Appendix FM of the immigration rules sets out the rules for non-EU citizens who want to come and join previously settled family members in the UK. Those eligible to apply for family visas under Appendix FM are non-EEA nationals related to or in a relationship with either a British citizen, a person settled in the UK with indefinite leave to remain, or a person in the UK with limited leave as a refugee or someone granted humanitarian protection.
The Appendix states that it aims to “strike a balance between the right to respect for private and family life and the legitimate aims of protecting national security, public safety and the economic well-being of the UK; the prevention of disorder and crime; the protection of health or morals; and the protection of the rights and freedoms of others.”
In practice, striking the “balance” between what is essentially an inalienable human right under Article 8 of the European Convention of Human Rights and national or domestic conditions of life has led to strict rules and requirements for applicants trying to join their family.
Basic requirements for eligibility depend on the applicant’s relationship to the family member they are trying to join in the UK, and are often related to age, knowledge of English and self-sufficiency. More complicated, and often problematic, is the Minimum Income Requirement (MIR), which was introduced together with the 2012 hostile environment rules by then Home Secretary Theresa May. Under the Minimum Income requirement, the British or settled family member who wants to reunite with their non-EEA national family member has to prove that they can financially support themselves, the family member, and any dependent children where applicable.
Concretely, the British or settled sponsor needs to show a proof of income of £18,600, with an increase of £3,800 where they are applying with one dependent child, and an extra £2,400 for each additional child after that. This is in addition to the cost of the Home Office visa application process and English Language test fees which applicants have to incur independently, and which are amongst the highest in the world.
Bearing in mind that 40% of workers in the UK do not reach this threshold, the minimum income requirement has often been criticised as unduly harsh on family units. Today, at least 15,000 children are growing up without one of their parents, just because their family doesn't earn enough to meet these strict Home Office income rules.
The Appendix is also the framework under which a British or settled person can bring their spouse or partner into the UK. For partner applications, additional non-financial requirements, which are not required for blood-related family members, can be tricky. Primarily, the requirement to prove that the relationship is “genuine and subsisting” can be hard to fulfil, and often is at the base of reasons given for refused applications.
Granted, Appendix FM makes provision for “exceptional circumstances” under which an applicant may be relieved of the Minimum Income Threshold, or where the Home Office will approach “genuineness” of the relationship with more flexibility. For the MIR, examples include if a strict application of the rules will result in unjustifiably harsh consequences, and thereby render refusal of entry clearance or leave to remain a breach of Article 8. In those scenarios, the Home Office will not only take other income sources such as cash savings into account to see if an applicant can reach the threshold alternatively, but they may also exercise discretion in granting the family visa if the money is not readily available. Unsurprisingly, the threshold to qualify for these “exceptional circumstances” is extremely high, and the execution is at the Home Office’s mercy.
Not only is there no motive – political, economical or humanitarian - that justifies the minimum income threshold, it has also still not been proven that the hostile environment policy works at all. As Reunite Families UK, a charity fighting the unfairness of the minimum income requirement, writes in their open letter to the PM the COVID-19 pandemic has exacerbated the policy’s harmful effects, and the upcoming recession will only make things worse. Write to your MP today to fix this broken system, and reunite families that have been teared up for years for no other reason than purely financial distress.
You can contact us here, call us on 020 8142 8211 or send us a question on WhatsApp if you need help reuniting your family.
In 1949, the Legal Aid and Advice Act introduced the first form of free legal aid schemes for those who found themselves in front of a judge but could not afford a lawyer. Before that, free legal advice was only available through schemes run by volunteer lawyers.
At a basic level, the Legal Aid and Advice Act ensured that people who could not afford legal costs could apply for legal aid and receive money provided by the government to cover those costs. The idea was that a welfare state should safeguard legal protection for everyone, and that lawyers should not be working for free for that to be the case. Initially, aid was almost unlimited, covering about 80% of British people. Unfortunately, this extensive coverage did not last.
In the 1980s, the growing cost of the legal aid budget became a political issue. In 1986, total legal payments had risen to £419m a year. The net cost was a lower, at £342m after contributions were recovered, but still a significant sum. That same year, rising taxpayer concerns over this budgeting led to the first cuts to legal aid entitlements.
As the decades went by, cuts became almost routine by consecutive Tory and Labour governments. When fixed fees replaced hourly fees for legal aid cases, law firms were forced to choose between taking on a high quantity of fixed fee legal aid applications and lowering the time spent on each application, or limiting legal aid work to ensure that each caseworker would actually be able to manage their cases, deliver high-quality advice, and make a proper living. As a consequence, many legal aid providers started avoiding more complicated areas of the law like immigration and asylum, or at the very least limit the types of applications for which they provided legal aid, leaving migrants with less options to get the advice and the representation they so desperately need.
Thus, legal aid became progressively more limited, and eligibility requirements more stringent, until before the 2008 economic crisis, only 29% of people were eligible. In the aftermath of the banking crisis, the coalition government then passed the 2012 Legal Aid, Sentencing and Punishment of Offenders Act (LASPO), which was supposed to reduce legal aid spending by £350m by 2015. Criminal and family law aid, the former of which at one point accounted for 80% of the legal aid budget, were hit heaviest by the cuts, but funding for immigration cases also crippled, as almost all matters unrelated to asylum were removed from the scope of legal aid. For the very few immigration applications (human trafficking, asylum, domestic violence and immigration detention) that remained within its scope, the pay was cut even further.
Inevitably, these developments caused a wreckage in legal aid practices across the country. Half of all law centres and not-for-profit legal advice centres in England closed down since LASPO made it into law, and more people than ever are forced to represent themselves in court.
Yet again, Britain is failing the most vulnerable members of society. Asylum seekers’ access to justice and immigration law practitioners’ financial viability are dually strained, and a decrease in funding paired with an increase in demand has led us to where we are now: operating within a failing system, on the brink of collapse. The risk of collapse is more acute in some sectors such as family courts, just as conceivable in immigration tribunals. Like many other aspects of the welfare state, the legal aid process has been marketised, commercialised and as a consequence, dehumanised. We should aim to do better.
You can search for legal aid firms using the search tool on the Immigration Law Practitioners' Association here.
It is no secret that many couples and immigration practitioners have long been growing frustrated with the requirements to evidence family relationships when applying for a family visa in the UK. Every year, a significant amount of family applications are rejected on the basis of the applicant not providing the adequate documents to evidence relationship requirements.
For Spouse visas, the Home Office guidance states, “an applicant and their partner must provide evidence that they are in a genuine and subsisting relationship.” This is to avoid marriages of convenience or “sham marriages.” But what is a “genuine and subsisting” relationship and worse yet, how does one prove it?
Appendix FM-SE of the immigration rules deals with evidencing all the requirements set out for family visas in the UK. For married couples, it specifies that a marriage certificate is a mandatory requirement to prove the marriage. This is confirmed in the the Home Office guidance on family relationships for partners, divorce and civil partnerships. Unfortunately, neither the Appendix or the guidance specify what evidence is needed to satisfy the “genuine relationship” test.
Since the criterium is vaguely worded, and there is little clear guidance on the subject, it is only logical that applicants often do not realise how much evidence they are expected to present to fulfil the requirement. As a general rule, it is up to the person filling in the application form and, in this case, relying on the existence of a relationship, to prove any assertion made about it. The caseworker who looks at the application will not do their own investigatory work on an applicant’s behalf.
Unsurprisingly, when spouse visa applications get refused, lack of a “genuine and subsisting relationship” is therefore often cited as the reason for refusal. Almost always, the refusal does not mean that the relationship is not genuine, but rather that the applicant failed to give adequate or enough information (in the view of the deciding caseworker) to prove that it was genuine. This is a subjective factor, which depends on the caseworker reading your application. That is why the general advice is to prepare all your immigration applications for the most cynical caseworker on a bad day, to ensure that any caseworker who reads it will view it favorably.
So, what are examples of good evidence? Some of them are obvious – children or stepchildren for which both partners have cared, for example, are an example of strong evidence of a subsisting relationship. If a couple has been living together for a while, the requirement can be relatively easy to fulfil. Joint tenancy agreements, joint bills or mortgage deeds are good examples of proof the Home Office would most likely accept as evidence of the relationship. Any other correspondence, especially from government departments or local government, sent to the applicant at the same address as their partner would also get the applicant brownie points.
Home Office guidance specifies that cultural and external factors must be taken into account when evaluating the genuineness of a relationship. If for cultural or religious reasons, the applicant couple did not live together before they got married, for example, or did not know each other very well, that should not mean that their relationship does not satisfy the requirement.
Thus, if a couple has been living apart for a lengthy period of time, or have never lived together before making the application, the situation might be a bit more complicated, and the evidence needed a bit more creative. Good examples of evidence include joint holiday bookings, visits to each other’s home countries, shared financial responsibilities (e.g. bank accounts, savings, utility bills, membership accounts, …), and plans for the future in the UK (think accommodation, finances, etc.) Witness statements from the couple, their family members or neighbours can also be useful.
As ever, this briefing this is not a substitute for legal advice. Fulfilling the “genuine and subsisting relationship” requirement for the purposes of a UK spouse visa application can be one of the most challenging aspects of the process.
Couples who have received a refusal on such grounds could benefit from legal advice to strengthen their evidence in order to submit a subsequent successful application. If you would like an experienced immigration lawyer to talk about your specific application, you can book our one-off video consultation service here. If you have a question about this service you can contact us here or send us a question on WhatsApp.
COVID-19 makes it difficult, if not impossible to operate a normal immigration system. Travel restrictions make entering or leaving the UK a complex process, implementing ordinary work or income requirements for visas can undermine public health messages, and to make matters worse, the Home Office itself has been heavily impacted by the government-imposed lockdown, as their staffing levels have suffered and their workload is constantly changing. It is therefore not surprising that numerous changes aimed at ensuring that the UK’s immigration and visa systems continues to function properly have been announced in the past few months. Last week, a cross-party Home Affairs Select Committee published its report on the Home Office response to the impact of COVID-19 on the immigration and visa systems.
In the report, the Committee welcomes the government decision to scrap the immigration health surcharge for all NHS and social care workers, calling it “a recognition of the contribution made by the front-line workers fighting COVID-19.” However, it is said not to go far enough. Committee Chair Yvette Cooper MP said: “It is very welcome that the Government has agreed to waive the Immigration Health Surcharge and extend the bereavement scheme for NHS and social care workers. However, most care workers and low-paid NHS support staff are still excluded from receiving the free one-year visa extension granted to clinical staff, and as a result could be facing costs of hundreds or thousands of pounds this summer.
The Committee therefore recommends to open free visa extensions to the same range of employees as they have done for the immigration health surcharge waiver. It also recommends simplifying (and lowering the price tag) of paths to British citizenship and permanent residency to those health and social care workers who risked their lives during the pandemic.
“Excluding the care workers who hold dying residents' hands, the cleaners who scrub the door handles and floors of the COVID-19 wards, or the porters who take patients to intensive care is just wrong. The Government must ensure that all measures of support for NHS and care workers apply to all frontline staff equally, irrespective of grade or job title.”
The Committee also evaluated visa extensions for non-NHS staff. When announcing the Home Office policy change which allowed all visas due to expire before 31 July 2020 to be extended, the Home Secretary said that “nobody will be punished for circumstances outside of their control”. To make good on that promise, the Committee recommends that the Home Office implement automatic, blanket visa extensions instead of making individuals apply for them via email, to ensure that individuals do not overstay their visa unintentionally.
Highlighting a concern which lawyers and immigration experts flagged up immediately after the visa extensions were made public, the report reiterates there is currently no legal basis for any of these extensions. Individuals relying on government policy announcements (which can be changed at any given time and lack legal foundation) need legal reassurance that their extension is lawful and valid and that they can continue to live and work in the UK. The Committee therefore recommends that the Home Office implements a statutory instrument (a form of secondary legislation) to clarify the legal basis of both the extension of leave for all individuals who are unable to leave the country before the expiry of their current visa, and for the automatic extension of leave offered to NHS staff.
Analysing the financial impact of the coronavirus on the visa system as a whole, the report acknowledges the disruption and economic impact of COVID-19, recognising that many individuals have lost their jobs or seen their income significantly reduced through no fault of their own. It is within this context that the Committee recommends adapting visa requirements such as the Minimum Income requirement to take loss of income due to COVID-19 into account when evaluating applications. In order to ensure public health and safety for all, the Government is also urged to lift the No Recourse to Public Funds (NRPF) conditions, which caused turmoil a few weeks ago when it seemed like the PM was not aware of the policy’s existence. The Committee Chair said the government “needs to make sure that these exceptional Covid-19 circumstances aren't pushing families into desperate hardship because of the NRPF rules which prevent them getting the urgent support they need.”
Last but not least, the Home Affairs Committee evaluated the impact of the coronavirus on the EU Settlement Scheme (EUSS), calling upon the Home Office to step up their efforts to identify vulnerable persons who may not have applied to the EUSS yet.
The report shows that COVID-19 has exacerbated the underlying problems of the EUSS. One of those problems is the lack of information on how the Home Office will approach late applications (applications made after the deadline of 30 June 2021.) The Home Affairs Committee recommendations include a clarification of what support will be provided to assist vulnerable individuals in applying, especially for children in care, given that there is a low application rate for that particular group of people. At the minimum, it is said local authorities should increase their work to identify EU children in care who have not yet applied to the scheme, but ideally, more comprehensive measures should be implemented. The Committee therefore recommends that the Home Office grant automatic Settled Status to all children in care and care leavers, without requiring them to explicitly apply.
The Committee also calls on the Home Office to clarify the legal position of those with pre-settled status. During the pandemic, people with pre-settled status have questioned whether they are able to access all public funds, specifically whether they can get benefits, or whether those rights are reserved for people with indefinite leave to remain only.
To sum up, just like many experts in the area, the Committee is willing to cut the Home Office some slack in these unprecedented times. It is appreciated that going through the normal routes to introduce new policies is made complicated by circumstances outside of the government’s control. However, it is in times like these that guidance needs to be clear, unambiguous, and publicly available so that practitioners know the law, visa holders feel secure, and the Home Office act legally to address the issues we face.
After the death of George Floyd on 25 May 2020 at the hands of a white police officer, protests against police brutality and institutional racism erupted in the US and around the world. The US now finds itself in a period of political unrest and upheaval not unlike after Martin Luther King’s assassination in 1968. In the UK, George Floyd’s death resonated with many, mobilising thousands in London, Manchester and Cardiff to march in solidarity with Black Lives Matter, a movement dedicated to ending violence and systemic racism towards black people.
Highlighting the racism and unfairness engrained in the American justice system is important, but it is easy to judge what happens abroad without looking inward. The reality is that Britain is not innocent when it comes to institutional racism or police brutality – far from.
When it comes to UK immigration, the dissonance between how white (Western) immigrants and immigrants of colour from the Global East and South are treated is painstakingly stark. The culmination of these double standards was the 2018 Windrush Scandal, which erupted after Theresa May introduced the hostile environment rules in 2012. Under the hostile environment, those who lack documents evidencing their lawful residence become subject to the hostile environment checks. They are no longer allowed to work, rent or even open a bank account in the UK.
Many people of colour who came to the UK in the 50s, 60s and 70s from Commonwealth countries were granted indefinite leave to remain in 1971 but when the hostile environment kicked in, thousands of them were not able to prove their status, and as a consequence, were wrongly told that they were in Britain illegally. Hundreds were detained, and some of them deported, despite living and working in the UK legally for decades.
Although Windrush victims are now able to apply for compensation under the Windrush Scheme, the number of applications has been remarkably low, and internal reviews confirmed that the government’s hostile environment immigration policies still have devastating impacts on the lives and families of black citizens in the UK. With the new Points-Based Immigration system, set to come into force in January 2021, that impact is set to worsen. Requirements like visa fees (UK fees are among the highest in the world), income thresholds (the minimum salary under the PBS is set at £25,600) and health surcharges (recent controversy on the NHS surcharge led the government to scrap it for migrant NHS staff) have been found to predominately affect those from the East or South, as they are less likely to be able to meet financial requirements. The new points-based system thus builds on existing discriminatory structures instead of breaking them down. That is not a coincidence.
Don’t be mistaken - Windrush was a direct result of an immigration system set up to discriminate against some but not others. It was not just a profound institutional failure or mistake of government. It was not a mistake at all, but rather simply the hostile environment rules put into practice. The points-based system is a continuation of that. It is institutional racism at its peak, rearing its ugly head yet again, here in the UK.
When the then Prime Minister Theresa May (yes, you read that right - the same person who introduced the hostile environment in the first place) apologized for the catastrophe of Windrush in April 2018, she insisted it was not her government’s intent to disproportionately affect people from Afro-Caribbean backgrounds in the operation of her hostile environment policy. That statement shows exactly what the government fails, or refuses, to understand, namely that racism is much bigger than discrimination with intent, that it encompasses more than active and direct discrimination. It is about institutional neglect of certain parts of the population, certain neighbourhoods, and certain ethnic minorities, creating and feeding into more hardship for those groups compared to their white British counterparts. The public health crisis that we are currently dealing with is only the latest of an endless string of examples.
People of colour are 2.5 times more likely to die of COVID-19 than their white counterparts in the UK. For the black Caribbean and African population, that number goes up to three against one. This is partly because BAME communities are more exposed to the virus, as a third of all working age black Africans and black Carribeans work in key worker roles (that is 50% more than white British people), whilst Indian men are 150% more likely to work in health or social care roles than their white British counterparts. It is also because BAME communities are more economically vulnerable to the current crisis than white ethnic groups, and not enough is done to actively help them bridge that gap.
To make matters worse, people of colour are not only more likely to die of the virus once they get it, but they are also 54% more likely to get fined for violating lockdown rules than the white majority British population. More broadly, in our criminal justice system, Metropolitan Police officers are four times more likely to use force against black people compared with the white population.
It is true that the UK is not a nation of gun ownership like the US. It is true that British police officers do not carry weapons. And it is true that these things play a part in limiting violence and abuse of power. But we cannot trick ourselves into believing we are so much better, and that it could not happen here. The US might be a land of extremes, and the UK a country of covertness, but the foundational institutional challenges we face are the same.
Measures taken to fight the COVID-19 pandemic are causing major societal and governmental upheavals not only in the UK, but everywhere around the globe. Individuals who are applying for a UK visa, and those who already hold one, are naturally concerned about various challenges posed by the pandemic. This post is an attempt at giving you an overview of the most significant ways in which the coronavirus affects immigrants in the UK, up to date as of 1 June 2020. Information changes frequently, so make sure to keep an eye on the government website, but also our twitter page and the freemovement website to stay fully up to date.
If you have any additional questions, feel free to contact us here or book an online legal consultation with us here so that we can help you further.
Visitors and short-term stays
The Home Office has stated that “no individual who is in the UK legally and whose visa expired after 24 January 2020, or is due to expire before 31 July 2020, will be regarded as an overstayer or suffer any detriment in the future if they cannot leave the UK because of travel restrictions related to COVID-19
Which measures have been taken to ensure this in practice?
- If you’re in the UK and your leave expires between 24 January 2020 and 31 July 2020, your visa will be extended to 31 July 2020 if you cannot leave the UK because of travel restrictions or self-isolation related to coronavirus (COVID-19). All you have to do is request an extension (which will be granted automatically) by updating your records with the Coronavirus Immigration Team (CIT) and the extension will be granted. You will be expected to return to your home country as soon as it is safe to do so.
- If your visa was previously was previously extended until 31 May 2020, it will automatically be extended further until 31 July. You do not need to do anything further – this additional extension is automatic.
- If you plan on staying in the UK longer-term, and the visa you are currently on expires before 31 July 2020, you can apply to switch to a long-term UK visa that date. This includes applications where you would usually need to apply for a visa from your home country.
You should apply under these temporary concessions if you are currently stuck in the UK and had leave to remain as a visitor, or under any other short-term category of the rules, which expired after 24 January 2020.
Are Visa Application Centres open?
After 10 weeks of lockdown, some UK Visa Application Centres (VACs) are starting to resume services, where local restrictions allow. However, ongoing global restrictions mean some UKVI services will remain closed. Contact your local VAC to find out the latest status:
- TLS contact if you’re in Europe, Africa and parts of the Middle East
- VFS global for all other countries
How do I schedule an appointment at a VAC?
If you had an appointment scheduled before lockdown measures came into force, you should receive an email from UKVCAS rescheduling your appointment. Due to the volume of appointments that will need to be rescheduled, it may take UKVCAS some time to contact you.
Anyone needing to make a new appointment will need to wait until these become available. People with previously scheduled appointments have priority.
What happens if I cannot get an appointment before my leave expires?
If your online immigration application was submitted when you had leave to remain in the UK, you will continue to be lawfully in the UK whilst waiting for a rescheduled or a new appointment. The same conditions of stay will remain in force.
Can I start working if I have not received a decision on my Tier 2 or Tier 5 application due to coronavirus-related delays in application processing?
If you’ve applied for a Tier 2 or 5 working visa and are waiting for a decision on your application, you can start work before your visa application has been decided if:
- you have been assigned a Certificate of Sponsorship (CoS)
- you submitted your application before your current visa expired and you show your sponsor evidence of this
- the job you start is the same as the one listed on your CoS
If your application is eventually rejected as invalid or refused your sponsor will stop sponsoring you and you will then have to stop working for them.
What if I am an NHS worker?
Some frontline health workers and their families will get their visas automatically extended because of coronavirus. There are also changes to the conditions of visas for some frontline health workers. These changes will apply to you if you work for the NHS or independent health and care providers as a:
- biological scientist
- dental practitioner
- health professional
- medical practitioner
- medical radiographer
- occupational therapist
- social worker
- speech and language therapist
- therapy professional
Check with your employer if you’re not sure whether you work in an eligible profession.
Can I volunteer or work with the NHS if I do not have a working visa?
There is no longer a limit on the number of hours you can work or volunteer each week if you are a Tier 4 student, Tier 2 worker with an NHS job as a second job, visiting academic researcher, or a holder of a short-term visa which normally holds working/volunteering restrictions
Access to public funds (and the Furlough Scheme)
The “no recourse to public funds” (NRPF) rule is imposed on people with limited leave to enter or remain in the UK. It prohibits the person holding limited leave to remain from accessing certain defined public funds, such as Universal Credit or benefits. A person who claims public funds despite such a condition is committing a criminal offence. Such an offence may well carry future immigration effects, as any existing leave can be curtailed, and any future application refused as a consequence. Recently, the High Court has ruled that the government must make it easier for migrants to access the welfare system if they are about to become destitute, declaring part of the no access to public funds unlawful.
What does this mean for the Furlough Scheme? Can I get furloughed if I have limited leave to remain?
The Home Office has confirmed that the Coronavirus Job Retention Scheme can be used for migrants. They have to meet the same eligibility requirements as other employees.
This is because Coronavirus Job Retention Scheme is not defined as ‘public funds’ in the Immigration Rules (Part 6 ‘Interpretation’). Therefore, migrants who are placed on furlough will not be in breach of their conditions of stay. However, it is important that they do not also claim any benefits which are defined as public funds.
New overseas applicants
Most visa application centres overseas are currently closed. The websites of VFS Global and TLScontact contain further information on specific locations.
Can I come to the UK I I obtained my visa before lockdown measures came into force?
Unlike other EU countries, the UK has not closed its borders – although flights and trains are limited – so you can travel to the UK if you already have a visa or you do not need one.
You should be advised that from 8 June 2020, people travelling to the UK (except from Ireland) will need to provide their journey and contact details by filling in an online form before they travel. After arriving in the UK they will need to self-isolate for 14 days. There will be exemptions for diplomats, transport workers and others.
Can I apply for a new visa?
It depends. UK visa application centres in most countries are closed but they are gradually starting to reopen.
You can still submit an online visa application, which is the first step of the visa process. You can also prepare your application so that it is ready to submit as soon as the visa application centres reopen in your area.
What if I am a Tier 4 student and my course is starting before I receive my visa?
You can start your course or studies before your visa application has been decided if:
- your sponsor is a Tier 4 sponsor
- you have been given a confirmation of acceptance for studies (CAS)
- you submitted your application before your current visa expired and you show your sponsor evidence of this
- the course you start is the same as the one listed on your CAS
- you have a valid Academic Technology Approval Scheme (ATAS) certificate if required
If your application is eventually rejected as invalid or refused you must stop your course or studies.
Before I submit my Home Office application I have to pass an English language test and/or the Life in the UK test but the test centres are closed. What do I do?
Test centres are gradually starting to reopen but it may not be possible to get an appointment before your visa expires.
Even if you cannot get an appointment in time, you should still submit your Home Office application before your visa expires. Do not book your UKVCAS appointment until the English language / Life in the UK test centres have reopened and you have been able to pass the test(s). You may not have met the English language / Life in the UK requirement on the date you applied but if you meet it on the date of your appointment it would be unreasonable for the Home Office to refuse your application in the current circumstances.
Absences from the UK due to COVID-19 and their impact on residency (Indefinite Leave to Remain Applicants, EEA citizens, etc.)
What if you have a long-term UK visa (with a view to get indefinite leave to remain), but you are stuck outside the UK for several months?
If you have a visa which leads to indefinite leave to remain you cannot normally spend more than 180 days outside the UK in any 12-month period during the five-year qualifying period. This rule does not apply to every visa category and the way it works depends on the date when your visa was issued.
The 180-day limit is usually strictly enforced. However, the Home Office considers granting indefinite leave to remain if your absences are over the limit but justified due to serious or compelling reasons. According to the Home Office guidance, serious or compelling reasons will vary but can include serious illness of the applicant or a close relative, a conflict, a natural disaster, for example, volcanic eruption or tsunami.
The Home Office has not confirmed that the coronavirus pandemic qualifies as a serious or compelling reason in this context, but it seems logical that it will.
However, note that this is at the Home Office’s discretion and therefore, if you stay abroad for too long, there is no guarantee that the excess absences will be accepted.
What if I have pre-settled status and I need additional years of residence in order to qualify for settled status under the EU Settlement Scheme?
For EEA citizens wanting to obtain indefinite leave to remain under the EU Settlement Scheme, the same thing applies as for other applicants wanting to obtain indefinite leave to remain via other routes. Normally, if you want to obtain settled status, you cannot spend more than 180 days outside the UK in any 12-month period during the five-year qualifying period. The Home Office has not confirmed that the coronavirus pandemic qualifies as a serious or compelling reason justifying exceptions for this rule in this context, but it seems logical that they will as it will be in accordance with EU law principles.
However, note that this is at the Home Office’s discretion and therefore, if you stay abroad for too long, there is no guarantee that the excess absences will be accepted.
An eventful day in the immigration world, as the Home Office released a Statement of Changes to the Immigration Rules, as well as their most recent set of EU Settlement Scheme quarterly statistics.
The Statement of Changes to the Immigration rules carries some good news. For one, it confirms that victims of domestic violence for durable partners will be eligible for status under the EUSS. This is in line with other government initiatives to tackle domestic abuse in the UK.
In the same vein, any family member within scope of the EUSS whose family relationship with an EEA citizen breaks down is now eligible for status under the EUSS. Previously, only ex-spouses and ex-civil partners of EEA citizens could apply to retain a right of residence after divorce or breakdown of a relationship.
Additionally, for family members of the people of Northern Ireland, the proposed changes extend the EUSS to dual Irish/British citizens, allowing eligible family members of the people of Northern Ireland to apply for UK immigration status under the Scheme on the same terms as the family members of Irish citizens in the UK. Prior to this change, family members of Northern Irish people could not access the EUSS – under the new rules, they are able to do so on the same basis as those of the Republic of Ireland.
These are welcome changes which broaden the applicability of the EUSS. It comes as no surprise, then, that the government considers the EUSS a great success. Today’s EUSS press release boasts that with over a year until the application deadline, currently set at 30 June 2021, almost 3.5 million applications to the scheme, making it the biggest scheme of its kind in British history. 3.1 million of those applications have been concluded, of which 58% were granted settled status, 41% pre-settled status and 1% had other outcomes. Other outcomes include 640 refused, 23,740 withdrawn or void and 10,030 invalid applications.
Most EUSS applications are made online, and are relatively straightforward. But the online service is not available to everyone. The EUSS sets out that applicants must send in paper applications if they don’t have biometric ID documents, or if they are applying on the basis of a derivative right to reside. The latter includes people who are not EU, EEA or Swiss citizens but are applying under the scheme as the family member of a British citizen they lived with in the EU/EEA/Switzerland, the family member of an EU/EEA/Swiss citizen who has become a British citizen, the primary carer of a British, EU, EEA or Swiss citizen, the child of an EU, EEA or Swiss citizen who used to live and work in the UK in education, or such a child’s primary carer.
Immigration lawyers and front-field workers were looking forward to this release of quarterly statistics, as the Home Office had promised to integrate paper applications into the statistics in March, something they had not previously been able to do.
Despite this promise, there is still no information about the paper routes to be found in the newly released statistics. The reason given for failing to deliver on their promise is the COVID-19 pandemic, as the statistics state that it was the Home Office’s “intention to develop electronic integration of the two systems to provide a more complete account of all applications received for the quarterly publication in May 2020, but due to the impacts of Covid-19, this has not been possible.”
The Home Office have also temporarily stopped accepting ID documents by post, which delays the processing paper applications. Nevertheless, the statistics reaffirm that the deadline to apply to the EUSS will not be extended.
Paper applications are amongst the most complex applications under the EUSS, and often represent the most vulnerable individuals in society. As a consequence of the pandemic, charities and outreach projects which assist vulnerable applicants in their applications are unable to operate. As such, the people most unlikely to apply to the EUSS on time (those without ID), and whose applications are most affected by the pandemic (as they have to submit ID documents), are quite literally being left out in the cold: they cannot currently apply, their applications are excluded from the statistics and there is reduced community assistance available. The Home Office is working hard to overcome obstacles and delays caused by the pandemic, and resume normal operation. It is only logical that they should take the same approach towards applicants dealing with hindrances on their side of the process.
In brief, other, non-EUSS related changes to the Immigration Rules include:
Changes to the new Start Up and Innovator visa categories, tightening the requirements that endorsing bodies have to take into account when giving their endorsement
A change to student visas (Tier 4), whereby all applicants who apply under Appendix W who are sponsored for their studies in the UK by a government or international scholarship agency now have to obtain written consent from the relevant organisation.
The new Global Talent visa has been finetuned, as the Rules merge the old Exceptional Talent visa with this new category, and minor amendments have been made at the request of the endorsing bodies.
Changes to the Representative of an Overseas Business visa category, restricting its scope. Representative of an Overseas Business visa holders are employees of overseas businesses which do not have a presence in the UK, to be sent to establish a branch or wholly owned subsidiary of the overseas business in the UK. The changes include that the overseas business must be active, trading and intending to maintain their principal place of business outside the UK; that applicants must have the skills, experience, knowledge and authority to represent the overseas business in the UK; and that applicants must be senior employees of the overseas business.
Some amendments and clarifications regarding family life, including that if an individual is granted leave as a fiancé(e) or proposed civil partner, this automatically enables the marriage or civil partnership to take place in the UK, as well as clarification for the spent period for applicants under the family rules who have been convicted and sentenced to a period of imprisonment for a period between 12 months to four years is 10 years.
Read the full explanatory note here.
In March, the PM promised that destitute migrants would receive the necessary accommodation and funding during the coronavirus pandemic. Six weeks later, food banks are struggling to meet demands, asylum seekers are moved out of their flats without warning, and local authorities fail to offer guidance on how to offer shelter to rough sleepers during the crisis.
Under Theresa May’s “hostile environment” rules, individuals without immigration status in the UK do not have access to public funds. The hostile environment prevents them from accessing many benefits, ranging from healthcare to housing to public authority assistance of any kind.
In an open letter to the Government, the Jesuit Refugee Service (JRS) asks the Prime Minister to grant all immigrants who currently do not have status a period of Leave to Remain for the time of the pandemic, to avoid the hostile environment’s detrimental effect on public health. The letter is signed by over 30 organisations and charities who work with asylum seekers, refugees and other individuals with insecure immigration status, including Bail for Immigration Detainees, Women for Refugee Women and many others.
The JRS’ letter asks the PM to “to grant a period of leave to remain, with recourse to public funds and access to the labour market, to all those with insecure immigration status,” stating that “This is a vital step to protect public health during the Covid-19 pandemic. At a time when public health demands that everyone has ready access to housing and healthcare, insecure immigration status acts as a barrier and puts everyone’s health at risk.”
Although the government has made all COVID-19 treatment free of charge irrespective of the patient’s immigration status, many people with precarious status are reluctant to get help. They fear that data-sharing between the NHS and the Home Office, another pillar of the hostile environment policy, will lead to their deportation if they go to the hospital. If they think they might be sick, many migrants prefer staying under the radar so as to avoid the risk of getting into trouble, leading infected people to remain untested and at large.
In order to avoid a crisis of exploitation, destitution and homelessness on top of the coronavirus emergency we are already going through, all migrants should be encouraged to access public funds and especially healthcare.
As charities which normally support vulnerable asylum seekers have been forced to shut down, destitute and vulnerable asylum seekers have been left out in the cold. A #HumaneMigration system including temporary amnesty and leave to remain for migrants who are in the UK during the pandemic is the only viable solution not only to help all the people who are currently slipping through the cracks, but also to limit the spread of the virus in the wider community. Only unprecedented measures can reflect the unprecedented nature of this crisis, and ensure the health and safety of the nation as a whole.
On Wednesday morning, Prime Minister Boris Johnson and his fiancée Carrie Symonds welcomed a healthy baby boy to this world. The birth of the PM’s son brings some uplifting news in difficult times, as the PM comes out of a tough personal recovery from coronavirus, whilst facing a daunting national crisis for the weeks and months to come. But the PM might not be out of the woods yet. COVID-19 might impact the Prime Minister on a personal level yet again – not by infection this time, but in relation to his new-born son.
In the UK, there is no central government authority to register births. Instead, this has to be done in the area the child was born. Ever since all local authorities closed down their offices on 23 March, birth registration appointments are no longer carried out. Parents of new-born babies in the UK are therefore unable to register their child as normally required, with potentially unduly harsh consequences.
The general rule is that parents need to register the birth of a child with their local authority within 42 days of birth. If they fail to do so, they risk a fine or some other form of reprimand. Fortunately, this rule has been relaxed due to the coronavirus outbreak: government guidance states that no action will be taken against parents who fail to meet the deadline due to no fault of their own. In addition, parents can exceptionally make claims for child benefits and/or universal credit prior to obtaining official birth certificates.
These are welcome changes, but they are not enough. In order to issue ID cards and travel documents, embassies have to see the birth certificates of children born in the UK. As ID cards are currently not being issued, parents cannot obtain passports or ID cards for their new-borns. In other words, the suspension on issuing birth certificates contributes to citizens ending up without identification and travel documents.
For non-British citizens, these concerns are exacerbated even further. In a global pandemic, emergency situations are not rare occurrences. Yet, because new-borns cannot get IDs under the current circumstances, parents cannot travel abroad in those emergencies unless they leave their new-born child behind.
Not only are all non-British parents unable to travel with their children should they need to do so, they also face additional challenges when applying for immigration status in the UK. EU citizens, specifically, will find that applying to the EU Settlement Scheme without a form of ID is a complicated endeavour.
When asked to clarify on these pressing issues, a Home Office official wrote that his office will evaluate on a “case by case basis” any application where a parent is unable to obtain an identity document for their child from an EU27 embassy due to circumstances beyond their control. Concerning the EU Settlement Scheme, the Home Office employee reiterated that the deadline to apply under the scheme is not before 30 June 2021, and, assuming that local authorities will resume their functions soon enough, parents therefore have plenty of time to apply before then, should they be unable to do now.
The case-by-case evaluation proposed by the Home Office is at their discretion and therefore, does not offer a solution to the structural consequences of suspending birth registrations.
In theory, this chaos affects everyone in the same way. One cannot help but wonder whether the PM will face similar obstacles when registering the birth of his son. Might that prompt the Home Office to find a temporary solution to avoid that more citizens, British and European alike, end up without IDs?
Since 2008, an average of 26.4 million people per year have been forcibly displaced by weather-related hazards. This is the equivalent of one person being displaced per second every day. The UN Internal Displacement Monitoring Centre (IDMC) and the Norwegian Refugee Council identify natural disasters as the number one cause for the international displacement of people. Many of those displaced find refuge within their own region or country. In fact, almost two-thirds (61%) of all new internal displacement in 2018 was triggered by natural disasters such as floods, windstorms, earthquakes or droughts. Others, however, are forced to go abroad and seek refuge in a foreign country.
Migrants fleeing their home country for environmental reasons are informally called “climate refugees.” They broadly fall into two groups: on the one hand, those fleeing immediate natural disasters such as storms, droughts or earthquakes, and on the other hand, those fleeing climate impacts that deteriorate over time, like rising ocean levels and desert expansion. With climate change, the number of both types of climate refugees is set to rise for years to come. The response to this global challenge of displacement has thus far been limited, and protection remains lacking.
Traditional asylum law is based on the 1951 Geneva Convention, which grants a right to asylum to people who “have a well-founded fear of being persecuted because of their race, religion, nationality, membership of a particular social group or political opinion, and are unable or unwilling to seek protection from their home countries.” Although the Convention is a living document and it is possible to push the boundaries of these definitions, shoehorning climate refugees into it has proven to be a challenging undertaking. The 1951 definition of a refugee is hard to apply to those who are forced to flee their home due to environmental disasters; climate change does not fall under “persecution,” nor are any of the grounds for persecution compatible with haphazard natural catastrophes.
Environmental migration can take many forms. Sometimes it is forced, sometimes voluntary, often somewhere in a grey zone in between. The very notion of climate refugees seems to challenge the boundaries of asylum law as we know it. It blurs the line between economic and political migrants, a dichotomy which lies at the core of the 1951 Convention. Moreover, instead of focusing cross-border movement as the Geneva Convention does, climate change displacement forces us to consider internal displacement, as the majority of today’s climate refugees are displaced within the borders of their own country. As such, the 1951 definition of a refugee is clearly not applicable to those who are forced to flee their home due to environmental disasters; climate change does not fall under “persecution,” nor are any of the grounds for persecution compatible with haphazard natural catastrophes.
The European Parliament has recognised that the “protection gap” for climate refugees is a problem. In his 2015 State of the Union speech, then European Commission President, Jean-Claude Juncker, said: 'Climate change is one of the root causes of a new migration phenomenon. Climate refugees will become a new challenge – if we do not act swiftly'. Five years later, there is still no formal legal definition of who exactly qualifies as a climate refugee, nor any formal protection under existing international law.
Laws are slow to adapt to the reality of increasingly frequent and accelerated natural disasters, but there has been some progress. In January, a landmark decision by the United Nations Human Rights Committee found it unlawful to force climate refugees to return to their home countries. While a UN Committee judgment is not formally binding on countries, it points to legal obligations that countries have under international law, and individual countries have to consider it within their own legal systems.
The ruling is the first of its kind to explicitly find that governments must take into account climate-related human rights violations when they consider deporting asylum seekers. Although on a personal level, the man at the centre of the case, Mr. Teitiota, was not considered at imminent risk of death upon deportation, and therefore lost his case, the ruling did open the door to a more concrete legal framework for climate refugees.
Nature does not stop for anyone; as climate emergencies become more frequent, many more cases like Mr. Teitiota’s will be brought to courts all over the globe. Needless to say, it is beyond time to integrate environmental and climatic factors into migration management laws and policies nationally and internationally, in order to prepare for the waves of climate migration to come.
The "Right to Rent" scheme was introduced as part of the hostile environment rules aimed at restraining illegal immigrants from entering and living in the UK, and came into force in 2016. The policy requires landlords to check the immigration status of prospective tenants. If they fail to do so, and end up renting out property to undocumented migrants, they can be charged unlimited fines or even a prison sentence.
The Joint Council for the Welfare of Immigrants (JCWI), a London-based charity, is challenging the lawfulness of this policy in court. Last year, the High Court ruled the scheme unlawful, racially discriminatory, and in breach of the European Convention on Human Rights. The Government appealed this decision, and on Wednesday, the Court of Appeal allowed the Secretary of State's challenge, finding that although the Right to Rent scheme does lead to discrimination against those who do not hold British passports and those who do not have traditionally ethnically-British attributes, it is an indirect consequence of the scheme’s otherwise legitimate goal to control and curb immigration, and therefore, the policy itself is not unlawful.
Lord Justice Hickinbottom stated: “The discrimination is entirely coincidental, in that the measure does not unlawfully discriminate against the target group but only collaterally because, in implementing the Scheme, as a result of the checks required by the Scheme and the possible sanctions for letting to irregular immigrants, landlords engage in direct discrimination on grounds of nationality; and section 33 and the Discrimination Code of Practice clearly recognise and seek to address that discrimination by landlords."
In short, the Court of Appeal agreed that the Right to Rent scheme causes discrimination but did not rule that that discrimination amounted to a human rights violation, because it is indirect, and only “some landlords” may participate in it. The court leaves it to the government to decide whether the racial discrimination is “greater than envisaged”.
To advocates and immigration lawyers, it is clear that whatever was envisaged, any amount of racial discrimination is unacceptable. The Home Office’s own research has shown that 25% of landlords would not be willing to rent to anyone without a British passport, whilst the Residential Landlords Association found that more than half of landlords were less likely to rent to those with limited time to remain in the UK. Effectively, the Right to Rent scheme turns landlords into border patrol, as they are forced to evaluate who does and does not have the right to be in the country. Needless to say, landlords are not properly trained or qualified to do so.
Chai Patel, the JCWI’s legal policy director, said that, “At a time when our lives depend on our ability to stay at home safely, ethnic minorities and foreign nationals are being forced by the government to face discrimination in finding a safe place for them and their families to live.” The JCWI has said that they are planning to appeal the decision to the Supreme Court. In the meantime, however, the policy is still in place, and the people affected by it remain at risk.
You can support JCWI's work by donating here.
Every day, at 8PM, millions of people across the country clap for our healthcare workers, an initiative which has been encouraged by the government. Meanwhile, as coronavirus numbers soar to almost a thousand deaths a day in the UK, the Home Office published updated guidance for employers on navigating working visas once the new points-based immigration system comes into force on 1 January 2021. Whilst encouraging signs of solidarity, the government is thus detailing the ins and outs of an immigration system which will likely stop many of the people we clap for from coming to work in the UK once it becomes law.
The new guidance lays out that all workers will have to be sufficiently qualified (at the minimum, they must have A-level equivalence) and speak sufficient English in order to get a visa. Highly skilled workers are the only ones who can come to the UK without a job offer. In order to do so, they need to get an endorsement from a relevant competent body in order to obtain a Global Talent Visa.
Any other individual who wants to come work in the UK will need to have a job offer from an approved sponsor. To become an approved sponsor, employers who want to recruit migrant workers will need to take active steps. They will have to check that their business is eligible, and choose which type of workers they are looking to hire: skilled workers with long-term job offers, or temporary workers. Employers will then have to put in place a framework within their business to deal with the sponsorship process, apply online and pay an application fee ranging from £536 to £1,476, depending on the type of business. The whole process usually takes about 8 weeks. Once they become an approved sponsor, they can recruit people without UK residency to fill their job openings.
If an individual, then, receives a job offer from an approved sponsor, they will need to meet a minimum income threshold on top of the language and skill requirements. The general minimum salary threshold is set at £25,600. For some jobs, the threshold may be higher, if the Home Office estimates that it is a higher paid occupation.
If an individual does not meet the income threshold, they may still be eligible for a visa if they can demonstrate that they have a job offer in a specific shortage occupation or a PhD relevant to the job. For these occupations, the income threshold is lowered to £20,480. The list of shortage occupations, which includes doctors and nurses, is published by the Migrant Advisory Committee.
Concerning lower-skilled workers, the guidance explicitly reiterates that “there will NOT be an immigration route specifically for those who do not meet the skills or salary threshold for the skilled worker route.” The skill level for different jobs can be found in Appendix J of the Immigration Rules.
Considering that the average health care worker in the UK makes £19,080 a year, the timing of this publication seems peculiar to say the least. As our Director suggests, how does it make sense for the Home Office state that care workers, nurses, hospital porters, cleaners, logistics personnel, postal workers, etc. will not be able to apply for visa under the new immigration system in the midst of the Covid-19 crisis? It is hard to imagine that the Home Office has a valid reason for needlessly doubling down on an immigration policy which fails to take care of the workers who, in times of crisis, put everything at risk to take care of us.
Over 3.6million Syrian refugees made Turkey their home since civil war tore their country apart in the 2010s. Polls show that most of the Turkish population want them to leave. On February 28th, President Erdogan announced that his government would heed that request, and Turkey would no longer stop refugees from crossing over to Greece.
Mr. Erdogan’s promise of free passage to Europe led tens of thousands of migrants to leave Turkey and resume their journey to Europe. What the President failed to mention was that on the European side of state lines, borders would remain closed.
The current political impasse originates from the 2015 refugee crisis, when over 1 million migrants entered Europe from Turkey. In an attempt to stop the influx, the EU struck a deal with Mr. Erdogan. As part of that deal, the EU gave Turkey over 6.0 billion euros in aid. In exchange, Turkey promised to keep the refugees inside their borders and prevent them from migrating to Europe through Greece. When Turkey ran out of aid last year, Mr. Erdogan requested more funding to keep up his end of the bargain, but the two parties failed to reach an agreement.
In response to the arrival of so many people, Greece doubled down on their border security. The government sent riot police, armoured vehicles and 1000 soldiers to the Turkish border, and suspended the right to apply for asylum for a month. Greek authorities as well as rogue actors detained, assaulted, robbed, and stripped asylum seekers and migrants, and then forced them back to Turkey. Tens of thousands of people now find themselves in limbo between borders.
Greece, like all EU countries, is bound by the EU Charter of Fundamental Rights. The Charter recognises the right to seek asylum and guarantees protection from forcible return of anyone at real risk of persecution or other serious harm. Greece’s suspension of the right to claim asylum, in combination with their appalling treatment of migrants on the border, is a gross violation of human rights.
Yet this violation has received very little scrutiny. As the spread of COVID-19 pushed the images of men being shot, children being hit, and faces behind barbed wire to the back of the news cycle, these breaches of the 1951 UN refugee convention and EU law went unnoticed. Instead, Ursula von der Leyen, head of the European Commission, announced the distribution of a £609 million aid package to help and support Greece’s border infrastructure. She called Greece “our European shield”, and praised the country for its tough response, as it has helped avoid another “crisis” like the one in 2015.
Instead of taking collective responsibility, the EU, yet again, has shown lack of leadership on the issue of migration at an astronomical human cost. The only solution to this endless plight remains unchanged from 2015: meaningful change to EU asylum policy allowing for coordinated resettlement and shared responsibility for all EU member states. The UK should be leading the charge, accepting a number for resettlement and providing for safe routes to claim asylum in the UK. Instead, in the midst of a global health crisis, the violence and human suffering at the border persist. We should fight to end it and create an immigration which actually reflects the European discourse of enlightenment and human rights in practice, rather than the dysfunctional and divisive system that is in place now.
The UK is one of many countries that has implemented lockdown measures to deal with the coronavirus outbreak. These measures include strict travel restrictions, and in over 50 countries around the world, they go as far as a complete aerial lockdown.
Immigration detention is only lawful if there is a prospect of imminent removal. With borders closing worldwide and flights suspended, that prospect is non-existent. That is why Detention Action, an NGO which fights for immigration detainees’ rights in the UK, issued judicial review proceedings on 18 March 2020. The proceedings challenged the lawfulness of continued detention, in particular of persons with medical conditions placing them at increased risk from COVID-19.
In response, the Home Office has committed to reviewing all detainees’ case files to release as many people as possible, as quickly as possible, unless they pose a grave danger to the public. When the government began their case-by-case review, one case of COVID-19 had already been confirmed in Yarl’s Wood IRC, two cases had been reported in Brook House, and symptoms were recorded in most other removal centres.
Under the current circumstances, detention centres are at risk of becoming hotbeds of coronavirus spreading, as both detainees and staff are constantly in close contact with each other and amongst themselves. In efforts to prevent the virus from spreading within the centres, some facilities have isolated detainees and barred them from leaving their rooms, effectively turning their bedroom into a prison cell.
Nevertheless, Detention Action lost their case in the High Court, and the Home Office still refuses to systematically release all individuals currently held in detention, putting all individuals involved in this system at continued risk of ill health.
Government action, however, shows awareness that keeping detainees locked up could come back to bite them. Since Detention Action launched their claim, the Home Office released over 350 people held under immigration powers. The courts are also playing their part, as a solicitor from Bail for Immigration Detainees (BiD), a London-based charity, reported that ever since the travel restrictions and lockdown were enforced, 13 of his clients were granted bail and no applications were refused.
This is good news, but it is not enough. People currently held under immigration powers still need to go through the process of applying for bail if they are to be released, a process which has been made significantly more complicated by the pandemic itself.
On 20 March 2020, visits to immigration detention centres were indefinitely suspended as part of measures to contain the virus. This does not only have devastating implications for detainees on a personal level, as they can no longer see their loved ones. It also means that lawyers can no longer visit their clients in immigration removal centres.
Meanwhile, the Tribunal has started holding hearings remotely, but it seems that the courts do not lean itself to the online sphere easily, and their infrastructure is not ready to make the transition. This failure of court proceedings weakens detainees’ access to justice even further, as bail hearings are frustrated by the practicalities of online hearings.
This situation is not sustainable. After calls from Strasbourg and the Council of Europe to release immigration detainees in the face of this crisis, it is time to release everyone currently held under immigration powers, close detention centres and ensure that every individual receives the necessary care and support they need and deserve during these unprecedented times.
Just a month ago, when the government introduced its new points-based immigration system, a lot of workers in the health, food production, and transport industries were considered unskilled workers, and unwelcome in post-Brexit Britain.
The basics of the proposed points-based system are clear. If a worker does not have a secondary school diploma, does not speak English, or their salary falls below £25,600, the door to the UK is closed for them. As it turns out, a lot of these “low-skilled” workers are now considered essential in the fight to manage, control and survive the coronavirus crisis. In the current circumstances, they have been put under additional strain.
The trend to bulk buy has put staff in supermarkets and grocery stores under significant pressure, with one employee writing that him and his co-workers have been working long days on their feet, anticipating the next few weeks to be “a nightmare,” and advising against panic buying. There is no reason to bulk buy: there are no food shortages anywhere in Europe, and supermarkets are staying open throughout nation-wide lockdowns as they are part of a (small) group of essential businesses which are exempt from the new rules.
But this may soon change. Agricultural workers from eastern Europe usually fill the majority of jobs on farms. The combination of Brexit caps on seasonal workers with strict coronavirus travel restrictions has slowed recruitment in agriculture, and the EU labour force is simply not coming through. UK farmers find themselves in a crisis and could face a shortage of 80,000 labourers this summer if the Government fails to intervene. These spots as fruit pickers need to be filled by British workers or fruit and vegetables will be left unpicked, and stocks could be put in danger.
Jobs now classified as “key workers” include NHS staff, social workers, the police and military, and those working in food distribution, energy, utilities and transportation. In other words, the people sustaining essential businesses are, by extent, deemed essential workers, as they help feed and care for a country in standstill.
Only a few weeks ago, Johnson’s government described these people and the jobs they filled as “low skilled”, stating that the government “intends to create a high wage, high-skill, high productivity economy.” If anything, the COVID-19 pandemic highlights the stark dissonance between this government’s policy on who is key in keeping the economy running and the truth on who is actually keeping the country together. It proves that “low-skilled” labour does not equate low-value labour. Recognising these workers as “key” or “essential” is a step towards recognising that they form the backbone of our society and without them, British civilisation would have already collapsed. The question remains whether this will be reflected in immigration policy when all of this blows over, and the pandemic finally dies down.
These are times of uncertainty and while the primary concern is for public health, without further assurances from the UK Government, the vulnerability of being subject to immigration control can compound other worries during any crisis. The large-scale postponement, suspension and cancellation of social activity, including working and studying commitments, poses some important questions about satisfying the conditions of student visas.
UK Visas and Immigration (UKVI) requires all Tier 4 institutions (schools, colleges, higher education facilities and universities) to keep a record of sponsored Tier 4 students including their attendance levels. This is required in order to meet their sponsor duties towards the UKVI when sponsoring students to study with them.
There are consequences to students who are absent from studies or cannot complete their studies before their Tier 4 visa expires. If a student misses 10 consecutive expected points of contact, without the Tier 4 institution’s authorisation, the guidance normally requires them to withdraw their sponsorship of the student. If their sponsorship is withdrawn from the student, the student will have no longer be able to continue their studies in the UK.
What about absences due to Covid-19?
The current circumstances being exceptional, specific government guidance that addresses Covid-19, last updated on 27 February 2020 and since overshadowed by other announcements, has been issued (last updated on the 27th February) gives us some parameters to work with:
‘Some Tier 4 students or Tier 2/5 employees may be prevented from attending their studies or employment due to illness, the need to serve a period of quarantine or the inability to travel due to travel restrictions caused by coronavirus’.
This covers students who are taken ill by Covid-19, with absences authorised by the institution, as well as those whose movements have been restricted due to the threat. It goes on to say:
‘The Home Office recognises the current situation is exceptional and will not take any compliance action against students or employees who are unable to attend their studies/work due to the coronavirus outbreak, or against sponsors which authorise absences and continue to sponsor students or employees despite absences for this reason. The Home Office will keep this under review, especially if the length of absences mean a potential repeat of period of studies become necessary’.
This means Tier 4 institutions do not need to report students who are absent due to Covid-19, as long as those absences are authorised by them. This also means the institution should not withdraw their sponsorship of the student.
In light of the guidance and given that the situation is developing and changing constantly, it is advisable that students keep a record of any emails or letters sent by their institution, which confirm (in writing) the latest advice on, or authorisation of attendances, while Covid-19 is posing health and logistical issues to life in the UK.
What about institution closures or online studying?
The above guidance would apply if a Tier 4 institution decides to close completely or partially. This will be fine for short-term absences due to closures. Some Tier 4 institutions are deciding to close premises and transfer all teaching online – in these cases, they need to ensure they are confident the students are ‘attending’ online sessions in order to maintain their UKVI duties.
However, if the absences become so long that the student is unable to complete their studies before their visa expires then the institution will have no choice but to cancel their sponsorship. No one should be in this situation yet and we expect - given that this appears to be a long term situation - the above government Covid-19 guidance to be updated to inform us how they intend to deal with longer term absences.
We will update you when the government’s Covid-19 guidance is updated.
The United Kingdom (UK) left the European Union (EU) on 31 January 2020. Since then, the government has been rolling out changes to the immigration system, adapting it to a world without free movement to and from Europe. Today, the government finally revealed its plan for post-Brexit economic migration in Britain. At its core is the idea of “taking back control,” a slogan which won the 2016 Brexit referendum, implemented through the end of free movement, a new visa system for EU and third-party nationals alike and a focus on “skilled migrants” to reduce overall immigration.
Under the current immigration rules, EU citizens do not need a visa to work and live in the UK because they benefit from freedom of movement. Those from outside the EU have to meet certain requirements such as English language skills, sponsorship by a company and a salary threshold in order to apply for a visa. There is a cap of 21,000 on the number of visas awarded per year.
Following the new plan, freedom of movement with the EU will end, and EU nationals will be subject to the same exact rules as non-EU nationals. As such, people coming to the UK from any country in the world for the purpose of work or study, other than some short-term business visitors and short-term students, will have to obtain a visa for which they will pay a fee. In addition, employers will have to pay an Immigration Skills surcharge on their migrant employees, and migrants from in and outside of the EU will have to pay an Immigration Health Surcharge. The only group unaffected by the new rules are Irish nationals, which the government states will be able to enter and exit the UK the same way they always have.
… to an Australian points-based system?
Freedom of movement will be replaced by with what the government calls a points-based system, supposedly modelled after the Australian immigration system which allows economic migrants to settle if they can demonstrate that they have a blend of skills and qualifications adding up to enough points. The selling point of a true points-based system is its flexibility, as it allows migrants to mix and match from a list of characteristics to reach the necessary threshold, and then settle in the host country without having to meet any mandatory requirements, such as an employment sponsorship as one needs in the US for example.
The government proposals released today, however, fail to offer that flexibility and probably explains the complete absence of the term ‘Australia-style’ system. The plan requires all economic migrants wanting to come to the UK to fulfil three essential requirements, which are worth 50 points all together. In addition to that, individuals will have to score another 20 points based on their salary expectations to reach 70 points overall, and be eligible to apply for a visa. The minimum salary threshold to reach 70 points automatically is set at £25,600. If the applicant earns less than that required minimum salary threshold, but no less than £20,480, they may still be able to reach 70 points by demonstrating that they have a job offer in a specific shortage occupation such as nursing, or that they have a PhD relevant to the job. The policy paper specifically states that there will be no regional concessions to different parts of the UK, nor will there be a dedicated route for self-employed people.
The three essential requirements are knowledge of the English language, a job offer from an approved sponsor, and a job at the appropriate skill level. These mandatory requirements differentiate the system from its Australian counterpart, and therefore, the plan is not a true points-based system. Especially the job offer requirement flies in the face of the Australian analogy, where every year, the largest percentage of new economic permanent resident visas are awarded to individuals without a job offer, but who make up for it with other skills or abilities from the list.
For highly-skilled workers, the government laid out its extended Global Talent visa route on the day Britain left the EU. Through this scheme, the most highly skilled, who can achieve the required level of points, will be able to enter the UK without a job offer if they are endorsed by a relevant and competent body. For now, this forms the only exception to the job offer requirement, although the policy plan promises to roll out a broader unsponsored route within the points-based system to run alongside the employer-led system in the future.
The appropriate skill level under the points-based system is set at the equivalent to A-levels. Anyone who does not meet that level will not be able to apply, as it is one of the mandatory requirements. Additionally, the plan explicitly states that there will be no general low-skilled or temporary work route ‘…shifting the focus of [the UK] economy away from a reliance on cheap labour from Europe…’, leaving immense labour shortages in specific industries. The list of low-skilled workers industries includes waiters, waitresses, elementary agriculture workers and fishery workers. The report unhelpfully states ‘Employers will need to adjust.’
Special arrangements are put in place for certain sectors such as scientists, graduates, NHS workers, to fill the gap, but these arrangements are unlikely to resolve the immense labour shortage created. The cap for the agricultural sector, for example, is increasing to 10,000 places per year for seasonal workers who harvest the fields, but remains far below the National Farmers’ Union’s (NFU) demands for 70,000 temporary visas in 2021. Nothing is mentioned of other groups likely to get caught up in the low-skilled workers group such as care home workers, waiters, cleaners or domestic workers. This drew immediate criticism from people in the sector, as the hospitality sector, for instance, famously relies on an EU national workforce, with Pret A Manger reporting that only one in 50 job applicants was a British national in 2018.
The newly released plan indicates a major overhaul in the UK’s approach to economic migration. It does not, however, affect students, family migration, or asylum law. Notably, none of these changes will take effect immediately. The transitional period, in which EU nationals are still free to exercise their free movement rights in the same way they were when the UK was still a part of the EU, is set to end on 31 December 2020. On 1 January 2021, then, is when the proposed changes will come into force. Even then, they will not take effect retroactively. As such, they will not affect the millions of EU citizens already living in the UK, and the job market is not going to change overnight. They will, however, change the composition of who comes and stays in the UK in the future. But for the 2016 Brexit voters, that future may be too far away to offer satisfaction.
On 29 March 2017, the United Kingdom notified the European Council of its intention to leave the European Union, in accordance with Article 50 of the Treaty on European Union. After almost three years of delay, powerplay and disarray, the day has finally come. Yesterday, the European Parliament officially approved the Withdrawal Agreement. Emotional but sober images of Remain MEPs singing Auld Lang Syne as MEPs signed the Agreement. At 23:00 tonight the British Union flag will be removed from the European institutions in Brussels, and the EU flag lowered from City Hall in London. The UK will officially no longer be a part of the European Union. In anticipation of this, steps have been taken to prepare the country for a complete upheaval of the legal and political framework in the UK.
In an act of defiance, the Scottish government narrowly won a vote to keep the EU flag flying over the Edinburgh parliament building after Brexit. Because, as Fiona Hyslop, cabinet secretary for culture, tourism and external affairs, stated, “at times of uncertainty and disruption, symbols matter.”
And symbols do matter. They do not, however, define what will happen to EU citizens living in the UK in practice – not in the short term. What will change, here and now, for EU citizens coming to the UK and the other way around? Obviously, a lot. Today the government published a Statement of changes to the Immigration Rules, officialising the first immediate change in the law of the UK in practice.
It introduces a new visa category called “Global Talent.” This will replace the existing Tier 1 (Exceptional Talent) category. The Global Talent visa is branded as a new type of visa for talented and promising individuals in the fields of science, digital technology, arts and culture wanting to work and research in the UK.
The process to receive this visa is not dissimilar from the old Exceptional Talent route: Global Talent applicants must hold an endorsement from an organisation engaged by the Home office to develop sector-specific criteria, just like before. The main difference is that the new Global Talent category will not be subject to a cap on the number of applicants, whereas the ole Exceptional Talent category was capped at 2000 places per year. The removal of the cap is supposed to ensure that migrants who can meet the qualifying criteria will be able to secure entry to the UK. Applicants will be able to choose how much leave, in whole years, up to a maximum of 5 years they wish to be granted in a single application, and pay their immigration health surcharge accordingly.
The new category will take effect on 20 February 2020 – real and tangible changes to many other areas of the law will follow until the end of the transition period in June 2021. Incremental change as well as major overhauls will transform the UK after Brexit, including Scotland, and no flag waving above Holyrood will change that.
Last week’s general election means the Conservative Party now has a clear majority in government to fulfil the many promises they made in their manifesto, including major overhauls to immigration policy. Not only did Boris Johnson vow to get Brexit done by the New Year, but his party also plans to put EU nationals on the same level as third party nationals once free movement law ends. This in and of itself is a radical approach to immigration law, and will have major consequences for EU citizens in the UK.
After Brexit, once EU nationals are levelled with third party nationals, the conservatives want to introduce what they call a points-based immigration system, which they proclaim to base on the Australian visa system. The plan, broadly, is to introduce three visa categories after Brexit, for which anyone who moves to the UK will have to apply, and which replace existing categories.
The first is the “Exceptional Talent/Contribution” category, and includes the entrepreneur and investor visa. These visas are geared towards “highly educated migrants who have received world-leading awards or otherwise demonstrated exceptional talent, sponsored entrepreneurs setting up a new business or investors.” These people will not require a job offer and will receive fast-track entry to the UK. This category is not dissimilar from the current Tier 1 visa category, albeit with some minor changes.
The second category is for skilled workers, and to some extent, is a rebrand of the current Tier 2 category. The vast majority of these visas would require a job offer, in line with how work visas are allocated to third party nationals now. The skilled workers category is the only way for workers who meet the criteria of the points-based system and have a confirmed job offer to get limited leave to remain. It will effectively require all non-British nationals to prove that they have a job offer as well as reach the amount of points required under the points-based system. Needless to say, implementing this will constitute the most significant change compared to free movement law, which is currently in force, as it requires EU national to comply with visa requirements. This will have a massive impact on fields such as hospitality, where EU nationals make up more than half of the workforce, and the NHS. The Conservative party propose to make up for that potential labour shortage by introducing fast-track entry and reduced fees for certain special types of work, such as a NHS specific visa.
The general idea behind a points-based system is that people are scored on their personal attributes such as language skills, education, age and work experience. If their score hits the minimum required, they can acquire a visa. Crucially, there is no one fixed way to score enough points; a plethora of work experience can make up for older age and excellent language skills might make up for lack of formal education. As long as an individual’s different attributes add up to enough points, they will be granted a visa. The key point about points-based systems is not that they are inherently liberal or progressive; whether it is a liberal system will depend on how points are awarded. Rather, the key feature is their flexibility and the ability to get enough points by making any combination of characteristics. That is how the Australian points-based system works.
Contrastingly, the UK immigration system today is based on mandatory requirements. This is a system where applicants need to tick all the boxes in order to be granted a visa. For example, an applicant will need to prove his language skills, have a certain amount in savings, show that they have a job offer AND show that they will be making a minimum salary. If the individual lacks one of those requirements the visa will be refused, that is how simple it is.
The issues with the Tories’ proposals is that they want the best of both worlds. They want to introduce point-based characteristics, but keep the mandatory requirement of a job offer, combining mandatory requirements with points-based elements. Essentially, they want a points-based system where, after making the points-based selection, they can cherry pick who is granted a visa and who is not. As such, although they like to call it a points-based system, it not really points-based, and it is certainly not as simple or easy to navigate as portrayed by the Party.
The third category is the “sector-specific rules-based” category, which will be made up of specific temporary schemes such as for low-skilled labour, youth mobility or short-term visits. These visas will be time-limited and will not provide a path to settlement. They are how the government will attempt to match the demand for workers in specific sectors with enough visas to supply that demand. Supposedly, these visas will replace the free movement of labour with state planning. Deciding which markets need workers will be outsourced from the Home Office to the Migration Advisory Committee (MAC). This means that the MAC would react to gaps in the economy, flag them up, and the government will then create a temporary visa category to fill the gap. These will be revised on an ongoing basis based on expert advice from the MAC. In other words, the temporary visas will be reactionary in nature. They will be time-limited and will not provide a path to settlement. If this sounds difficult, that’s because it is. The economy adapts to reality more quickly than the law, and new policy takes months, if not years, to come into force. By the time a new visa category actually opens, the gap in the job market it was trying to fill may well have been resolved by market forces.
As an attentive reader may notice, the only migrants mentioned in the Conservative policy proposals are economic immigrants. The manifesto does not mention changes to other areas of the current immigration regime. It retains the status quo of Theresa May’s controversial hostile environment policies, fails to tackle legal aid cuts, and does not propose any change to the clear human rights violation of indefinite detention, for example. Additionally, the manifesto indicates an attack on judicial review. Since the removal and erosion of appeal rights in the 2014 Immigration Act, judicial review is now often the only recourse to justice for many people who have been wronged by the immigration system. Reforming judicial review, and limiting its scope, removes another layer of checks and balances on Home Office powers, suggesting that not only labour rights, but also human rights, are set to be qualified and watered down after Brexit and once this government starts rolling out policy.