Immigration Update March 2017- UK and Australia
UK – Immigration Update
EEA permanent residence applications
In the last few months the numbers of EU / EEA citizens living in the UK applying for permanent residence has dramatically increased. The UK Home Secretary has mentioned that post-Brexit, that EEA citizens will require some type of documentation to continue to reside in the UK.
Many applicants are looking to apply soon in case restrictions are introduced in relation to employment etc.
The increase in applications has led to a new online application system and a new service called the “European Passport Return Service” (EPRS)
This allows the applicant to instruct a local council to witness their original passport, requiring only the witnessed copy to be submitted to the Home Office. The applicant can then retain their own passport for travel during the application process.
The EPRS service has now been expanded to include family members applying at the same time.
The Home Office have also started to issue confirmation of the date on which the applicant is deemed to have acquired permanent residence in the approval letter to the applicant.
This is a welcome development as it will allow applicants to then know when they can apply for British citizenship. This will be one year after the date confirmed in the Home Office letter and not necessarily the date on the PR document (applicants married to or in a civil partnership with British citizens do not need to wait this one extra year).
Up to now applicants have been in the confusing position of being able to provide 6 or more year’s evidence of being a qualified person and then hoping that this was all accepted by the Home Office in recording their date of acquiring permanent residence.
Furthermore, some EU citizens may well have an older status marked as “Indefinite Leave to Remain” (ILR) in an expired passport or through a Home Office letter. This status can still be valid of the applicant has remained living in the UK. The Home Office are now starting to accept historic ILR stamps as being equivalent to permanent residence, thereby allowing the applicant to apply for citizenship.
Permanent residence can be applied for after five continuous years of possession of the right of residence. This means being a “Qualified Person” for 5 years such as a Worker, Self employed person, Jobseeker, Student, Self-sufficient person.
Those who have not lived in the UK for 5 years are being advised to consider applying for EEA Registration Certificates, which can confirm that the holder is currently living in the UK legally in accordance with EU law. This may well prove important in time to come.
Please note the exact evidence to support your status as a Qualified Person will vary from person to person. We deal with EEA Permanent Residence and Registration Certificate applications regularly so please contact us if you wish to discuss making an application.
English language rules changing in May 2017
Spouse / Partner applicants applying to extend their UK visas from 1 May 2017 onwards must now meet a higher English language level.
Currently, applicants only need to prove their English language ability through an approved test at level A1 on the Common European Framework of Reference for Languages (CEFR)
This will change in May when applicants applying to extend their UK spouse / partner visas must pass a test at the higher A2 level.
Applicants who are from a majority English speaking country or who have passed a degree qualification through English can still meet the English requirement without having to sit the test. Those over the age of 65 are also exempt from the test.
Please note – the new English test only applies to spouse / partner applicants looking to extend their visas in the UK. Those applying for entry clearance from overseas will still need to meet the lower A1 level.
28 day rule abolished
The Home Office have changed the Immigration Rules to prevent applicants applying for further leave in the UK even though their current visa had expired by up to 28 days.
This concession was introduced a few years ago and in effect it allowed an applicant to overstay their visa and still make a new valid application in the UK within 28 days of the visa expiring. This 28 day exemption did not need to be justified or explained.
This has now been replaced by a new grace period of up to 14 days provided;
“there is a good reason beyond the control of the applicant or their representative, given in or with the application, why an in time application could not be made”
No guidance has been issued on what constitutes a good reason but one would expect this would include illness or other compelling circumstances.
This is now a crucial practical point for all applications submitted in the UK – you need to submit an in-time application (unless you have a “good reason” not to) or else your application will be returned as invalid.
UK Supreme Court – MM case
The recent Supreme Court case in the MM case has now finally clarified the legal position of the financial requirements for spouses / partners in the Immigration Rules (Appendix FM).
The court has held that the £18,600 minimum income requirement is lawful in principle and does comply with the relevant human rights obligations of the UK government.
This means the general principle of the minimum income is here to stay.
However, the court did find that Appendix FM did not contain sufficient provision to consider the position of children in spouse/partner visa applications. Currently the government is failing in its legal duty to have due regard to children’s best interests as a primary consideration in immigration decisions.
The judges also ruled that, where the financial requirements are not met, further consideration should be given to alternative sources of income in spouse / partner applications. This might include support from another family member, the prospects of the applicant to find gainful employment in the UK etc.
We now wait to hear from the Home Office as they consider the ruling and make sufficient amendments to take into account the court’s judgement.
Australia – Western Australia
Migrants looking to move to Western Australia might need to pause their plans temporarily as the state government have announced a review of their state skilled migration occupation list.
We anticipate that this will reopen in time for the new financial year in Australia – 1 July 2017. In the meantime, applicants might want to consider other states in Australia who are actively competing for skilled migrants.
South Australia, Queensland and Victoria in particular are continuing to offer state sponsorship for numerous occupations leading to permanent residence.
Australia – parent visa changes ahead?
A new Parent Class visa is earmarked to be introduced in Australia in July 2017 following the launch of a detailed consultation.
This will be a new temporary sponsored parent visa. The temporary sponsored parent visa will allow Australians to sponsor their parents to stay in Australia for up to five years.
This would be very different from the current Contributory Parent visa which leads to permanent residence.
The temporary visa wouldn’t be part of Australia’s annual permanent migration stream.
Visa holders would be able to stay in the country for up to five years before renewal.
The government says the visa would be available for periods of one, three or five years, depending on the capacity of the Australian citizen to support their parent, the health and age of the applicant, and the length the applicant desires.
No price has been set yet for the visa, but the government has said it will be “more affordable” than current parent visa options such as the expensive processing fees of the Contributory Parent visa.
However, applicants would need to have private medical insurance to cover themselves while in Australia.
For those planning to use the current Contributory Parent scheme ahead of the anticipated significant increase in fees you still have time to prepare and submit an application.
Australia – new Skilled Occupation List for July 2017
The Skilled Occupation List (SOL) for subclasses 189 and 190 (permanent residence) is being reviewed by the Department of Immigration.
Each year a number of occupations are removed and added to the SOL which takes effect on 1 July. Last year 9 occupations were removed and 2 occupations added.
The current review has flagged 52 of the 183 occupations for possible removal. These include popular occupations for many migrants such as Engineers (in certain fields), Accountants, Actuaries, and Surveyors.
Generally, occupations are flagged when there is emerging evidence of excess supply in the labour market in the medium-to-long term
Applicants intending to migrate to Australia should consider seeking advice as to starting an application if they are currently eligible.
Our service in applying for UK visas and Australian residence
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