Newsletter – Immigration Update May 2015‏

UK visas – New “Biometric Residence Permit” introduction to overseas applicants

Applicants in the UK will be familiar with Biometric Residence Permits (BRPs) in applying for a UK visa.
These are ID cards (same size as a driving licence or credit card) with all the applicant’s key personal details and visa grant details. These are used together with the applicant’s passport to travel in and out of the UK – in effect the BRP is the visa document.

Now the UK government is introducing Biometric Residence Permits (BRPs) to visa applicants OUTSIDE the UK. This is being introduced country by country in a phased rollout during 2015.

The introduction is to allow the UK to comply with EU regulations on uniformity of immigration documents.

All successful applicants for a UK visa (longer than 6 months in duration) will now be issued a 30 day “visa sticker” to then travel to the UK to collect their new BRP.

If the applicant does not travel to the UK within the 30 days, they will need to resubmit their biometric details and be issued a new 30 day visa sticker (at additional cost).

This means applicants need to be very accurate about their intended travel date and proposed UK address and postcode at the application stage. This then determines when and where the BRP needs to be collected in the UK.
This is very different from the current system which allows applicants to be given the full visa term as a visa label in their passport.

UK – Recent Developments in EEA Applications

In January 2015, the UK Home Office introduced totally new applications forms for all EEA categories. The new forms are much more extensive and up to 3 times longer than the previous editions.

In April 2015, a new process was introduced for EEA applications in the UK requiring the submission of biometric details (including fingerprinting). EEA residence cards are now to be issued as Biometric Residence Permits (like a small ID card) to be carried with one’s passport.

Original passports or National Identity Cards need to be submitted in EEA applications (for the EEA national and the EEA Family Member). However, these can be returned during processing if needed for travel or identification. Even after requesting the return of passports, the application can still continue to be processed as normal.
There is a specific procedure to notify the Home Office for the return of passports.

In 2014, judges in the UK Upper Tribunal (Immigration and Asylum Chamber extended the Surinder Singh principle to unmarried partners. This is the legal ruling which allows British citizens to use EEA law to bring their family members to the UK. However, as of yet the UK government have not amended the EEA regulations to reflect this judgement on unmarried partners.

UK –citizenship now open for children of British citizen fathers

This new route to UK citizenship has now been commenced by the UK government and applications are being accepted.
Since April 2015, UK citizenship is now possible for those born to British citizen fathers – where the father was not married to the mother when the child was born.

Before 1 July 2006 a child could only obtain citizenship through his or her father if the parents were married. The law changed on 1 July 2006 to allow a person to acquire citizenship through his or her father, regardless of whether the parents were married. That change was not made retrospective, leaving those born before 1 July 2006 still not entitled to British citizenship.

However, this has now been introduced to ALL such applicants – either as children or as adults regardless of when one was born. New applications are being accepted since April 2015.

If you believe you may qualify for British citizenship through this new route then please contact us.

UK – meeting the financial requirements through “NON-EMPLOYMENT INCOME”

Since July 2012, applicants applying to move to the UK as the spouse / partner / fiancé of a British citizen or settled person, have been required to meet the financial requirements as set out under the Immigration Rules.

This is often met through income from employment but for some applicants the requirements can be met through “non-employment income”.

This includes income from investments, property rental, dividends, and maintenance payments from a previous spouse / partner. Non-employment income can be combined with other sources such as employment income and savings.
Property rental is increasingly popular for some applicants who intend to rent out their home before moving to the UK. The evidence for this source of income includes;
• Proof of ownership of property
• Proof of actual rental income through bank statements
• Tenancy agreement

The rules as outlined in Appendix FM 1.7: Financial Requirement allow the gross amount of rental income to be used in meeting the financial level. There is nothing in the guidance to state that mortgage repayments on the property or management fees need to be deducted.

If you think you might be interested in using non-employment income such as property rental to meet the financial requirements and need further guidance then please do not hesitate to contact us.

Australia – Focus on Contributory Parent visas

The Contributory Parent visa category is one of the most popular family migration categories that can lead to Australian residence based on a relationship with an adult son or daughter living in Australia.

Processing times in 2014 – 2015

Recently processing times for many of these family subclasses have increased. For instance, offshore applications submitted through the main Parent centre in Perth, Western Australia can take 18-20 months.
It is therefore more important than ever to plan well in advance and also to look at routes of entering Australia temporarily, while an offshore application is progressing. This is possible to do as long as the correct procedures are followed.

Who can sponsor ?

Your application must be sponsored by your adult son or daughter who is an Australian citizen, Australian permanent resident or eligible New Zealand citizen.
Your sponsor must live in Australia and be settled there. This usually means that the sponsor has lived there for the last 2 years but this timeframe can be reduced if the right evidence is included.

Balance of Family Test

The Balance of Family Test is one of the most important criteria to be met in an application for a parent visa. The idea behind the test is to determine how extensive your links are to your children in Australia compared to your other children in other countries.

The balance of family test requires that at least half of your children live permanently in Australia, or that more of your children live permanently in Australia than in any other country.

You will meet the balance of family test if either:

at least half of your children live in Australia (so for example, if you have five children, at least three of your children must be living in Australia);

OR

if more of your children live in Australia than in any other country (so for example, if you have five children and two of your children are living in Australia, each of your other children must be living in different countries)

Application Fees

Unfortunately, applications fees for the Contributory Parent visa are very very high. Although, this visa does allow access to Medicare in Australia, the cost of this visa needs to be effectively planned.
Please contact us for more information on the up to date application fees.

Criminal Convictions

Australia screens all applicants for Contributory Parent residence visas as to whether or not they can meet the “character” requirement.
This requires a full declaration of all criminal convictions, regardless of whenever such convictions occurred.
Applicants also need to provide Police Record Checks for every country one has lived in for 12 months or more over the last 10 years since turning 16
Even if you have criminal convictions Australia can still determine that you meet the character requirement. This really depends on the dates of conviction (s) and most importantly the nature of the conviction.
Applicants need to provide detailed written statements and sometimes character references to support any application in which criminal convictions are declared.
In many cases, applicants with criminal convictions can still be referred to the specialist Visa Applicant Character Consideration Unit (VACCU) for more detailed scrutiny.

Annual quotas in these visa categories

Unlike other countries, Australia operates an annual migration programme, which places quotas on the number of visas that can be issued in any particular category (or subclass). Parent visa subclasses are subject to this annual quota or cap.

Therefore, every year there is a cap on the number of such visas that can be issued. Recently, the numbers of such visas have been reduced, leading to the situation where processing times are increasing for such applicants.

Also, remember the Australian visa year runs from 1 July to 30 June, so as the end of the year approaches the number of available visas can be reduced rapidly.

Our service in applying for Australian Contributory Parent visas

We have many years experience in securing Australian residence visas, such as Contributory Parent visas, for our clients.
We can handle the whole application from start to finish. The service includes everything from pre-application advice, document review, completing forms, covering letter, drafting your personal statements, submission to the government and bringing to a successful conclusion. This continues throughout the whole process until your application is approved.
You will only deal with one dedicated immigration adviser to provide you with a focused one to one service.
Our success rate is second to none and we can provide numerous verifiable references from satisfied clients for you to review and inspect. We are immigration consultants based in the UK, assisting applicants all over the world.
At this stage, we just need you to complete this quick registration form on our website;

http://www.commonwealthimmigration.com/assesment_form.html

This should give us all the information we need to give you the correct advice.

We can then review in full and get back to you

Immigration Update November 2014‏

 

 

 

UK – new citizenship route for children of British citizen fathers

 

Under the Immigration Act 2014, the UK government will be creating a new route to British citizenship for those born to British citizen fathers – where the father was not married to the mother when the child was born.

Before 1 July 2006 a child could only obtain citizenship through his or her father if the parents were married. The law changed on 1 July 2006 to allow a person to acquire citizenship through his or her father, regardless of whether the parents were married. That change was not made retrospective, leaving those born before 1 July 2006 still not entitled to British citizenship.

The new provisions under the 2014 Act will create a registration route for those born before 1 July 2006 who would have become British citizens had their parents been married. This will affect anyone born before 1 July 2006 who are now adults or children.

While the Immigration Act has passed through Parliament, the government have not yet issued a commencement order for these new provisions to take effect.

If you believe you may qualify for British citizenship through this new route then please contact us.

 

UK – meeting the financial requirements through savings

Since July 2012, applicants applying to move to the UK as the spouse / partner / fiancé of a British citizen or settled person, have been required to meet the financial requirements as set out under the Immigration Rules.

This is often met through income from employment but for some applicants there is no other way to meet the requirements other than through cash savings. This usually involves showing savings of GBP 62,500 held in cash funds for 6 months. Some applicants have realised this amount by selling their property to move to the UK.

However – many applicants do not realise that a change in the rules earlier in 2014 means that if the funds result from the sale of a property or other asset, then you do NOT have to hold the savings for 6 months in cash.

Instead you need to show that;

  1. The savings are currently held in cash funds at the date of application
  2. The relevant savings amount was held in the total value of the asset (such as property equity) that was owned by you for the preceding 6 months.

 

The same applies to those realising their cash funds from an investment portfolio or other savings account (such as shares etc…).

This is a major change for some applicants, significantly reducing the waiting time before they can apply for a visa.

If you think you might be affected by this and need further guidance then please do not hesitate to contact us.

UK – new notice period for marriage and civil partnerships

The Home Office has announced changes to the process for giving notice of marriage or civil partnership which will come into effect on Monday 2 March 2015. From this date, the notice period for all couples wishing to marry or form a civil partnership in England and Wales will be extended from 15 days to 28 days.

 

The stated aim, according to the Home Office is to allow more time to “identify and investigate suspected sham marriages and civil partnerships”.

 

Also, for couples involving a non-EEA (European Economic Area) national, where the Home Office suspects the couple are not genuine the notice period may be extended to 70 days to enable the Home Office to interview the couple and take further action as necessary.

 

Couples who give notice of a marriage or civil partnership before 2 March 2015 will not be affected by the changes.

 

Australia – new English tests accepted

From 23 November 2014, the Australian Department of Immigration will now be accepting 2 new tests as evidence of English language ability.

These are the Test of English as a Foreign Language internet-based test (TOEFL iBT) and the Pearson Test of English Academic (PTE Academic).

Also the Cambridge English: Advanced (CAE) test will also be accepted for a test taken on or after 1 January 2015.

These new tests join the already accepted tests – International English Language Testing System (IELTS) and the Occupational English Test (OET).

All of these English language tests can be used to evidence English language ability in the main skilled migration subclasses.

 

Australia – Focus on visas for Spouses and Partners

 

There are several visa categories that can lead to Australian residence based on a relationship with a partner, married spouse, prospective spouse etc.. The following are some of the main categories of entry;

 

  • Partner Visa: Offshore Temporary and Permanent (Subclasses 309 and 100)

 

 

 

Processing times in 2014 – 2015

Recently processing times for many of these partner subclasses have increased. For instance, offshore applications submitted through London can take 10-12 months.

It is therefore more important than ever to plan well in advance and also to look at routes of entering Australia temporarily, while an offshore application is progressing. This is possible to do as long as the correct procedures are followed.

What Relationships can be included ?

Australia permits many different types of relationships to apply under these categories, including;

Married spouses (same sex or opposite sex)

Defacto spouses (i.e. same sex or opposite sex spouses living together but not married)

Prospective spouses – those who intend to marry in Australia.

In all cases, applicants need to show that there is a genuine and continuing relationship. Many applications are delayed for want of sufficient evidence on this point. Regardless of the length of the relationship, this point is crucial.

Defacto spouses

In order to qualify as a Defacto Spouse (either through a same sex or opposite sex relationship), the applicant and sponsor must show the existence of such a relationship for the 12 months period immediately before the application.

Unfortunately, many applicants are rejected on this point by confusing a defacto relationship with cohabitation for 12 months. Applications are frequently submitted with evidence just showing cohabitation for 12 months and then expecting approval. This approach is not likely to receive approval without more evidence.

 

Cohabitation for 12 months is just one component of proving a defacto relationship. Unless, you can provide sufficient evidence to demonstrate all the components of a defacto relationship, then there is little point in applying.

 

Australia is generous compared to many other countries (such as the USA) that only recognise married spouses. However, the evidence required for defacto spouses is not something that is viewed lightly. Each application needs to be carefully assessed to ensure the key components are met.

 

The content of statements from the sponsor and applicant are crucial, as are those from family and friends. We regularly assist applicants to show that all the key components of a defacto relationship are being met.

 

Who can sponsor ?

Your application must be sponsored by your partner who is an Australian citizen, Australian permanent resident or eligible New Zealand citizen.

Your sponsor can live in Australia or outside Australia. If your sponsor lives outside Australia then he / she should be intending to return to live in Australia with you.

 

Evidence of employment or other sufficient financial resources is often required from the sponsor.

 

Criminal Convictions

 

Australia screens all applicants for spouse / partner residence visas as to whether or not they can meet the “character” requirement.

This requires a full declaration of all criminal convictions, regardless of whenever such convictions occurred.

Applicants also need to provide Police Record Checks for every country one has lived in for 12 months or more over the last 10 years since turning 16

Even if you have criminal convictions Australia can still determine that you meet the character requirement. This really depends on the dates of conviction (s) and most importantly the nature of the conviction.

 

Applicants need to provide detailed written statements and sometimes character references to support any application in which criminal convictions are declared.

 

In many cases, applicants with criminal convictions can still be referred to the specialist Visa Applicant Character Consideration Unit (VACCU) for more detailed scrutiny.

 

Annual quotas in these visa categories

 

Unlike other countries, Australia operates an annual migration programme, which places quotas on the number of visas that can be issued in any particular category (or subclass). Spouse / partner visa subclasses are subject to this annual quota or cap.

 

Therefore, every year there is a cap on the number of such visas that can be issued. Recently, the numbers of such visas have been reduced, leading to the situation where processing times are increasing for such applicants.

 

Also, remember the Australian visa year runs from 1 July to 30 June, so as the end of the year approaches the number of available visas can be reduced rapidly.

 

Typically, these applications can take 4 -6 months from submission for a decision to be made. This timeframe may well change in future months. It is crucial therefore to plan ahead if thinking of moving to Australia with your partner.

 

Including Dependents

 

Your partner (which can include opposite, same sex, married or unmarried partners) can include their dependent children on their application.

Children usually need to be living with you and dependent on you.

 

In cases where children have turned 16, it is often necessary to produce additional evidence to show that they are still dependent.

 

 

Our service in applying for Australian spouse and partner visas

We have many years experience in securing Australian residence visas, through the spouse and partner subclasses, for our clients.

We can handle the whole application from start to finish. The service includes everything from pre-application advice, document review, completing forms, covering letter, drafting your personal statements, submission to the government and bringing to a successful conclusion. This continues throughout the whole process until your application is approved.

You will only deal with one dedicated immigration adviser to provide you with a focused one to one service.

Our success rate is second to none and we can provide numerous verifiable references from satisfied clients for you to review and inspect. We are immigration consultants based in the UK, assisting applicants all over the world.

At this stage, we just need you to complete this quick registration form on our website; http://www.commonwealthimmigration.com/assesment_form.html This should give us all the information we need to give you the correct advice.

We can then review in full and get back to you

Newsletter July 2014

Welcome to the Commonwealth Immigration Newsletter.

Please feel free to forward this newsletter on to your friends and family. However, if you no longer wish to receive this newsletter then just send us an email and we’ll delete your details straightaway.

Previous issues of the newsletter are available to read on our website. You can also now click onto dedicated Country Info pages on our website for each of the countries that we specialise in. Just go to http://www.commonwealthimmigration.com and click “Countries and Visas”.

UK – IMMIGRATION UPDATE – MM Case

A recent case heard at the UK Court of Appeal has examined in detail the UK financial requirements for spouse / family of British citizens and other settled persons.

Judgement in the case of MM and Others, was handed down on Friday July 11th and it proved to be a major setback for the thousands of families so severely impacted and torn apart since the financial requirements were introduced in July 2012.

The Court of Appeal completely rejected the High Court decision and found in favour of the UK Home Secretary.

The Court found no reason to intervene in what it saw as a decision solely for the government.

So, pending an appeal to the Supreme Court, it now appears that the financial requirements are here to stay for the foreseeable future.

This requires the British sponsor to be earning at least GBP 18,600 per annum to sponsor a spouse / partner (even more if children are to be sponsored).

British citizens outside the UK must have earned GBP 18,600 for the last 12 months and have a confirmed offer of employment in the UK paying GBP 18,600.

The UK Immigration Minister has stated that up to 4,000 applications which have been on hold now stand to be refused.

Many more applicants will now be looking at the so called Surinder Singh route to bring their family members to the UK (see below).

EEA immigration to the UK through the Surinder Singh Judgement

Introduction

Recent UK immigration changes have now made it extremely difficult for the spouses, partners, children and other family members of British citizens to move to the UK.

However, one often overlooked route to legally move to the UK is through what is widely referred to as the “Judgement in the Surinder Singh case”.

This route is entirely legal and backed up by EEA regulations and judgements. It cannot be changed at will by the UK government. Little wonder, that the UK Border Agency do not provide much information on this route to the UK as it allows family members in effect to bypass UK immigration.

The Legal Background

Surinder Singh was an Indian citizen who moved with his wife (a British citizen) to live and work in Germany. Upon his return to the UK he then argued that he had entered under EU law – i.e. on the basis that he and his wife were already exercising EU Treaty Rights in Germany. In a landmark court ruling in 1992, the European Court of Justice (ECJ) agreed with him and thereby opened up a whole new world of immigration possibilities.

The basic principle from the case is that if a British citizen is living in another EU member state then he / she is entitled to return to the UK under EU Free Movement Rights and his / her family members are also entitled to enter under the same Free Movement Rights.

In effect, by living in another EU member state the British citizen becomes “European” and has the same rights as say, a German citizen moving to the UK with a non EU family member.

In a further case, the ECJ reaffirmed the Surinder Singh judgement and also clearly stated that it made no difference if the British citizen moved to another EU member state solely to facilitate a Surinder Singh type return. As long as one follows the correct process, one’s motive is irrelevant and cannot be questioned by the UK government.

The most recent set of EEA Regulations (published by the UK government) give legal standing to the Surinder Singh judgement.

The regulations state expressly that if the qualifying conditions are met;

“these Regulations apply to a person who is the family member of a United Kingdom national as if the United Kingdom national were an EEA national.”

In other words, the British citizen is treated as an EEA national.

The Advantages

This route of entry allows the family member to bypass all the requirements imposed on family members of British citizens living in the UK.

To keep re-iterating the point – the family member is now treated as the family member of an EEA national.

So, the restrictions of UK immigration law simply do not apply. This means;

·No requirement to meet the new financial maintenance criteria introduced in July 2012

·No need to meet the English language requirement.

·There is very little room for the UK Border Agency to question the legitimacy of relationships.

·A wider definition of family members under EEA law than UK immigration (it can include partners, children up to the age of 21 and other dependents such as parents)

·No hefty immigration fees to be paid to the UK Border Agency

·Faster processing times as required under EU law.

·A much more secure legal framework to move to the UK rather than being subject to whimsical changes imposed by UK politicians.

·EEA nationals and their family members are not subject to the “no recourse to public funds” rule under UK immigration.

·No requirement to have a UK employment offer.

The Key Requirements

Step 1

The British citizen must move to another EU member state. This includes the 28 member states of the EU itself (not including the UK of course!) and the additional EEA members (Norway, Lichtenstein and Iceland) and also Switzerland.

The full list is;

Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Irish Republic, Italy, Latvia, Lichtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, Switzerland.

In order to qualify under Surinder Singh, the British citizen must then “exercise Treaty Rights” in that member state. This means being a worker or self-employed. It does not include studying or retirement or being self-sufficient.

There is no requirement to earn a certain amount or even to work full-time. The requirement is to be a genuine worker so part-time, temporary work would suffice.

The ECJ in the Surinder Singh case stated a minimum period of 6 months is required to be exercising Treaty Rights in another EU member state. The regulations themselves do not specify a minimum period but 3 – 6 months is still seen as the general “rule of thumb”.

Most applications we have processed have been where the British citizen has exercised Treaty Rights for 6 months. There have been cases where 3 or 4 months have worked but we still recommend 6 months.

The British citizen should retain sufficient records of working and of their residence in the EU member state.

The spouse or partner of the British citizen should then move to that same EU member state and live with the British citizen.

However, the spouse or partner does not have to obtain a full residence visa to live in that EU member state (although often it is good to do so). However, it is perfectly possible to enter as a visitor, live with their British citizen spouse / partner and then apply for entry to the UK.

Step 2

The family member now needs to apply for a UK visa – or termed an “EEA Family Permit”. This is the most important part of the whole process – i.e. to ensure the applicant is categorised as the family member of an EEA national as defined in the Surinder Singh case.

It is vital to produce all the right evidence and to specifically address the Surinder Singh case in your application.

Normally, family members of British citizen cannot apply under EEA law. So, make sure the application is very specific in highlighting the Surinder Singh case and this is the category that one is applying under.

The application is usually made to the British Embassy in the EU member state that one lives in. Processing times vary but 3 weeks is the normal maximum time it takes. Some applications can be approved in a few days, if prepared properly.

If approved, the EEA Family Permit will be issued for 6 months and state that the applicant “MRS NAME” is the EEA Family Member of “MR NAME”.

Congratulations – you have now successfully used the Surinder Singh case and you are categorised as the family member of an EEA national. This now defines your immigration status on entering the UK and how you stay in the UK.

Step 3

After moving to the UK, an application is then made for an EEA residence card for the family member. Much of the key material submitted in the EEA Family Permit application is still required, together with more evidence after moving to the UK.

An EEA residence card is then issued for 5 years.

UPDATE – New Regulations – January 2014

Effective January 2014, the UK government has published new EEA regulations on the “Surinder Singh route”.

The legal basis of the new regulations seem to be dubious – in introducing a new test that requires the British citizen to have “transferred the centre of his or her life” to the other EU member state.

While we await to see if this will affect future applications, this is certainly not a requirement of the Surinder Singh judgement as detailed by the ECJ.

Applicants are of course best advised to provide as much evidence as possible that they are genuinely living and working in the other EU member state. This would help to avoid any doubt but that they are genuinely and effectively exercising their EU Treaty Rights. This is the real test as outlined by the ECJ in the Surinder Singh case.

UPDATE – New case – O v The Netherlands – March 2014

The judgement in this European Court of Justice case reaffirmed the Surinder Singh rights and expanded the case to ALL those exercising EU Treaty Rights, not just workers.

So, a British citizen can exercise EU Treaty Rights in another EU member state as a worker, self-employed, student or self-sufficient person and still use the Surinder Singh route to bring family members in to the UK.

If you wish to make any type of UK / EEA application, then please complete this form on our website;

http://www.commonwealthimmigration.com/assesment_form.html

This should give us all the information we need to give you the correct advice.

We can then review in full and get back to you.
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TRANSFERRING FOREIGN CURRENCY – Worldwide Currencies

Make sure you use a reputable and competitive currency provider when transferring funds to the UK or to any other country.

Most banks offer poor exchange rates meaning that simply by using a dedicated currency provider, you can save a lot of money.

Make sure you use a currency provider that is fully registered by the UK authorities.

We recommend Worldwide Currencies who have assisted many of our clients in the past and can offer exchange rates with no commission or charges, and often up to 5% better than the banks.

For more information contact Richard Bass, Worldwide Currencies;

richard.bass@worldwidecurrencies.com

www.worldwidecurrencies.com

Tel +44 (0) 20 3326 4403


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We hope that this email has been informative for you. However, remember everyone’s circumstances are different so if you or a friend or family member want to check your eligibility to emigrate then either

1) complete the Online Assessment form on our website www.commonwealthimmigration.com

or


2) call us on (+44) (0) 1223 830 916

Regards from Commonwealth Immigration