Immigration Law 2017 – Developments To Watch Out For
R (Miller) v Secretary of State for Exiting the European Union  EWHC 2768 (Admin),  All ER (D) 19 (Nov)
In 2016, the Court of Appeal scuppered Theresa May’s plans to trigger Article 50 without consulting Parliament. As expected, an appeal was heard in the Supreme Court in December 2016.
Judgment is expected in January 2017.
This case is significant to UK Immigration policy since requiring parliamentary review may affect not only the timetable for triggering Article 50 but may transform the policy outcomes for EU migrants living in the UK, and those seeking to come in the future.
R (on the application of MM (Lebanon) (AP)) v Secretary of State for the Home Department  EWCA Civ 985,  All ER (D) 133 (Jul)
This appeal was heard in the Supreme Court in February 2016 and a decision is expected this year. It challenges the lawfulness of the minimum income requirements for UK spouses and partners who want to bring their non-EEA partners and children into the country to live with them.
R (on the application of Agyarko) v Secretary of State for the Home Department  EWCA Civ 440,  All ER (D) 50 (May)
Thiscase challenges the requirement of ‘insurmountable obstacles’ and the ‘exceptional circumstances’ test for partners of British citizens, whose relationships formed while they resided in the UK unlawfully; questioning whether these tests are compliant with Article 8 of the European Convention on Human Rights (ECHR).
Legislation and regulatory developments
Once Article 50 is formally triggered we are likely to see ongoing redevelopments in UK Immigration legislation. This will begin with the Great Repeal Bill which will be passed after Article 50 is triggered, permitting Parliament to decide which EU laws it wants to keep, modify and scrap.
Changes to Tier 2 routes
Phase one was rolled out in November 2016, while phase two is scheduled for April 2017. Anticipated changes include:
- launching the Immigration Skills Charge, which will impose on employers a £1,000 per year charge for each Tier 2 migrant
- expanding the Immigration Health Surcharge to cover Tier 2 (Inter-company Transfer) migrants and their dependants
- increasing the Tier 2 (General) salary threshold for experienced workers to £30,000 (from £25,000)
- closing Tier 2 (Inter-company Transfer —Short-Term Staff (STS)—this will also have consequences for salary thresholds as the minimum salary for STS is £30,000, whereas the minimum salary for Long-Term Staff is £41,500
- removing the one-year experience requirement for Tier 2 (Inter-company Transfer) applicants earning at least £73,900 annually
- reducing the Tier 2 (Inter-company Transfer) high-earner threshold to £120,000 (from £155,300) and enabling migrants to extend leave to remain to a maximum of nine years rather than five
At the Conservative Party Conference, Home Secretary, Amber Rudd announced a number of initiatives she has planned for the near future, including:
- establishing a £140m Controlling Migration Fund to relieve the burden shouldered by public services in high-migration areas
- introducing a re-entry ban and facilitating the removal of foreign criminals, including those from within the European Economic Area (EEA) and Switzerland
- a consultation on the Tier 2 visa categories, which aims include reforming the Resident Labour Market Test (RLMT) to better protect UK workers
- a consultation on the Tier 4 category, including developing a two-tier student visa scheme offering preferential treatment to students at the best universities and imposing more stringent requirements on students applying to ‘lower quality courses’
Adding to the difficulties surrounding EEA nationals living in the UK under the shadow of Brexit, the Immigration (European Economic Area) Regulations 2016, will come into force on 1st February 2017. These regulations will introduce more onerous procedural requirements on EEA nationals and their family members applying for residency documents. For example, applicants will be required to use a specified form and the application must be ‘complete’.
The number of ‘rejected’ EEA Applications in recent months has increased and this can only be expected to increase further once these provisions are in force. As several aspects of the new Regulations appear to go beyond the EU Citizens Directive 2004/38/EC, there is a strong possibility that legal challenges will be brought, especially if more applications are rejected and delays increase.
Brexit is likely to overshadow much of 2017 in terms of Immigration law development. However, there are some major Supreme Court decisions such as MM which could significantly impact existing and future migrants to the UK.
OTS Solicitors is one of the most respected Immigration law firms in London. By making an appointment with one of our Immigration solicitors, you can be assured of receiving some of the best legal advice available in the UK today.
If you wish to discuss any of the points raised in this blog, please phone our London office on 0203 959 9123.