA national

18. The Home Office has in recent years sought to exercise more control over decision making
under the points-based system by:

(a) Introducing ‘genuineness’ criteria

(b) Increasing the number of points required by an applicant

(c) Making the rules more complicated than most applicants can understand

(d) Removing access to legal aid for applicants

19. An applicant under Tier 2 (General) will need what level of English language to score the
required points?

(a) Level A1

(b) Level B1

(c) Level C1

(d) There is no English requirement under Tier 2 (General)

20. Will a person applying for limited leave to remain in the UK have to pay a health surcharge?

(a) Yes

(b) Yes, unless they are under 18

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(c) Yes, unless exempt under Schedule 2 of the Immigration (Health Charge) Order 2015

(d) No

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SECTION 2: OISC LEVEL 1 - SCENARIO BASED QUESTION, AUGUST 2013

Please note that MULTIPLE marks can be gained for answers to each of the questions in Section 2.
The maximum marks are indicated in brackets at the end of each question. You may use this as a
guide for the number of points you should include in your answers.

In addition to the marks gained for the content of the answers, applicants should be mindful of
the need to provide answers which are legible and communicate advice clearly in plain English.

This examination is open book. You may refer to materials such as the OISC exam resource book,
published texts and your own notes.

Total marks for this section: 32 marks

Krystyna from Poland rings you. She wants to come to the UK, initially for an extended holiday for 6
months or so. She tells you she has saved plenty of money and has no intention to work or look for
work during that period. She explains that her grandparents have been living in the UK since shortly
after the second-world war and are now very elderly. She plans to stay with them to help look after
them and to look for work when her money runs out. She is an experienced secondary school maths
teacher. Her long-term plan is to settle in the UK.

(i) Write a letter of advice to Krystyna, explaining how she can accomplish all of this, whilst
ensuring that she remains in the UK in compliance with any relevant rules, and including any
procedural requirements that may apply at each stage. (25 marks)

After receiving your letter, Krystyna rings you with a question. She tells you that she has a partner in
Poland, and will want to return to Poland from time to time to spend time with her. She wants to
know if fairly frequent trips back to Poland to spend time with her partner might delay her plan to
settle in the UK.

(ii) Write a brief note for her file explaining the advice you have given her. (3 marks)

(iii) Presuming all goes according to plan, when will Krystyna be able to apply for a British
passport? (4 marks)

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OISC LEVEL 1 - SCENARIO BASED QUESTION, NOVEMBER 2015

Please note that MULTIPLE marks can be gained for answers to each of the questions in Section 2.
The maximum marks are indicated in brackets at the end of each question. A breakdown of marks
within each question is also provided. You may use this as a guide for the number of points you
should include in your answers.

In addition to the marks gained for the content of the answers, applicants should be mindful of
the need to provide answers that are legible and communicate advice clearly in plain English. This
examination is open book. You may refer to materials such as the OISC exam resource book,
published texts and your own notes.

Total marks for this section: 33 marks

Your instructions

Your client, Humphrey (aged 48), a British citizen, seeks advice about his partner, Eduardo, a
Brazilian national (aged 42). Eduardo is currently in the UK with a six month visa granted to him
under the Tier 5 (Temporary worker) category. The visa is due to expire in two weeks.

Humphrey and Eduardo met and began a relationship shortly after Eduardo entered the UK. The
couple have been cohabiting in Humphrey’s rented bedsit for the last few weeks. Humphrey wants
to know if Eduardo can apply to remain with him in the UK so that they can get married and live
together here.

Humphrey has recently become unemployed when his firm went into administration. Eduardo,
a fluent English speaker, is a millionaire, having inherited the equivalent of £1 million pounds from
his mother’s estate some years ago.

Question 1

Write a letter of advice to Humphrey;

• Explaining, with reference to the applicable rules, the application Eduardo will need to make,
and the requirements he will need to meet to make such an application
(12 marks)

• Listing the evidence (including documentary evidence) they will need to provide to show
that the relationship requirements are met,
(6 marks)

• Explaining the leave that Eduardo will be granted if the application is successful, and
(3 marks)

• The options Eduardo will have if the application is refused

(4 marks)

(NB: An additional 2 marks can be awarded for the appropriate structure and language)

Total marks available for question 1 = 27

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Question 2

After receiving the letter of advice, Humphrey rings you. He tells you that Eduardo has recently told
him that he was previously married in Brazil, but divorced his wife many years ago. They would
prefer not to disclose this to the Home Office as they are worried that the Home Office may suspect
their relationship is not genuine.

Draft an attendance note explaining the advice you gave to Humphrey.

(6 marks)

Total marks available for question 2 = 6

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OISC LEVEL 1 - SCENARIO BASED QUESTION, NOVEMBER 2016

You have 1 hour and 15 minutes to complete this exam paper.

Total marks for this section: 30 marks

The maximum marks available for each question are indicated in brackets at the end of each
question. A breakdown of marks within each question is also provided. You may use this as a guide
for the number of points you should include in your answers.

In addition to the marks gained for the content of the answers, applicants should be mindful of the
need to provide answers which are legible and communicate advice clearly in plain English.

Your instructions

Susan from Canada comes to you for some advice. She has been in the UK as the partner of a Tier 4
(General) student for about two years, and her leave expires in a few weeks. She separated from her
partner shortly after arriving in the UK, and has come to you for some advice about her status here.

Susan also tells you that her father’s father was born in the UK, and asks whether this may be
relevant. She has explored the possibility of registering as a British citizen but has been properly
advised that she is not entitled.

She is keen to stay in the UK as she is in a serious relationship with a British man with whom she has
been living for just over a year. Although they have discussed getting married, they do not want to
do so now or in the foreseeable future. Susan has been living off her savings in the UK and has not
worked since she came here, but she will be looking for work shortly as her savings will only last for a
few more months. She worked in Canada for three years before coming to the UK.

Question 1

Write a letter of advice to Susan. In that letter, explain, on the basis of the above facts:

• The application she can make that would allow her to settle in the UK;
(4 marks)

• the specific facts she will need to demonstrate to succeed in the application;
(9 marks)

• on the evidence, and documents she will need to support her application;
(9 marks)

Note that up to 2 additional marks can be awarded for the structure and readability of the letter.
Please note however that it is not necessary to introduce yourself or confirm the client’s
instructions for this exercise.

Total marks available for question 1 = 24

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Question 2

Susan’s application is refused. She believes the Home Office failed to read her evidence of previous
savings correctly. In an attendance note, record the advice you give her about her options, and any
relevant deadline

(4 marks)

Question 3

If the application is granted, and Susan marries her boyfriend shortly afterwards, note the further
applications she will need to make to become a British citizen, and the timing of those applications.

(2 marks)

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OISC LEVEL 1 - SCENARIO BASED QUESTION, JANUARY 2018

You have 1 hour and 15 minutes to complete this exam paper.

Total marks for this section: 30 marks

The maximum marks available for each question are indicated in brackets at the end of each
question. A breakdown of marks within each question is also provided. You may use this as a guide
for the number of points you should include in your answers.

In addition to the marks gained for the content of the answers, applicants should be mindful of the
need to provide answers which are legible and communicate advice clearly in plain English.

Your instructions

Maria, aged 26, is a Brazilian national. Maria seeks your advice about settling in the U.K with Lucas,
aged 33, who is British and lives in the U.K.

About two and half years ago, Maria met Lucas, when he was visiting Brazil, at a mutual friend’s
party and they went out on a couple of dates. Maria keeps in regular contact with Lucas when he is
in the U.K. He has made three subsequent visits to Brazil.

Since leaving school, Maria has worked in a local café. She lives in a flat, which she rents. She
receives some financial support from Lucas. Her parents, who live in Brazil, also pay some of her
expenses.

This Christmas, Lucas proposed to her with a beautiful ring and they had an engagement party in
Brazil. Although he has some relatives in Brazil, most of Lucas’ immediate family and friends live in
the U.K. Maria and Lucas would like to marry in the U.K. Lucas has made some enquiries with the
registry office and hotels for a wedding reception.

Eight months ago, Lucas changed his job. He works as a banker, earning about £60,000. He lives,
alone, in two bedroom apartment, which he owns. He is divorced.

Question 1

Write a letter of advice to Maria, explaining

(a) how she may be able to settle in the U.K with Lucas;

(2 marks)

(b) the facts they will need to demonstrate;

(8 marks)

(c) the documents she will need to provide to support the application;

(10 marks)

(d) the procedure for making the application; and

(4 marks)

(e) how she and Lucas can marry in the U.K.

(2 marks)

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Note that up to 2 additional marks can be awarded for the structure and readability of the letter.
Please note however that it is not necessary to confirm the client’s instructions for this exercise.

Total marks available for question 1 = 28

Question 2

Maria emails you. She wants to know if she makes the application under the route you have advised,
whether she will be granted a settlement visa in U.K and will need to take any other steps to qualify.
Make a file note of your brief advice to her.

(2 marks)

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OISC LEVEL 1 - SCENARIO BASED QUESTION, NOVEMBER 2018

You have 1 hour and 15 minutes to complete this exam paper.

Total marks for this section: 30 marks

The maximum marks available for each question are indicated in brackets at the end of each
question. A breakdown of marks within each question is also provided. You may use this as a guide
for the number of points you should include in your answers.

In addition to the marks gained for the content of the answers, applicants should be mindful of the
need to provide answers which are legible and communicate advice clearly in plain English.

Your instructions

Dinesh, aged 29, is a French national. He has been employed as a banker in the UK since January

2014. He has a Registration Certificate, which will expire soon.

He first came to the U.K in October 2012 to do a Master’s degree and completed his studies in
August 2013. During the period of his studies, Dinesh’s father paid all of his costs (course fees, rent
and living expenses). He has always held a valid European Health Insurance Card issued by the
French authorities.

At the end of his studies (August 2013), Dinesh returned to France. He lived in France up to end of
December 2013 (a total of five months). He, then, returned to the UK to start his current job.

In August 2018, Dinesh married his girlfriend, Adele, in the U.K.

Adele, aged 26, is a French national. They met a year ago at work, and have been living together for
the last six months in a one-bedroom flat, which Dinesh rents. Adele has recently left her job and is
financially supported by Dinesh.

The couple are nervous about Brexit and seek your advice on how they can stay in the U.K.

Question 1

Write a letter of advice to Dinesh, explaining

(a) his status in the UK under EEA and UK law;

(2 marks)

(b) his options under EEA law, including any requirements he will need to meet, and the
application procedures that may apply;

(5 marks)

(c) the specific documents that Dinesh will need to provide with his application to
demonstrate his:

(i) identity and residence in the U.K under EEA law;

(4 marks)

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 (ii) studies in the U.K;

(4 marks)

(iii) employment in the U.K

(3 marks)

(d) the basis upon which Adele may be able to stay in the UK and the application procedure;

(3 marks)

(e) The specific documents Adele will need to provide (you do not need to re-list the
documents Dinesh will provide to demonstrate his status under EEA law):

(4 marks)

Note that up to 2 additional marks can be awarded for the structure and readability of the letter.
Please note however that it is not necessary to confirm the client’s instructions for this exercise.

Total marks available for question 1 = 27

Question 2

After receiving your letter, Dinesh rings you. He tells you Adele is pregnant and is due to give birth
early next year. He wants to know what status their child would gain under the U.K law. Make a note
of your advice to him.

(3 marks)

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