Essay: UK immigration

Leave to Enter: Under Section 3 of the Immigration Act 1971 a person without the right of abode may enter the UK if given leave to enter. Leave may be limited or unlimited, and is granted in accordance with the Immigration Rules Рand the power to grant leave is exercised by immigration officers.

Where unlimited leave is granted, the immigrant may remain in the UK for an indefinite period of time.

Where however limited leave is granted, the period of stay will be specified, and there may be conditions attached.

Requirements and Conditions

To obtain entry clearance where necessary, and to obtain leave to enter or remain in the UK, an applicant must satisfy the entry clearance officer, immigration officer and Home Office that they meet the requirements set out in the Immigration Rules.

As an example, to obtain a visitor visa, the applicant must satisfy the entry clearance officer that they meet all the requirements of Paragraph 41 of theImmigration Rules, and then they must demonstrate the same to the Immigration Officer on their arrival to the Country.

Once they have entered the UK, they do not commit a criminal offence by failing to meet these requirements. However, failure to meet the requirements may result in refusal by the Home Office to grant an extension to their leave, or indeed, it may lead to the leave being curtailed.

There may be conditions attached to the applicant’s limited leave to enter or remain. For example, all applicants who are successful in obtaining limited leave are subject to the condition not to have recourse to public funds. Public funds include housing under Parts VI and VII of the Housing Act 1996 and under Part II of the Housing Act 1985.

Neither will they be entitled to claim attendance allowance, carer’s allowance, child benefit, council tax benefit, disability living allowance, housing benefit, income support, income based jobseeker’s allowance, state pension credit, child tax credit or working tax credit.

Treatment under the NHS does not fall within ‘public funds’. However, under the National Health Service (Charges to Overseas Visitors) Regulations 1989 (Statutory Instrument 1989/306), in some circumstances a charge will be levied for the provision of NHS services.

Education provided for children at local authority maintained schools does not fall under ‘public funds’ either (see Paragraph 6 of the Immigration Rules )

It is a condition of leave of entry to the UK for many immigrants that they register with the police (See Appendix 2 of the Immigration Rules ).

Some immigrants may find that their limited leave is subject to a condition that restricts their ability to take up employment. Per Paragraph 6 of the Immigration Rules, this includes paid and unpaid employment, self employment and engaging in business or any professional activity. The condition is found under the paragraph in the Immigration Rules under which the leave of entry has been granted.

For example, a visitor cannot work at all (Paragraph 42), a Fiance(e) cannot work at all (Paragraph 291), a student may work but only within the afforded guidelines (Paragraph 14.2.1.5), a holidaymaker may work but for no more than 12 months during the stay, and they will be prohibited from engaging in business or from providing services as a professional sportsperson (Paragraph 95).

If a work permit is held, approved employment may be taken up as specified within that permit (Paragraph 129). A business person can work in the business that has been approved (paragraph 204).

These conditions will usually form part of the leavy of entry stamp to the passport. Breach of a condition of leave is a criminal offence and may lead to removal from the Country.

Settlement

Where an applicant is given unlimited leave, they may acquire settled status, which is practically as secure as having a right of abode except that the applicant may still be deported.

Per the Immigration Act 1971 Section 33(2A) a person is settled if they are ordinarily resident in the UK without being subject, under immigration law, to a restriction on the period they are entitled to remain in the Country. Any person who is given unlimited leave and satisfies the ordinary residence test will therefore acquire settled status.

Where an applicant is given indefinite leave to remain in the UK, they would not be ‘settled’ in the UK for the purposes of the Immigration Act 1971 if they emigrated to another country and was not therefore ‘ordinarily resident’ in the UK.

Settled Status

Where a person is ‘settled’ in the UK, subject to the Immigration Rules they will have the right to continue to live in the UK but unlike a person who has the right of abode they may still be deported.

If the person leaves the UK and returns within two years, their leave will continue – leave to enter is automatically granted again and their settled status is confirmed. This usually operates automatically under paragraph 18 of the Immigration Rules which is concerned with returning residents – so long as the entrant is able to satisfy the Immigration Officer that they have indefinite leave to enter or remain in the UK when they last left, and has not been away for longer than two years – and they now seek admission for the purpose of settlement. If the person is returning for a limited period just to show residence in the UK within two years of each departure then they are likely to be denied the benefit of paragraph 18 of the Immigration Rules (see also Halsbury’s : Returning Residents ).

Paragraph 18 of the Immigration Rules:

18. A person seeking leave to enter the United Kingdom as a returning resident may be admitted for settlement provided the Immigration Officer is satisfied that the person concerned:

(i) had indefinite leave to enter or remain in the United Kingdom when he last left; and

(ii) has not been away from the United Kingdom for more than 2 years; and

(iii) did not receive assistance from public funds towards the cost of leaving the United Kingdom; and

(iv) now seeks admission for the purpose of settlement.

If the person fails to return to the UK within two years of leaving it, per paragraph 19 of the Immigration Rules, consideration will be given to various factors including, for example, the reason for the delay in returning, the purpose of going abroad and the length of original residence in the UK.

Of note, the aquisition of settled status is a step towards registration or naturalisation as a British Citizen with the Right of Abode under the British Nationality Act 1981, Sub sections 4 and 6.

‘Settled’ per the Immigration Rules

The immigration rules use the term settled in relation to British and Commonwealth citizens who have the right of abode, in addition to people who have indefinite leave. So, for example, immigration rules that apply to the spouse of a person settled in the UK will also apply to the spouse of a British citizen or a Commonwealth citizen that has the right of abode.

EEA Nationals

Nationals of the EEA (European Economic Area) don’t need leave to enter or remain so long as they are exercising their rights under EC (European Community) law. They still have restrictions on the period for which they can remain in the UK under UK immigration law. By Regulation 16(1) of the Immigration (European Economic Area) Regulations 2006 EEA nationals acquire the right to reside in the UK permanently, where they’ve resided in the UK already for a continuous period of at least five years. Sometimes the right to reside in the UK permanently may be acquired quicker – for example, under Regulation 15(1) by a worker or self employed person who has ceased activity per Regulation 5. Applicants who fall under Regulation 15(1) are treated as settled, for the purpose of applications for naturalisation.

Further reading: Harvey on Industrial Relations – Settled Status

Source: Essay UK - http://lecloschateldon.com/essays/law/essay-uk-immigration/


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