Key developments in UK Immigration Law in 2005

Key developments in UK Immigration Law in 2005

• UK leave to remain for children, spouses

• Legal advice as good as facts presented

• The incestral visa

• The minister of religion visa

• Justice Mungwira and judicial independence

• Taffy Nyawanza: Immigration options for victims of domestic violence

• Taffy Nywanza: Implications of UK asylum decison

• Taffy Nyawanza: The right to family life

• Taffy Nyawanza: New UK changes to managed migration

• Taffy Nyawanza: UK immigration rules on marriage, domestic servants

• Taffy Nyawanza: Switching from work permit to indefinite stay

• Taffy Nyawanza: Immigration and you

• Taffy Nyawanza: Makosi and the real Big Brother

By Taffy Nyawanza

FOR this first despatch for the year 2006, I thought I would do a run-down of the key developments in UK immigration laws that came into effect in 2005. I have restricted myself to those that directly affect Zimbabweans.

I will begin with the latest developments and work backwards. I also point out that I have separately dealt in greater detail with most of the major developments discussed here in previous articles on this column. Many of these are positive, but inevitably there have also been limitations of existing rights and tightening of requirements for entry and extension of existing leave to remain.

I begin with the positively divine news that as at the 19th December 2005, the Home Office has introduced a new immigration category that allows religious workers in non-pastoral roles to come to the UK to work for up to two years. This will cover workers whose duties include performing religious rites such as reading the scriptures aloud or tending to the gods, but not preaching to a congregation. Unlike Ministers of Religion, they will not have to speak English, and will not be eligible to settle in the UK. They will also be prohibited from acting as a Minister of Religion, Missionary or Member of a Religious Order, in order to avoid the new category being used to circumvent existing rules.

On the 15th December, the Home Office issued a press statement in which it acknowledged that there had been lessons learnt from the Stephen Shaw report published on allegations of racism and mistreatment at the Oakington Immigration Reception Centre contained in the BBC documentary 'Detention Undercover: The Real Story'. The Home Office advised that the recomendations will be applied across the whole detention regime. It reiterated that in response to a key recommendation, the Prisons and Probation Ombudsman will in future act as an independent monitor, thus giving detainees who have exhausted all other internal avenues an additional complaints route.

And on 5th December 2005, the Civil Partnership Act of 2004 came into force, and no-one celebrated it more than Elton John. Civil partnerships are now a new legal relationship which can be registered by two people of the same sex and give the couples legal recognition for their relationship. For our purposes, the effect is that all immigration categories that recognise marriages and unmarried couples will also recognise same sex relationships, elevating gay relationships to the same status as marriages. Thus civil partners will be treated in exactly the same way that husbands and wives are currently treated. For example, an overseas national will be able to gain permission to live and work in the UK if they have a British civil partner. Even students will have rights to bring civil partners with them to the UK. As usual, I shall leave opinions on these developments to others, mine for now being to simply point out the law.

In another development, and as of the 21st November 2005, the Home Office had concluded investigations into suspected abuse of the ancestral route from Zimbabweans. It announced that as a result, consideration of UK ancestry cases from Zimbabwean nationals would now be resumed. The investigation had been launched on 22 April 2004 and had resulted in the suspension and delay of these applications.

On the 9th November 2005, the UK government announced that in order to practice as a nurse in the UK, all overseas qualified nurses must be registered with the Nursing and Midwifery Council (NMC). Under the Overseas Nurses Programme, all overseas qualified nurses seeking to register with the NMC will be required to undertake a 20 day period of protected learning time. This standard is said to ensure consistency and transparency in preparing applicants for registration in the UK. In addition, the NMC may also require that they undertake a period of supervised practice in a practice setting that has been audited and quality assured by an education provider approved by the NMC. Where an overseas qualified nurse has an offer of employment and is required only to undertake the 20-day period of protected learning, they may qualify for a work permit and enter or remain on that basis. Those required by the NMC to complete a period of supervised practice will be admitted, or given leave to remain, under a new permit-free employment category as an overseas qualified nurse or midwife.

As of 31 October 2005, all adults who want to become British citizens will need to demonstrate their knowledge of life in the UK by successfully completing the new Life in the UK test. The questions will focus on all areas of UK society on a range of topics, from UK traditions to the governing laws.

2005 also saw the introduction of a radical change in refugee policy in respect of the length of leave to remain or enter granted to refugees. The changes will apply to all those recognised as refugees on or after 30 August 2005. They will no longer be granted Indefinite Leave to Remain in the United Kingdom, and instead a five-year residency will be granted. Thereafter, the 5 years leave to remain which will be kept under active review with a review being triggered by the individual's conduct or a change in country conditions. The immediate effect of this change will be an increased level of uncertainty about the future for refugees in the UK.

The Home Office also announced an extension of the One-Off Exercise to grant indefinite leave to remain to certain asylum seekers and their dependants where the asylum claim was made before October 2000 and there is a dependant child of the applicant who was aged under 18 in October 2000 or October 2003. This exercise initially came into effect on the 23rd October 2003 and ended in December 2004. The deadline for making applications under the concession has been extended until April 2006.

Perhaps the most radical development in 2005 was the new five-year strategy on immigration and migration introduced by the government on the 7th February 2005. It will overhaul the entire immigration system in 2006. The new measures will include the introduction of a 5-tier points based system categorizing migrants according to their skills or occupations, making the employment of illegal workers a criminal offence punishable by a fixed penalty and up to two years imprisonment. It will introduce the auctioning” of tier 2 Work Permits with employers “bidding” for Work Permits on a monthly basis to test the economic value of migrant labour. It will end the current automatic right for residency for certain categories of migrants. It will also end chain migration, meaning that there will be no immediate or automatic right for relatives to bring in more relatives. Most worryingly, as well, is the proposal to put an end to the right of appeal when applying from abroad to work or study.

Yet another crucial development, especially for failed asylum seekers, was the AA decision of 14 October which effectively stated that no matter how fraudulent a Zimbabwean's asylum seekers' claim is, they cannot be returned because the very act of claiming asylum in the UK marks them out for possible abuse from the authorities on return. In the worst possible scenario for UK policy makers, this could mean that literally anybody could arrive from Zimbabwe, falsely claim asylum, fail, and then sit happily knowing they will not be returned while the situation in Zimbabwe remains unchanged. In practice, however, it means that the thousands of asylum seekers in the UK who claim persecution by the Mugabe regime cannot be returned to Harare for the immediate future. The Tribunal however left the Home Office a window of opportunity to appeal. The Home Office did indeed lodge an application for leave to appeal to the Court of Appeal which was refused in the High Court. It is very likely that they will be trying to lodge another application anytime soon. In the meantime, failed asylum seekers from Zimbabwe should still be approaching their solicitors to make use of the prevailing legal position. The AA position has recently been buttressed in the LK (AA applied) decision in which the AIT ruled in favour of an HIV+ lesbian appellant on the basis that AA, as the prevailing Country Guidance case on Zimbabwe, was a shorter route to the conclusion that the Appellant should in any event be entitled to refugee status in the UK. This was so even if removal to Zimbabwe was not threatened; and the court emphasised that refugee status does not depend on the risk that an Applicant will be removed.

The discussion on asylum would not be complete without discussing the Makosi Musambasi decision. A lot of questions were asked about how she managed to jump the queue in her asylum claim whilst many Zimbabweans have waited for years for their decisions. There is a very simple explanation. When Makosi’s leave to remain in the UK as a Work-permit holder was curtailed soon after participating in the Big Brother circus, she was given the opportunity to appeal that decision within 28 days to the AIT. The legal position being that it has now become possible to include all possible grounds for appeal, Makosi ingenuously included an asylum claim in her grounds of appeal. This is how she seemingly pole-vaulted her way to the top of the queue. And in the light of the decision in AA discussed above, there was really one way her decision could have gone. And whilst that decision is subject to appeal, her status cannot be impeached in the meantime. As others might say, opportunity and chance happen to all men.

On 12 April 2005, the Home Office formally introduced the ‘MBA provision’ to the Highly Skilled Migrant Programme (HSMP). The Home Office provided a list of the top 50 business schools in the world, 10 of which are in the United Kingdom. If you graduate from one of the recognised MBA courses from a school that is on this list from the time that the list was published, you will be awarded 65 points automatically under the HSMP. You must still meet the remaining requirements of HSMP, however. This involves demonstrating that you intend to continue your chosen career in the United Kingdom, that you intend to make the United Kingdom your main home, and that you will not have recourse to public funds for you or your dependants.

2005 also saw the introduction of a single tier of appeal to the Asylum and Immigration Tribunal which replaced the previous two tier system of appeals. The Government's stated intention in was to reduce delay and abuse in the system. The jury is still out on whether that has been achieved.

Another hotly-debated development in 2005 was the requirement that with effect from the 1st of February 2005, all persons subject to immigration control will now need the permission of the Secretary of State in order to get married in the UK. The permission will come in the form of a Certificate of Approval (Marriage) from the Home Office. Exempt persons under this requirement include EEA nationals, people with Indefinite Leave to Remain (ILR), persons who came to the UK with entry clearance as fiancés and persons marrying in the Church of England.

And lastly in this column, the Home Office have, with effect from the 1st January 2005, changed the Immigration Rules and increased the age at which a person can be given a visa for marriage, as a fiance(e), an unmarried partner (and now a civil partner), from 16 to 18 years old.

In a nutshell, these are the main immigration changes that came into effect in the year 2005. It remains for me to wish you all a prosperous 2006 and happy tidings from the Home Office.

Taffy Nyawanza is accredited by the OISC and writes in his personal capacity. He can be contacted at profettaffy@yahoo.co.uk

Disclaimer: This article only provides general information and guidance on immigration law. It is not intended to replace the advice or services of a solicitor. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. The writer will not accept any liability for any claims or inconvenience as a result of the use of this information
JOIN THE DEBATE ON THIS ARTICLE ON THE NEWZIMBABWE.COM FORUMS
shapiro@newzimbabwe.com