Contents Table of Statutes Table of Secondary Legislation Table of Cases Chapter 1: Introducing Immigration Law 1.1 Introduction 1.2 Historical summary 1.2.1 Aliens 1.2.2 Controls on Commonwealth citizens 1.2.3 The Immigration Act 1971 1.3 Sources of immigration law 1.3.1 Statute law 1.3.2 The immigration rules 1.3.2.1 Nature of immigration rules 1.3.3 European Union law 1.3.4 Other international treaties and obligations 1.3.4.1 Effect of incorporation of ECHR 1.3.5 Home Office policy and practice 1.3.6 Decisions of the courts and the Immigration and Asylum Chambers of the First-tier and Upper Tribunal 1.3.7 Resources 1.4 Key concepts of immigration law 1.4.1 The right of abode 1.4.2 Settlement in the UK 1.4.3 Leave to enter or remain 1.4.4 The common travel area 1.4.5 Public funds and immigration 1.4.6 Housing and immigration 1.4.7 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 1981 2.2.1 Becoming a CUKC on commencement of the British Nationality Act 1948 2.2.2 Acquiring CUKC status after commencement of the British Nationality Act 1948 2.2.3 Immigration Act 1971 patrials and the right of abode 2.3 Becoming a British citizen on commencement of the British Nationality Act 1981 2.4 CUKCs who did not have the right of abode 2.4.1 BDTCs and the British Overseas Territories Act 2002 2.4.2 BOCs 2.5 Becoming a British citizen after 1 January 1983 2.5.1 Becoming British by birth 2.5.2 Effect of adoption in the UK 2.5.3 Becoming British by descent 2.5.4 Registration and naturalisation i
2.5.4.1 Naturalisation on the basis of residence 2.5.4.2 Naturalisation on the basis of marriage or civil partnership 2.5.4.3 Further conditions 2.6 Exceptions 2.7 Other categories of British nationality 2.8 The right of abode and non-british nationals 2.8.1 Right of abode on basis of a parent s birthplace 2.8.2 Right of abode on basis of marriage 2.8.3 Polygamous marriages and the right of abode 2.8.4 Proof of right of abode 2.8.5 Illegitimate children 2.9 Loss of British citizenship 2.9.1 Renunciation and resumption 2.9.2 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 3.2.1 What is an entry clearance? 3.2.2 The different kinds of entry clearance 3.3 Visa nationals 3.3.1 Some examples 3.4 Applying for entry clearance 3.4.1 Consideration of the entry clearance application 3.4.2 Validity and effect of entry clearance 3.4.2.1 Entry clearance on its own 3.4.2.2 Entry clearance as leave to enter 3.5 Other forms of control before entry 3.5.1 Proof of the right of abode 3.5.2 Carriers liability 3.5.3 Grant and refusal of leave to enter before arrival 3.5.4 Juxtaposed controls 3.6 Control on entry 3.6.1 Examination of passengers 3.6.2 Leave to enter and refusal of leave 3.6.2.1 Passengers with entry clearance 3.6.2.2 Refusal of entry clearance or leave to enter 3.6.2.3 Passengers with entry clearance that has effect as leave to enter 3.6.2.4 Procedure for refusal of entry 3.6.2.5 Granting leave to enter 3.6.3 Conditions of entry 3.6.3.1 Time limit and employment restrictions 3.6.3.2 Registration with the police 3.6.3.3 Notice of time limit and conditions of entry 3.6.4 Removal powers 3.7 Control after entry 3.7.1 Variation of leave to enter 3.7.2 Applying for variation 3.7.2.1 Effect of application on time limit 3.7.3 Considering applications for variation ii
3.7.3.1 General considerations 3.7.3.2 Switching 3.7.4 Curtailment of leave 3.7.5 Revocation of leave to enter or remain 3.7.6 Procedural requirements 3.7.7 Settlement: additional requirements 3.8 Race discrimination 3.8.1 Extent of the provisions 3.9 Detention and bail 3.9.1 Temporary admission 3.9.2 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 4.3.1 EU workers 4.3.2 Business and self-employment 4.3.3 Provision and receipt of services 4.3.4 Third-country nationals 4.3.5 Free movement for those who are not economically active 4.3.6 Free movement of family members 4.3.7 Rights of family members following death, departure or termination of relationship 4.3.8 Parents of children exercising Treaty rights 4.4 Residence cards 4.4.1 Permanent residence 4.5 Free movement and family members of British citizens 4.6 Restricting rights of free movement 4.6.1 UK interpretation 4.6.2 Procedural protections 4.6.3 Remedies 4.7 The Immigration (European Economic Area) Regulations 2016 4.7.1 Family members under the Immigration (European Economic Area) Regulations 2016 4.7.2 Restrictions under the Immigration (European Economic Area) Regulations 2016 4.7.3 Other provisions 4.7.4 Permanent residence 4.8 New entrants to the EU 4.8.1 Croatia 4.9 Community law and non-eea nationals: association agreements 4.9.1 Co-operation agreements 4.10 Future developments 4.11 Concluding remarks 4.12 Summary iii
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 6.2.1 Domestic workers in private households 6.3 Points Based System: how does it work? 6.3.1 Sponsorship 6.3.2 Structure of the rules 6.4 Tier 1 6.4.1 Tier 1 (Exceptional Talent) Migrants 6.4.2 Tier 1 (Entrepreneur) Migrants 6.4.3 Tier 1 (Investor) Migrants 6.4.4 Tier 1 (Graduate Entrepreneur) Migrants 6.4.5 Leave to remain, switching and settlement 6.5 Tier 2 6.5.1 Tier 2 (General) Migrants and Tier 2 (Intra-Company Transfer) Migrants 6.5.2 Tier 2 (Minister of Religion) Migrants 6.5.3 Tier 2 (Sportsperson) Migrants 6.5.4 Leave to remain, switching and settlement 6.6 Tier 4 6.6.1 Tier 4 (General) Students 6.6.2 Tier 4 (Child) Students 6.6.3 Leave to remain, switching and settlement 6.7 Tier 5 6.7.1 Tier 5 (Youth Mobility Scheme) Temporary Migrants 6.7.2 Tier 5 (Temporary Worker) Migrants 6.7.3 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 7.2.1 Proving the marriage ceremony 7.2.2 Problems with the validity of a marriage 7.2.2.1 Examples 7.2.2.2 Proof of domicile 7.2.3 Intention to live together and marriage subsisting 7.2.4 The parties must have met 7.2.5 Recourse to public funds iv
7.2.5.1 Accommodation 7.2.5.2 Maintenance 7.2.6 The age limitation 7.2.7 Conditions of entry 7.3 Admission of unmarried or same-sex partners 7.3.1 Conditions of entry 7.4 Admission of fiancé(e)s 7.4.1 Conditions of entry 7.5 Control after entry 7.5.1 Spouses and partners: removal of time limit 7.5.2 Special provisions 7.5.3 Persons admitted for a limited period 7.5.4 Marriage Regulations 7.5.5 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 8.3.1 Where both parents are in the UK 8.3.2 Children joining one parent 8.3.2.1 Sole responsibility 8.3.2.2 Exclusion undesirable 8.3.3 Admission of adopted children 8.3.3.1 Reasons for adoption 8.3.4 Children over 18 8.3.5 Children born in the UK who are not British citizens 8.3.6 Children under Appendix FM 8.4 Miscellaneous rules 8.4.1 Parents exercising rights of access 8.4.1.1 Access rights under Appendix FM 8.4.2 Admission of children for the purpose of adoption 8.5 Other relatives 8.5.1 Criteria for admission 8.5.2 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 9.2.1 Stateless persons 9.2.2 Outside the country of persecution 9.2.2.1 Essential elements 9.2.2.2 Nationality issues 9.2.3 Persecution 9.2.3.1 Past persecution v
9.2.3.2 Persecution and state protection 9.2.4 RC 1951 reason 9.2.5 Refugee sur place 9.2.6 Fear of persecution: the subjective and objective tests 9.2.7 Standard of proof 9.2.8 Internal relocation 9.3 Protection, exclusion and cessation 9.3.1 Art 1F 9.3.2 Art 33(2) 9.3.3 Certificates 9.3.4 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 9.7.1 Lists of safe countries 9.7.2 Applying the statutory provisions 9.7.3 Dublin Convention 9.8 Granting asylum 9.8.1 Family reunion 9.9 Other forms of protection 9.9.1 Subsidiary protection under the Qualification Directive 9.9.2 Humanitarian protection policy 9.9.3 Discretionary leave 9.10 Further EU measures 9.10.1 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 10.3.1 Exceptions, derogations, reservations 10.4 Art 2 10.5 Art 3 10.5.1 Torture 10.5.2 Inhuman or degrading treatment or punishment 10.5.3 Absolute nature of Art 3 10.5.4 Breach of Art 3 by conditions on return 10.5.5 Standard of proof 10.5.6 Art 3 ECHR compared with Art 1A RC 1951 10.6 Art 5 10.7 Art 6 10.8 Art 8 10.8.1 Consideration of Art 8 10.8.1.1 Family life under the immigration rules and legislation 10.8.2 Deportation of criminal offenders and Art 8 10.8.3 Private life 10.8.3.1 Private life and the immigration rules 10.8.4 Private life in expulsion cases vi
10.8.5 Art 8 in entry clearance cases 10.9 Art 14 10.10 Other Articles 10.11 Jurisdiction 10.12 The effect of successful ECHR claims 10.13 Summary Chapter 11: Returning Residents and Other Categories of Admission or Residence 11.1 Introduction 11.2 Returning residents 11.2.1 Absence of more than two years 11.2.2 Exceptions to the two-year rule 11.2.3 Re-acquiring indefinite leave after admission for a temporary period 11.2.4 Passengers returning within currency of limited leave 11.3 British passport holders subject to immigration control 11.3.1 The right to re-admission 11.4 Settlement for others with long residence 11.4.1 Long residence and Art 8 11.5 Summary Chapter 12: Administrative Removal, Deportation and Illegal Entry 12.1 Introduction 12.2 Administrative removal and deportation defined 12.3 Immunity from deportation 12.3.1 s7 immunity 12.3.2 British passport holders without the right of abode 12.3.3 European Economic Area nationals 12.4 Administrative removal 12.4.1 Overstaying 12.4.2 Breach of conditions 12.4.3 Other basis for removal 12.4.4 Considerations before removal 12.5 Deportation 12.5.1 Conducive to the public good political and security cases 12.5.2 Non-political public good deportations 12.5.3 Deportation following a court recommendation 12.5.4 Automatic deportation 12.5.5 Deportation and Art 8 12.6 Family members 12.7 Procedures 12.7.1 Revocation of deportation orders 12.7.2 Detention pending deportation 12.8 Illegal entry 12.8.1 Definition of illegal entrant 12.8.2 Clandestine entry 12.8.3 Entry without leave 12.8.4 Entry by deception 12.8.5 The standard of proof where entry by deception is alleged 12.9 Procedure in illegal entry cases 12.10 Summary vii
Chapter 13: Immigration Offences 13.1 Introduction 13.2 Illegal entry and entry by deception 13.2.1 Entering the UK without a passport 13.3 Third-party offences 13.3.1 Assisting unlawful immigration 13.3.2 Helping asylum-seekers to enter the UK 13.3.3 Assisting entry in breach of a deportation or exclusion order 13.3.4 Forfeiture 13.4 Trafficking offences 13.5 Overstaying and breach of conditions 13.5.1 Overstaying 13.5.2 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 13.10 Summary Chapter 14: Immigration Appeals and Other Remedies 14.1 Introduction 14.2 Main features of the appeals system 14.3 Legislative framework 14.3.1 Other appeals 14.3.2 Administrative review 14.3.3 Other rights of appeal 14.3.4 National security 14.4 Jurisdiction 14.4.1 Powers of the First-tier and Upper Tribunal 14.5 Non-suspensive and fast track appeals certified claims 14.5.1 Clearly unfounded claims 14.5.2 Safe third country cases 14.5.3 Other certificates 14.6 Time limits for appealing 14.7 Procedure on appeal 14.7.1 Appeal documents 14.7.2 Evidence in immigration appeals 14.7.3 The appeal hearing 14.7.4 Additional provisions 14.8 Review of decisions of the FTIAC 14.8.1 Further appeals 14.8.2 The role of judicial review 14.9 Appeals diagram 14.10 The role of representations by Members of Parliament 14.11 Special Immigration Appeals Commission 14.12 Summary Answers to Self-assessment Questions viii Index
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