United Kingdom Immigration Laws

Immigration Options Available for Sam

Immigration into the United Kingdom is regulated by the Immigration Act of 1971 and the rules developed under it. The statute gives requirements that non British individuals or non commonwealth citizens with the right of residing in the UK must obtain permission or leave to enter the United Kingdom from an immigration officer upon their arrival. Sam requires such permission before he can be allowed to enter into the UK. First, he has the option of applying for entry clearance in order for him to be allowed to enter the UK. The other option he has is to apply for settlement/ civil partner immigration by virtue of his alleged fiancé Sinhala in accordance with the Marriage and Civil Partnership Act of 2014. Sam also has an option of entering the UK as an Asylum seeker for people who are running away from political persecutions of their countries. He can also apply for the various Visa categories which include Tiers 1, 2, 3, 4 and 5. These visas are available for foreigners who want to migrate to the UK for varied reasons which include work/ employment, short visits, spousal union as well as sports among others.

The UK Points Based Immigration Routes

The UK Point based immigration routes are categorized into five different tiers.

Tier 1; this category is reserved for high value migrants and is designed to make contributions to the growth and productivity of the United Kingdom. It is designed for persons with high skills and for investors with adequate funds. The tire is further divided into four sub categories. The first subcategory is the exceptional talent category. This category is reserved for individuals with very high talents in the fields of sciences, engineering, humanities and other arts. The individuals under this category include people who are widely known for their talents. Leave to remain in England under this category is granted for a period of 3years. The other subcategory is the General category for skilled migrants for which three year leave is granted. The other subcategories include entrepreneurs, post study worker and investors for high net worth individual categories. The category is restricted to 1000 exceptional individuals, investors and entrepreneurs.

Tier 2: this tier is designated for skilled workers that have been awarded job offers where there is labour shortage in the United Kingdom. The job offer must be given by an employer within the UK and who have been licensed by the UK Boarder Agency as a sponsor. The sub categories under this tier include intra-company transfers and general migrants who include ministers of religion and sportspersons. The tier is restricted to 20,700 people annually and is given to persons whose the offer being given requires a college degree. The immigrants under this category must provide a certificate from the sponsor that shows that they require the application for employment and that they meet the salary requirements as provided for by the law (Codes of Practice).

Tier 3: this category was set up to cater for low skilled labour shortages. The tier is currently suspended on the grounds that the low skilled labour needs are met by workers from within the European Union who do not require visas to enter and work in the UK.

Tier 5: this tier is reserved for non permanent workers. The category is divided into six sub categories which include creativity and sporting, charity workers, religious workers, government authorized Exchange Programmes, International Agreements as well as Youth Mobility Scheme.

Marriage Route The

UK non nationals can gain entry and consequent permanent residence courtesy of various marriage settlements. The entry and subsequent residence can be obtained throygh the application of various categories of visas which include the UK Marriage Visas, the UK Defacto Visa and the UK Fiance Visa. The UK marriage visa permits a husband, wife or a civil partner to join their counterparts permanently in the UK. This visa is granted for a duration of two years. To be eligible for this visa, the applicant must show that they are above 16 years and the sponsoring UK resident is above 18 years.

The Asylum Route

Non UK nationals can gain residence in UK by way of seeking asylum. Asylum is granted to persons who face the risk of persecution in their country of origin. A person who has applied for asylum is called an asylum seeker while the one to whom it has already been granted is called a refugee. Asylum can be sought through the making of various applications. First a person can seek asylum under the 1951 Geneva Convention Relating to the Status of Refugees[1]. The asylum seeker must show well founded fear of persecution. This was well illustrated in the case of Vilvarajah v. UK[2]. Asylum can be granted to persons where they apply to remain in the UK and where removing them would result to the breach of their rights under the 1950 European Convention on Human Rights (ECHR).

Article 8 of ECHR limits the rights of states to interfere with the private life of individuals unnecessarily. Asylum in UK can be afforded by virtue of the European Union Asylum Qualification Directive to which the UK is a party.

The Current Immigration Status of Sam

From the facts given Sam can fall under the category of Tier 1 and 2 immigration visas by virtue of his high skills he possess as an oncologist. However, he has to prove that a valid job offer had been given to him by a competent sponsor in the UK. To prove this, he has to submit a certificate from the sponsor that shows that he meets the requirements of the salary category required for a person to be allowed residency. The salary requirements under the Appendix J of the UK Immigration require such a person to acquire a salary of 18,000 pounds. He is incapable of applying for an asylum on the grounds that he is not under any threat of persecution.

Sam can possibly apply for extension of stay under tier 2. Under the 2015 Tier 2 guidelines one is allowed to take other employment and apply for supplementary and voluntary work. One must make change of employment application where one needs to change employer. However, the fact that he has no work permit disqualifies him from being eligible for the extension of his stay under tie 2.


Sam can switch into tier 2 only on the basis of dependent partner of tier 4 student as provided in the Tier 2 policy guidance 2015. He can also switch into tier 2 intra-company transfer under the rules in place before April 6 2014 and he must be working for the same employer for the whole duration. In any case, his switching to tier 2 is limited to the fulfillment of tier 2 requirements.

Requirements and Procedures for entering the UK

To gain entry into the UK, a person needs several documentations. An important requirement is the passport. One must present a valid passport in order to gain entry to the UK. Non EU nationals require Visas for them to enter the UK. Under the UK Immigration Rules, non EEA nationals as well as Non British nationals must obtain leave to enter the UK. The Immigration Act 1971 imposes several conditions for entry[3]. Persons entering the UK through Channel Tunnel must produce valid passports[4]. A person must obtain leave to enter the UK on arrival for a period not more than 6 months[5]. An immigrant from outside the EEA must obtain entry clearance as required under rule 24 of the Immigration Rules.

Relationship between the English Immigration laws and human rights and Refugee Rights

The UK Immigration policies on Asylum adopt a very restrictive approach[6]. The policies are wanting as far as the question of the scope of protection offered by the government. A close examination of the rules reveals that they do not fully embrace the protection provisions offered by the 1951 convention relating to the Status of the Refugees[7]. For instance, section 19 of the Immigration Act 2014 raises constitutional issues with regard to the role of courts in relation to matters of human rights. The Act amends SECTION 117A (3) the Immigration and Asylum Act 2002 by inserting new requirements to be applied by courts when dealing with deportation matters where deportation is being resisted in reliance to Article 8 (2) of the ECHR. The removal of the ground for resistance affects individuals’ right with respect to family and private life contrary to the protection offered by Article 8. The new Act requires courts to determine deportation cases with consideration to the public interest which is difficult to do. It can be argued that the provisions in the new Act require UK courts to decide deportation cases in a manner that violates section 8 (2). This was demonstrated in the case of Soering v. United Kingdom (1989)[8]. The UK laws do not give effect to the component of the right to enjoy asylum as provided for in Article 14 (1) of the Universal Declaration of Human Rights of 1948. The case of R v. Chief Immigration Officer, Heathrow Airport, Exparte Salamat Bibi; CA 1976 clearly demonstrates this holding. Lord Denning MR held that treaties do not form part of the laws made by parliament and that immigration officers should only be conversant with rules laid down by the Secretary of State and not by the Conventions. The same issues also arose in the case of R v. SSHD Ex Parte McQuillan[9].

Reference list

1951 Geneva Convention Relating to the Status of Refugee

Antonio Fortin.The Meaning of `Protection’ in the Refugee Definition. 12:4 IJRL 548-

Edwards, ‘Human Rights, Refugees, and the Right “To Enjoy” Asylum’, International Journal    of Refugee Law, vol. 17, no. 2 (2005), pp. 293–330.

Immigration Act of 1971

Marriage and Civil Partnership Act of 2014

Cases were sourced from online law reports

Statutes were sourced from online law reports

Information was sourced from online goggle books

[1] Antonio Fortin.The Meaning of `Protection’ in the Refugee Definition. 12:4 IJRL 548-

[2] (1992) 14 EHRR 248

[3] Immigration Act sections 3 and 4

[4] Immigration Rules Part 1

[5] Immigration Rules, rule 23A

[6] A. Edwards, ‘Human Rights, Refugees, and the Right “To Enjoy” Asylum’, International Journal of Refugee Law, vol. 17, no. 2 (2005), pp. 293–330.

[7] Ibid note 4

[8] 11 EHRR 439

[9] (1995) 4 All ER

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: