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Appeal

Under section 84 of the Nationality, Immigration & Asylum Act 2002, an appeal under section 82(1) of that act may be brought against a decision on any one or more of the grounds below: the decision is:

• not in accordance with the Immigration Rules,
• unlawful under section 29 of the Equality Act 2010 which says a public authority cannot discriminate against a person in relation to race as defined by section 9(1) of that act,
• unlawful under section 6 of the Human Rights Act 1998 which says a public authority must not contravene (go against) its obligations under the European Convention on Human Rights o otherwise not in accordance with the law (for example it did not follow a published policy),
• the appellant is a European Economic Area (EEA) national or a member of the family of an EEA national and the decision breaches the appellant’s rights under the community treaties in respect of entry to or residence in the UK,
• the person taking the decision should have exercised differently a discretion conferred (given) by Immigration Rules,
• removal of the appellant from the UK as a result of the immigration decision would breach the UK’s obligations under the 1951 Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant’s convention rights

Under section 86 of the Nationality, Immigration and Asylum Act 2002 (the 2002 act), the tribunal must determine (reach a decision) on any matter raised as a ground of appeal and any matter that section 85 of the 2002 act requires it to consider. If the tribunal fails to do so it can be an error of law and form the basis of an application for an onward appeal. The tribunal must allow an appeal if either: the Home Office decision was not in line with the law (including the Immigration Rules)∙ discretion within the rules should have been exercised differently (a refusal to depart∙ from the rules does not count as an exercise of discretion in this context) In all other circumstances, the tribunal must dismiss the appeal.

Judicial review

A judicial review is a type of legal challenge where an individual asks the High Court or Upper Tribunal to review the lawfulness of a decision, action or failure to act of a public body or government department. It can also be used to challenge secondary legislation, the immigration rules or policy, or the compatibility of an act of Parliament with the Convention rights under the ECHR. It can only be used where there is no avenue of appeal or where all avenues of appeal have been exhausted. It is different from a statutory appeal because the court should not normally substitute what it thinks is the 'correct' decision, it will only decide if the decision made was lawful.

Judicial review (JR) is not a statutory right of appeal and JR applications are only likely to proceed when all possible avenues of appeal are exhausted, or no right of appeal exists. Judicial review is not part of the appeals system and the fact that an applicant may seek a judicial review does not affect whether or not an appeal is pending.

Tier 1 Entrepreneur

Tier 1 (Entrepreneur) category of the points-based system is based on the Immigration Rules, Part 6A, Paragraphs 245D to 245DF and Immigration Rules under Appendix A. It is for those investing in the UK by setting up or taking over, and being actively involved in the running of, one or more businesses in the UK. For the purpose of paragraphs 245D to 245DF and paragraphs 35 to 53 of appendix A, 'business' means an enterprise such as a: sole trader• partnership• company registered in the UK• The applicant must have, or has invested, or had invested on his behalf, not less than £200,000 (or £50,000 through a Venture Capital firm) in cash directly into one or more businesses in the UK.

Tier 1 Investor

Tier 1 (Investor) category of the points-based system is based on the Immigration Rules, paragraphs 245E to 245EF and Immigration Rules appendix A. This category is for people with high net worth to make a substantial financial investment in the UK. They do not need to show they have any English language ability because, even though they are allowed to work in the UK if they wish to, they should not need to work. They do not need to show any maintenance (funds) because if they have the required investment funds they will be able to support themselves in the UK without help from public funds. The applicant must be at least 18 years old to use this route, and the assets and investment they are claiming points for must be wholly under their control.

Tier 2 General & Intra Company Transfer

The Tier 2 category allows UK employers to recruit workers from outside the European Economic Area (EEA) to fill a particular vacancy they cannot fill with a British or EEA worker. To be eligible under Tier 2, the applicant must have a: • skilled job offer • certificate of sponsorship from an organisation that is a licensed sponsor in the UK.

Tier 4 Categories pertaining to Student Visa:

Tier 4 categories are as follows:

Tier 4 (General) – for students to come to the UK for post-16 education

Tier 4 (Child) – for children aged 4 to 17 years to come to the UK for their education at independent schools To be granted leave

Tier 4 migrants must satisfy the Immigration Rules and score points against two sets of objective criteria to achieve an overall pass mark of 40 points. Applicants must score points for:

attributes (30 points)

maintenance (10 points)

Applicants must

• be a genuine student
• not fall for refusal under general grounds for refusal
• have a valid Confirmation of Acceptance for Studies (CAS)
• meet the maintenance requirements
• be able to show proficiency in English (if required to do so)
• have a valid Academic Technology Approval Scheme (ATAS)
• clearance certificate if studying a relevant subject if they are studying as a postgraduate doctor or dentist:
• have successfully completed a recognised UK degree in medicine or dentistry in the UK
• previously had leave as a Tier 4 (General) migrant or a student o not be seeking leave that would lead to them having spent more than 3 years in the UK as a postgraduate doctor or dentist
• have their sponsor’s permission to take the course if they are,
• or have, in the last 12 months, been sponsored by a government or international scholarship agency not spend more than 2 years in the UK studying below
• degree level as a Tier 4 (General) migrant not spend more than 5 years studying at degree level or above
• be at least 16 years old

Tier 5 categories

Tier 5 category allows people who wish to enter or remain in the UK under the Tier 5 (Temporary Worker) category of the points based system. The Tier 5 (Temporary Worker) sub-categories are:

• Creative and Sporting
• Charity Workers
• Religious Workers
• Government Authorised Exchange
• International Agreement

Settlement Visa

This category considers whether to grant leave on a 5-year route to settlement following a valid application for entry clearance (or leave to enter) or leave to remain on the basis of family life as a partner or parent in accordance with the following parts of the Immigration Rules: paragraphs 277-280, 289AA, 295AA of Part 8, & Appendix FM

This guidance applies to applications for entry clearance to, and for leave to remain, further leave to remain and indefinite leave to remain in, the UK which were submitted on or after 9 July 2012 by an applicant who first applied for entry clearance or leave to remain on or after that date, as a:

• partner – a fiancé(e), proposed civil partner, spouse, civil partner, same sex partner or unmarried partner of a person who is: - a British Citizen; or - present and settled in the UK; or - in the UK with limited leave as a refugee or person granted humanitarian protection; or
• (in the UK) bereaved partner (other than fiancé(e) or proposed civil partner) of a British Citizen or person settled in the UK; or
• parent of a British Citizen child who is living in the UK or a settled child who is living in the UK. This guidance does not apply to applications made as the partner of a Relevant Points Based System (PBS) migrant who has been granted indefinite leave to remain as a PBS migrant where the migrant partner applies under the PBS provisions under Part 8. It does however apply to partners of Relevant PBS Migrants who are applying under Appendix FM for leave to remain in the UK, whose partner has been granted indefinite leave to remain under the long residence provisions of the Immigration Rules.

Business Visa

A visitor can enter, or extend their stay, to do different permitted activities but they should be expected to have a main reason or reasons for visiting, for example for business or a holiday, and be able to provide details.

Visitors can undertake multiple activities whilst they are in the UK but the applicant should be able to explain what their main reason for coming to the UK is at the visa application stage and on entry and for extending their stay.

The applicant should be a genuine visitor determined from their personal circumstances, their stated purpose of visit, their travel history and record of compliance and whether they have adequate funds to cover the costs of their trip or, if they are applying to extend their stay, of the additional time they are seeking to stay here as a visitor. Supporting documents should back up statements made on the application form.

UK Ancestry & Right of Abode

Under the provision of UK Ancestry, Commonwealth citizens must be able to demonstrate that the grandparent on whom the claim is based:

• was born in the United Kingdom and Islands (the Channel Islands, the Isle of Man) or,
• if the grandparent was born before 31 March 1922, in what is now the Republic of Ireland or,
• was born on a British registered ship or aircraft.

Applicants must be related to the UK born grandparent by blood or adoption.

If they can prove their UK ancestry, and the commonwealth citizen intends to take up or seek employment in the UK, they may be granted an entry clearance on the basis of his / her UK ancestry.

A person seeking entry on the basis of their UK ancestry will normally be given leave to enter for five years. Shortly before this leave expires they are eligible to apply for settlement.

Section 1(1) of the Immigration Act 1971 exempts from immigration control persons who have the right of abode in the UK, if they can prove that they have the right of abode. This means that they do not need to obtain the permission of an immigration officer to enter the UK, and may live and work without restriction. You must not collect biometrics from such an applicant. The right of abode is a statutory right, which a person either has or does not have, depending on whether they meet the conditions in section 2(1) of the 1971 Act. Section 2(1) of the 1971 Act, as amended by s.39(2) of the British Nationality Act 1981 (BNA 1981), defines the two categories of people who currently have the right of abode:

• British citizens
• Commonwealth citizens who had the right of abode immediately before 1 January 1983 and who have not, since then, ceased to be Commonwealth citizens

EEA Family Permit, Residence Permits & Derivative Rights of Residence:

Extended family members must be treated as family members for the purposes of the Immigration (European Economic Area) Regulations 2016 (the 2016 regulations) if they have been issued with an EEA family permit, a registration certificate or a residence card and continue to satisfy the conditions set out in regulation 7(3). Applications for an EEA family permit made from outside the UK must be made online, submitted electronically using the relevant pages of GOV.UK, or by post or in person at the relevant visa application centre overseas. If granted, an extended family member will be issued an EEA family permit. EEA family permits are issued free of charge and are valid for a period of 6 months. Once the extended family member is in the UK with an EEA family permit, they must apply before that permit expires for either a: residence card for non-EEA nationals• registration certificate for EEA nationals• Extended family members are only entitled to a right to enter or reside where refusing them this right would deter the EEA national from exercising their treaty rights.

A person who does not qualify for a right of residence under Directive 2004/38/EC (the directive) may qualify for another right of residence under European Union (EU) law. These are known as 'derivative rights' as they come from (are 'derived' from) other instruments of EU law, and not from the directive.

British Citizenship & Nationality:

There are 6 different types of British nationality. These are:

British citizenship

British overseas territories citizen

British overseas citizen

British subject

British national (overseas)

British protected person

You can apply for British citizenship by naturalisation if:

• you’re 18 or over
• you’re of good character, for example, you don’t have a serious or recent criminal record, and you haven’t tried to deceive the Home Office or been involved in immigration offences in the last 10 years
• you’ll continue to live in the UK
• you’ve met the knowledge of English and life in the UK requirements
• you meet the residency requirement

• And you must usually have:

  lived in the UK for at least the 5 years before the date of your application
• spent no more than 450 days outside the UK during those 5 years
• spent no more than 90 days outside the UK in the last 12 months
• had settlement (‘indefinite leave to remain’) in the UK for the last 12 months if you’re from outside the European Economic Area (EEA)
• had permanent residence status for the last 12 months if you’re a citizen of an EEA country - - - you need to provide a permanent residence document
• not broken any immigration laws while in the UK

Naturalisation is not an entitlement. It is a matter of law as set out in the British Nationality Act 1981. The Home Secretary may exercise discretion to naturalise you only if you satisfy a number of statutory requirements. They may disregard the extent to which you are unable to fully satisfy certain requirements but cannot do this in all cases

Naturalisation is not an entitlement and a decision can only be made to grant you citizenship if you can demonstrate that you satisfy certain legal requirements and the Home Secretary thinks fit to naturalise you. The requirements for naturalisation as a British citizen differ depending on whether or not you are applying on the basis of marriage or civil partnership with a British citizen.