Home Office barriers stand in the way of a fairer immigration system seeking the ‘best and brightest’ global talent

Written by
Naga Kandiah and Samir Pasha
Date of Publication:
28 July 2021

In the summer of 2020, the Home Secretary Priti Patel announced that the UK was ready to “welcome the best and brightest global talent”, in pursuance of the government’s new “fairer, firmer, and skills-led” immigration system [1].

How successful do you need to be in order to impress Priti Patel to be viewed as the ‘brightest and the best’? It seems unless you are one of the handful of Oscar or Nobel Prize winners, then you are not succeeding as the best global talent and are doomed to be reviewed by a caseworker without any guidance as to whether you fit within the new ‘skills-led’ system.

The brightest and best global talent does not just include the handful of BAFTA, Oscar and Nobel Prize winners and such, but comprises a much larger pool of talent that is successful in their respective careers and are highly sought after by countries or companies.

The best and brightest global talent attract excellence in their field, can overcome strong competition from other applicants, invest and generate sums of money to the national economy that sets them apart from local or residual talent.

It is bewildering then that the memo on what this constitutes has not trickled down to the lone caseworker, perhaps because it may be has not even been drafted by senior authorities in order to enable their caseworkers to determine if they are hindering or enabling Ms Patel’s ‘skills-led’, ‘best and brightest’ talent.

A recent case has highlighted the guidance vacuum amongst Home Office caseworkers. The client in the case, a Hong Kong British National Overseas, applied for Indefinite Leave to Remain on the basis of her 10-year continuous legal residency [2], which was refused, despite also demonstrating her ability to top most metrics used to determine ‘best and brightest global talent’.

Ms Chen [3] arrived in the UK aged 15 years to attend a prestigious boarding school for her education. Average tuition fees for boarding schools in the UK are £11,763 per term and for overseas students most are required to pay fees upfront. After completing her secondary education, Ms Chen proceeded to complete her A-Levels – again at a boarding school-before going onto completing her undergraduate studies at Cardiff University, followed by a master’s degree in London. She outperformed her peers and was offered a job at one of the most prestigious universities in the country with an annual starting salary of over £36,000. It is worth noting at this point that recent official statistics for 2020 have shown that the average annual for full-time pay was £31,461 [4]. Already, Ms Chen has at a rough estimate contributed over £100,000 alone in tuition fees, not including the boarding accommodation, food and sundry expenses that come with a boarding school life. At a rough estimate, she further contributed over £100,000 in purely university fees and accommodation. Ms Chen was fortunate enough to obtain work as a Data Analyst straight after graduation, and has continued to pay taxes and reside legally in the UK. Already, as an individual on the facts above alone, Ms Chen has grown up in the UK since she was child, received the best British education possible, contributed over £200,000 to the UK brought over from Hong Kong in just education fees and accommodation, resided legally for over 10 years, and managed to successfully obtain a job position at a prestigious institution after a competitive recruitment campaign. Perhaps Ms Chen is already looking brighter and better than some of the local talent – skill-wise and financially.

Where Ms Chen fell foul was not in her substance, but of a technicality that is as British as the immigration system that has indicted her as being a rejected application for settlement. According to Home Office guidance, Ms Chen was absent from the UK for more than the stipulated 540 days required, the reason being, as a student at a boarding school during the end of each school term, she was required to return to her country of origin as expected by her school. The boarding school did not keep students over term breaks, and as Ms Chen had no relative or family friend in the UK, she was an unaccompanied minor and had to return to Hong Kong to her parents. A total of 304 days were spent by Ms Chen back home in Hong Kong while she was a minor during her term breaks; through no fault of her own. The remaining 174 days were calculated as over-18 where she went back to Hong Kong during the end of term breaks whilst she completed her A-Level education at boarding school and again, the school did not allow students to remain during the holidays. Ms Chen has legally resided in the UK for over 10 years and her downfall has been the British boarding education system that is the epitome of producing skilled and talented individuals – all paid fully by Ms Chen.

Already, we can see that Priti Patel’s ‘fairer’ mantra is weakening in Ms Chen’s case. Where is the fairness to apply in Ms Chen’s case the common sense approach that she was required to go back to her country of origin as she was a child in the UK and could not be left alone. Furthermore, Ms Patel’s ‘skills-led’ requirement is also hollow in Ms Chen’s case as she obtained skills through her British education, including a Professional Placement during her undergraduate degree, deemed a perfect fit to be offered a technical skill role with a prestigious employer, earning a salary above the UK average.

It should be noted at this point that the current Skilled Worker visa requires a salary of only £25,600, and here Ms Chen is already earning at least £10,000 more than what would be deemed acceptable for a ‘skilled’ worker.

The Home Office nonetheless determined that her long residence had been broken because of the extra days spent outside of the UK beyond the stipulated 540 days.

Relevant Law

The relevant provision dealing with this matter is which states:

276A. For the purposes of paragraphs 276B to 276D and 276ADE (1).

(a) “continuous residence” means residence in the United Kingdom for an unbroken period, and for these purposes a period shall not be considered to have been broken where an applicant is absent from the United Kingdom for a period of 6 months or less at any one time, provided that the applicant in question has existing limited leave to enter or remain upon their departure and return, but shall be considered to have been broken if the applicant:

(v) has spent a total of more than 18 months absent from the United Kingdom during the period in question.

(c) ‘lived continuously’ and ‘living continuously’ mean ‘continuous residence’, except that paragraph 276A(a)(iv) shall not apply.

276B. The requirements to be met by an applicant for indefinite leave to remain on the ground of long residence in the United Kingdom are that:

(i) (a) he has had at least 10 years continuous lawful residence in the United Kingdom.

(ii) having regard to the public interest there are no reasons why it would be undesirable for him to be given indefinite leave to remain on the ground of long residence, taking into account his:

(a) age; and

(b) strength of connections in the United Kingdom; and

(c) personal history, including character, conduct, associations and employment record; and

(d) domestic circumstances; and

(e) compassionate circumstances; and

(f) any representations received on the person’s behalf; and

(iii) the applicant does not fall for refusal under the general grounds for refusal.

(iv) the applicant has demonstrated sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, in accordance with Appendix KoLL.

(v) the applicant must not be in the UK in breach of immigration laws, except that, where paragraph 39E of these Rules applies, any current period of overstaying will be disregarded. Any previous period of overstaying between periods of leave will also be disregarded where –

(a) the previous application was made before 24 November 2016 and within 28 days of the expiry of leave; or

(b) the further application was made on or after 24 November 2016 and paragraph 39E of these Rules applied.

A case dealing with this matter is Chang (paragraph 276 (a) (v); 18 months?) [2021] UKUT 65 (IAC) [5], the facts which are also similar to an extent.

In the Chang decision, Judge Rintoul concluded, citing Alvi [2012] UKSC 33 [6], that the effect of the Home Office’s interpretation of the requirements in the Immigration Rules as set out in the guidance was akin to establishing a rule, as if it were not satisfied the application would be refused, and therefore not permissible. [7] The improper construction of the interpretation in the guidance created a rule that was erroneous in law. In Ms Chen’s case, the effect of the Home Office caseworker’s interpretation of the guidance created a requirement that led to her application being refused. Much like in Chang, in Ms Chen’s case, the Home Office failed to properly consider the public interest test as set out at para 276B (ii). Had the Home Office caseworker properly considered this paragraph in the Rules, then they would have been able to determine – as in Chang – that it is not in the public interest to remove Ms Chen from the UK.

Less said about the caseworker’s application of Article 8 grounds in Ms Chen’s case the better as there was a wholesale refusal to acknowledge her over-10 years of continuous residency, where she has established deep ties with the UK not just as a child student, but throughout her whole educational life and well into her career. It is however acknowledged that the Home Office considered her not to have breached para 276A (a) regarding ‘unbroken residence’. It is therefore accepted by the Home Office that all of Ms Chen’s absences from the UK were within 6 months at a time, which correlate with her only having to leave for the stipulated holidays at the end of school terms.

With unbroken residence not being an issue in Ms Chen’s case, as opposed to that experienced in the Chang case, attention turns to whether the caseworker properly considered ‘compelling or compassionate circumstances’ [8] to explain the excess absences. The excess absences causing frustration could have been explained by the forcible need for Ms Chen to return to Hong Kong during her years as a child student in the UK due to her boarding school rules. The excess absences could have been understood in light of compelling or compassionate circumstances, considering Ms Chen was under 18 during the 304 excess absences with no practical, safe means of staying in the UK as she had no relatives or family friends. Common sense approach may have concluded the caseworker’s review of Ms Chen’s case to fall under compelling or compassionate grounds; however, it was decided not to apply this discretion in Ms Chen’s favour.

At para 21, Judge Rintoul in the Chang case stated that the ‘Immigration Rules are not statutes and are to be interpreted in a common sense manner.’ This common sense interpretation seems to have been lacking in Ms Chen’s case when it was being reviewed and decided upon by the Home Office caseworker. To help the caseworker in deciding applications like Ms Chen’s, the Home Office further provided the new ‘fairer, firmer and skills-led’ approach that may have assisted in their decision making. And if that were not enough, Priti Patel’s ‘brightest global talent’ declaration was also available to nudge the caseworker in applying the most common sense decision in Ms Chen’s case. Sadly, the caseworker, left to decide an application of such merits with a lack of preset guidance, armed only with her employer’s media-attention mantras failed to apply their common sense. Perhaps the declarations were not enough to provide confidence to the caseworker to better apply common sense. There is a vacuum in guidance and training by the Home Office in how to correctly identify applications which adhere to attracting Ms Patel’s highly sought after skills-led, brightest talent.

______________________________

[1] https://www.theparliamentaryreview.co.uk/news/patel-uk-ready-to-welcome…

[2] Para 276 (a) (v) Immigration Rules

[3] Name changed for privacy

[4] https://www.ons.gov.uk/employmentandlabourmarket/peopleinwork/earningsa….

[5] https://www.bailii.org/uk/cases/UKUT/IAC/2021/65.html

[6] Alvi, R (on the application of) v Secretary of State for the Home Department [2012] UKSC 33 (18 July 2012) https://www.bailii.org/uk/cases/UKSC/2012/33.html

[7] Ibid [31] -[32]

[8] Para 276B Immigration Rules

Source:https://www.ein.org.uk/blog/home-office-barriers-stand-way-fairer-immigration-system-seeking-brightest-and-best-global

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