
Mastering Immigration Law Subscription Update Oct, Nov & Dec 2024
The final quarter of 2024 has delivered significant judicial developments across UK immigration law, with landmark decisions shaping key areas of practice. The courts have provided essential guidance on sponsor compliance, business immigration requirements, EU Settlement Scheme provisions, and visit visa considerations.
HJT’s Mastering Immigration Law brings these crucial immigration updates to our valued subscribers, ensuring you stay informed and prepared in this ever-changing regulatory environment. We share a glimpse of some pivotal updates below.
BUSINESS IMMIGRATION
Tier 1 (Entrepreneur) Extensions
In a significant ruling of Waljee [2024] UKUT 418 (IAC), the Upper Tribunal has clarified the requirements for director’s loan agreements in Tier 1 (Entrepreneur) applications. The case centred on Mohammed Anverali Waljee’s application for leave to remain, which was initially refused by the Home Office on grounds that his director’s loan documentation failed to explicitly state that the loan was unsecured and subordinate to other creditors’ loans.
The Upper Tribunal rejected the Home Office’s interpretation, ruling that director’s loan agreements need not contain express statements about being unsecured and subordinated. Instead, the Tribunal emphasised that decision-makers should conduct an informed analysis of the entire agreement to determine whether its terms effectively demonstrate these characteristics, rather than searching for specific terminology.
The Home Office’s approach was deemed flawed on two counts. Firstly, they incorrectly interpreted the immigration rules as requiring explicit statements about the loan’s unsecured and subordinated nature. Secondly, they failed to assess whether the agreement’s terms, taken as a whole, effectively established these qualities, regardless of the precise wording used.
This ruling has notable implications for existing Tier 1 (Entrepreneur) migrants. While the category is closed to new applicants, current holders can apply for extensions until 6 April 2023 and indefinite leave to remain until 6 April 2025. The decision promotes a more flexible, substance-over-form approach to evaluating loan agreements, potentially reducing the risk of refusals based on technical wording. However, applicants must still satisfy all other category requirements, including investment thresholds, job creation, and genuine entrepreneur criteria.
Sponsor Licence Compliance
With regards to Sponsor Licence breach of compliance and licence revocations, two important court decisions surfaced.
The High Court’s ruling in Tendercare Ltd [2024] EWHC 2154 (Admin) has provided important clarification on sponsor licence compliance, particularly regarding third-party hiring arrangements. The case involved the Home Office’s decision to revoke Tendercare’s sponsor licence after discovering that the care home had been supplying its sponsored workers to other care facilities during staff shortages, effectively operating as an employment agency.
A crucial factor in the Home Office’s decision was Tendercare’s inadequate record-keeping practices. The care home’s reliance on basic timesheet records, which failed to differentiate between various types of absence, demonstrated insufficient oversight of sponsored workers. The court dismissed Tendercare’s contention that these breaches were minor and rejected their argument that the Home Office should have implemented an improvement plan rather than revoking the licence.
Notably, whilst the updated Skilled Worker Guidance suggests that sponsors should generally receive the benefit of the doubt in finely balanced Standard Occupational Classification (SOC) code decisions, the Tendercare judgement emphasises that this leniency does not extend to fundamental breaches of sponsor duties. The case serves as a stark reminder that inadequate record-keeping and inappropriate third-party hiring practices can result in the severe consequence of licence revocation.
In the second case, the Court of Appeal’s ruling in Akbars Restaurant (Middlesbrough) Ltd v Secretary of State for the Home Department [2024] EWCA Civ 1387 has provided significant clarity on civil penalty notices for illegal employment. The Court held that such notices need not specify the particular statutory subsection being relied upon, provided the Secretary of State clearly indicates their belief that the worker in question lacks the right to work in the UK.
In examining section 15(6)(a) of the Immigration Asylum and Nationality Act 2006, the Court found the language to be deliberately general and non-prescriptive. This interpretation aligns with the Act’s broader statutory scheme and its fundamental purpose of deterring illegal employment. The Court emphasised that employers bear the responsibility for conducting proper right-to-work checks on their employees.
Notably, the judgement also established that appeals against civil penalty notices are not confined to the original grounds of issue. When such appeals are heard as rehearings, the court may consider any valid reasons upon which the penalty could have been imposed. This ruling reinforces the Home Office’s position whilst maintaining a practical approach to the enforcement of illegal working legislation.
New Sponsor UK system
The Home Office has begun trialling its new ‘Sponsor UK’ IT system, a significant modernisation of the sponsorship infrastructure set to replace the existing Sponsor Management System (SMS) introduced in 2008. The new system, which commenced its phased rollout with selected Government Authorised Exchange sponsors in October 2024, introduces fundamental changes to the sponsorship process.
A key innovation is the replacement of Certificate of Sponsorship allocation and assignment with ‘sponsorship submissions’. Upon approval and payment, sponsors receive a reference number for the worker’s visa application. For applicants using the UK immigration: ID check app, the system offers automated data transfer, populating visa application forms with information from the sponsorship submission.
During the beta phase, all submissions undergo manual review by Home Office caseworkers, though automatic processing is planned for certain criteria-compliant applications in the future. Notably, Level 2 users currently lack access to the new system, requiring organisations to redistribute sponsorship responsibilities accordingly.
The transition period sees both systems operating in parallel, with full implementation expected by 2025. This dual operation allows for a gradual transition whilst maintaining continuity in sponsorship processing. The overarching aim is to create a more intuitive and efficient sponsorship process, though maintaining robust compliance mechanisms remains central to the new system’s design.
The Home Office has initiated the rollout of its new Sponsor UK system by granting access to selected Government Authorised Exchange (GAE) sponsors from 24 October 2024. This marks the beginning of a private beta phase, carefully designed to test and refine the system’s functionality with a limited user base.
This strategic approach forms part of the Home Office’s broader implementation plan, which envisions a gradual expansion of the system to additional sponsors over a two to four-year period. The selection of GAE sponsors as initial users suggests a measured approach to the system’s deployment, allowing for thorough testing and refinement before wider implementation.
VISITOR VISA
The Court of Session’s ruling in R (on the application of CD) v. Secretary of State for the Home Department [2024] CSOH 101 (2024 Scot (D) 1/12)has provided important guidance on how decision-makers should assess bank account funds when determining visitor visa applications. Whilst the court confirmed that the mere presence of substantial funds does not automatically undermine an application’s credibility, it emphasised that significant fluctuations in account balances over brief periods may warrant further scrutiny.
The judgement established that decision-makers are entitled to look beyond the simple existence of funds at the time of application. They may properly consider whether the funds are genuinely available for the visit’s purpose, with consistent, long-term savings viewed more favourably than sudden financial influxes.
Notably, the court stressed that financial assessment should form part of a holistic evaluation, taking into account the applicant’s broader circumstances rather than focusing solely on account balances.
This ruling reemphasises the importance of visitors being prepared to justify their financial circumstances and maintaining clear, consistent financial records when applying for entry clearance.
EU SETTLEMENT SCHEME (SETTLED AND PRE-SETTLED STATUS)
Dependency for direct family members
The Court of Appeal’s landmark ruling in R (Ali) v Secretary of State for the Home Department [2024] EWCA Civ 1546 has significantly clarified the assessment of dependency for direct family members under the EU Settlement Scheme. The Court held that dependency needs only to be established at the point when the family member initially joins their EU citizen sponsor in the UK, rejecting the Home Office’s position that dependency must be maintained continuously for five years before permanent residence could be granted.
Crucially, the judgement confirmed that taking up employment and achieving financial independence after entering the UK does not compromise a family member’s residence rights. The Court emphasised that once initial dependency is established, the right to work under the EU-UK Withdrawal Agreement takes precedence over any requirement for ongoing dependency.
This ruling has particular significance for children over 21 who were initially dependent on their EU citizen parent but subsequently gained financial independence through employment. The Court’s interpretation aligns with fundamental free movement principles enshrined in both the Withdrawal Agreement and the Citizens’ Rights Directive, effectively challenging the Home Office’s previous approach and providing enhanced security for family members who become financially independent after their UK entry under EU free movement rules.
No obligation on Home Office to notify EEA national of voiding of previous extant application
The High Court’s ruling in Scott v Secretary of State for the Home Department [2024] EWHC 3110 (Admin) has provided important clarification regarding the interaction between EU Settlement Scheme (EUSS) applications and existing immigration applications. The Court upheld that the Home Office bears no legal obligation to notify applicants when their pending application becomes void due to a subsequent EUSS application.
This interpretation draws from paragraph EU10(2) of Appendix EU, which explicitly disapplies the requirement for written notification of invalidity in EUSS cases. The Court confirmed that submitting an EUSS application automatically voids any previous undetermined application for Indefinite Leave to Remain, as per Rule 34BB of the Immigration Rules when read alongside paragraph EU10(2) as it stood in February 2022.
The judgement reminds the intricate nature of UK immigration rules and processes, particularly highlighting the challenges faced by unrepresented applicants who must navigate multiple application types simultaneously.
EUPSS Domestic Violence survivors’ access to Public Funds
The Upper Tribunal’s ruling in GA v Secretary of State for Work and Pensions [2024] UKUT 380 (AAC) has established a significant precedent regarding access to public funds for domestic violence survivors with EU Pre-Settled Status (EUPSS). The case challenged regulation 9(3)(c)(i) of the Universal Credit Regulations 2013, which had previously prevented EUPSS holders who were survivors of domestic violence from accessing Universal Credit.
In a notable development, the Secretary of State for Work and Pensions conceded that this restriction was discriminatory and could not be justified. The Upper Tribunal accepted this concession and declared the prevention of EUPSS domestic violence survivors from accessing public funds to be unlawful.
This landmark decision effectively removes a crucial barrier for this vulnerable group, ensuring that EUPSS holders who have survived domestic violence can now access Universal Credit and other public funds when required.
These updates merely scratch the surface of recent UK immigration changes. Our subscribers benefit from comprehensive, in-depth coverage across a broad spectrum of immigration law topics.
HJT Training remains passionate about keeping immigration advisers at the cutting edge of their field. This dedication shines through in our regular enhancements to the Mastering Immigration Law (MIL) content. Our subscribers gain access to thorough, clear-cut explanations of recent changes, equipping them to offer top-notch representation to their clients.
We take pride in delivering prompt, precise, and perceptive analysis of the ever-shifting immigration landscape. By tapping into our resources, advisers can confidently tackle the intricacies of immigration law, providing expert guidance to those who depend on their knowledge.
For our subscribers’ convenience, we’ve compiled a thorough list of all updates in the Updates & Videos module. It’s our way of ensuring you’re always in the know, ready to face whatever challenges the world of UK immigration might bring.
A comprehensive list of all the updates is listed for our subscriber’s reference under the Updates & Videos module. Please log in to access.
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Written by Shareen Khan
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