Contents. Table of Statutes. Table of Secondary Legislation. Table of Cases. Introducing Immigration Law. British Citizenship and the Right of Abode

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1 Contents Table of Statutes Table of Secondary Legislation Table of Cases Chapter 1: Introducing Immigration Law 1.1 Introduction 1.2 Historical summary Aliens Controls on Commonwealth citizens The Immigration Act Sources of immigration law Statute law The immigration rules Nature of immigration rules European Union law Other international treaties and obligations Effect of incorporation of ECHR Home Office policy and practice Decisions of the courts and the Immigration and Asylum Chambers of the First-tier and Upper Tribunal Resources 1.4 Key concepts of immigration law The right of abode Settlement in the UK Leave to enter or remain The common travel area Public funds and immigration Housing and immigration European Economic Area (EEA) nationals and public funds 1.5 Developments and new legislation 1.6 Summary Chapter 2: British Citizenship and the Right of Abode 2.1 Introduction 2.2 The position before the British Nationality Act Becoming a CUKC on commencement of the British Nationality Act Acquiring CUKC status after commencement of the British Nationality Act Immigration Act 1971 patrials and the right of abode 2.3 Becoming a British citizen on commencement of the British Nationality Act CUKCs who did not have the right of abode BDTCs and the British Overseas Territories Act BOCs 2.5 Becoming a British citizen after 1 January Becoming British by birth Effect of adoption in the UK Becoming British by descent Registration and naturalisation i

2 Naturalisation on the basis of residence Naturalisation on the basis of marriage or civil partnership Further conditions 2.6 Exceptions 2.7 Other categories of British nationality 2.8 The right of abode and non-british nationals Right of abode on basis of a parent s birthplace Right of abode on basis of marriage Polygamous marriages and the right of abode Proof of right of abode Illegitimate children 2.9 Loss of British citizenship Renunciation and resumption Deprivation 2.10 Illustrative examples 2.11 Proving British citizenship 2.12 Summary Chapter 3: The Machinery of Immigration Control 3.1 Introduction 3.2 The entry clearance system What is an entry clearance? The different kinds of entry clearance 3.3 Visa nationals Some examples 3.4 Applying for entry clearance Consideration of the entry clearance application Validity and effect of entry clearance Entry clearance on its own Entry clearance as leave to enter 3.5 Other forms of control before entry Proof of the right of abode Carriers liability Grant and refusal of leave to enter before arrival Juxtaposed controls 3.6 Control on entry Examination of passengers Leave to enter and refusal of leave Passengers with entry clearance Refusal of entry clearance or leave to enter Passengers with entry clearance that has effect as leave to enter Procedure for refusal of entry Granting leave to enter Conditions of entry Time limit and employment restrictions Registration with the police Notice of time limit and conditions of entry Removal powers 3.7 Control after entry Variation of leave to enter Applying for variation Effect of application on time limit Considering applications for variation ii

3 General considerations Switching Curtailment of leave Revocation of leave to enter or remain Procedural requirements Settlement: additional requirements 3.8 Race discrimination Extent of the provisions 3.9 Detention and bail Temporary admission Bail: procedure and general principles 3.10 Summary Chapter 4: European Economic Area Nationals and British Immigration Law 4.1 Introduction 4.2 Direct effect of European Community law 4.3 The rights of free movement EU workers Business and self-employment Provision and receipt of services Third-country nationals Free movement for those who are not economically active Free movement of family members Rights of family members following death, departure or termination of relationship Parents of children exercising Treaty rights 4.4 Residence cards Permanent residence 4.5 Free movement and family members of British citizens 4.6 Restricting rights of free movement UK interpretation Procedural protections Remedies 4.7 The Immigration (European Economic Area) Regulations Family members under the Immigration (European Economic Area) Regulations Restrictions under the Immigration (European Economic Area) Regulations Other provisions Permanent residence 4.8 New entrants to the EU Croatia 4.9 Community law and non-eea nationals: association agreements Co-operation agreements 4.10 Future developments 4.11 Concluding remarks 4.12 Summary iii

4 Chapter 5: Admission for Temporary Purposes: the Visitor Rules 5.1 Introduction 5.2 The old rules 5.3 Highlights of the new rules 5.4 The new rules in detail 5.5 Case law 5.6 Summary Chapter 6: Points Based System: Students, Employment and Selfemployment 6.1 Introduction 6.2 Exceptions non-points Based System employment Domestic workers in private households 6.3 Points Based System: how does it work? Sponsorship Structure of the rules 6.4 Tier Tier 1 (Exceptional Talent) Migrants Tier 1 (Entrepreneur) Migrants Tier 1 (Investor) Migrants Tier 1 (Graduate Entrepreneur) Migrants Leave to remain, switching and settlement 6.5 Tier Tier 2 (General) Migrants and Tier 2 (Intra-Company Transfer) Migrants Tier 2 (Minister of Religion) Migrants Tier 2 (Sportsperson) Migrants Leave to remain, switching and settlement 6.6 Tier Tier 4 (General) Students Tier 4 (Child) Students Leave to remain, switching and settlement 6.7 Tier Tier 5 (Youth Mobility Scheme) Temporary Migrants Tier 5 (Temporary Worker) Migrants Leave to remain, switching and settlement 6.8 Family members 6.9 Table of changes 6.10 Summary Chapter 7: Admission of Spouses, Civil Partners, Fiancé(e)s and Unmarried Partners 7.1 Introduction 7.2 Criteria for the admission of spouses and civil partners Proving the marriage ceremony Problems with the validity of a marriage Examples Proof of domicile Intention to live together and marriage subsisting The parties must have met Recourse to public funds iv

5 Accommodation Maintenance The age limitation Conditions of entry 7.3 Admission of unmarried or same-sex partners Conditions of entry 7.4 Admission of fiancé(e)s Conditions of entry 7.5 Control after entry Spouses and partners: removal of time limit Special provisions Persons admitted for a limited period Marriage Regulations Extension of stay after marriage 7.6 Reporting suspicious marriages 7.7 Appendix FM 7.8 Summary Chapter 8: Admission of Children and Other Relatives 8.1 Introduction 8.2 General requirements for admission 8.3 Admission of children Where both parents are in the UK Children joining one parent Sole responsibility Exclusion undesirable Admission of adopted children Reasons for adoption Children over Children born in the UK who are not British citizens Children under Appendix FM 8.4 Miscellaneous rules Parents exercising rights of access Access rights under Appendix FM Admission of children for the purpose of adoption 8.5 Other relatives Criteria for admission Other relatives under Appendix FM 8.6 Conditions of entry 8.7 Control after entry 8.8 Support and accommodation 8.9 Summary Chapter 9: Refugees and Asylum 9.1 Introduction 9.2 Definition of refugee Stateless persons Outside the country of persecution Essential elements Nationality issues Persecution Past persecution v

6 Persecution and state protection RC 1951 reason Refugee sur place Fear of persecution: the subjective and objective tests Standard of proof Internal relocation 9.3 Protection, exclusion and cessation Art 1F Art 33(2) Certificates Art 1C 9.4 Illegal entry and refugees 9.5 Refugees and the immigration rules 9.6 Determining refugee status the asylum process 9.7 Safe third countries Lists of safe countries Applying the statutory provisions Dublin Convention 9.8 Granting asylum Family reunion 9.9 Other forms of protection Subsidiary protection under the Qualification Directive Humanitarian protection policy Discretionary leave 9.10 Further EU measures Temporary Protection Directive 9.11 Asylum-seekers, benefits and work 9.12 Summary Chapter 10: European Convention on Human Rights 10.1 Introduction 10.2 Incorporation 10.3 Relevant Articles Exceptions, derogations, reservations 10.4 Art Art Torture Inhuman or degrading treatment or punishment Absolute nature of Art Breach of Art 3 by conditions on return Standard of proof Art 3 ECHR compared with Art 1A RC Art Art Art Consideration of Art Family life under the immigration rules and legislation Deportation of criminal offenders and Art Private life Private life and the immigration rules Private life in expulsion cases vi

7 Art 8 in entry clearance cases 10.9 Art Other Articles Jurisdiction The effect of successful ECHR claims Summary Chapter 11: Returning Residents and Other Categories of Admission or Residence 11.1 Introduction 11.2 Returning residents Absence of more than two years Exceptions to the two-year rule Re-acquiring indefinite leave after admission for a temporary period Passengers returning within currency of limited leave 11.3 British passport holders subject to immigration control The right to re-admission 11.4 Settlement for others with long residence Long residence and Art Summary Chapter 12: Administrative Removal, Deportation and Illegal Entry 12.1 Introduction 12.2 Administrative removal and deportation defined 12.3 Immunity from deportation s7 immunity British passport holders without the right of abode European Economic Area nationals 12.4 Administrative removal Overstaying Breach of conditions Other basis for removal Considerations before removal 12.5 Deportation Conducive to the public good political and security cases Non-political public good deportations Deportation following a court recommendation Automatic deportation Deportation and Art Family members 12.7 Procedures Revocation of deportation orders Detention pending deportation 12.8 Illegal entry Definition of illegal entrant Clandestine entry Entry without leave Entry by deception The standard of proof where entry by deception is alleged 12.9 Procedure in illegal entry cases Summary vii

8 Chapter 13: Immigration Offences 13.1 Introduction 13.2 Illegal entry and entry by deception Entering the UK without a passport 13.3 Third-party offences Assisting unlawful immigration Helping asylum-seekers to enter the UK Assisting entry in breach of a deportation or exclusion order Forfeiture 13.4 Trafficking offences 13.5 Overstaying and breach of conditions Overstaying Breach of conditions 13.6 Offences in connection with the administration of the immigration legislation 13.7 Defences 13.8 Employer offences 13.9 Other provisions Summary Chapter 14: Immigration Appeals and Other Remedies 14.1 Introduction 14.2 Main features of the appeals system 14.3 Legislative framework Other appeals Administrative review Other rights of appeal National security 14.4 Jurisdiction Powers of the First-tier and Upper Tribunal 14.5 Non-suspensive and fast track appeals certified claims Clearly unfounded claims Safe third country cases Other certificates 14.6 Time limits for appealing 14.7 Procedure on appeal Appeal documents Evidence in immigration appeals The appeal hearing Additional provisions 14.8 Review of decisions of the FTIAC Further appeals The role of judicial review 14.9 Appeals diagram The role of representations by Members of Parliament Special Immigration Appeals Commission Summary Answers to Self-assessment Questions viii Index

9 2017 Copyright CILEx Law School Limited All materials included in this CLS publication are copyright protected. All rights reserved. Any unauthorised reproduction or transmission of any part of this publication, whether electronically or otherwise, will constitute an infringement of copyright. No part of this publication may be lent, resold or hired out for any purpose without the prior written permission of CILEx Law School Ltd. WARNING: Any person carrying out an unauthorised act in relation to this copyright work may be liable to both criminal prosecution and a civil claim for damages. This publication is intended only for the purpose of private study. Its contents were believed to be correct at the time of publication or any date stated in any preface, whichever is the earlier. This publication does not constitute any form of legal advice to any person or organisation. CILEx Law School Ltd will not be liable for any loss or damage of any description caused by the reliance of any person on any part of the contents of this publication. Published in 2017 by: CILEx Law School Ltd College House Manor Drive Kempston Bedford United Kingdom MK42 7AB British Library Cataloguing in Publication Data A catalogue record for this manual is available from the British Library. ISBN

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