SYSTEM OF IMMIGRATION CONTROL For anyone applying to enter the UK for more than 6 months, they must
Immigration control = system of identifying who may enter the UK and always seek EC before travelling.
on what terms. Different people face different control.
Entry clearance procedure:
The Immigration Rules: 1. The entry clearance application may be made online to the Visa
Application Centre (VAC) by submitting an application form.
Immigration Rules = rules of practice laid down for the administration 2. Then the applicant is given an appointment to attend the VAC.
of law in the area. The Rules have Sui generis status. The Rules set out
the criteria for anyone seeking permission to enter/remain in the UK. At this appointment, the applicant must:
The current rules on the UKVI website. • submit the required documentation
• pay the application fee + Health Service Charge
• provide biometric data (fingerprints and photos) –
ss1(4) and 3(2) Immigration Act 1971 The Secretary of State for the s.126 Nationality Immigration and Asylum Act 2002
Home Department (SSHD) has power to create Immigration Rules.
Agencies carrying out immigration functions must comply with
Pearson v Immigration Appeal Tribunal Although the immigration data protection regulation.
rules are merely rules of practice, they are viewed as valid law in
immigration appeals/judicial review proceedings. 3. In dealing with an application, the ECO or UKVI will apply the
immigration rules.
The UKVI will look at the Rules when making decisions:
1. The UKVI cannot act more restrictively than the Rules allow or If the application is refused:
there may be a right of appeal/possibility for judicial review Refusal may be reviewed by an Entry Clearance Manager. If the decision
2. But the SSHD has discretion to act more generously. is upheld the applicant is informed as to whether they have a right of
appeal against the decision.
Concessions, policies and practices:
If the application is granted:
The UKVI operates concessions and policies which are outside the Immigration and Asylum Act 1999 Clearance also operates as leave to
Rules. In situations not covered by the Rules, nor a policy/concession, enter the UK.
SSHD have a discretion to make a decision outside the Rules. Para 2A Sched 2 IA 1971 The IO may cancel the entry clearance if there
has been a change of circumstances or leave was obtained on the basis
BODIES INVOLVED IN IMMIGRATION CONTROL: of false information.
The Home Office and the SSHD: At ports on entry to the UK:
SSHD is responsible for immigration control. SSHD acts through their
officials, who make decisions. Certain decisions require the SSHD to Apply for Leave to enter. UKVI administers Immigration control at all
make the decision. – eg. excluding someone on grounds of national UK ports.
security.
Non-visa nationals: Leave to enter may be granted abroad or on entry
UK Visas and Immigration (UKVI): for non-visa nationals, for certain categories of 6 months or less. They
Responsible for managing the UK borders and makes decisions may still apply for entry clearance in advance at the British embassy. If
regarding citizenship/asylum applications and permission to they apply at the port, they must fulfil the rules relating to their visa (eg.
enter/remain in the UK. visitor).
Immigration Officers and Chief Immigration Officers: Within the UK once entered the country:
Deal with immigration control, detention and releases.
Apply for Leave to remain. This may be granted by the UKVI based on
Entry Clearance Officers (ECOs): the immigration rules or using their discretion. Applications may be for
UKVI officers based in British diplomatic posts such as Embassies and an ‘extension of leave’ for a further period in the same category or to
High Commissions. ECOs decide whether a person is permitted to come vary leave to an alternative category (switching).
to the UK.
Procedure for applying for leave to remain:
Bodies dealing with immigration appeals: The applicant must fill in an application form, available on the UKVI
website. Applicants must then pay a fee and the NHS surcharge.
First-tier Tribunal Upper Tribunal Special
(Immigration and (Immigration and Immigration Usually applications to vary/extend leave are made while the
Asylum Chamber) Asylum Chamber) Appeals applicant’s existing leave to remain is current. If so, the applicant may
A Tribunal dealing with A superior court dealing Commission remain in the UK lawfully while the application is pending.
appeals against decisions with judicial review Deals with public
made by the SSHD/their applications and appeals interest and
officials. made against First-tier national security s.3C IA 1971 The conditions attached to the original leave remain in
Tribunal decisions. matters. force until a decision on the application is made.
If an application is made after an applicant’s leave expired, the applicant
LEAVE TO ENTER/REMAIN IN THE UK: will be an overstayer and subject to enforcement action.
s.3 IA 1971 Persons without a ‘right of abode’ (= mainly British If the application is refused:
citizens) will need a leave (permission) to enter the UK. A client may have a right of appeal to the Tribunal.
Leave can be: PUBLIC FUNDING: *POPULAR EXAM Q*
• Limited in duration: This type may have conditions attached to
it – eg. 6 months leave with restriction on working. Common exam question:
• Indefinite in duration: This means that the person may remain Is public funding available to client at this stage of the application?
in the UK for an indefinite period without conditions.
Structure – public funding:
Indefinite Leave to Remain (ILR) or Indefinite Leave to Enter (ILE) if 1. Type of matter
granted before someone enters the UK: these carry no time limit nor 2. Means and merits test
any other condition but may be subject to deportation action in certain 3. Eligibility of solicitor/law firm
circumstances. These will lapse if absent from the UK for a continuous 4. Conclude
period of 2 years.
STEP 1. Type of matter:
WHERE IMMIGRATION CONTROL TAKES PLACE:
LASPO 2012 Public funding is only available in cases involving:
Overseas: 1. Asylum
2. Detention
Apply for Entry clearance (EC) prior to entry. 3. Victims of trafficking/domestic violence/forced marriage
4. The Special Immigration and Appeals Commission
Visa national countries: countries for which the UK always requires EC OR
before travel. 5. If the client has not yet received an immigration decision (pre-
Non-visa national countries: nationals of these countries can travel to decision stage). In this case, funding is only available if client
the UK for short periods without EC. They must apply for leave to enter, has completed a CW1 or Legal Help form.
at the port when they arrive.
Immigration law – All chapters – Revision Notes | Page 1 of 19
,Any other immigration matter will fall under the excluded category
(no public funding). But LAA may grant some funding to excluded
category cases: this is known as ‘exceptional funding’. – this is rare.
Identify your client’s matter and see if that matter is publicly funded. If
not, no need to go through the rest of the steps.
STEP 2. Means and merits test:
For a matter to be funded, both the means and merits tests must be
satisfied.
Merits test:
The sufficient benefit test: whether a reasonable person of moderate
means, paying privately, would pay for the legal work. – If yes, the test
is satisfied.
Means test:
Satisfied if client’s gross monthly income is £2,657 or less and if client’s
disposable capital is £3,000 or less.
STEP 3. Eligibility of solicitor/law firm:
Publicly funded work can only be carried out by firms with an LAA
contract and Immigration and Asylum Accreditation Scheme accredited
staff.
STEP 4. Conclude:
If public funding is available:
The type of help client may get is free legal advice and legal work on the
matter under the Legal Help scheme.
For asylum appeals and bail applications only: in addition to the above,
they are eligible for free legal representation for under the Controlled
Legal Representation scheme. In relation to legal representation, the
merits test is reasonable prospect of success (= chance of success if 50%
or more).
Funding of an expert report and attendance at interviews will need to be
approved by the LAA. This will likely be authorised if your client:
• is subject to the fast track procedure OR
• is to be interviewed by an Immigration Officer
If public funding is not available:
* Law firm/solicitor may offer to take the case on a pro bono basis
or
* Client must pay privately
Immigration law – All chapters – Revision Notes | Page 2 of 19
, VISITORS, WORKERS AND STUDENTS THE POINTS BASED SYSTEM:
VISITORS (APPENDIX V): Migrants who wish to work/study in the UK must apply under the Points
Based System (PBS).
Requirements:
Documentary evidence:
The application of a standard visitor must satisfy all the requirements. Para 245AA IR PBS application evidence requirements – Documents will
only be considered:
STEP 1 – General Requirements: 1. If they were submitted with the application
2. After the application, if it is in the wrong format or does not
Part V1 Visitors apply for leave to enter at the port of arrival where contain all the necessary info.
their application is decided by an Immigration Officer on the spot.
Sponsorship under the PBS:
V1.2 Visitors who must apply for entry clearance before arrival (if they * Employers must be licenced to employ migrant workers
do not, their application at the port will be refused): * Education providers must be licenced to offer educational
• Visa nationals (nationals of countries listed in Appendix VN) courses.
• Persons seeking a visit visa to marry in the UK, then leave the UK * All sponsors must apply to join the register of sponsors. If
• Persons visiting for longer than 6 months – academic visitors awarded a licence, they are added to the register and will be able
to issue certificates of sponsorship. The licence is valid for 4
V1.3 Non-visa nationals: visit visa is not required to unless they are years, then the sponsor must re-apply.
visiting to marry or to stay for more than 6 months. Sponsors must agree to comply with sponsorship duties:
Leave to enter conditions: * to inform UKVI if migrants do not turn up for their job/course
* to inform UKVI if they are absent without permission for a
• Should not stay for longer than 6 months significant period.
• Employment is prohibited, but visitor may undertake short
courses of recreational study for the duration of their stay s.70A IA 2014 Skills charge for companies hiring non-British nationals as
• No recourse to public funds skilled workers. Skills charge: currently £1,000 per employee per year
(£364 for universities).
Part V2 If entry clearance is required, apply online prior to arrival with a
fee, supporting evidence, valid travel doc and biometric data. Applying under the PBS:
1. Check if the applicant has the requisite points under the relevant
STEP 2 – Suitability Requirements: category.
2. Complete the relevant application form (find it on UKVI website)
Part V3 All visitors must meet the suitability requirements. 3. Submit the form + fee + supporting evidence to UKVI.
Supporting docs will be verified. If the docs are false or if there is
Part 9 Grounds for mandatory refusal – officer must refuse: cause to doubt its genuineness, the application will be refused.
1. 9.2 If applicant is subject to exclusion order/deportation order
2. 9.3 If applicant’s presence in the UK is not conducive to the
public good SKILLED WORKERS (APPENDIX SKILLED WORKER):
3. 9.4 If applicant has criminal convictions
This category includes workers whose skills are needed by a UK based
Grounds for discretionary refusal – officer may refuse: employer.
1. 9.6 If applicant has been involved in a sham marriage
2. 9.7 If false representations have been made Requirements:
3. 9.9 If applicant fails to provide information when reasonably
required to do so STEP 1 – Validity requirements:
4. 9.11 If applicant has unpaid debts to the NHS
5. 9.12 If unpaid litigation costs awarded to the Home Office SW 1 To apply as a Skilled Worker, an applicant must:
• Pay the fee and the Immigration Health Surcharge.
STEP 3 – Eligibility Requirements: • Provide biometrics.
• Provide a passport or satisfactory equivalent document.
V4.1 Applicant that have additional eligibility requirements: • Have a Certificate of Sponsorship that was issued to them by
1. V4.11-4.13 Child at the date of application their sponsor no more than 3 months before the date of
2. V4.14-4.16 Coming to receive private medical treatment application.
3. V4.17-4.20 Coming to the UK as organ donor • Be aged 18 or over on the date of application.
4. V4.21 Coming to the UK under ADS agreement
5. V4.22 Coming to the UK as an academic The applicant may apply from within/outside the UK. If the applicant is
within the UK, they must not be in the UK on any of the following bases:
Part V4 A standard visitor must satisfy all of the below: 1. as a Visitor
• V4.2 Must have a genuine intention to visit, not to stay. – eg. if 2. as a Short-term student
the applicant has no job in their home country, their intention to 3. as a Parent of a Child Student
visit may be questioned. 4. as a Seasonal Worker
• V4.3 Has sufficient funds to cover the reasonable costs of their 5. as a Domestic Worker in a Private Household OR
visit (including the return journey). 6. outside the Immigration Rules.
• V4.4 Must not intend to work in the UK. Exceptions: volunteering
or being an expert witness at a UK court. STEP 2 – Suitability requirements:
• V4.5 Must not be paid by a UK source for their activities
• V4.8 Must not intend to study in the UK SW 2 The applicant must not fall for refusal under Part 9.
• V4.9 Must not intend to receive medical treatment other than If the applicant is applying for permission to stay (if already in the UK),
private medical treatment/to donate an organ. they must not be in breach of immigration laws or on immigration bail.
• V12 Must not intend to marry/form a civil partnership except
where they have a visit visa for marriage or civil partnership. STEP 3 – Eligibility requirements:
Extension of stay as a visitor: Entry requirements:
SW 3 If a person is applying from outside the UK, then they must apply
Part V17 The maximum period allowed for a standard visitor is 6 months. for and obtain entry clearance before they arrive in the UK.
Part V15 If a person is granted a visitor visa of less than 6 months they Appendix T Lists countries with a risk of tuberculosis. If they are from a
may be able to apply to extend it up to the 6-month maximum. A country on the list, then provide a valid medical certificate showing that
standard visitor for private medical treatment may be granted a further they are free of tuberculosis.
extension of stay for 6 months if it is for private medical treatment.
Mandatory points requirements:
Cancellation & curtailment: SW 4.1 An applicant must gain 50 mandatory points:
1. A Certificate of Sponsorship (20 points):
Part 9 A person’s leave may be cancelled/curtailed if: SW 5 This is valid if states:
1. False representations/documents were provided • That the employer is an approved sponsor
2. Material facts were not disclosed. • The applicant’s details, job, salary
3. The visitor ceases to satisfy the requirements of the visitor rules • Skills Charge payment confirmation
or has breached any conditions of their leave.
Immigration law – All chapters – Revision Notes | Page 3 of 19
