European Court of Justice holds that EU Charter of Fundamental Rights binding on UK

The European Court of Justice delivered a landmark judgement that is bound to set a precedent for the future. Migrants Watch UK is reproducing the judgement hereunder for your attention.

"This briefing provided by Sonal Ghelani
The Migrants' Law Project Doughty Street Chambers
http://www.doughtystreet.co.uk/

The Grand Chamber of the Court of Justice of the European Union (CJEU) has delivered its judgment in the landmark case of Saeedi/NS (C411/10) deciding fundamental questions about Member States' obligations under the EU Charter of Fundamental Rights and whether the Charter binds the UK. 13 Member States intervened along with the European Commission, UNHCR, the Equality and Human Rights Commission, Amnesty International/AIRE. An Irish reference, ME, was joined with NS.

The case concerned a challenge by Mr Saeedi to his transfer to Greece under the Dublin Regulation which enables Member States to transfer asylum seekers to the first EU country they entered. The Court observed that According to [Mr Saeedi], the Greek authorities detained him for four days and, on his release, gave him an order to leave Greece within 30 days. He claims that, when he tried to leave Greece, he was arrested by the police and was expelled to Turkey, where he was detained in appalling conditions for two months. He states that he escaped from his place of detention in Turkey and travelled from that State to the United Kingdom, where he arrived on 12 January 2009 and where, that same day, he lodged an asylum application. (para 35)

Mr. Saeedi challenged his removal to Greece by judicial review relying on the EU Charter of Fundamental Rights.

The Administrative Court accepted that Greece did not comply with EU law and would detain him in bad conditions and/or leave him destitute without offering an effective examination of his asylum claim. However, it considered itself bound by previous UK and Strasbourg caselaw to dismiss the claim. He appealed to the Court of Appeal which referred it to the CJEU due to the difficulty and importance of the case.

The Grand Chamber's ruling was handed down on 21st December 2011 deciding a number of fundamental issues.

No UK 'opt out' from the Charter
The UK along with Poland had negotiated a Protocol to the Lisbon Treaty (which made the Charter binding) that then Prime Minister Tony Blair claimed was an opt-out. At the summit which agreed the Lisbon Treaty, the BBC reported: "The four essential things that we in the UK required in order to protect our position have all been obtained," said Tony Blair at the end of his last EU summit as British prime minister. "Those were first of all to make it absolutely clear that the charter on fundamental rights was not going to be justiciable in British courts or alter British law."

EU leaders agree on reform treaty http://news.bbc.co.uk/1/hi/6232540.stm

The Grand Chamber held that "Article 1(1) of Protocol (No 30) ... does not intend to exempt the Republic of Poland or the United Kingdom from the obligation to comply with the provisions of the Charter or to prevent a court of one of those Member States from ensuring compliance with those provisions." It said there was no need to rule on the interpretation of Article 1(2) of the Protocol as that applied only to Title IV of the Charter which was not relevant to the present case.

The safe third country deeming provision is incompatible with EU Charter
The Grand Chamber has also held that the controversial safe third country deeming provision in UK primary legislation is incompatible with EU fundamental rights and therefore contrary to EU law. The deeming provision prevented UK courts from declaring unlawful and quashing the removal of asylum seekers to other EU Member States on the basis that defects in other EU states' asylum systems created a real risk of expulsion from the receiving state in violation of the Refugee Convention and EU law. (In Nasseri, the Court of Appeal and House of Lords had reversed the declaration of incompatibility granted by the Administrative Court under the Human Rights Act in relation to the deeming provision.)

UK may not apply conclusive presumption that other Member States respect fundamental rights
The Grand Chamber decided that Member States' duties under the Charter override principles of mutual trust between Member States. Member States were therefore not entitled to apply a conclusive presumption (based on principles of mutual trust between Member States) that other Member States complied with fundamental rights.

The Court observed that: At issue here is the raison d'être of the European Union and the creation of an area of
freedom, security and justice and, in particular, the Common European Asylum System, based on mutual confidence and a presumption of compliance, by other Member States, with European Union law and, in particular, fundamental rights. (para 83)

It accepted that: as stated by N.S., were Regulation No 343/2003 to require a conclusive presumption of compliance with fundamental rights, it could itself be regarded as undermining the safeguards which are intended to ensure compliance with fundamental rights by the European Union and its Member States. That would be the case, inter alia, with regard to a provision which laid down that certain States are 'safe countries' with regard to compliance with fundamental rights, if that provision had to be interpreted as constituting a conclusive presumption, not admitting of any evidence to the contrary... (T)he mere ratification of conventions by a Member State cannot result in the application of a conclusive presumption that that State observes those conventions... In those circumstances, the presumption underlying the relevant legislation, stated in paragraph 80 above, that asylum seekers will be treated in a way which complies with fundamental rights, must be regarded as rebuttable. In the light of those factors, the answer to the questions referred is that European Union law precludes the application of a conclusive presumption that the Member State which [is responsible for examining an asylum claim under the Dublin Regulation] observes the fundamental rights of the European Union. (para 100-105)

Some of the Member States that intervened at the hearing had objected that they were in no position to assess the risk that other Member States would breach fundamental rights but the Court rejected their claim. It held that they could use the same kind of country information as the European Court of Human Rights in order to assess the functioning of the asylum system in the Member State responsible, making it possible to evaluate those risks. (para 91)

It concluded that Article 4 of the Charter (which is equivalent to Article 3, ECHR) precluded the transfer of asylum seekers under the Dublin Regulation where systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Member State amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of that provision. As the European Court of Human Rights had, since the Court of Appeal made the reference, found that such deficiencies existed in Greece, it was now clear that the UK would violate Article 4 of the Charter if it transferred asylum seekers to Greece and the other articles of the Charter relied upon by Mr Saeedi did not lead to a different answer (paras 112-114)

The Court emphasised that where a Member State such as the UK could not transfer an asylum seeker to the responsible state, here Greece, then it must ensure that it does not worsen a situation where the fundamental rights of that applicant have been infringed by using a procedure for determining the Member State responsible which takes an unreasonable length of time. If necessary, it must itself examine the application.

The legal team for N.S. (Mr Saeedi) are Dinah Rose QC, Mark Henderson and Alison Pickup of counsel instructed by Sonal Ghelani of the Migrants' Law Project at Islington Law Centre. Mr Saeedi was previously represented by Roopa Tanna at Refugee and Migrant Justice until it went into administration in June 2010 due to legal aid cuts and then by Sheona York at Immigration Advisory Service Prior until that organisation too went into administration due to legal aid cuts in July 2011.

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EU Charter of Fundamental Rights

* Dignity / * Freedoms / * Equality / * Solidarity / * Citizens' rights / * Justice

Summary

The Charter of Fundamental Rights, a political declaration agreed in 2000 and then in a slightly amended form included in the Constitutional Treaty, was not incorporated in the Treaty of Lisbon but has been by the EU institutions and then referred to in the Lisbon Treaty.

The adoption of the Charter as a legal text represents an important change in the EU's human rights framework but the effects of its adoption may not be as extensive as some have suggested. The United Kingdom and Poland obtained the agreement of the other Member States to a further protocol to the Lisbon Treaty which seeks to restrict the interpretation of the Charter by the European Court of Justice and their domestic courts (this is sometimes mistakenly described as an "opt-out").

This briefing explains the history of the Charter, identifies its key provisions, considers the effects of its adoption and explains the British and Polish additional protocol.

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Extension of employment restrictions for Bulgarian and Romanian nationals

Another update was announced by the UK Border Agency on Wednesday 23rd Nov. 2011. Read on:

Controls to restrict how Bulgarian and Romanian nationals access the UK labour market will be extended until the end of 2013, Immigration Minister Damian Green announced today.

This means Romanian and Bulgarian (EU2) nationals seeking to work in the UK will continue to require permission from the UK Border Agency before they can work in the UK.

The minister said:

'Maintaining these controls will make sure migration benefits the UK and does not adversely impact on our labour market. The government is radically reforming the immigration system, and has already announced an annual limit on work visas and tough new rules for students to ensure net migration is reduced from the hundreds of thousands to the tens of thousands.

'The Migration Advisory Committee has made a clear case for extending the existing restrictions on Bulgarians and Romanians. This government has also made clear that we will always introduce transitional controls on all new EU member states as a matter of course.'

The decision supports the government's commitment to reduce employers' dependence on migrant workers, particularly for lower skilled jobs. This will help the unemployed to find their way back into work and help the domestic workforce to acquire the skills the economy needs.

A report from the independent Migration Advisory Committee (MAC) looked at the impact on the domestic labour market if the transitional controls were removed. It found that lifting the current restrictions could cause more EU2 nationals to come to the UK to work, particularly in lower skilled occupations where there is greater risk of displacement of resident workers and a negative impact on wages.

Permission to work will normally be given only where the worker has a specific job offer and the work is in skilled employment for which the employer has been unable to find a suitably qualified resident worker. There are also quota-based arrangements for lower skilled jobs in the agricultural and food processing sectors which will stay at the same level for 2012 and 2013.

The extension of the restrictions does not affect the position of those who have already been authorised to take employment in the UK.

The Migration Advisory Committee's report into EU2 (Bulgarian and Romanian) nationals was released on 4 November 2011 and can be found under the 'see also' section on the right side of this page.

UK youth mobility scheme for Taiwanese nationals - details announced

Here's another update from the UK Border Agency. "Following the announcement last month of Taiwan's participation in the UK's youth mobility scheme, Taiwan's National Youth Commission has announced further details today on how it will administer the 'certificates of sponsorship' that eligible Taiwanese will need in order to apply for this visa. The youth mobility scheme will enable eligible Taiwanese people aged between 18 and 30 years old to live and work in the UK for up to 2 years. To apply for a certificate of sponsorship, you will need to meet the eligibility criteria and register through the National Youth Commission's website between 1 December and 20 December 2011. An allocation of 1,000 certificates of sponsorship will be made available in Taiwan. If the Commission receives more than 1,000 eligible registrations, a computer program will be used to randomly select 1,000. If the Commission receives fewer than 1,000 eligible registrations, everyone who registers and meets the criteria will be allocated a certificate of sponsorship. A further registration period will begin in May 2012 to make up any shortfall in numbers. The National Youth Commission website and iYouth website explain how to apply for a certificate of sponsorship. If you are allocated a certificate of sponsorship, The National Youth Commission will send you details of how to apply for the visa with your certificate of sponsorship. Then you will need to apply to the UK visa application centre in Taiwan for a Tier 5 (Youth mobility scheme) visa. We expect that you will be able to apply for this visa from January 2012. You will need to apply for the visa within 3 months of receiving your certificate of sponsorship, before the certificate expires. For general information about applying for a UK visa, see the Applying for a UK visa in Taiwan pages of this website. You can also find information and guidance about the youth mobility scheme, and the documents that you will need to send with your visa application, in our Tier 5 (Youth mobility scheme) section (this section is only available in English)". Feedbacks: Readers are free to send feedbacks on topics discussed on Migrants Watch, their experience on immigration matter or topics they would like to appear on this page by emailing: migrantswatch@hotmail.co.uk

UK Border Agency publishes Common Travel Area report

Here's another update from the UK Border Agency.

"The UK Border Agency has today published a report reviewing the new border arrangements at Northern Ireland sea ports.

In November 2010, we ended the secondment of 3 police officers from Dumfries and Galloway Constabulary, when responsibility for identifying illegal migrants travelling between the West of Scotland and Northern Ireland sea ports transferred to our local immigration team in Northern Ireland.

The report outlines the emerging findings from our initial review of the new arrangements, and assesses their impact over the period 1 January and 30 April 2011. It concludes that the new arrangements have been successful in increasing the number of immigration offenders detected by both agencies, although further development is needed.

Dumfries and Galloway Constabulary have been consulted on the report and its recommendations. Since the review, both agencies have agreed a 10-point plan of action to improve coordination and liaison. The measures will be introduced during August and September 2011.

The report recommends (and both agencies agree) that a further assessment should be conducted and reported on early in 2012.

Phil Taylor, our regional director for Scotland and Northern Ireland, said:

'I am pleased that the new system has resulted in a marked increase in the detection of immigration offenders, with significant numbers of these cases being detected in Northern Ireland. In the 4 months from January to April 2011, a total of 102 immigration offenders were detected at Scottish and Northern Ireland sea ports. That represents a 65 per cent increase on the same period in 2010.' "

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UK opens its doors to exceptionally talented migrants

Migrants Watch UK is bringing to your notice another update from the UK Border Agency.

"The government has today announced the way that it will encourage exceptionally talented leaders in the fields of science, humanities, engineering and the arts to come to the UK.

The new Tier 1 (Exceptional talent) category will open on 9 August 2011.

This new category will facilitate not only those who have already been recognised but also those with the potential to be recognised as leaders in their respective fields. There is a limit of 1,000 places in the first year of operation. There will be 500 places available between the 9 August and 30 November and a further 500 places available from the 1 December to 31 March 2012. The number of places will be reviewed at the end of March 2012.

• Tier 1 (Exceptional talent) will be overseen by world-renowned 'competent bodies', which will advise the UK Border Agency on these 'exceptionally talented' migrants to ensure that they are the brightest and best in their field:

• The Royal Society, a fellowship of the world's most eminent scientists, will be able to nominate up to 300 places;

• Arts Council England, the national development agency for the arts, will also be able to nominate up to 300 places;

• The Royal Academy of Engineering, Britain’s national academy for engineering, will have up to 200 places to nominate; and

• The British Academy, the national academy for the humanities and social sciences will be able to nominate up to 200 places.

Immigration Minister Damian Green said:
'The UK is a global leader in science, humanities and engineering and we are a cultural centre for the arts: we will continue to welcome those who have the most to offer and contribute to our society and economy.

'Our new exceptional talent route, available for up to 1,000 applicants, will ensure that we continue to attract the brightest into the UK and keep the UK a global leader.
'This comes at a time of major reform of the immigration system to bring net migration back down to the tens of thousands, tackle abuses and make sure that the immigration system meets the needs of the country.'

Migrants seeking entry to the UK under Tier 1 (Exceptional talent) will not need to be sponsored by an employer, but will need to be recommended by one of the competent bodies.

Alan Davey, Chief Executive of Arts Council England, said:

'We welcome the launch of this special visa scheme, which will enable the very best artists of international standing to live and work in the UK.

'The international exchange of artists enriches their art, and I’m sure audiences will welcome the opportunity to experience the finest artistic talent from across the world.'

It will be for each competent body to select those who will qualify for recommendation, and we have also published the criteria for their endorsement.

The President of the British Academy, Sir Adam Roberts, said:

'The Humanities and Social Sciences are flourishing in the UK and attract many excellent scholars from overseas. 

'The British Academy is ready to play its part in identifying those outstanding scholars for whom Tier 1 is the appropriate visa category.'

While the government has allotted a number of places to each body, it will be open to the bodies to transfer additional places to those with more demand if this becomes necessary.

The President of the Royal Society, Sir Paul Nurse, said:

'The UK is a global leader in science because we can attract the best minds from around the world to work with our own home-grown talent. 

'The government has listened to the science community’s concerns about jeopardising our international leadership by restricting the immigration of scientists and the Royal Society will play its part in ensuring that the very best international talent can continue to come to the UK to work.'

Those admitted under Tier 1 (Exceptional talent) category will initially be granted permission to stay for 3 years and 4 months. They will then be able to extend their stay for a further 2 years, and settlement may be available after 5 years’ residence in the UK.

President of the Royal Academy of Engineering, Sir John Parker FREng, said:

'In order to safeguard the UK's future competitiveness, we must ensure that it remains an attractive destination for world class engineers.

'I am confident that this new visa route will help to encourage global excellence to come to the UK.'"

Re: New Immigration Family Proposals

Last week Migrants Watch UK (MWUK) brought to your notice the new proposal on Family Migration being considered by the government.

It claims it is still consulting on the new proposal but on close scrutiny MWUK thinks that the new proposal bears no good news to Migrants therefore are now calling on well meaning people of this country especially Migrants to take a stand to oppose it, as failing to do so, might well become a reality.

Some of the problematic areas of the new proposals are:

Spouses

• The introduction of a specific minimum income requirement (for maintenance purposes) for British and settled sponsors to bring family members over;
• An extension of the probationary period for spouses from the current 2 years to 5 years;
• Pushing up the language level requirements for settlement purposes from A1 to B1 level; The possibility of a requirements to take out medical insurance for certain family members;

Other Family Members

• The ending of indefinite leave to enter for adult dependants and dependants aged 65 or over ……;
• The introduction of pre-entry language requirements for dependants aged 16 or 17, or aged under 65 (level A1 standard);
• Introducing changes to the length of leave granted to 17 year old dependants nearing their 18^th birthday;
• The introduction of more exacting settlement language requirements at B1 level for the above groups

Family Visit Visas

• Limiting the grounds of appeal in relation to family visit visa decisions only in ECHR/Race discrimination Cases;

Article 8 ECHR

• Seeking views on the balance between the right to private and family life and the public interest.

These are areas that calls for serious concern and needs all well meaning people to lend their voices and opinions to the consultation to ensure that government do a serious rethink on these matters.

We are all aware that this government came into the saddle last year claiming it values family life yet barely a year into its tenure; it is now trying to muscle into law a policy that is surely going to disintegrate the same family values it claims to cherish. It just doesn’t add up.

You will all recall that this same government brought in the “English Test Requirements” for families seeking to join their spouses in the UK. This English Test for Spouse Visas became law on 29^th November 2010.

Since this policy came into effect, we have read countless stories of many families that have been denied the opportunity to join their spouses and live together as a family unit because of this policy.

The sad aspect of this policy is that it affects people from English speaking and non-English speaking countries.

Migrants Watch UK is not arguing that people coming into the UK should not integrate or learn to speak English but believes that the best place to learn and improve one’s English is here in England and not in some remote village in Timbuktu or thereabout.

Many of these families have been separated for years whilst battling to regularise their status in the UK. Many of them fled their native countries fearing for their life. They fled leaving their wives and – in most cases – children who barely knew them at the time they departed in fear of their life. Came into the UK and spent years struggling to get status regularised. Many even spent months in detention awaiting decision on their cases. During this waiting period many are unable to work and forced to live off food vouchers offered by the government.

Some aspect of the Immigration rule gives confusing signals in that it sometimes does not just make sense.

For instance a Migrant granted Refugee Status has an automatic right to reunion with his/her family whilst another Migrant granted Indefinite Leave to Remain (ILR) has no such privilege.

The Migrant with Refugee Status is still subject to Immigration Control while the one with (ILR) is not, yet the former has an automatic right to family reunion while the latter hasn’t.

To make matters worse, the visa application fee for families of a Migrant granted (ILR) (with families in Nigeria, for example) is about N166000.00 (One hundred and Sixty Six Thousand Naira) per family member. If the Migrant has a family of 4, that means he/she has to pay around N664000.00 (non refundable) just to obtain visa for the family. By the time you add up costs of flight tickets etc., you know the rest.

I know of a Migrant who fled his country for fear of persecution because of his political views. He came into the UK and applied for Asylum. This Migrant was finally granted Indefinite Leave to Remain after 16 years of painful waiting game and separation from his dear family. This is despite the fact that he tried to do everything by the book, and even shunned the idea of marrying a citizen to short cut the system. During these 16 years of waiting, this Migrant got detained and denied bail despite his good intentions and the fact that he came into the UK with evidence of his partisan political activities and no criminal record. Needless to say that 2 years after being granted (ILR) (making it a total of 18 years of separation from his family) this Migrant still cannot afford to bring his family to join him in the UK – all because of the cost of visa application.

I very much doubt it if anyone in this Coalition government can stand being kept apart from their family for a day left alone for years as is the case with most Migrants.

We all know how top people in this government have tried to balance their work life in order to spend “quality” time with their family – all in the name of proving to everyone that they value family life.

This is the reason Migrants Watch UK is appealing to its readers to please respond to this consultation and let this Coalition government know how we all feel about this New Immigration Family proposal. 

Please bear it in mind that this consultation will close on 6^th October 2011. So get your response in NOW!!!

You can respond online to the consultation at: http://www.ukba.homeoffice.gov.uk/family-migration-consult

Contact

Family Consultation
UK Border Agency

1st Floor Seacole

2 Marsham Street

London

SW1P 4DF

Email:  Familyconsultation@homeoffice.gsi.gov.uk

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New Immigration Family Proposals by UKBA

The UK Border Agency has once again issued another statement on reforming routes for family migration.

This reform, according to the UK Border Agency, is still at a consultation stage but it calls for concern nonetheless. The consultation closes on 6^th October 2011.

Migrants Watch UK is reproducing hereunder an excerpt from the reform and would welcome comments from everyone on it.

“Spouses

• The introduction of a specific minimum income requirement (for maintenance  purposes) for British and settled sponsors to bring family members over – MAC is to advise on the level
• An extension of the probationary period for spouses so that they will wait five instead of two years before they are able to settle
• The introduction of a more specific definition of what constitutes ‘a genuine and continuing relationship”
• Pushing up the language level requirements for settlement purposes from A1 to B1 level
• Requiring the production of more substantial documentation to substantiate marriage applications
• Examining interview arrangements for sponsors
• The ending of the possibility of  immediate settlement for those who have been married for 4 years and are living abroad- it is proposed that such individuals will also have to complete a 5 year settlement period
• Restricting the ability of those sponsored as a spouse to sponsor another spouse or partner from within 5 years of settlement
• The possibility of a requirement to take out medical insurance for certain family members (the detail of this will be in a consultation by the Department of Health)
• Introduction of powers to delay marriages which are suspected of being ‘sham’ marriages and the introduction of sham ‘lawful impediment’ to marriage in England and Wales
• And greater work with the European Commission to address this
• Combining some functions of the registrar of the UK Border Agency and marriage registrars
• Legislating to make forced marriage a criminal offence

Other Family Members

• The introduction of a specific income threshold for sponsors of dependants for maintenance and accommodation – MAC is to advise on this
• The ending of indefinite leave to enter for adult dependants and dependants aged 65 or over and the introduction of a 5 year settlement period
• The introduction of a more exacting requirement for dependence in the case of parents/grandparents aged 65, and the possibility of increasing the age threshold
• The introduction of pre-entry language requirements for dependants aged 16 or 17, or aged under 65 (level A1 standard)
• Introducing changes to the length of leave granted to 17 year old dependants nearing their 18th birthday
• The introduction of more exacting settlement language requirements at B1 level for the above groups

PBS Family Members

• Increasing the probationary period from 2-5 years- with only time spent in the UK counting towards this
• The introduction of a higher B1 English language requirement for dependants who wish to settle in the UK

Family Visit Visas

• Limiting the grounds of appeal in relation to family visit visa decisions only in ECHR/race discrimination cases

Article 8 ECHR

• Opening up a discussion of the issues around Article 8 and immigration control
• Seeking views on the balance between the right to private and family life and the public interest”.

You can respond online to the consultation at: http://www.ukba.homeoffice.gov.uk/family-migration-consult

Contact

Family Consultation
UK Border Agency

1st Floor Seacole

2 Marsham Street

London

SW1P 4DF

Email:  Familyconsultation@homeoffice.gsi.gov.uk

Feedbacks: Readers are free to send feedbacks on topics discussed on Migrants Watch, their experience on immigration matter or topics they would like to appear on this page by emailing: migrantswatch@hotmail.co.uk

Changes to student visa rules are now in force

Significant changes to the Tier 4 student route of the points-based system which was published on this page a while ago have come into effect today.

The latest revisions follow the Home Secretary's statement to Parliament on 22 March 2011 about student visas.

Here is an excerpt from the statement from the UK Border Agency regarding the revised Immigration Rule.

“We have revised the Immigration Rules relating to Tier 4 in order to:

• Restrict work entitlements, by only allowing students sponsored by higher education institutions (HEIs) and publicly funded further education colleges to work part-time during term time and full-time during vacations;
• Restrict sponsorship of dependants to those of students sponsored by HEIs on postgraduate courses lasting 12 months or longer, and of government-sponsored students on courses lasting longer than 6 months;
• Require institutions to confirm that courses represent genuine academic progression from any previous courses studied by the student in the UK; and
• Create a streamlined application process for low-risk nationals sponsored by Highly Trusted sponsors.

These changes are aimed at delivering a strong migration system which tackles immigration abuse while allowing genuine students to study at genuine colleges.

We have also revised the application forms for Tier 4 (General), Tier 4 (child) and dependants under the points-based system. The new versions of these forms should be used with immediate effect.

The changes to the Immigration Rules were laid in Parliament on 13 June. A previous news story gives full details of all the changes and associated amendments that come into force today”.

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Next set of changes to student visa rules is announced

As a follow up to the statement to Parliament made by the Home Secretary on 22 March 2011 concerning the reformation of Tier 4, part of which came into force on 21 April 2011.

The next set of changes to the Immigration Rules - which will come into force on 4 July 2011 - has been laid in Parliament on Monday 13 June 2011.
Here is the excerpt from the statement.

“From 4 July we will:

 restrict work entitlements to migrants studying at higher educational institutions (HEIs) and publicly funded further education colleges only;
 restrict the sponsorship of dependants to those studying at postgraduate level at HEIs on courses lasting at least 12 months, and government-sponsored students on courses lasting at least 6 months;
 require education providers to vouch that a new course represents genuine academic progression;
 ensure that maintenance funds are genuinely available to the applicant, by introducing a declaration on the visa application form;
 commit to publish a list of financial institutions that we consider, on the basis of experience, do not verify financial statements to our satisfaction in more than 50 per cent of a sample of cases;
 introduce a streamlined application process for low-risk nationals applying to attend courses with Highly Trusted Sponsors;
 extend the list of courses for which students must receive ATAS clearance;
 restrict the ability to deliver accountancy courses accredited by the Association of Chartered Certified Accountants (ACCA) to those sponsors accorded platinum or gold status by ACCA; and
 Clarify the position of overseas universities with campuses in the UK.

These changes were announced by Immigration Minister Damian Green in a written ministerial statement this morning. You can download this statement, and the statement of changes to the Immigration Rules (HC 1148) from the right side of this page.

A revised version of our policy guidance document for Tier 4 migrants, and a statement of intent summarising the new student visa policy, can also be downloaded from the right side of this page. You can find our revised guidance for Tier 4 sponsors in the Sponsor guidance section.
We have published an impact assessment for these changes in our Policy and law section.

We are also announcing today that the Quality Assurance Agency (QAA) and the Independent Schools Inspectorate (ISI) will extend their activities to cover privately funded providers, in line with our commitment that all privately funded sponsors would be inspected or reviewed by one of the publicly recognised bodies by the end of 2012.

There are also a small number of changes being made to bring into effect:

 A new provision for other family members of refugees and beneficiaries of humanitarian protection;
 A minor correction to the Tier 2 (Intra-Company Transfer) provisions and clarify a requirement of the Tier 1 (Exceptional Talent) and Tier 1 (Investor) Rules; and
 A small number of minor corrections and technical changes to the Rules relating to English language requirements for partners and spouses.”

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Migrants to lose right to stay indefinitely

In the new proposals announced today by the government, migrants coming to the UK on temporary visa could lose the right to stay indefinitely.

Immigration minister Damian Green said today at the launching of a public consultation on reforms to the work routes leading to settlement that “settlement has become almost automatic for those who choose to stay, this needs to change”.

The minister went further to say that the government has “set out to re-classify visas as either ‘temporary’ or ‘permanent’ and introduce stricter criteria for those who want to stay. In government-speak, this could be interpreted to mean (like in Biblical terms) it would be easier for a camel to pass through the eye of a needle than for migrants with ‘permanent’ visas to be able to obtain Indefinite Leave to Remain in the UK.

He also went further to state that “We want the brightest and best workers to come to the UK, make a strong contribution to our economy while they are here, and then return home”.

He also gave some statistical data to back up his reforms as follows:
“Under the current system, many workers are allowed to apply to stay here permanently. In 2010, 84,000 people who entered the UK for employment were granted settlement. This compares to less than 10,000 who qualified for employment related settlement in 1997.

The government has already implemented new settlement requirements for skilled workers entering under Tiers 1 and 2 of the points-based system, which require applicants to demonstrate English-language proficiency, continue to meet the salary requirements and to pass a new criminality test.

Key proposals under consideration in the 12 week consultation are as follows:
• Re-branding Tier 2 (the skilled worker route) as temporary, ending the assumption that settlement will be available for those who enter on this route;
• Allowing certain categories of Tier 2 migrant, for example those earning over £150,000 or occupations of a specific economic or social value to the UK, to retain an automatic route to settlement;
• Creating a new category into which, after three years in the UK, the most exceptional Tier 2 migrants may switch and go on to apply for settlement;
• Allowing Tier 2 migrants who do not switch into a settlement route to stay for a maximum of five years with the expectation that they and any dependants will leave at the end of that time;
• Introducing an English language requirement for adult dependants of Tier 2 migrants applying to switch into a route to settlement;
• Restricting the maximum period of leave for Tier 5 Temporary Workers to 12 months; and
• Closing or reforming routes for overseas domestic workers”.
He also added that 'A small number of exceptional migrants will be able to stay permanently but for the majority, coming here to work will not lead automatically to settlement in the UK.'

The Government has committed to reforming all routes of entry to the UK in order to bring immigration levels under control. The settlement, Tier 5 and overseas domestic worker reforms will work alongside the annual limit, the new student visa reforms and changes to the family route which will be consulted on later this year”.

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Clarification of English language requirement for Tier 4 Sponsors and Students

The UK Border Agency has again released another Immigration Rule setting out the requirements for English language proficiency for students sponsored under Tier 4 of the Point-Based System (PBS)

The Immigration Rule makes an interesting and informative reading; therefore I am reproducing hereunder excerpts from it.

“Tier 4 English Language Requirement Changes – 21 April 2011
Students who wish to study at NQF/QCF level 6 (SCQF 9) and above normally need to produce a Secure English Language Test (SELT) certificate, from a UK Border Agency approved provider, showing that they have achieved level B2 on the Common European Framework of Reference for languages (CEFR) in each of the 4 components: speaking; listening; reading; and writing.
Students who wish to study between NQF/QCF levels 3 and 5 (SCQF 6-8) normally need to produce a SELT certificate, from a UK Border Agency approved provider, showing that they have achieved level B1 on the CEFR in each of the 4 components: speaking; listening; reading; and writing.
However, different rules apply to those students who wish to study at a higher education institution (HEI):
For students who wish to study at NQF/QCF 6 (SCQF 9) and above there is no requirement to produce a SELT certificate, the HEI can vouch on the conformation of acceptance for studies (CAS) that the student has attained B2 level on the CEFR in all 4 components.
HEIs are not required to use a UK Border Agency approved provider to assess the level of English language competence for students who wish to study at NQF/QCF 6 (SCQF 9) and above. But where a test from an approved provider is used, the prescribed scores must be obtained in each of the 4 components.
Where the student will be undertaking a pre-sessional course of up to 3 months’ length, and has an unconditional offer to progress to a degree level course, then a single CAS can be issued for the pre-sessional and the main course, the HEI can vouch on the CAS that the student has attained B1 level on the CEFR in all 4 components, and a single grant of leave will be issued to cover the pre-sessional and the main course.

The following frequently asked questions offer further detail and clarification.
Frequently Asked Questions
Higher Education Institutions (HEIs) and English Language
1. What is a higher education institution (HEI)?

An HEI is a recognised body, or a body in receipt of public funding as an HEI from the Department for Employment and Learning in Northern Ireland, the Higher Education Funding Council for England, the Higher Education Funding Council for Wales or the Scottish Funding Council. This is essentially
Recognised Bodies, University Colleges and small number of other institutions.
Institutions, including further education colleges, which receive some public funding to deliver higher education courses do not fall within this definition of an HEI.
For further information on whether your institution is an HEI, please see http://www.ukba.homeoffice.gov.uk/employers/points/sponsoringmigrants/sponsoring-students/sponsoring-general-students/
1. How are HEIs required to assess English language competence?

If an HEI is assigning a CAS for a course at QCF/NQF Level 6 (SCQF 9) or above then they can choose their own method of assessing CEFR level B2 English language competence. The HEI must ensure that the student is proficient to B2 level in each of the 4 components (speaking, listening, reading and writing).
If an HEI is assigning a CAS for a course below NQF/QCF level 6 (SCQF 9) then, unless the student is a national of a majority English-speaking country, or has completed a qualification equivalent to a UK degree taught in English in a majority English-speaking country or has studied in the UK as a Tier 4 (Child) student, they must check the student’s CEFR level B1 English language competence through the provision of a recent Secure English Language Test (SELT) certificate from our list of approved test providers. The student must have achieved a minimum level B1 in all 4 components.
Degree level study
1. If an HEI is using a test offered by a provider on the UK Border Agency’s approved list to assess English language, do students need to meet the minimum scores for B2 in all 4 competencies?

Yes.
1. Do HEIs need to include SELT scores on the CAS where they have used them to assess CEFR level B2 English language competence?

No. Where an HEI has used a test provider on our list of approved test providers they must have seen scores that align to level B2 in all 4 components. Whilst the breakdown of the component scores does not need to be included on the CAS, we may wish to look at this during a compliance visit.
1. Where an HEI has relied on a SELT to demonstrate English language competence at B2 level, does the student need to submit their test certificate with their application for entry clearance/leave to remain?

No this is not necessary. We will trust that the HEI has taken necessary steps to verify the validity of the certificate.

1. What if an HEI is using a test offered by a provider on the UK Border Agency’s approved list to assess English language and the students does not meet the minimum scores for B2 in all 4 competencies?

They may be able to come for a short pre-sessional to bring their level of English up to B2 level, or they may be re-tested. The test does not have to be the same as the original test and does not have to be on the UK Border Agency approved list. See question 14 for information on pre-sessionals.
1. Where HEIs have made unconditional offers to prospective students before 21 April 2011, but have not yet issued a CAS then how should they satisfy the English language requirement?

Students must meet the B2 requirement across all 4 components. If the HEI is not satisfied that the prospective student meets this requirement then they will need to take additional measures to ensure they meet this standard. This may include a short pre-sessional course in advance of enrolment on the main course. The HEI may decide the course length and structure, but only pre-sessional courses up to 3 months length can be covered by a single CAS and a single grant of leave. See question 14 for information on pre-sessionals.
1. What if the HEI is not using a test from a UK Border Agency approved provider?

The HEI can use other methods to confirm that a student meets the CEFR level B2 English language requirement. The HEI must be satisfied that students are B2 level in all 4 components. The UK Border Agency is being flexible and not being prescriptive of the methods HEIs can use. These might include tests that are not on the UK Border Agency approved list or an assessment of the student’s previous track record of study in English.
The UK Border Agency will monitor how this works in practice and if we find that HEIs are not being rigorous in requiring B2 in all 4 components then we will review the situation.
1. What consideration should HEIs give to waiving the English language requirement for gifted students?

This requirement should only be waived in cases where the HEI believes that the student is outstanding in their field and, because of the nature of the student’s course of study, English language proficiency is not integral to that course and a pre-sessional course would be inappropriate or not possible. These cases should be exceptional and very few in number each year. The English language requirement should not be waived simply where a student does not meet the required level or has not achieved the required minimum level across all 4 components of a SELT.
If the HEI has a gifted student for whom they want to waive the English language requirement then the Academic Registrar, or institution’s equivalent, will need to approve this. The HEI must take the following action:
. When completing the CAS they must confirm in the ‘evidence provided’ field:

o That they are treating the student as gifted; and
o The reason why they are treating them as gifted; and
o The name of their Academic Registrar, or institution’s equivalent, contact number and email address.

. Provide the student with an original letter, which must be signed by their Academic Registrar, or institution’s equivalent, and confirm:

o The sponsor name; and
o The sponsor licence number; and
o The student’s name; and
o The student’s course including the level of study; and
o That the Academic Registrar, or institution’s equivalent, considers the student to be gifted and the reason why.

If we have concerns about the number of gifted students an HEI assigns a CAS to, we will contact the Academic Registrar or institution’s equivalent.
1. Can HEIs use a generic statement on the CAS on B2 English language competence?

Yes, generic statements can be used for all students at B2 level. If the way in which they have made this assessment is based on the student’s previous track record of study with them then a statement to this effect should be included on the CAS. This statement must confirm that the student is competent in English to B2 in all 4 components and that this assessment is made on the basis of their previous track record.
1. Do students need to meet the new English language requirements if they are applying for an extension of leave and their CAS will be issued after 21 April 2011?

Yes – the new requirements apply to all students including existing students applying for an extension of leave to remain, where their sponsor assigns a CAS on or after 21 April.
If the student is studying at degree level or above then it is up to the HEI sponsor to decide appropriate methods of checking the student meets the English language requirement.
If the way in which they have made this assessment is based on the student’s previous track record of study with them then a statement to this effect should be included on the CAS. This statement must confirm that the student is
competent in English to B2 in all 4 components and that this assessment is made on the basis of their previous track record.
1. Do students coming to a UK HEI UK for one or two academic years via articulation/ Study Abroad agreements for degree-level study need a SELT to demonstrate English language competence with a minimum score of B2 in all 4 components?

Yes.
Non-degree level study
1. Do HEIs have to include all SELT component scores on the CAS to demonstrate level B1 competence for students on courses below degree level?

Yes.
1. What English language requirement do students need to satisfy where they are coming to study a pre-sessional course of less than three months followed by a degree level course (for which they have an unconditional offer)?

Students must achieve level B1 to be issued leave to start their pre-sessional course. As a transitional measure, for this year only, students may be issued leave for a pre-sessional course of less than 3 months and the main course without requiring a SELT where:
. the offer of the main degree level course is unconditional on satisfactory completion of the pre-sessional course; and
. the HEI is satisfied that the student is at B1 level in all 4 areas.

A single CAS may be issued to cover both the pre-sessional and main course and leave may be granted to cover both courses.
Prior to starting the degree-level study, the HEI must be satisfied that level B2 has been attained, through whichever method of assessment they deem appropriate. Sponsors must report by exception (using the Sponsor Management System) situations where a student has not managed to reach B2 and is therefore not permitted to start on the degree course.
1. Can students who are assessed as being B2 still voluntarily do a pre-sessional course?

Yes. Students who already have B2 will be able to attend pre-sessional courses. This will enable them to consolidate their knowledge and become more familiar with the language before starting their degree.
1. What are the English language requirements for integrated programmes where the course is 4 years, ending at NQF6 but where the first year is at level NQF3?

If the offer is for a single 4- year course, then a single CAS can be issued but the student will need to demonstrate B2 prior to enrolment as it will be considered an NQF 6 course for Tier 4 purposes.
If the offer is for the first year prior to moving onto the main course, then the student must be able to provide a B1 SELT. The CAS should be issued for the first year and leave will be issued for the first year. After completion of the first course, the University must assess that the student is at B2 level before issuing a CAS for the main course.
1. What records are HEIs required to keep of how they have assessed a student’s English language competence?

The HEI must keep records of how it assesses a student’s ability and intention to complete a course, including evidence of how they have assessed their English language competence in case this is required in a sponsorship compliance visit.
Non-HEIs and English Language
1. How are non-HEIs required to assess English language competence?

Non-HEIs must check their students are proficient in English language to level B1 (for those wishing to study courses below degree level) or B2 (for those wishing to study at or above degree level) through the provision of a recent SELT from our list of approved test providers. The student must have achieved the minimum required level in all 4 components.
The only exemptions that apply to the SELT requirement for non-HEIs are students who:
. are from a majority English-speaking country; or
. have achieved a qualification equivalent to a UK degree, which was taught in a majority English-speaking country; or
. have recently and successfully completed a course in the UK as a child student under Tier 4 or its predecessor route.

The list of approved test providers is online at the following link:
http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/new-approved-english-tests.pdf
1. Do non-HEIs need to include all SELT component scores on the CAS?

Yes.
1. What action should a non-HEI sponsor take where a prospective student has taken a SELT but not achieved a score which conforms to the expected minimum in all 4 components?

If a student does not achieve the expected minimum score in each of the 4 components, they are not at the required level and therefore do not meet the English language requirement. Sponsors should not issue a CAS unless the student has obtained a SELT with the expected minimum score in each of the 4 components.
1. Do students need to meet the new English language requirements if they are applying for an extension of leave and their CAS will be issued after 21 April?

Yes – the new requirements apply to all students, including existing students, applying for an extension of leave to remain, where their sponsor assigns a CAS on or after 21 April.
Study Abroad
1. Do students coming to the UK for one or two academic years via articulation/ Study Abroad agreements for degree-level study need a SELT to demonstrate English language competence with a minimum score of B2 in all 4 components?

Yes.
Government Sponsored students
1. What level of English language competence must Government Sponsored students achieve?

Unless the Government Sponsored student is a national of a majority English-speaking country, or has completed a qualification equivalent to a UK degree taught in English in a majority English-speaking country or has studied in the UK as a Tier 4 (Child) student they are required to demonstrate their English language at CEFR level B2 if they are studying a course at NQF/QCF Level 6 (SCQF 9) or above or CEFR level B1 if they are studying below NQF/QCF Level 6 (SCQF 9).
Please note that the student visitor route was extended in January 2011 to enable English language students wishing to attend English language courses to apply for a student visitor visa of up to 11 months.
General – All sponsors
1. How will Entry Clearance Officers/Border Force Officers assess a student’s English language competence?

UK Border Agency staff will assess whether a student is able to answer very basic questions in English that a person proficient at level B1 or B2 would be expected to know. The officer will not judge whether level B1 or B2 has been obtained. He will test whether the student can hold a simple conversation
without an interpreter. If they cannot, then clearly the required level has not been attained. This will be applicable whether or not the student has been required to present a SELT certificate. We will not, however, routinely interview.
1. Where can I find the up-to-date list of approved English Language Test Providers?

The list of approved tests can be found at http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/new-approved-english-tests.pdf
1. How have the English language equivalencies on the UK Border Agency website been established?

These scores have been aligned to the Common European Framework of Reference for Languages (CEFR) on the basis of research undertaken by the test providers themselves as validated by an independent language expert. If you are unhappy with the level at which the scores for specific tests have been aligned to the CEFR, this must be taken up with the test providers directly.
1. Do SELT providers have sufficient capacity worldwide to meet the demand this change in policy has created?

The UK Border Agency believes that the approved test providers have the capacity to meet demand worldwide. If you are aware of any specific concerns about global coverage, please contact us and we will discuss with the individual test providers.
1. Does an English language test need to be within its validity date on the date the student’s course commences?

No. The test must be valid on the date the CAS is assigned. Test validity periods are also given on our website. Where an HEI is assigning a CAS for a course at NQF/QCF Level 6 (SCQF 9) or above for a student whose B2 SELT is no longer valid, they can use their own method of assessing whether the student has maintained level B2 English language competence.
1. What will the UK Border Agency’s approach to compliance and enforcement be regarding the HEI’s own methods of assessment of English language competency?

Our initial approach if concerns arise regarding a student or cohort of students for whom an HEI has issued a CAS vouching for B2 competence will be a discussion with the HEI on the method of assessment. This will give the HEI the opportunity to explain why this might have occurred and what quality assurance processes were in place and why they believe that a particular method of assessment is suitable, for example agreement by the HEI's admissions standards board that a given certificate is appropriate evidence of competence. If a problem is identified we will expect to see the HEI take action and implement improved controls for future admissions”.