Barar Associates News - Barar Associates

6
Sep

Update on EEA Nationals’ right to reside in the UK

EEA Nationals (Brexit)

The Home Office published an update on the negotiations between the United Kingdom and the European Union.

Both sides agreed that the rights of cross border workers should be protected.

On economic rights, they have confirmed the right of EU citizens to set up and manage a business in the UK, and the same applies to British citizens in their Member State of residence.

These points of agreement are good news but the discussions also highlighted where more work is needed. The next round of negotiations in September will build on progress to date with a view to reaching a future agreement on citizens’ rights.

You can visit the Home Office website at Status of EU citizens in the UK: what you need to know for further details about the government’s proposal to protect the position of EU citizens in the UK – and UK nationals in the EU – published on 26 June 2017. It contained these commitments:

  • EU citizens with settled status will continue be treated as if they were UK nationals for education, healthcare, benefits, pensions and social housing after the UK leaves the EU.
  • EU citizen currently in the UK lawfully will not be asked to leave at the point the UK leave the EU. EU citizens will have at least two years to regularise their status.
  • The process to apply for settled status will be streamlined and user friendly, including for those who already hold a permanent residence document under current free movement rules. They expect the system to be up and running in 2018.

For now, the rights of EU citizens have not changed. As the negotiations in Brussels progress, our advice to EU is to apply for documentation confirming your status now.

If you have questions about your immigration status or need advice on the matter, please feel free to contact our senior solicitor Pam Barar or our immigration team

31
Aug

Tier 1 Entrepreneur (employment)

O-Ono v The Secretary of State for the Home Department [2017] CSOH 107

9 August 2017 oOpinion of Lord Summer

 

Clarification on one of the conditions of stay for the Tier 1 (Entrepreneur) Visa:no employment other than working for the business or businesses that you have established, joined or taken over but working for such business(es) does not include any work you do which is effectively employment with another business’.

 

The petitioner was a Nigerian national and a qualified engineer who studied in the UK, and then applied for permission to remain. He was granted leave until 6 January 2018.

Leave was permitted in a letter under the provisions made for entrepreneurs who wish to establish businesses in the UK. The petitioner was not permitted to “undertake employment other than working for the business(es) you are establishing, joining or taking over”. This wording follows the wording of the Tier 1 (Entrepreneur) Policy Guidance.

This condition does not confine the permission to remain to employment with a single business and acknowledges that in some situations the entrepreneur may start up other businesses in addition to or in substitution for the original business. There is no indication that the businesses must be in the same sector.

In this opinion, Lord Summer reminds that leave can be curtailed where there has been “failure to comply with any conditions attached to the grant of leave to enter or remain”. There is no statutory right of appeal where leave is curtailed, consequently judicial review of the decision is the only remedy available to challenge the curtailment.

The petitioner established a company and through the Company offered his services to the oil and gas sector. However, the petitioner also worked as a security guard for another company and the employment did not entail the provision of expert engineering services. The respondent’s position was that he had breached a condition of his leave to remain and was liable to removal.

The petitioner argued that since the Home Office Guidance permitted the petitioner to commence and run other businesses, he was at liberty to work as a security guard. It was argued that he was not an employee and that he provided his services as an independent contractor trading under a trading name.

However, the petitioner was only permitted to remain in the UK if he was employed with a company which he had “established, joined or taken over” (Policy Guidance A/41). The only business the petitioner claimed to have “established, joined or taken over” was the first Company. He plainly had not “established” or “taken over” the second company.

The question remaining is the definition of ‘joined’. By taking up employment with the second company, could the petitioner be said to have “joined” it? The Policy Guidance is not meant to apply to persons who join a company as a member of staff unless that employment was connected in some way to the investment of skills or capital in the business. The words “established” and “taken over” suggest that a person “joins” a company when he or she becomes e.g. a partner or shareholder in the business with a view to investing in it.

The key is whether the work being done for another business whether as an employee or a self-employed capacity has collateral benefits for or is connected to a business that the petitioner has “established, joined or taken over“. The underlying condition is to determine whether there is genuine entrepreneurial activity.

The employment whatever its form is the same as employment by “another business,” when the person has no control on the business or in which he has no business interest. The Policy Guidance should be clarified on this point which is quite vague.

In this case, Lord Summer decided that the petitioner’s work of security guard was not within the scope of his permission.

 

If you think about applying for a Tier 1 (Entrepreneur) Visa or have questions about corporate or private immigration, please feel free to contact our senior solicitor Pam Barar or our immigration team.

24
Aug

EEA citizens received detention letters in error

The Home Office error

The Home Office has sent about 100 letters “in error” to EU citizens living in the UK, telling them they were liable for “detention”.

The mistake came to light after a Finnish academic, who has the right to live in the UK, received a letter claiming he was liable to be detained.

In addition, another EU citizen, who is married to a British citizen, was told she had a month to leave the UK.

A Home Office spokesperson said “the rights of EU nationals living in the UK remain unchanged”.

Everyone who received a letter would be contacted to “clarify that they can disregard it”, they said.

“A limited number of letters were issued in error and we have been urgently looking into why this happened,” the spokesperson added.

http://www.bbc.co.uk/news/uk-41027671

10
Aug

MM (Lebanon) & others v SSHD[1] [2017] UKSC 10

New Statement of Changes in Immigration Rules to give effect to MM (Lebanon)

The changes, that will take effect from 10 August 2017, implement the February Supreme Court judgment MM (Lebanon) and Others on the minimum income requirement for entry clearance and leave to remain applications as a partner or child under Appendix FM. In the judgment, the Court ruled that the minimum income requirement is lawful in principle, but can be unlawful in individual cases.

 

The Supreme Court judgment called on the Government to change the Immigration Rules so that the best interests of affected children are given primary consideration in decisions. It recommended that alternative sources of income be taken into account where the sponsor does not earn enough to meet the £18,600 minimum income needed for the application.

 

It must now be evident from the information provided in the application that there are “exceptional circumstances” which could render the refusal of the application a breach of Article 8 of the European Convention on Human Rights (right to respect for private and family life) because it could result in unjustifiably harsh consequences for the applicant, the partner or a child if the other sources of income are not considered. Consequently, the Home Office decision-maker must consider any alternative sources of income they may have.

 

The responsibility is on the applicants to demonstrate that they are unable to meet the standard minimum income requirement and that a refusal would result in unjustifiably harsh consequences for them, their partner or children. If an application is approved on this basis, the route to settlement is 10 years. Applicants can switch into the standard 5 year route is they are subsequently able to demonstrate that they meet the main rules.

 

If you have questions about your immigration status or need advice on the matter, please feel free to contact our senior solicitor Pam Barar or our immigration team.

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