CHAPTER 1 5. European Community Law: European Economic Area (EEA)
nationals and their families previously benefitted from freedom
THE SYSTEM OF IMMIGRATION CONTROL of movement. EU law also took precedence when UK law
conflicted with EU law. Following Brexit, EU law no longer
The role of immigration solicitors: *Wide variation in type of work* applies directly.
1. advising/representing high-level employees - eg. CEOs 6. EU agreements: There are also EU agreements on some
2. helping vulnerable clients seeking refuge from persecution immigration/asylum matters.
3. undertaking private and publicly funded work
4. consider detailed evidence and evaluate how the evidence
relates to the law BODIES INVOLVED IN IMMIGRATION CONTROL:
Immigration practitioners: The Home Office and the SSHD:
1. Immigration solicitors – they operate under the Solicitors IA 1971 The SSHD is responsible for immigration control. The SSHD
Regulation Authority (SRA). acts through their officials, who make decisions. Certain decisions
2. Non-solicitor advisers – they operate under the Office of the require the SSHD to make the decision. – eg. excluding someone on
Immigration Services Commissioner (OISC). The OISC was grounds of national security.
funded under the Immigration and Asylum Act 1999.
UK Visas and Immigration:
What is immigration control? The UK Visas and Immigration Agency (UKVI) – previously UK Border
Immigration control = system of identifying who may enter the country Agency – is the governmental body responsible for managing the UK
and on what terms. Different people face different control. borders and enforcing immigration/customs regulations. The UKVI also
considers applications for citizenship, asylum and permission to
enter/remain in the UK.
SOURCES OF LAW:
UKVI officials make decisions regarding people:
Relevant areas of law: • Those already in the UK and have leave to enter/remain and are
* Immigration law: applications to enter/remain in the UK. wishing to extend/change the basis of their stay
* Nationality law: who is entitled to British citizenship. • Who entered illegally and seeking permission to stay
* Asylum law: applications for refuge from persecution. • Who have overstayed their leave and seek to regularise their
* Human rights law: rights under the European Convention on status
Human Rights (ECHR) and Human Rights Act 1998 (HRA 1998) • Those subject to detention
• Those seeking release from detention
Legislation: • Those subject to administrative removal
* Immigration Act 2014 (IA 2014) Key immigration law legislation • Those subject to deportation due to committing crimes
* British Nationality Act 1981 Sets out British nationality law
* HRA 1998 Human rights play a key role in immigration law. Immigration Officers:
Breach of human rights happens where a public authority (i.e.
UKVI) acts in a way which is unlawful under the HRA. Immigration officials (immigration officers, chief immigration officers):
* Race Relations (Amendment) Act 2000 It is unlawful for public • They are based at ports and other offices.
authorities to discriminate based on race/colour/ethnic origin. • They make decisions regarding entry to the UK
* IA 2014 Introduced substantial changes to immigration law by • They deal with immigration control, detention and release.
significantly limiting/removing rights.
Local enforcement offices and enforcement sections at ports:
* IA 2016 Provisions to combat illegal immigration: • They are concerned with enforcement against illegal entrants,
• new immigration bail regime people subject to removal/deportation and refused asylum
• new skills levy for companies hiring skilled workers from claimants.
abroad
• new offence of illegal working, and Entry Clearance Offices and High Commissions abroad:
• new offence for landlords/agents who rent to anyone Entry Clearance Officers (ECOs) are UKVI officers based in British
without leave to remain in the UK. diplomatic posts. ECOs decide whether a person is permitted to come
to the UK. UKVI’s online application system is called ‘Visa4UK’.
The Immigration Rules:
ss1(4) and 3(2) IA 1971 The Secretary of State for the Home Two types, both serve the same functions:
Department (SSHD/Home Secretary) may create Immigration Rules. 1. High Commission = diplomatic post in a Commonwealth country.
2. Embassy = diplomatic post anywhere else.
The Rules set out the criteria for anyone seeking permission to
enter/remain in the UK. The current rules on the UKVI website. The First-tier Tribunal and Upper Tribunal:
Tribunals, Courts and Enforcement Act 2007 The Unified Tribunals
The legal status of the immigration rules: framework was created.
Sui generis: the power to create immigration rules comes from the IA
1971. They are approved by a procedure called negative resolution. First-tier Tribunal Upper Tribunal
They are laid before Parliament and remain there for 40 days. If no (Immigration and Asylum Chamber) (Immigration and Asylum Chamber)
issues are raised, they automatically pass.
A Tribunal dealing with appeals against A superior court dealing with judicial
Pearson v Immigration Appeal Tribunal Although the immigration decisions made by the SSHD/their review applications and appeals
rules are merely rules of practice, they are viewed as valid law in officials in immigration/asylum/ made against First-tier Tribunal
immigration appeals/judicial review proceedings. nationality matters. decisions.
The UKVI will look at the Rules when making decisions: Special Immigration Appeals Commission (SIAC):
1. The UKVI cannot act more restrictively than the Rules allow or Special Immigration Appeals Commission Act 1997 SIAC was created.
there may be a right of appeal/possibility for judicial review SIAC deals with appeals against:
2. But the SSHD has discretion to act more generously. 1. Deportation/exclusion on public interest grounds,
Concessions, policies and practices: 2. Decisions to certify persons as international terrorists and
The UKVI operates concessions and policies which are outside the 3. Decisions to deprive someone of British citizenship status.
Rules. – eg. concession of allowing someone to enter/remain to care for
a sick relative. LEAVE TO ENTER OR REMAIN IN THE UK:
In situations not covered by the Rules, nor a policy/concession, SSHD Who needs leave to enter or remain in the UK?
and their officers have a discretion to make a decision outside the
immigration rules. Some of the practices are found in the internal s.3 IA 1971 There is a distinction between persons who have a ‘right
guidance to staff, available on the UKVI website. of abode’ (mainly British citizens) and persons who do not.
Other sources: Anyone without a Anyone with a right of Groups exempt from
right of abode abode immigration control
1. Case law
2. 1951 UN Convention: The UK is a party to the Convention which Will require leave Can enter/remain in the Eg. diplomats.
also defines what a refugee is. UKVI cannot make decisions that (permission) to UK without restriction.
are contrary to the Convention. enter/remain in the They may need to prove
3. ECHR: s.6 HRA 1998 Public authorities must act in a way which UK. their right of abode – eg.
is compatible with ECHR rights. by having a valid British
4. Other international treaties: – Convention on the Rights of the passport.
Child
Immigration law – Workbook – Notes | Page 1 of 30
,What is leave to enter/remain? If the application is refused:
Whether someone has a right of appeal will depend on the basis on
Leave can be: which they were seeking entry.
• Limited in duration – eg. 6 months
Limited leave may also have conditions attached to it – eg. Leave to remain:
restriction on working
OR Applications for leave to remain may be granted by the UKVI based on
• Indefinite in duration – eg. may remain for an indefinite period. the immigration rules or using their discretion. Applications may be for
This means that the person may remain in the UK for an an ‘extension of leave’ for a further period or to vary leave to a different
indefinite period without conditions. category (switching).
Indefinite Leave to Remain (ILR) (Or Indefinite Leave to Enter (ILE) if Procedure for applying for leave to remain:
granted before someone enters the UK): The applicant must fill in an application form, available on the UKVI
1. ILE/ILR may lapse if the holder is absent from the UK for a website. Applicants must then pay a fee and the NHS surcharge.
continuous period of 2 years.
2. ILE/ILR may be revoked if it was obtained by fraud or due to In order for the applicant to remain in the UK lawfully, the application
serious criminal convictions. to vary/extend leave must be made while the applicant has a current
3. ILE/ILR is also referred to as settled status, settlement or leave to remain.
permanent residence.
s.3C IA 1971 The original leave’s conditions will remain in force until a
WHERE IMMIGRATION CONTROL TAKES PLACE: decision is made in relation to the application.
Immigration control takes place: If the application is made after the client’s leave has expired, the client
1. Abroad before entry: Applications for entry clearance (leave to will be an overstayer and subject to enforcement action.
enter) to Entry Clearance Officers
2. At ports, on entry: applications for entry to the UK to If the application is refused:
Immigration Officers Client may have a right of appeal.
3. Within the UK after entry: applications to remain in the UK to
UKVI caseworkers. Types of application and powers of the immigration authorities:
Entry clearance: Anyone who is required to have a leave to enter/remain must make an
application before, on or after entry.
Entry clearance (EC) = immigration control before arrival.
An entry clearance document (visa) may be a sticker (vignette) in the Immigration authorities’ powers: to grant/refuse leave to
holder’s passport/travel document. enter/remain and to vary existing leave.
Visa national countries: countries for which the UK always requires EC FUNDING OF LEGAL ADVICE AND APPEALS:
before travel.
Legal work on an immigration matter may be funded:
Non-visa national countries: nationals of these countries can travel to • Publicly, if client is eligible
the UK for short periods without EC. They must apply for leave to enter, • Privately, by the client or
at the port when they arrive. • The law firm may agree to take on the matter pro bono
If anyone is applying to enter the UK for more than 6 months, they must Public Funding:
apply for EC prior to travelling. Publicly funded work is administered by the Legal Aid Agency (LAA).
Entry clearance procedure: Legal Aid, Sentencing and Punishment of Offenders Act 2012 Public
1. The entry clearance application may be made online to the Visa funding only available in cases involving asylum, detention, victims of
Application Centre (VAC) by submitting an application form. human trafficking/domestic violence/forced marriage and Special
2. Then the applicant is given VAC appointment. Immigration and Appeals Commission cases.
At this appointment, the applicant must: No longer eligible for public funding (excluded category): Immigration
• submit the required documentation matters – but LAA may grant exceptional funding to excluded category
• pay the application fee + Health Service Charge cases (this is rare).
• provide biometric data (fingerprints and photographs) –
s.126 Nationality Immigration and Asylum Act 2002 IS [2016] The Court of Appeal found that the Exceptional Case Funding
scheme was badly operated, but not quite unlawful. This decision is
s.14 IA 2014 The retention/use of biometric info is allowed if: currently being appealed.
• it is necessary for immigration and nationality purposes
OR Only law firms with a LAA contract can carry out publicly funded work.
• It is necessary for prevention of crime/national security. Their staff must be accredited under the Immigration and Asylum
Accreditation Scheme.
Agencies carrying out immigration functions must comply with
data protection regulation. For a matter to be funded, both the means and merits tests must be
satisfied.
3. In dealing with an application, the ECO/UKVI will apply the
immigration rules. The Legal Help scheme:
* public funding for legal work save for representation.
If the application is refused: * Legal Help Form (CW1) must be completed and signed by client.
An Entry Clearance Manager may review the refusal. If the decision is * The merits test is based on the ‘Sufficient Benefit test’ for this
upheld, then applicant will be informed about their right of appeal. type of funding – ask yourself: would a reasonable, privately
paying client pay in these circumstances? (low threshold).
If the application is granted:
Immigration and Asylum Act 1999 Clearance also operates as leave to Controlled Legal Representation:
enter the UK. * Controlled Legal Representation is available at asylum appeals
and bail applications.
Para 2A Sched 2 IA 1971 IO may cancel the entry clearance if client’s * The merits test is based on the ‘Prospects of Success’ for this
circumstances have changed or leave was obtained on the basis of type of funding. ‘Prospects of success test’= good prospects of
fraud. success (50%).
Leave to enter the UK: Solicitors must observe professional conduct rules:
* Chapter 1 Code of Conduct Give accurate costs information
Immigration Service is made up of: (and explain the meaning of disbursements and that VAT will be
* Immigration Officers (IOs), applied), costs estimate and keep clients informed as to costs
* Chief Immigration Officers (CIOs) and throughout the case.
* Inspectors appointed by the SSHD. * Discuss eligibility for legal aid and explain the implications of the
appropriate scheme.
The UKVI administers Immigration control at all UK ports. Leave to enter * In contentious matters inform clients of costs implications.
can be granted abroad or on entry for non-visa nationals.
Immigration law – Workbook – Notes | Page 2 of 30
, CHAPTER 2 Extended right of residence for qualified persons:
If an EEA national wants to remain beyond the initial 3-month period,
THE EUROPEAN ECONOMIC AREA they must be a qualified person. If they are, they have an extended right
of residence.
This chapter is non-examinable. Following Brexit, the effect of EU law
is much reduced. During the EU Transition Period, an additional section Reg 6 2016 Regs A qualified person is anyone who:
of the Immigration Rules, Appendix EU applies to EEA nationals and a) is an EEA national and
their family members. Appendix EU will be valid until 30 Jun 2021. b) is in the UK as a job seeker/worker/self-employed person/self-
sufficient person/student
THE DEFINITION OF AN EEA NATIONAL:
Workers:
EEA nationals are: Lawrie Blum (1986) Worker = a person who is employed:
• nationals of European Union (EU) Member States; and * for a period of time
• nationals of Liechtenstein, Iceland and Norway (these are * in the provision of services
parties to the European Economic Area Agreement). * for and under the direction of another
* in return for remuneration
The Agreement on the Free Movement of Persons Swiss nationals and
their families have the same rights as EEA nationals. The person need not be employed full-time. However, the work needs
to be effective and genuine.
EEA nationals enjoy free movement around the EEA.
EEA nationals do not need a visa to work in the UK.
EU Member States:
Involuntary unemployment:
Austria Estonia Italy Portugal Reg 6(2) 2016 Regs A worker who has become unemployed
Belgium Finland Latvia Romania involuntarily will continue to be treated as a worker if certain
Bulgaria France Lithuania Slovakia conditions are satisfied.
Croatia Germany Luxembourg Slovenia
Cyprus Greece Malta Spain
Czech Republic Hungary The Netherlands Sweden These conditions – The EEA national:
Denmark Ireland Poland * Must be a registered jobseeker
* Must satisfy condition A – they must have come to the UK to
The Impact of Brexit: find work or must be in the UK looking for work immediately
after they stopped being a worker, self-employed/self-
On 23 Jun 2016 the UK voted to leave the EU. This will signficantly sufficient person, or a student.
impact the UK immigration law. The UK have left the EU on 31 Jan 2020 * Must satisfy condition B – they must show evidence that they
and transitional provisions have been in place until 31 Dec 2020. are looking for a job and has a genuine chance of getting a job.
Art 50 Lisbon Treaty Sets out the roadmap for EU member states to Vocational training:
voluntarily leave the EU. A member state must: A person may retain their worker status if they have embarked on
• notify the European Council of the country’s intention to leave vocational training even though they have:
• negotiate a deal on its withdrawal (Withdrawal Agreement) * Reg 6(2)(d) Become involuntarily unemployed OR
AND * Reg 6(2)(e) Voluntary left employment.
• establish a legal framework for a future relationship with the EU
(Future Relationship Agreement) Time limits:
Reg 6(1) Anyone wanting to keep their worker status after involuntary
Art 50 The Withdrawal Agreement should be agreed within a 2-year unemployment may only retain this status for up to 6 months.
period, starting with the date of the notification. Reg 6(7) Exception to this: if they can provide evidence that they are
seeking employment and have a genuine chance of being engaged.
THE LEGAL FRAMEWORK: Job seekers:
The Treaty of Rome and EC law: Reg 6(1) Jobseeker =
EU rights derive from Treaty of Rome 1957. In 1973, the UK became a 1. a person who enters the UK to seek employment
member of the European Community and since then, provisions of the 2. can prove that they are indeed seeking employment and
Treaty of Rome bind the UK due to the European Communities Act 3. can prove that they have a genuine chance of being engaged
1972. In 1993, the EEC became the European Community (EC) and the
European Union was formed. Students:
A student is only Treaty rights, if they are:
Council Regulations and Directives: 1. Enrolled on a course at a public/private establishment
Regulations and directives are made to give effect to EU policies. 2. Enrolled for the principal purposes of study
3. Have a UK comprehensive sickness insurance and
Key regulations: 4. Sign a declaration confirming that they have sufficient
• Council Regulation 1612/68 – confirms workers’ rights resources to maintain themselves financially in the UK during
regarding their eligibility for employment, equality of treatment this period of study.
and family members Permanent residence:
• Directive 2004/38 (the Citizen’s Directive) – relates to the free Reg 15 2016 Regs EEA nationals have a right to permanent residence
movement of EU nationals. in the UK. – Eg. if an EEA national resided in the UK for 5 years and has
been a qualified person for all of those 5 years.
2016 Regs: I
Immigration (European Economic Area) Regulations 2016 (2016 Regs) Has the EEA national been a qualified person for all of those 5 years?
The free movement and immigration rights under EU law are given The EEA national may have worked for some periods but may have been
effect in UK law. The 2016 Regs are the basis for decisions made on out of work for some time (eg. while looking for work/changing jobs):
application by EEA nationals and EEA family members. I
EEA national remains a qualified person if:
THE OPERATION OF EEA LAW: • They are a jobseeker – check Reg 6(1)
• They are temporarily unable to work due to illness/accident –
The European court of law dealing with EU law is the European Court of check Reg 6(2)(a)
Justice (ECJ). • They become involuntarily unemployed after employment
lasting
The status of EEA nationals in UK immigration law: * for at least a year – check Reg 6(2)(b)
Although EEA nationals do not have a right of abode, by virtue of EEA * for under a year – check Reg 6(2)(c)
law, EEA nationals do not need leave to enter/remain in the UK.
Saint-Prix If the EAA national gave up work due to becoming pregnant,
Costa v ENEL Where EU law and domestic law conflicts, EU law prevails. they will still keep their worker status.
Dakneveiciute The same applies to self-employed persons.
Initial right of residence:
Reg 13 2016 Regs EEA nationals enjoy a 3-month initial right of
residence in all Member States. During this time, family members may
accompany the EEA national.
,
Immigration law – Workbook – Notes | Page 3 of 30