To live and work in the UK, everyone needs a work permit and an employment visa, unless they are a permanent resident, an Irish national or a British national. There are many types of work visas, depending on the length of your stay and the type of work you want to do. Some visas, such as student visas, permit working under certain conditions. The seven main categories of non-UK citizens who may be allowed to work in the UK are the following:
1. Points-Based System workers
2. Temporary Workers
3. Students and Graduates
4. Innovators and Start-ups
5. Global Talent
7. Ancestry visas
8. Representative of an Overseas Business:
Workers who are going through the points-based system, whom we focus on in this post, will require a visa sponsorship. So, employers wanting to hire migrant workers have to apply for a migrant sponsor licence. An employer needs a sponsor licence to employ anyone from outside the UK, even if it is for unpaid work, unless they are Irish citizens, have settled or pre-settled status under the EU Settlement Scheme, or have indefinite leave to remain in the UK.
Being a sponsor does not mean that the employer has to pay for your employee’s visa application. It simply means that as a UK company wanting to hire overseas workers, they need to apply to the Home Office to obtain a licence first. There are also sponsorship licences for temporary jobs, such as for seasonal workers, but we focus on general workers in this briefing. In order to apply for a sponsorship licence, be it a temporary or permanent one, the potential employer must fulfil a few requirements, including choosing representatives of the company to manage the sponsorship application.
The most common type of visa sponsorship is for what we call a “general worker.” These include skilled workers, sportspeople, ministers of religion and intracompany visas. Skilled workers are the most common; they are workers of a certain skill level with a permanent, long-term job offer.
Most importantly, under the point-based system, workers must have a job offer of a certain skill level set out in government guidelines, and be making a certain amount of money. The general minimum salary is £25,600 per year or £10.10 per hour, whichever is higher, but there are some exceptions when workers can make less, such as if the worker has a PhD, or the worker is under 26, or the job is in healthcare, or the job is in a shortage occupation. There is even a separate guidance on the ins and outs of which jobs in healthcare and education qualify for a skilled worker visa. In 2020, in the context of significant staff shortages during the COVID-19 pandemic, the Home Office introduced a relaxed visa process for Health and Care workers. This allows medical professionals to come and stay in the UK to do an eligible job with the NHS, an NHS supplier or in adult social care.
Skilled workers can apply for dependants such as wives or children to come to the UK with them. They will have to pay separate application fees, and adhere to certain additional requirements. The skilled worker visa can last for up to 5 years before the worker has to extend it. Workers need to apply to extend or update their visa when it expires or if they change jobs or employer; they can apply to extend the visa as many times as they like as long as they still meet the eligibility requirements. After five years, the worker may be able to apply to settle permanently in the UK (also known as ‘indefinite leave to remain’). This gives them the right to live, work and study here for as long as they like, and apply for benefits if they are eligible.
Skilled workers have to pay significant application fees. If you are applying for a Skilled Worker visa to stay in the UK for up to three years from outside the UK, the basic cost will be £625. If you are applying to switch into the Skilled Worker category from inside the UK, the price is £719. If you are applying to stay in the UK for longer than three years, the price goes up to £1235 if you apply from outside the UK, and £1423 from inside the UK, though the fees are heavily reduced for shortage occupations (to £479 if the applicant is staying up to three years, and £943 if staying longer). For Health and Care Workers, there are further reductions still: if they are to remain in the UK for up to three years, the fee will be £247, and if they stay for more than three years, the fee is set at £479 per person. All workers and their dependents will also have to pay the healthcare surcharge as part of their application, which is currently set at £624 per year – the only exception are those workers on the Health and Care Worker visa, who don’t need to pay the surcharge as they work in the industry.
All potential workers will also have to prove their knowledge of English and demonstrate that they are able to support themselves in the UK. Usually, they will have to show that they have at least £1,270 in their bank account, and that they have had the money available for at least 28 days in a row. Day 28 must be within 31 days of applying for this visa.
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The controversial Nationality and Borders Act, which has been criticised by everyone ranging from the UNHCR to faith groups to NGO’s in the field, became law on 28 April 2022. We look at the major changes in law, and what they mean for the UK immigration system.
The Act makes significant changes to Nationality law as well as Asylum law. Last week we looked at the main changes for asylum seekers and refugees; today, we consider the Act’s effects on Nationality law.
The stated overarching ambition of the Act when it comes to nationality is to provide some form of correction or redress on certain issues of legislative unfairness that have persisted throughout history in British law. Nationality law in the UK is widely known to contain gaps and issues, but these were not high up on the political agenda until exceptional cases like the Windrush scandal forced nationality back into public consciousness.
Because the Windrush generation never received any paperwork proving their legal status in the UK, they not only had difficulties accessing public funds, proving their right to work and avoiding deportation, but they also encountered problems when applying for naturalisation further down the line, since they cannot easily prove their past residency in the UK.
The Nationality and Borders Act includes a number of provisions intended to rectify such situations. Firstly, section 1 and 2 rectifies the historical inability of mothers and unmarried fathers to transmit citizenship, respectively. Building on the British Nationality Act 1981, s.1 thus creates a registration route for adult children of British Overseas Territories citizens (BOTC) mothers to acquire British Overseas Territories citizenship. Section 3-5 further widen the registration rights for BOTC and their children who were previously overlooked. Section 6 and 7 amend existing nationality law to entitle individuals who were previously unable to acquire British citizenship because their mother was married to someone other than their biological British citizen father at the time of their birth.
The old law, under the 1981 Immigration Act, provided recognised a “father” only as “the mother’s husband.” A 2006 updated definition broadened the concept of “father,” but had a cut-off date after which individuals were no longer entitled to apply or registration. The 2022 Act rectifies this. Section 8 then grans the Secretary of State a discretionary power to give British citizenship and/or BOTC to individuals who would have been or would have became a citizen had it not been for historical unfairness in the law, an act or omission of a public authority, or other exceptional circumstances.
Section 9 allows the Secretary of State to waive certain requirements ordinarily required to get citizenship, such as proof that the applicant has been present in the UK (or British overseas territory) at the start of the applicable residential qualifying period in special cases; these include cases like the Windrush applicants. It will also benefit those with Settled Status or indefinite leave to remain under the EU Settlement Scheme who were exercising pre-Brexit EU rights of free movement as students or self-sufficient persons but who lacked comprehensive sickness insurance (CSI) and were thus unknowingly in breach of immigration laws at the time.
On deprivation of citizenship and statelessness, the Act also amends existing law. Since 2006, the test for the Secretary o State to decide whether someone os to be deprived of their citizenship is whether it would be conducive to the public good to do so. Now, section 10 of the 2022 Act allows the Secretary of State to deprive a person of citizenship without providing them written notice of the decision. The person need not be made aware, if giving notice is not possible or if there are reasons for not notifying them. This provision has been subject of much debate, nationally and internationally.
Internationally, the UNHCR explicitly flagging the risks of statelessness if individuals are to be deprived of nationality without notice; under the 1961 Convention on the Reduction of Statelessness, as well as under the International Covenant of Civil and Political Rights, to which the United Kingdom is party, the UK has a duty not to arbitrarily deprive individuals of their nationality. Nationally, the House of Lords opposed its insertion, but the House of Commons insisted on a revised version, which now has become law. The revised version allows the person in respect of whom the order is made may appeal the decision in the First Tier Tribunal, where the Secretary of State has made a deprivation order without notice. Additionally, a layer of judicial oversight has been inserted: the Secretary of State must apply to the Special Immigration Appeals Commission (SIAC), which in turn must determine whether the view of the Secretary of State is ‘obviously flawed.’
Furthermore, section 10 of the Act discusses statelessness and stateless minors. Currently, the British Nationality Act 1981 provides that if a person is born in the UK, then they are entitled to be registered if they are and always have been stateless, are under 22 years old, and were in the UK over the preceding five years. Section 10 limits this provision, amending the law so that in addition to the existing requirements for stateless children (aged 5 to 17) to be registered as British citizens or BOTC, the Secretary of State must also satisfy him/herself that the child cannot reasonably acquire another nationality. A case which has received widespread media attention which has played a significant political role in the statelessness arena is the case of Shamima Begum, the ISIS bride. Ms. Begum was born and raised in the UK with British citizenship, so the clause does not exactly apply to her situation, as she was not a stateless person trying to register, yet her case remains relevant. Ms. Begum was only made stateless after the Secretary of State deprived her of her British citizenship. But one of the arguments put forward by the Secretary of State was that Ms. Begum was not actually stateless because she could acquire Pakistani nationality by descent; the likelihood of her being able to acquire another nationality was used as a justification to remove her British one. This argument was squashed in the courts. The same logic is used here in section 10; and just like with Ms. Begum, this section runs contrary to the UK’s obligation under the 1961 Convention on the Reduction of Statelessness.
The controversial Nationality and Borders Act, which had been criticised by everyone ranging from the UNHCR to faith groups to NGO’s in the field, became law on 28 April 2022. We look at the major changes in law, and what it means for the UK immigration system more broadly.
The Act makes significant changes to Nationality law as well as Asylum law. This post looks at the main changes for asylum seekers and refugees; next we will consider the effects on Nationality law.
Section 12 of the Act starts by explicitly differentiating between “Group 1” and “Group 2” refugees. The distinction is paramount. “Group 1” refugees, once they receive refugee status, will get access to public funds and a 'relatively clear' path to settlement, not dissimilar from the one that exists for refugees now. They will be granted leave to remain for five years and be able to apply for indefinite leave to remain thereafter.
All remaining asylum seekers are considered “Group 2” refugees, meaning that even if they can prove their genuine fear of persecution, their status will remain more precarious. The intention is to grant “Group 2” refugees a temporary protection status for 30 months, to be re-evaluated when the 30 months end. Permission to stay will be renewable if the person is still eligible for refugee status when the Home Office re-evaluates the case, at the end of the 30-month period.
“Group 2” refugees will have no possibility to settle in the UK for at least a decade and no access to public funds. In some cases, Home Secretary Priti Patel has proposed to relocate “Group 2” asylum seekers to Rwanda, though she has not explained clearly how the Home Office would decide who to send away and who would be allowed to stay. All of the above is also applicable to any family members who may be accompanying or trying to join the “Group 2” asylum seeker.
So how does the Home Office differentiate between the two groups?
“Group 1” refugees are those who are considered to have complied with the new rules for claiming asylum. Those rules consider three factors. Firstly, the person claiming asylum must have come to the UK directly from a territory where their life or freedom was threatened as defined in the 1951 Refugee Convention (we did a background briefing on the Convention recently if you want to read up on it). This requirement means that all asylum seekers and refugees who stopped in any other third-party country before reaching the UK will not be considered as “Group 1” refugees. Most refugees globally are unable to flee their country of origin by plane due to lack of means, time, and/or the right paperwork (including passports).
Since the UK is an island, it is only logical that most asylum seekers will not appear out of thin air without passing through European countries such as France first. This means most refugees will not be considered “Group 1” refugees based on this condition alone. As a caveat to this restrictive requirement, s.12(3) of the Nationality and Borders Act sets out that if a refugee has entered or is present in the UK unlawfully, they may still be considered a “Group 1” refugee if they have and can show good reason or their unlawful entry or presence. What exactly constitutes “good cause” remains vague.
The person claiming asylum must also present themselves to the relevant authorities without delay. This has always been the case; previously, if an asylum seeker delayed their asylum application, the Home Office would often use the delay against them in the decision-making process, arguing that it was a sign of dishonesty on behalf of the asylum seeker.
Importantly, if an asylum seeker enters the UK without the required entry clearance, they will not only be considered a “Group 2” refugee, curtailing their rights and benefits in the UK (unless they make up for it under s.12(3)), but they will also be committing a criminal offence. Section 40 of the Act defines the offence and sets the punishment as a fine and/or imprisonment of up to 12 months; in addition, the asylum seeker will of course have a criminal record to deal with in the future.
In addition, the Act amends existing law to broaden the definition of the existing crime of “assisting unlawful immigration” so that it is now an offence to facilitate the commission of a breach or attempted breach of ‘immigration law’, the latter being broadly defined, and including regulation of entitlement to arrive in a state. Maximum penalties for such assistance has been raised, from 14 years to life imprisonment. The Act also changes the offence of helping asylum seekers enter the UK; the new definition includes not only those who help them enter for gain, but also everyone else. This may have implications for rescuers at sea, for example, who help sinking vessels in the Mediterranean to make it to the shores safely. There is limited provision, therefore, in the Act, in s.25(BA), for a defence: a person does not commit a facilitation offence if the act of facilitation was an act done by or on behalf of, or co-ordinated by either Her Majesty’s Coastguard, or an overseas maritime search and rescue authority exercising similar functions.
The government stated goal with these changes is to improve protection for those at risk of persecution and combatting people smugglers by discouraging asylum seekers from traveling to the UK other than via safe routes; its effect, however, will most likely do the opposite. The Home Secretary has said that the Act “aims to influence he choices that migrants may make when leaving countries of origin.” But of course, refugees and asylum seekers do not choose to leave their country of origin at all – there is no choice involved in the matter, as the whole point of the Refugee Convention is to protect those forced to flee their homes. There is no legal justification in the Convention, for differentiating between refugees based on mode of arrival; for penalising it, or altering conditions of their stay thereafter. The only thing that matters, according to the Convention, is the actual merits of the asylum claim. That is what should determine the outcome of an application.
The UNHCR has highlighted that the Act potentially breaches international law at numerous stages, including the international law of the sea, international human rights law, the 1951 Refugee Convention, and the European Convention on Human Rights, of which the UK is a signatory. What will happen next is most likely a long battle in the courts fighting many of these provisions to uphold international law; a slow and costly affair - for which lawyers and judges, holding the Government to account, will be labelled by the the Government as its enemies. In the meantime, the 2022 Act has become law, and once it is in force (most provisions discussed above will be by 28 June) affect the most vulnerable seeking help when they arrive on UK shores.
On Monday, the Home Office announced the launch of a new visa that is meant to fix the (huge) labour gap caused by the compounded upheavals of Brexit and COVID: the much-anticipated High Potential Individual visa.
As part of the New Plan for Migration, Home Secretary Priti Patel has long boasted that the UK will only attract the “brightest and best” individuals from abroad. However, since the post-Brexit immigration rules ended on 30 January 2020, and the EU Settlement deadline passed on 30 June 2021 (which does not mean you cannot make a late application!), that has been mostly talk and very little action. In reality, professional fields that typically recruit heavily amongst a steady stream of incoming EU workers, especially recent graduates, have struggled to fill positions.
The High Potential Individual visa allows graduates from select universities around the world to apply to come to the UK under a new visa scheme. Crucially, applicants will not need a job offer in order to apply. All they need is a degree from a set list of 37 universities deemed “top” institutions. For 2021, 20 schools on the list are US universities, and three more are from Canada, leaving 15 spots for the rest of the world. Though a variety of countries fills those 17 spots (Japan, China, Singapore and Switzerland get two schools), and Sweden, Australia, and Hong Kong each get one), no schools in Africa, Latin America, or South East Asia made the cut. And even in Europe, the selection is very limited.
Successful applicants will receive a work visa for two years if they hold a bachelors or masters degree and three years if they have a Ph.D. The degree must have been awarded within the five years prior to applying for the visa, as the UK is trying to attract people early on in their careers. Those who receive the visa will be allowed to bring dependants / family members with them. Importantly, the visa does not lead to settlement directly, but the expectation is that once the individual is working in the UK they will then be able to stay by switching into a different visa route.
The visa requires applicants to pay the immigration health surcharge (£1248 for two years) in addition to an application fee of £715 and a £210 fee to check that the foreign qualification is valid – so the price tag is pretty steep, though the Home Office might imagine that this is not a problem for graduates of Columbia University and the likes.
Since the Home Office announcement, some obvious criticisms have already been made, including that the school list is elitist and unfairly skewed; it is expected that other countries will lobby the government to include their universities. Whether that will happen, and whether it will make the list more balanced, remains to be seen.
If you need legal advice you can contact us directly here, call us on 020 8142 8211, or send us a question on WhatsApp.
If you’re a foreign national wanting to visit the UK, you might have to apply for a Standard Visitor Visa depending on your nationality. What follows is a quick guide on who needs to apply and how to go about it.
Who does not have to apply for a Visitor Visa?
People who are British citizens or who have the right of abode in the UK do not need to apply for a visa to enter the UK. In fact, they are not even able to, as s.1 of the Immigration Act 1971 states that they are not subject to immigration control and therefore are free to leave and enter the UK as they please. Similarly, Irish citizens need not apply to enter the UK. Within the Common Travel Area, which includes the UK, the Republic of Ireland, Guernsey, Jersey and Isle of Man, citizens are free to move freely across borders. The only circumstance where an Irish citizen could be subject to immigration control is if they are subject to a deportation order 5(1) of the Immigration Act 1971, an exclusion decision, or an exclusion order made under regulation 23(5) of the Immigration (European Economic Area) Regulations 2016, or a travel ban implemented under section 8B of the Immigration Act 1971.
Then, there is a list of countries of which nationals need not apply for a visitor visa or get a passport stamp in order to enter the UK for leisure. Nationals of Australia, Canada, Japan, New Zealand, Singapore, South Korea, the United States, EEA states and Switzerland can thus enter the UK for a Standard Visit of up to six months without having to apply for a visa through any paperwork or procedure. The six-month permission is automatically granted when visitors from these countries enter the UK.
All other nationals have to apply for a Visitor visa before they arrive in the UK. Applicants will have to attend a visa appointment in their home country, where they must prove their eligibility and suitability. To prove eligibility, applicants will have to show that they have plans to leave the country at the end of their visit (e.g. a return ticket), proof that they are able to support themselves during their stay, and that they do not plan on living in the UK for extended periods through frequent or successive visits.
What is the cost of a Standard Visitor application?
The standard visa fee for this application is £95. If the applicant is only in transit in the UK on the way to their final destination, they may apply for a Transit Visitor visa at a discounted rate of £64. Each family member has to apply individually if the applicant is traveling with their family, and pay the fee separately.
What are visitors allowed to do once they arrive in the UK?
All Standard Visitors, whether they have to apply for a visa or not, are subject to the same conditions. They cannot work during their stay in the UK, except for specific permitted business activities such as attending interviews, conferences or lectures, negotiating and signing business deals and attending trade fairs. Standard Visitors are also allowed to volunteer for up to 30 days with a registered UK charity. Exchange students for periods of up to six months may also enter on a visitor visa if their exchange takes place at an accredited institution. For studies longer than six months, the applicant will need a Student Visa rather than a Visitor Visa, for which the application procedure is more rigorous.
Visitors are not allowed to do paid or unpaid work for a UK company or as a self-employed person, have no access to public funds such as benefits, and may not live in the UK for long periods of time through frequent or successive visits. Additionally, if they want to marry or register a civil partnership in the UK, they need to apply for a special visa, the Marriage Visitor visa.
If you would like more information regarding visitor visas, check out our page on visitor visas. If you need legal assistance with the EU Settlement Scheme, or have any other questions, you can contact us here, call us on 020 8142 8211, or send us a question on WhatsApp.
Whether you are an EU citizen or another non-UK national (except for Irish), the same rules now apply for everyone who wants to come work in the UK from abroad. The main route for those wanting to work in the UK is the Skilled Worker Visa, which is open to individuals of all nationalities holding an eligible skilled job offer in the UK from a Home Office approved sponsor. How does this work?
You cannot get a Skilled Worker visa for just any job offer. Eligible skilled jobs are jobs which meet certain skill and salary requirements, set out in Part 5 of the Immigration Rules. If your employer is approved by the Home Office as a sponsor, you will get a “certificate of sponsorship” from them with information about the role you have been offered in the UK. That job description must then meet salary requirements (generally of at least £25,600 per year, unless your job is a shortage occupation job, you are under 26, a recent graduate, in professional training, have a PhD, or work in education or healthcare) and skill requirements (usually at least A-level equivalent). You will also have to prove your knowledge of English, unless you are from an English-speaking country.
On a Skilled Worker Visa, you can stay in the UK for up to five years before needing to extend the visa, depending on your employment contract conditions etc. Once you have a Skilled Worker Visa, you can work full-time in your eligible job, study in the UK, bring your partner and/or children to the UK, do voluntary work, come and leave the UK as you please, and after five years, you may be able to apply to settle permanently in the UK (also known as ‘indefinite leave to remain’) if you’ve lived in the UK for 5 years and meet the other eligibility requirements. This is the main route to settlement in the UK for anyone, including EU/EEA citizens, moving to the UK after 31 December 2020.
EU citizens who started living in the UK before 31 December 2020 can apply to the EU Settlement Scheme. The deadline to apply was 30 June 2021, but they may still be able to apply if they have “reasonable grounds” for doing so. Applications are free and so highly recommended - if their application is successful, applicants will not need a visa to work in the UK at all and none of the above applies to them.
If you are not looking to live and work in the UK full-time, but only here to handle business for a short period of time, you may not have to apply for a Skilled Worker visa or have a job offer ready. Some limited business activities are permitted on a visitor visa, and do not. These are called permitted paid engagements; they are business-related activities which visitors can engage in without having the right to work in the UK fill-time, whilst they are on short trip in the UK. They include job interviews, contract negotiations, guest lectures, etc. The details can be found in Appendix V of the Immigration Rules.
If you need legal assistance with the EU Settlement Scheme, or have any other questions, you can contact us here, call us on 020 8142 8211, or send us a question on WhatsApp.
The UK provides a way for domestic workers to come to the UK with their private employers under certain specific circumstances: the domestic worker visa. Any non-British or Irish national wanting to come to the UK as a domestic national after 1 January 2021 has to satisfy the requirements for such a visa. Though a domestic worker is not defined in the immigration rules, the visa is typically employed by nannies, chauffeurs, au pairs, cooks, cleaners, etc.
Preliminarily, it is important to note who this visa applies to. Until 1 January 2021, EEA nationals did not need to get a visa in order to come to the UK as domestic workers, as they were exercising EU free movement. This all changed after Brexit. Those EEA nationals who came to the UK as domestic workers before 31 December 2020, therefore, can apply for status under the EU Settlement Scheme and remain in the UK doing their job lawfully. All those who arrived after 1 January 2021 can only work as domestic workers in the UK if they get a domestic worker visa. For non-EEA nationals, nothing has changed – they already had to apply for the visa before 31 December 2020.
Preliminarily, there are a few eligibility requirements for domestic workers wanting to come to the UK with their employers. As such, the applicant must be at least 19 years old, they must be able to are able to support themselves in the UK without the need for public funds, and they must intend to work as a full-time domestic worker.
There are then three core requirements for a domestic worker visa. Firstly, the domestic worker must have already worked for their employer for at least a year before a visa can be applied for. Secondly, the applicant must not intend to stay in the UK for more than six months. Lastly, the employer must be (i) a British or (at present) an EEA national who usually lives outside the UK and who does not intend to return for more than six months, or (ii) a non-EEA national who is coming to the UK to visit and who does not intend to remain for more than six months. If these three core requirements are not met, an application for a domestic worker visa cannot succeed.
The burden of proof for the eligibility and core requirements is on the applicant. They can demonstrate that they meet all requirements with different documents, ranging from bank statements to letters from employers. They will always have to provide the following documents as part of their application: payslips or bank statements showing payment of salary, confirmation of tax paid, confirmation of health insurance paid, their contract of employment, their valid work visa, residence permit or equivalent passport endorsement for the country in which the domestic worker has been employed by that employer; or visas or equivalent passport endorsement to confirm that the domestic worker has travelled with the employer. Additionally, the applicant and their employer must have agreed on terms and conditions of employment in writing. These terms and conditions must confirm that the applicant will be paid at least the Minimum Wage applicable in the UK.
Importantly, the domestic worker must not intend to stay in the UK for longer than six months. The visa cannot be extended beyond six months – if the worker wants to stay for longer, they have to leave the UK and make a fresh application. Though there is no specific limit of the number of times a domestic worker can come to the UK / reapply for the same visa, domestic workers can never live in the UK on a continuous basis. Domestic workers can thus not be working in the UK for extended periods based on frequent, successive visits. There are no hard and fast rules involved in the assessment of subsequent applications, but rather the Home Office caseworker in question will have to evaluate the individual circumstances of each case.
If you need legal assistance, or have any other questions, you can contact us here, call us on 020 8142 8211, or send us a question on WhatsApp.
There are different pathways to British citizenship. If you were born in the UK, you may be automatically eligible to register for British citizenship your year of birth and your parents’ circumstances at the time. Otherwise, you can become British through the process of naturalisation.
To naturalise as a British citizen, the applicant will need to meet certain statutory criteria concerning their immigration status, their length of residence in the UK, their future intentions, their knowledge of the English language and life in the UK, and finally, good character.
Generally, they must have lived in the UK lawfully for five years (or three years if they are married to a British national), with only a certain number of absences from the UK permitted during that period. This is what is called a “lawful qualifying period of residence.” The general rule for a qualifying period is relatively straightforward - if you are at least 18 years old, and have been living in the UK for the required period of time, you should be able to apply for naturalisation. Before Brexit, this five-year qualifying period could be proven by showing that applicants had acquired a right of permanent residence or indefinite leave to remain in the UK.
Since the rollout of the EU Settlement Scheme (EUSS), this has become more complicated. Settled status under the EUSS is, according to government guidance, a form of indefinite law to remain. In theory, it should therefore be enough to prove a five-year qualifying period. Yet it turns out that that is not the case. Government guidance on the EU Settlement Scheme states that a: “grant of settled status (also known as indefinite leave to enter or remain) will not confirm that they were here lawfully under the EEA Regulations during that time, as defined by the British Nationality Act 1981 as this is not a requirement of the EU Settlement Scheme. You may therefore need to request further information from the applicant to demonstrate this. The naturalisation application form (Form AN) asks for information to confirm the applicant was lawfully in the UK for the relevant 3 or 5 year qualifying period.”
In other words, EUSS settled status, technically a form of indefinite leave to remain, does not suffice as proof of lawful residence for the purpose of naturalisation. The EUSS was designed to be broad and inclusive, so that most EEA citizens who had been living in the UK before Brexit would be able to register to stay. It was not designed to assess whether applicants were actually lawfully in the UK at that time. Thus, a grant of settled status confirms that the EEA citizen has been physically resident in the UK for five years at the point they applied to the EUSS, but not necessarily that they were resident lawfully.
As a consequence, when an EEA citizen applies for naturalisation relying on their settled status have to demonstrate that they have spent their lawful qualifying period in the UK, the Home Office caseworker cannot tell whether they were lawfully residence in the UK for the period before they were granted EUSS status. Therefore, part of the naturalisation process for EEA citizens has to include an assessment as to whether the EEA citizen was lawfully resident (rather than just resident), in the UK for the three or five-year qualifying period that applies to them.
If there is not enough proof that the period of residence relied upon was a lawful period, the EEA applicant may have to start their five-year count again from when they received settled status. This means that they effectively will have had to be resident in the UK for ten (or eight, if they are applying based on their spousal relationship) years instead of five, consisting of five years of residence to obtain settled status, and then five additional years with their settled status. According to the Immigration Rules and government guidance, the only way around this relies on the Home Office exercising discretion when assessing the application. The inevitable conclusion is that EU citizens are less likely to successfully naturalise than others, or at the very least that it will take them more time to do so successfully.
If you need legal assistance, or have any other questions, you can contact us here, call us on 020 8142 8211, or send us a question on WhatsApp.
On 1 July 2020, Prime Minister Boris Johnson announced plans to introduce a path to citizenship for Hong Kong British Nationals (Overseas) (BN(O)) wanting to emigrate to the UK. This proposal came after China passed its controversial national security law in June 2020, granting the Chinese government sweeping powers to crack down on opposition and dissent by people in Hong Kong and by Hong Kongers abroad. The UK government considers these laws a failure in China’s behalf to live up to its international obligations with respect to Hong Kong under the Sino-British Joint Declaration.
BN(O) status is a form of British nationality created for people from Hong Kong when the territory was controlled by the UK. During British rule, Hong Kong residents were categorised as British Dependant Territory Citizens (BDTC). In the years leading up to the handover to China, the Hong Kong Act 1985 and the Hong Kong (British Nationality) Order 1986 were enacted, allowing people from Hong Kong to apply to register for the new British National (Overseas) (BNO) status instead.
Many Hong Kong residents chose to register for BNO status, either to retain a connection to the UK or simply because this was their only way to obtain a passport at the time. The final deadline to apply for BNO was 1 July 1997, when Hong Kong was officially handed back to China. Hong Kongers who were left stateless on 1 July 1997 due to, for example, not being recognised as Chinese nationals, also automatically received BNO status, even if they had failed to register for BNO status by the deadline, to avoid them becoming stateless.
At the time, British National (Overseas) status did not allow to move to the UK freely; status holders had to comply with UK immigration rules like other third-party nationals. Since the passing of the national security laws, however, the government stated that “The Chinese Government, through its actions, has changed the circumstances that BN(O) status holders find themselves in, and it is right that we should change the entitlements which are attached to BN(O) status.”
Last week, the Home Office laid out the new BN(O) visa route in full. As expected, the Hong Kong BN(O) visa enables BNO status holders ordinarily resident in Hong Kong, and their immediate family members, to settle in the UK to live, work and study.
Under the new route, a five-year visa will cost £250 per person. Applicants will also be able to apply for a 30-month visa which will cost £180 per person. In addition, applicants will have to pay the immigration health surcharge, and prove that they can support themselves and their family for six months from the date of planned entry.
There is no quota on numbers - anyone who is a BN(O) status holder and normally resides in Hong Kong can apply for the Hong Kong BN(O) visa. Applicants do not need a valid BN(O) passport to demonstrate eligibility, and they do not need to request a new passport if it has expired or been lost. They simply need a valid travel document and proof of their BN(O) status. Importantly, however, there are no plans for BN(O) registration to reopen, meaning BN(O) status is not something one can obtain – holders of BN(O) status were fixed when the application system closed on 1 July 1997.
Family members of BN(O) status holders must be living with the status holder in order to be eligible to apply. Examples of family members include a spouse, civil partner or unmarried partner, children under the age of 18, adult children born on or after 1 July 1997 (and their spouse, or child under the age of 18), and other family members (parents, grandparents, brother, sister, son or daughter) in exceptional circumstances where there is a high level of dependency. Family units must apply together, not separately. If family members of BN(O) status holders do not apply together with the status holder, they will not be able to join the BN(O) at a later date.
All those eligible will be able to apply for settlement in the UK after five years if they meet the requirements, and British Citizenship 12 months thereafter. The framework is meant to be clear, generous and easy to navigate, considering the sheer amount of BN(O) status holders. As of February 2021, there were approximately 470,000 holders of BN(O) passports in Hong Kong. The Home Office, however, estimates of the number of BNOs actually living in Hong Kong is closer to 3 million with as much as 2.3 million additional eligible dependants, totalling to over 5 million potential applicants.
If you need assistance with your immigration status you can contact us here, call us on 020 8142 8211, or send us a question on WhatsApp.
Under certain circumstances, the immigration rules in the UK allow for people to apply for leave to remain in the UK on the basis of long residence. This means that people who have been in the UK for long enough, are able to settle in the UK if they fulfil certain requirements. The two main routes under the Home Office long residency process are the 10 year route for those with continuous lawful residency, and the 20 year route for those who have had periods of unlawful residence during their time in the UK.
The 10 year rule on long residence is laid out in paragraph 276 of the Immigration Rules. It enables people with 10 years continuous and lawful years of residence in the UK to apply for indefinite leave to remain, meaning they can stay in the UK indefinitely, and without being tied to employment, studies or other family members to retain that right. During those 10 years, they must always have had some form of leave to remain, without interruption. That is the “lawful” component of the “10 continuous and lawful years.” Living in the UK with leave to enter or remain is lawful for the purpose of a long residence application, as is temporary admission or time spent out on immigration bail (important for asylum seekers) or exemption from control (important for diplomats, as long as that (temporary) status is immediately followed by leave to remain. If the applicant overstays even just one day, this will be unlawful residence breaking their 10 year count, even if the overstaying is short or by accident. It is not completely impossible to qualify under the 10 year rule if you have short gaps in lawful residence, but it is very difficult and certain criteria must be met.
For the 10 years to be considered as “continuous,” then, the applicant must have spent at least six out of every 12 months in the UK every year of the 10 years they are relying on in their application. Any absence of more than six months will break “continuous residence.” Prison sentences put the counter back to zero, and certain reasons for departures do so as well. Notably, the applicant is not allowed to have spent more than 18 months outside of the UK in total in that 10-year period. Only whole days (more than 24 hours) are counted. If an applicant has spent too much time abroad, caseworkers are instructed to exercise discretion based on the reasons for absence and whether the applicant returned to the UK as soon as was reasonably possible.
If an application under the 10 year rule is successful; the applicant will be granted indefinite leave to remain, and be able to settle in the UK freely.
The 20 year rule on long residence is laid out in paragraph 276 of the Immigration Rules as well. To apply for leave to remain under this rule, the applicant does not have to have lived in the UK lawfully, only continuously. The definition of “continuously” here is similar to the one for the 10 year rule. The main difference is that for the 20 year rule, time spent in prison will not break the count. Instead, time in prison will simply not be counted towards the period of residence. Time before and after imprisonment can thus be added up to calculate the full amount of time spent in the UK.
The main issue with the 20 year rule is the difficulty of proving one’s time spent in the UK, especially the time where the applicant was not residing in the UK lawfully. Evidence is often patchy and hard to obtain.
If an application under the 20 year rule is successful, the applicant will be granted limited leave to remain for a defined period of 30 months. During those 30 months, the applicant will usually not be able to access public funds. To get indefinite leave to remain, the applicant will have to accumulate 10 years of lawful residence through renewed periods of limited leave. In other words, for an applicant with unlawful periods of stay to be eligible for settlement in the UK with indefinite leave, they will have to wait 30 years from the date of entry.
For people who moved to the UK at a young age, there are some special long residency rules. For examples, those under 25 years old can apply for indefinite leave to remain if they have spent over half of their life in the UK. Additionally, a child who has lived in the UK for seven years might qualify for limited leave to remain, if he or she can show that it would not be “reasonable” for him or her to leave the UK.
To sum up, there are a few long residency routes to stay in the UK. The most common ones for adults are the 10 year rule and the 20 year rule. To qualify for the former, the residency has to be lawful and continuous. For the latter, residence need only be continuous, but obtaining indefinite leave to remain will be a long and arduous process.
If you need assistance with your immigration status you can contact us here, call us on 020 8142 8211, or send us a question on WhatsApp.
Since 1 January, free movement of people, goods and services has officially ended between the EU and the UK. After months of uncertainty and negotiations, the EU and the UK finally came to agreement on a last-minute trade deal just a week before the end of the transition period. As for the movement of people, freedom of movement ended on 1 January and the new immigration rules, applicable to all non-British citizens (except people with Irish citizenship) have come into full effect. Here are 7 things which changed overnight, and which affect how people live, work and travel in the EU and the UK:
1. The new UK immigration system
On 1 January 2021, the all new, all different, points-based immigration system came into force. All foreign nationals (except Irish nationals) wanting to move to the UK will have to apply and pay for a visa under this system. The government has stated that the new system aims to attract people who will contribute to the UK economy. The basics of the new system include a minimum income threshold (requiring a minimum salary of £25,600 for skilled workers and £20,480 for those with job offers in a shortage occupation or in possession of a PhD relevant to the job), a preference for skilled over unskilled workers (“skilled” meaning people with a certain level of education or training), and an increased cost of visa applications. All applicants also have to pay a health surcharge of £624 per person per year, unless they are healthcare workers.
For a summary of how the points-based system works, check out our blogpost on the topic.
2. UK citizens traveling to the EU
UK nationals can still travel to countries within the Schengen area (which comprises most EU countries as well as Switzerland, Liechtenstein and Norway) without a visa, but no longer for unlimited periods of time, and with additional requirements.
Regarding time limits, UK citizens can spend up to 90 days out of any 180-day period in the Schengen area. In order to be able to cross the border, they will have to have at least six months before their passport expires, and have travel insurance with health coverage. Obviously, UK citizens will no longer be able to use the EU priority lanes at airports or other border crossings.
EU agreements which previously ensured things like no roaming or COVID-19 related arrangements such as travel corridors/exemptions during the pandemic will stop applying. This is a significant change; travellers from the UK are not able to visit the EU at the moment except for specific essential reasons.
3. UK citizens living in the EU
The rights of UK citizens who lived lawfully in the EU before 31 December 2020 were already protected to a certain extent under the Withdrawal Agreement. However, to enjoy those protections, UK citizens living in EU countries should check their country of residence’s specific rules and processes to ensure they can retain those rights. They may need to register or apply for residency, or apply for new documents evidencing their right to stay, or adhere to certain other requirements such as having a job, for example.
4. UK citizens moving to the EU
UK citizens looking to move to the EU now, after 1 January 2021, will no longer have an automatic right to live, work and study or retire there. They will need to apply for a visa if they are traveling for any other reason than tourism, and especially if it is on a more permanent basis. The rules and eligibility for visas will vary country by country.
The one significant exception is for UK citizens planning to move to Ireland. Thanks to the Common Travel Area, special rules apply to the Irish border.
5. EU citizens living in the UK
The rights of EU citizens living lawfully in the UK were already protected under the Withdrawal Agreement. Until 30 June 2021, EU citizens living lawfully in the UK will retain all their rights automatically. If they want to retain their rights further, they will need to apply to the EU Settlement Scheme by that deadline of 30 June 2021, or else they will be unlawful residents and potentially liable for deportation.
Again, because of the Common Travel Area, rights of Irish citizens will not be affected.
If you need any help or advice with your EU Settlement Scheme application, check out our blog posts on the topic, as well as our seminars, and resources.
6. EU citizens moving to the UK
EU citizens moving to the UK after 1 January 2021 no longer have the automatic right to live, work and study here. They instead have to apply under one of the routes available under the points-based system. For more information on the points-based system, check out our resources and summaries.
7. The exception of Northern Ireland
The recent trade agreement includes a section on Northern Ireland, where the EU and the UK have agreed to keep an invisible border (without checkpoints) between the Republic of Ireland (which remains an EU Member State) and Northern Ireland (which is no longer in the EU). There will also be no tariffs (extra charges on goods) for most trade between Great Britain and Northern Ireland. In exchange for this soft border, Northern Ireland will have to continue complying with many of the EU’s rules such as product standards and safety.
If you need assistance you can contact us here, call us on 020 8142 8211 or send us a question on WhatsApp.
The Home Office published guidance for EU Settlement Scheme (EUSS) applicants in or outside the UK who have been affected by restrictions associated with COVID-19 since the beginning of the pandemic.
The general rules of the Scheme are clear – for an applicant to be eligible for status, for them to be able to remain in the UK after the 31st of December 2020, they will need to confirm and prove a period of continuous residence in the UK. Depending on how long that period of residence is, the applicant will be granted either settled or pre-settled status.
To obtain settled status, or indefinite leave to remain, the applicant has to have been continuously residing in the UK for five years. The five years need not be ongoing; applicants who are not currently living in the UK may apply based on their historic residency, as long as they have not been outside the UK for a continuous five-year period immediately after the five-year qualifying period of residence on which their application is based.
If a person has been in the UK for less than five years, they will receive pre-settled status, which they will need to maintain until they reach the five-year continuous residence threshold to qualify for settled status. Continuous residency is calculated on a rolling basis, not based on calendar years, meaning that the applicant must be living in the UK for more than six months out of every twelve-month period.
The general rules state that applicants are permitted one period of absence of more than six months (but which does not exceed 12 months) for an important reason such as study or serious illness without losing their pre-settled status. This period of absence must be explained and proven when the applicant submits their settled status application. If an applicant is absent from the UK for longer than six months (but under 12 months), and it is not for an important reason, the absence will break their continuous residence, and they will not be able to apply for settled status.
Until today, it was unclear how the Home Office would deal with absences due to COVID-19 related reasons. The guidance published today confirms that they do not intend to be very flexible, but unfortunately does not clarify not much more than that, as it is not very detailed.
For applicants who were outside of the UK for a few months during the COVID-19 pandemic, the Home Office essentially applies the general exception rule. The guidance confirms that if an applicant was impacted by coronavirus public health restrictions and could not travel as a consequence, this will count as an exceptional circumstance which may justify absences from the UK of over six, but under 12, months. Examples given include if the applicant contracted coronavirus overseas and could not return to the UK because they were ill or in quarantine, or if imposed travel restrictions led to an increased absence from the UK for longer than planned.
In all cases where the applicant was prevented from travelling due to COVID-19 related reasons, they will have to provide a supporting letter explaining and outlining the various details of their time abroad – when they were ill or quarantining, when their flights were cancelled, and any other important dates. No additional detail is given about the standard or expectations of proof. In any case, an applicant is only allowed a single absence exceeding six months (but not exceeding 12 months) for an important reason in their five-year continuous qualifying period, meaning that if an applicant already had an important reason for which they had to leave the UK for more than six months before the pandemic hit, their counter for number of years with continuous residency will have to be reset to include only the latest period of absence.
An example could be a student who arrived in the UK in 2016, studied abroad from September 2017 until June 2018, for which they planned to use the “important reason” exception, and who in the past 12 moths has spent seven months abroad due to a combination of pre-covid trips, and a five-month lockdown which they spent in their home country. This applicant would not be able to claim an “important reason” both for their period abroad in 2018, and for their prolonged absence in 2020. As a consequence, they would have to “reset” their counter to when they returned to the UK after their year abroad, and will only be eligible to apply for settled status in 2023 instead of 2021, as they would have been under normal circumstances.
Another issue addressed in the guidance is that of people who need certain evidence of their identity and nationality to apply to the EUSS, but are unable to obtain it due to circumstances beyond their control specifically related to coronavirus public health restrictions. Examples given include the closure of embassies or consulates, or the inability to travel to the closest consular services which may mean that it is impossible to obtain the conventional identification documents. In these circumstances, the Home Office may accept alternative pieces of evidence of nationality such as expired passports or ID cards, another official document issued by the authorities of your country of origin or of the UK which confirms your identity and nationality or previous Home Office communication evidencing your nationality. People who apply to the EUSS with alternative means of identification documents must apply on a paper application form, applications which generally take longer to resolve than the electronic ones.
Both for applicants relying on alternative evidence of nationality and for those justifying a prolonged absence from the UK based on COVID-related public health restrictions, the Home Office evaluates claims on a case-by-case basis. There is no provision for leeway or discretion in any circumstance, for example if an applicant is only missing a few days to reach the official six-month threshold, nor is there any detail on how an applicant is meant to prove the reasons for their absence.
If you need assistance you can contact us here, call us on 020 8142 8211 or send us a question on WhatsApp.
In order to stay in the UK lawfully after the end of the transition period, all EU citizens in the UK have to apply for status under the EU Settlement Scheme (EUSS). Under the Scheme, EU citizens will be given either pre-settled or settled status. For an applicant to the EU Settlement Scheme to receive either pre-settled or settled status, they will have to prove three key things: their identity, their suitability, and a period of continuous residence in the UK.
For most applicants, this will be relatively straightforward. This briefing focuses on three groups of applicants for whom proving these things will be slightly more complicated: frontier workers, people with a criminal sentence, and extended family members. Of course, many other applicants will find the EUSS confusing or hard to navigate, and numerous other vulnerable groups in society have been identified as at risk of failing to secure their rights. This briefing focuses on specific issues with these three groups to break things up a little.
The Withdrawal Agreement between the EU and the UK provides that frontier workers must receive documents certifying their status as soon as possible, so that they are not prevented from exercising their rights after the end of the transition period, and can easily demonstrate proof of those rights at the border. That is why the government is launching a frontier worker permit scheme on 10 December, so that frontier workers can make free applications to receive such a document. Although this is a welcome development, the scheme seems to be cutting it quite short as it opens a mere three weeks before the end of the transition period, with very little information available as to the qualifying criteria and precise application process. Surprisingly, there seems to be more information available for family members of frontier workers than for frontier workers themselves, as there seems to be little certainty about what exactly is required of them
As for EU citizens without a right of permanent residence whose residence is interrupted by a period of imprisonment, the Withdrawal Agreement states that the “conduct” of these citizens may have an effect on their application under the Scheme. “Conduct” here relates to actions taken by the affected citizen, rather than the outcome of the action such as a sentence of imprisonment, meaning it is not the time or severity of the prison sentence but of the conduct which is important in assessing the relevant citizen’s eligibility.
Appendix EU clearly states that continuous qualifying period cannot include a period of imprisonment. In fact, EU law stipulates that periods of imprisonment in the host Member State interrupt the continuity of residence required by Article 16(2) of the Free Movement Directive for the purpose of acquiring a right of permanent residence.
There will be situations where the conduct of the citizen is committed before the end of the transition period, and the conduct is not be serious enough to result in their removal from the UK, but their prison sentence will conclude after the end of the transition period. If this is the case, the only route to status under the EU Settlement Scheme would be if the applicant already had settled status before he committed the offence. If he had been in the UK for less than five years when the offence was committed, and does not have settled status, he will not be able to acquire it. A citizen cannot link periods residence in the member state that are dissected by a term of imprisonment which in this example, began before the end of the transition period.
The result is that a citizen who was in prison during the transition period, but does not meet the threshold for removal from the UK, cannot begin a continuous qualifying period to obtain EUSS status. They are highly unlikely to be able to obtain any other immigration status due to the restrictive nature of UK immigration law and would consequently face removal on the basis that they do not have any lawful residence after 30 June 2020.
Lastly, concerning extended family members, Appendix EU requires that durable partners and dependent relatives apply to the EUSS with a valid “relevant document". The definition of a relevant document is a document issued for under the EEA Regulations. It can be a family permit, a residence card or a permanent residence card. Important to note is that the relevant document must be valid (i.e. not expired or revoked), meaning that an extended family member who has been issued a document which has now expired is unable to apply to the EUSS and will receive an automatic refusal of status should they submit an application. In effect, this raises the financial bar for durable partners of EU citizens, as they are required to make a second application under the EEA Regulations to receive a valid relevant document and then make a third application for EUSS status. The application fee here is 65 pounds.
This fee is entirely avoidable. In fact, when an extended family member applies to the EUSS, the process assesses whether the family relationship continues to exist (or did for a 5 year period in the past). Therefore, it is available to the Home Office to assess the continuing family relationship of an extended family member applicant through the EUSS process, even where their relevant document has expired. The Home Office approach puts a disproportionate burden on these applicants not only financially, but also practically, as they have to evidence and re-evidence their family relationships which could be considered detrimental to the rights of their sponsoring EU citizens.
Once family members of EU nationals succeed in their application and get status under the Settlement Scheme, they are issued a physical document to prove their right to residency in the UK. This physical document is a privilege not granted to EU citizens, meaning that in practice, durable partners receive physical proof of their status when the EU citizens on whose application they depend do not.
If you require any advice on the EUSS as a member of one of these three vulnerable groups of EU citizens or otherwise, do not hesitate to contact us for advice.
If you need assistance you can contact us here, call us on 020 8142 8211 or send us a question on WhatsApp.
In order to stay in the UK lawfully after the end of the transition period, all EU citizens in the UK have to apply for status under the EU Settlement Scheme. Under the Scheme, EU citizens will be given either pre-settled or settled status. To obtain pre-settled status (which gives EU citizens temporary residence in the UK for a limited period of five years), an applicant does not have to prove much: they must simply show that they have arrived in the UK before 31 December 2020. For settled status (which gives EU citizens permanent residence rights in the UK), it is a different story.
An applicant wanting to obtain settled status will have to demonstrate that they have been continuously resident in the UK for five years. What does that mean exactly? In this post, we have a look at the law which applies in this scenario to try and get a better idea.
The way Appendix EU to the immigration rules, which sets out the legal framework for the EU Settlement Scheme, defines continuous qualifying residence for the acquisition of permanent residence is based on the idea of a 6 month out of 12 months “rolling” residency. The definition of “continuous qualifying period” in Appendix EU states:
a period of residence in the UK and Islands…
(b) during which none of the following occurred:
(i) absence(s) from the UK and Islands which exceeded a total of six months in any 12-month period [emphasis added]
Imagine a scenario where an applicant, Serge, moved to the UK from France in April 2016. Until June 2019 he only went home for a few weekends and holidays, so he does not have to worry about his absences for his first three years of residence. In July 2019, his fourth year of residence, however, Serge went back to France for the summer and was absent from the UK until the end of September (three full months). He then came back to London, until January 2020, when he went back to France. He was supposed to return to London in February, but ended up staying abroad until May 2020, facilitated by him working from home during the COVID-19 pandemic. This is an absence of four full months in the calendar year of 2020.
But Appendix EU does not work in calendar years. Rather, it analyses periods of residence on a 12-month rolling basis. As a consequence, Appendix EU would interpret the above-mentioned scenario to mean that Serge has broken his continuous qualifying period on account of combining the three months absence in year 4 with the four-month absence in year 5 resulting in a combined absence of seven months in a 12-month period. The drafting of the criteria does not allow the citizen to demarcate the absences into separate 12-month periods.
When it comes to COVID-19 related absences, the Home Office have said that they will be flexible, and consider it as an exception to the 6-month rule if need be. Serge might then be able to rely on this exception when he applies for settled status in April 2021. However, the validity of this exception is not guaranteed, but rather subject to Home Office discretion. In addition, not all applicants will be able to do the same
The Court of Justice of the EU has held that periods of continuous legal residence confer on EU citizens the right of permanent residence with effect from the actual moment at which they are completed. This means that the continuous period of five years legal residence that leads to the acquisition of the right of permanent residence is to be counted from the moment the EU citizen takes up residence in the host Member State in compliance with the residence conditions of the Free Movement Directive.
In fact, the definition of “continuous qualifying period” in Appendix EU does not comply with provisions regarding continuous residence in the EU Free Movement Directive and the EU-UK Withdrawal Agreement. The rule from those legal instruments is that an EU citizen may have temporary absences not exceeding a total of six months within each year leading up to the acquisition of the right of permanent residence, and that each year starts on the anniversary of the date when the EU citizen took up residence in the host Member State in compliance with the residence conditions of the Free Movement Directive, meaning that absences in different years must not be added up.
It should be noted that the way the Home Office calculate qualifying residence for permanent residence under the EEA Regulations (implementing the Citizens’ Directive in domestic legislation), is not clear on this matter as there has been a change in Home Office guidance instructing case workers how to assess the continuous residence requirement. Former guidance stated that the Home Office would consider absence is based on a year 1 to 5 from when the EU citizen began their UK residence. Current guidance states that a six months absence in any 12-month period would break continuous residence without reference to calculating this on a year by year basis. Therefore, the current interpretation of continuous residence under the EEA Regulations is in conflict with Appendix EU. This could easily be remedied by changing the guidance back, and ensuring that EU citizens get the status they are entitled to.
If you need assistance you can contact us here, call us on 020 8142 8211 or send us a question on WhatsApp.
The UK is well-known for its sky-high immigration and visa fees. These fees, which have risen steeply up to 20-25% per year since the early 2000s, are big business for the Home Office. In fact, in 2018, the Home Office made over £500m from immigration fees alone. In addition to immigration and visa fees, individuals may be liable for the immigration health surcharge, which is currently priced at £400 per person per year, but set to rise to £624 this fall. On average, an applicant will have to spend over £2,000 to get leave to remain in the UK (rising to £2,500 in a matter of months with the planned surcharge increase), and that is excluding potential legal fees. In short, living in the UK on an immigrant visa is an expensive ordeal.
Unsurprisingly, not everyone who needs a visa can afford these fees. The courts have ruled that for human rights based applications, charging fees which the applicant cannot afford is unlawful. Thus, if you are facing a bill for visa fees that you cannot afford, and are considering borrowing money in order to be able to extend your stay in the UK, it may be worth considering an application for a fee waiver. Here, we go over how to go about it.
Unfortunately, the fee waiver is only available in limit circumstances. The first limitation is that only applicants with a human rights claim are eligible to apply for a fee waiver, and only where their human rights claim constitutes “a substantive basis of their application.” Examples of applications that fall into this category are applications for leave to remain under the five-year parent route, the ten-year partner, parent or private life route where the applicant claims that refusal of that application would breach their rights under Art. 8 of the ECHR, applications based on other ECHR rights, applications from victims of human trafficking or modern slavery, and some applications for leave to remain under the five-year partner route.
Additionally, applications for indefinite leave to remain are never eligible for fee waivers, no matter the basis on which they are being made (human rights or not), limiting the scope of fee waivers further. Applicants are advised to extend their temporary leave to remain until they can afford the indefinite leave to remain fee independently.
Fees waivers do not necessarily cover all fees. It is possible, for example, for an applicant to pay their own fee but apply for a fee waiver for one or more dependant. It is also possible to ask for a waiver of the Immigration Health Surcharge only, and not the main application fee, if the applicant can only afford one of the two.
If the application in question is eligible for a fee waiver, then applicants for fee waivers will have to show that one of the following applies to them:
- They cannot afford the fee
- They are destitute
- They are at risk of imminent destitution
- Their income is not sufficient to meet a child's particular and additional needs
- They are faced with exceptional financial circumstances
Whether you can or cannot afford the fee is a hard thing to prove, and the Home Office tend to only accept fee waivers based on affordability arguments in exceptional circumstances. Generally, officials are instructed to look at applications very restrictively and their point of departure seems to be that an applicant should be able to afford the fee. As such, they will also consider funds from friends and family, or non-liquid funds, when assessing if an applicant can afford the fee.
Applications are made through an online form. After an applicant submits their fee waiver application, the procedure is quite restrictive as well. If waiver is granted, the applicant will be issued with a Unique Reference Number to be used when applying for leave to remain online. The application for leave to remain must be submitted within ten working days of the date of the decision (careful, not the date that the decision is received, but the day it was made). The person must then make an appointment at a Service and Support Centre within 17 working days. If the applicant fails to make the application within these timescales, they may need to make a new fee waiver application. If their leave has expired in the meantime, they may become an overstayer.
If the waiver application is refused, the status of an applicant will depend on whether the applicant had valid leave at the time of the application. The guidance states that there are no service standards in fee waiver applications, meaning they do not provide a standard timeframe in which an application must be decided. However, caseworkers are urged to make reasonable efforts to decide applications requests promptly, especially those involving a child or an applicant who is street homeless, disabled or otherwise in vulnerable circumstances.
Those who have valid leave at the time of application will be told about the refusal and be given ten working days to submit additional evidence to challenge that decision. If the new evidence submitted satisfies the caseworker that they are in fact eligible for the waiver, their application will be accepted, and they will be given another ten working days to submit the application for leave to remain.
If the new evidence does not satisfy the caseworker that they are eligible for a fee waiver, however, their application will be refused, and they will be given ten working days to submit an application for leave to remain and pay the application fee independently. If they do not do so before their leave expires, they will become overstayers.
So, in summary – fee waiver applications are only made online, which poses its own challenges. It is very important that applications for a fee waiver are made before the expiry of leave, to maximise one’s chances. And finally, the requirements are quite restrictive but it is always worth a try. The fact that fee waivers are available is a good development in and of itself.
If you want to know more about how to apply for a fee waiver please do not hesitate to contact us here or send us a question on WhatsApp.
Notice: we do not help non-EU / overseas / foreign workers find jobs in the UK. Our service is available only to established national businesses that are looking to hire foreign workers, or for foreign workers with job offers in the UK.
Under the new immigration system, set to come into force on 1 January 2021, freedom of movement for EU/EEA/Swiss ('EU') citizens will end. Just like non-EU nationals, EU citizens who are not settled in the UK will have to apply for working visas if they wish to come work in the UK. Conversely, employers wanting to hire EU workers will have to apply for a migrant sponsor licence, just like they have to do now for third-party nationals.
Being a sponsor does not mean that the employer has to pay for the migrant worker’s visa application. It simply means that as a UK company wanting to hire overseas workers, the Home Office will do a check on the company’s organisation and trustworthiness in dealing with migrant workers, and assess whether the company is able to monitor and follow that their migrant employees comply with their visa conditions.
There are two types of working visas, and similarly, companies can get a licence to hire either type of worker. The first one is the Tier 2 worker visa, tailored towards non-British nationals coming to the UK as skilled workers with permanent, long-term job offers. This post will focus on how to apply for sponsorship to sponsor those Tier 2 workers. The second type is the Tier 5 worker, who comes to the UK temporarily. Good examples are seasonal workers (e.g. in agriculture) or charity workers.
For both types of sponsorship licence, the Home Office announced in February 2020 that “Employers not currently approved by the Home Office to be a sponsor should consider doing so now if they think they will want to sponsor skilled migrants, including from the EU, from early 2021." If you are an employer who intends to hire non-British workers from January 2020 onwards, it is now beyond time to apply for your sponsor licence, especially since the government has announced multiple changes to the sponsorship system which will make it easier for businesses to obtain a licence.
To facilitate the transition from free movement laws to the new points-based system, the government has proposed to lift the “cap” on numbers of migrant workers, meaning there is no longer a limit on how many companies can obtain such a licence every year. The government has also announced that the required skill level for sponsored job role will be reduced from January onwards, and roles requiring a skill level equivalent (roughly) to A-levels will be eligible for sponsorship, instead of the higher requirement of bachelor’s degree that is in place today. This, again, is to smoothen the transition from EU free movement to the stricter migration rules of the points-based system. Additionally, from January onwards, the Resident Labour Market Test (RLMT) will no longer apply, meaning that you will be able to hire foreign workers even if there are suitably qualified resident workers able to fill the role for which you are recruiting. This was previously not the case.
For all of these reasons, now seems like the perfect time to apply for a Tier 2 Sponsor Licence. So how should a business go about the application? Applications are made to a specific Tier 2 Sponsor Licence applications team at the Home Office. The process involves two different steps: an initial online form, and then a file of hard copy supporting documents which are due to be submitted within 5 working days of the online form.
The basic criteria that a company needs to meet to receive a sponsorship licence are numerous. Firstly, the business must be based in the UK. Secondly, the business must be “genuine,” and trading lawfully in the UK, meaning that the business will have to provide details of their organisational and sectoral structure. Supporting documents will need to include, for example, an up to date hierarchy chart detailing any owner, director and board members.
Thirdly, the business must be “honest, dependable and reliable,” a subjective and relatively vague requirement which is usually proven by submitting previous projects, reviews and contracts that show that the company lives up to its promises. Broadly, the supporting documents serve to show the Home Office that the sponsor company is capable of complying with sponsor duties and responsibilities and does not pose a threat to immigration control. The more details the sponsor provides, the better. That is why the business owner will also have to include details about the role(s) they are looking to fill, to ensure that these roles meet the skill, salary and qualification requirements for eligibility for foreign workers.
As such, to hold a Tier 2 Sponsor licence, the applicant organisation must have Human Resources systems in place to ensure that they are able to meet the various sponsor's duties and responsibilities as set out in the guidance. No details are provided as to what such a system entails, but broadly, the company must use this system to ensure accurate monitoring of employees’ immigration status, track and record their work attendance, and keeping copies of relevant documents for each employee.
As reiterated in the guidance, sponsorship is a privilege, not a right. That is why the process is not as straightforward as it could be – the applicant company has to earn the privilege of being a sponsor, and the burden of proof lies on them to demonstrate that they have done so. If you are looking to hire overseas workers, do not hesitate to contact us to help you with your Tier 2 Sponsor Licence application.
If you have any questions regarding absences or the EU settlement scheme, please do not hesitate to contact us here or send us a question on WhatsApp.
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.
On 14 May 2020 (1), amendments to the Home Office Nationality Policy Naturalisation guidance was indeed re-published. The Nationality Policy Naturalisation guidance is issued to Home Office caseworkers processing naturalisation applications to help them determine if an applicant meets the legal criteria to be naturalised. The guidance is publicly available so that those applying for naturalisation (and those assisting them to apply), can understand how the various criteria will be assessed and what evidence is required with the application to demonstrate the conditions are met.
In spite of what has been implied in certain media reports, the updated guidance does not constitute a change in the legal position for EEA citizens. Rather, it amended the sections relating to “Breaches of immigration law in the qualifying period”(2) and “People who are lawfully resident in the UK”(3) to include references to EEA citizens and their family members(4) who are relying on their grant of settled status (Indefinite Leave to Remain) under the EU settlement scheme (EUSS), to demonstrate that they are settled in the UK(5).
Nationality law requires a person naturalising to have a five-year or three-year lawful qualifying period, working back from the date they apply for naturalisation. The three-year lawful qualifying period is for those who are married to or are in a civil partnership with a British citizen. The five-year lawful qualifying period is for all other applicants. Before the EUSS existed, this lawful qualifying period criteria would normally be satisfied by an EEA citizen by acquiring EU/EEA permanent residency in the UK(6). The EEA citizen could then apply for naturalisation either 12 months after the acquisition of permanent residence or, immediately on obtaining permanent residence if they are married to or in a civil partnership with a British citizen.
The EUSS has changed the situation described above for some EEA citizens who wish to naturalise. This is because rather than applying for EU/EEA permanent residence documents, most EEA citizens with a 5-year residence in the UK now apply directly into the EUSS for settled status(7). However, because the EUSS application does not assess whether the applying EEA citizen was exercising their treaty rights in the UK, being granted settled status is not confirmation that the citizen was resident in the UK lawfully during the qualifying five years relied on.
The grant of settled status only confirms that the EEA citizen has been physically resident in the UK for five years at the point they applied to the EUSS. That is not to say that a citizen granted settled status has not been in the UK lawfully during their five-year qualifying period, only that the EUSS is not designed to assess this particular legal point. In other words, being granted settled status is not reliant on lawful UK residence. As a consequence, when an EEA citizen applies for naturalisation relying on their settled status to demonstrate that they are settled in the UK, the Home Office caseworker cannot tell whether they were lawfully residence in the UK for the period before they were granted EUSS status. Therefore, part of the naturalisation process has to include an assessment as to whether the EEA citizen was lawfully resident (rather than just resident), in the UK for the three or five-year qualifying period that applies to them.
When assessing lawful residence, any period after the citizen was granted settled status (or granted pre-settled status which was then converted into settled status), will be considered lawful because it is leave to remain granted under the 1971 Immigration Act. However, because the EUSS has only been in existence since August 2018 (and open to the whole EEA population since March 2019), any EEA citizen applying for naturalisation at the present time will have to rely on a period of lawful residence that pre-dates their grant of EUSS status. Therefore, what the Home Office caseworker must do according to the new guidance, is assess the period of lawful qualifying residence that pre-dates the grant of EUSS status, through the prism of the exercise of treaty rights. This will be the only way to tell whether the EEA citizen was in the UK lawfully for that period.
Carrying out the assessment in this way means that some EEA citizens who hold settled status will not be able to naturalise as British citizens if their pre-EUSS status was not in accordance with the Free Movement Directive/exercising treaty rights (for example an economically self-sufficient person who did not hold comprehensive sickness insurance). A citizen in this situation will need to wait for either five years or three years from the date that they were first granted EUSS status, in order to meet the lawful qualifying period to naturalise. This is what, as we previously reported, complicates the naturalisation process for EEA nationals.
The guidance does contain a discretion for the caseworker to overlook certain breaches of lawful residence which, which includes a situation where an EEA citizen did not hold comprehensive sickness insurance for example. The wording of the discretion says that the requirement to be lawfully resident will be disapplied where:
"the breach was because the applicant did not meet an additional/implicit condition of stay, rather than illegal entry or overstaying, such as an EEA or Swiss national not having CSI and can provide sufficient evidence to justify discretion being exercised in their favour”(8)
There is no information in the wording of the discretion as to what evidence, or situation will constitute one that justifies discretion being exercised in the applicant’s favour. Therefore, an EEA citizen wishing to naturalise but who may fall foul of the requirement to hold comprehensive sickness insurance, will not know whether or not their application would be successful based on the information provided as to how the discretion should operate. They risk the £1350 naturalisation application fee without any guarantee of a successful outcome(9).
From a practitioner’s perspective, it would be advisable that any applicant in a situation where there is a risk of being refused for not holding comprehensive sickness insurance not to apply for naturalisation (unless they were prepared for the outcome to be unsuccessful). The reason for this stance is that irrespective of the existence of the discretion to overlook the lack of comprehensive sickness insurance, the discretion is so ill-defined as to be meaningless to base legal advice on.
As set out above, there has not been any change to the legal requirements to become a naturalised British citizen, as all applicants for naturalisation irrespective of their nationality must have a five or three-year lawful qualifying period to rely on. However, some of the reporting around this new guidance, including our own, indicates or implies that the Home Office has made it more difficult for EEA citizens wishing to apply for naturalisation. Carrying out these checks in relation to lawful residence by making citizens demonstrate they were exercising treaty rights undoubtably creates an increased evidential burden on EEA citizens apply for naturalisation, particularly for those who have not applied for an EU/EEA permanent residence document in the past. However, the Home Office was always able to request this evidence even before the explicit guidance was published, as the guidance does not create a new legal requirement to be lawfully resident. Instead, it clarifies the way in which case workers should assess lawful residence for EEA citizens applying with settled status. Given that the EUSS opened initially in August 2018 and then to all EEA citizens in March 2019, it is evident that this guidance document could and should have been provided at a much earlier stage. This way EEA citizens would have had clarity on exactly what they are required to evidence when applying to naturalise. The delay in clarifying this need for EEA citizens to evidence that they were lawfully resident in the UK for the period before their EUSS status grant will increase the perception that there has been a change in the law or approach of the Home Office, and that it was only implemented to make life more difficult for EEA citizens wishing to become British after obtaining settled status.
(1) See Home Office document Nationality policy: Naturalisation as a British citizen by discretion Version 5.0
(2) Note that this is different the condition in the Good Character Requirement that requires in the 10 years pre-dating the naturalisation application, the applicant has complied with immigration requirements. The guidance states “Breach of the immigration laws’ for the purpose of the residence requirements refers only to unlawful residence. It does not include contravening immigration law in any other way, but this is considered as part of the good character requirement.” [page 25]
(3) See pages 25 - 31
(4) References to EEA citizen should be read to cover their non-EEA family members
(5) Being a settled resident is a condition which citizens of all nationalities must meet to naturalise and means there must be no time limit on the amount of time they can reside in the UK.
(6) Generally permanent residence is acquired after a five continuous period in the UK where the EEA citizen has been exercising “treaty rights” under the Free Movement Directive or the EU treaties.
(7) Those who qualify for pre-settled status (Limited Leave to Remain) cannot apply for naturalisation as they are not considered settled in the UK, one of the conditions to naturalise.
(8) See Guidance document page 28
(9) £80 would be refunded out of the total fee in the event of an unsuccessful application
In Adrian Berry’s excellent blogpost, the author and barrister helpfully summarises the ways in which people automatically become British citizens. The complexity of this area of law means that some people may believe they are British when they actually aren’t, and others may already be British citizens without knowing it, especially since one can be a British citizen without having a British passport - a passport doesn’t give you nationality, it is only evidence of nationality.
The law in this area is particularly pertinent for those who may need to apply for the EU Settlement Scheme, but do not realise they need to do so because they mistakenly believe they are British citizens. These individuals must still apply to the EUSS before the deadline, which is the 31 December 2020. So how can you find out if you’re British, or if you need to apply?
You are automatically a British citizen if you were born in the UK or in British overseas territories to a British citizen parent or a parent with indefinite leave to remain. This means that even if you were born in the UK to parents who are EU nationals, you are not automatically a British citizen unless one of your parents had indefinite leave to remain at the time of your birth. Indefinite leave to remain means being ordinarily resident in the UK (i.e. not a visitor) and having no time restrictions on the permission to be in the UK. EU citizens can automatically acquire such a permanent residence status after five years of residence if they are working, self-employed or self-sufficient/student with comprehensive health insurance.
The parent could be either your mother or father. Prior to 2006, parents had to be married before fathers could pass on their British citizenship, so if you were born before 2006 to a British father you may have to register for citizenship. The parent passing on their citizenship could also be your adoptive parent if you were adopted in the UK or a Hague Convention country.
Those born in a foreign country can be British citizens by descent if they have a British citizen parent. However, this is only the case for one generation: British citizens by descent (those born outside the UK) cannot pass citizenship on automatically to children born outside the UK and British overseas territories. So, if you and your British parent were born outside the UK, you may not be a British citizen unless you have been registered.
Other people automatically became British citizens on 1 January 1983 if they were previously Citizens of the United Kingdom and Colonies with a right of abode in the UK, because this is when the British Nationality Act 1981 came into force. Similarly, some people in British overseas territories were automatically made British Citizens through the British Overseas Territories Act 2002.
British nationality comes in different forms so people without British Citizenship could still have British nationality. For example, British Protected Persons are British nationals who have connections to former British colonial possessions. British Protected Persons can be found in now independent countries such as Kenya, Uganda, Zambia and Malawi. People who were born pre-1949 in India or Pakistan but who did not become an Indian or Pakistani citizen after independence will have retained their British Subject status. Alternatively, under the British Nationality Act 1981, people acquire nationality if they were born Stateless and would remain stateless unless given British nationality.
Even if you don’t automatically possess British nationality, you could still acquire it if you register or apply for naturalisation.
If you’re European and unsure whether you hold British nationality, it is worth checking soon. You need to check so, if necessary, you can apply for the EUSS scheme before the deadline on the 31 December 2020, and ensure you remain in the UK legally after Brexit.
Christopher Desira is Seraphus’ director and founding solicitor. He has over 15 years of experience in immigration law. Since 2018, his team has been special advisors on Brexit to the European Commission Representation in the UK. In that position, his team gives free non-political information sessions on EU citizens’ rights in the UK in the context of Brexit.
So, you give workshops to advise on the EU Settlement Scheme. What happens at those workshops exactly, what is your goal there?
It’s a two-pronged aim, really. On the one hand, we want to communicate the scheme and the need to apply by the deadline, and then secondly, we try to give everyone the tools they need to make the applications themselves.
We try to explain the EU Settlement Scheme as in simple terms so that EU citizens and their family members can make applications under the scheme themselves without the assistance of a lawyer. The seminars are very practical-based – we tell them how to apply, what questions come up, how to answer those questions, what the pitfalls are and what evidence they need to provide.
What happens if people don’t apply by the deadline?
If someone does not apply before the deadline, on New Year’s Day 2021, under the current rules, they will be unlawful residents in the UK. That has immense implications: if you’re unlawfully resident, that means all of the hostile environment policies which are in place in the UK will apply to you.
The hostile environment mechanisms are built to make life in the UK as difficult as possible, forcing you to leave the country. Your employer will have the right to terminate your employment, your landlord could terminate your tenancy agreement, you can no longer use your driver’s licence, etc. If someone does not apply before the deadline, that is exactly what will happen to them: they will be unlawfully resident, and all of those mechanisms will start hitting them.
Brandon Lewis, a Home Office Minister, got into a lot of trouble about a month ago when he he told a German newspaper that EU citizens who fail to apply to the settlement scheme will be deported. But in reality, what he was saying was true, and this is part of the challenges that we face. The Home Office communication campaigns are good. They are becoming warmer and friendlier, sending out messages to EU citizens saying that the UK wants – and needs – them to stay. What the Home Office communication campaigns fail to do, however, is stress the importance of applying before the deadline. They don’t stress that if one doesn’t apply before the deadline, they will be unlawfully resident in the UK, and the Home Office have the right to ask them to leave. Those messages might start appearing nearer to the deadline, but it might be a little too late for some.
Who do you think bears responsibility for people failing to apply because they don’t have the knowledge and why?
There is a lot of people out there that are doing a lot of good work to try and make sure that we reach everyone we need to reach but the ultimate responsibility is with the Home Office.
Although they are doing a lot of good work on communications, it is likely not going to be enough. I worry that the communications may be used against late applicants later. So that for example, if someone applies late and their reason is that they did not know about the scheme, the Home Office can say: “We did all of this work to let you know, so that is not a good enough reason to apply late.”
In any case, whatever the Home Office does and whatever all these other organisations such as charities or the European Commission do, there will always be groups that don’t apply, no matter how much communications work has been done. The UK government has an obligation to those people as well. They need to make sure that 100% of people who need to apply under the scheme effectively do so. The Home Office can change current rules to ensure no one fall unlawfully resident on New Years Day 2021, and they may well do so, but if that doesn't happen those who apply late will be doing so while unlawfully residing here.
Which type of audience usually shows up to the workshops?
It depends who is organising the workshops and who they are advertised to; it varies immensely. We have done workshops set up by the advice sector who want to help their local community, for example. Those would be advertised to the whole European community there, so anyone can turn up. Sometimes it is more specific, for example if it is a Polish charity, it is catered towards polish citizens. Or if it is a consulate or embassy which organises the workshop, then it is only citizens from that specific country who turn up. And then there are also community champions. A community champion is someone within a community that is not a legal entity or part of a charity, who wants to help their community on their own initiative because they know their community needs help.
Each community necessitates different types of sessions and poses different challenges. The Home Office communications campaigns work for a lot of people, but there is going to be just as many people that will require their own community to help, and if there is no one within their community who is going to point that out, then they are going to miss out on the knowledge they need to apply under the scheme.
What are some of those challenges? What do you think is the biggest barrier for people to apply?
There is a long list. It could be language, or education. It could be physical or mental health issues, dependency issues, street homelessness, living in precarious residence accommodation, or a combination of a number of those. More broadly, it could be people living in religious or close-knit communities, like the Roma community for example. People with criminal convictions, however minor or serious, would also be less eager to apply because they would be worried about the impact of those offences on the outcome of their application.
It really is a long list.
Yes, and to make matters worse, usually someone who has some kind of vulnerability has more than one vulnerable characteristic. For example, someone who has dependency issues may also be street homeless. Needless to say, the more issues an individual has, the harder it is to reach them and the harder it will be to ensure those people apply without any legal assistance.
Another category of people I’m worried about is those who simply don’t apply on principle. I have met many people who have said they don’t want to apply to the settlement scheme. They think: “Why should I, I have been here for 40 years, what are they going to do? I’m 72 years old, are they really going to put me on a plane? Are they really going to send me home?” Well, unfortunately, the answer to that is yes, that is exactly what they will do, or at least they can if they want to under the current rules. However old you are, however young you are, if you don’t have a status and you’re unlawfully resident on New Year’s Day 2021.
Is the Home Office making an effort to address these issues?
To be fair to them, they have listened to advice on the fact that technology is going to be a barrier and they have tried to find ways to resolve that. For example, there is a service called assisted digital service, where people can get practical assistance with filling in the forms. They are listening where they can and want to.
Many local authorities are taking the initiative themselves with so-called “one stop shops” where people can turn up and use a computer if they cannot access one, and where staff will help them engage with the technical barriers as well. But it’s just not going to be enough; there will still be many people who will not or cannot apply unless they have someone holding their hands for the whole process, someone applying for them.
What do you think is the one thing which should be done differently in relation to the Settlement Scheme?
Part 2 of the withdrawal agreement discusses EU citizens’ rights. It outlines two ways of sorting out people’s residency rights. On the one hand, it discusses how to implement an application scheme to grant rights and how simple such a scheme should be. If a country does not want to implement that type of scheme, then it discusses an alternative system of declaring rights. The reason why there are two different mechanisms in the withdrawal agreement is because this is not just an issue in the UK– it’s a problem in the EU more broadly, as each member state will need to decide what they are going to do with British citizens living abroad.
So, in summary, each EU member states has two options. The first is to implement an application process, which means that at some point in the future, anyone that does not apply and gets granted a status will be unlawfully resident, at which point in time their residency rights end. That is the model the UK has adopted.
Alternatively, countries can introduce a declaratory scheme. A declaratory scheme essentially establishes that the rights one has now will be carried through with them for their lifetime. Residents can then obtain physical evidence of their lawful lifetime residence right by asking for it. This is kind of how EU law works: as long as you are doing the right things, you acquire EU rights, and these rights continue with you as long as you continue to do the right things. Applying this to the UK, as long as one would have lived in the UK by a specific date, they would continue to be lawful residents in the UK. That means someone could never be unlawfully resident as long as they lived in the UK before a certain cut-off date. All they need to do is show up and say they lived in the UK since before 31 December 2020, confirm some information, and the government would give them a piece of paper, no questions ask.
The settlement scheme should be a declaratory scheme instead of what it is now. I think that is the only way we can protect everyone, including the most vulnerable to exclusion, through this process.
Summary: Children’s rights are not for the Home Office to block, and no child should be prevented from securing British citizenship to which they are entitled by law. On Tuesday November 26th, the first day of a court case challenging the lawfulness of the Home Office fee of £1,012 for a child to register as a British citizen, Amnesty International will be protesting outside the Royal Courts of Justice to visually demonstrate significant support for the children affected by this government profiteering. Show your support and join them.
The Secretary of State, on his British citizenship application form guide, outlines the importance of British citizenship to an individual:
“Citizenship is a ‘significant life event’. Apart from allowing a child to apply for a British citizen passport, British citizenship gives them the opportunity to participate more fully in the life of their local community as they grow up.”
The British Nationality Act 1981 ensures that children who grow up in the United Kingdom (either UK-born or not), who feel just as British as their British-born friends, have rights to register as British citizens. Failure to register means one is excluded not only in the present, for example because they are not allowed to go on certain school trips, but will also continue to be marginalised in the future, when it comes to obtaining all the perks which come with British citizenship, including the right to remain, the right to vote in all elections, access to public funds, health services, and other social benefits.
Registration is fundamentally different from naturalisation, which is the process adult migrants need to go through in order to acquire citizenship. The essential difference is the role of the Home Office when processing the applications. In naturalisation cases, that role is to decide, at the Home Office’s discretion and balancing all relevant factors, whether the applicant should be made a British citizen. Contrastingly, in registration cases, it is simply to recognise a pre-existing right to citizenship laid out in statute.
Academic researchers have estimated there to be around 120,000 children in the UK without British citizenship, around 65,000 of whom were born in the UK. However, many of these children do not register for citizenship, not because they are not eligible, but simply because they cannot afford to. Since 2007, the Home Office have started charging applicants more than the administrative cost of processing the application, aggravating the situation. The Home Office states that the fee, currently priced at £1,012 is made up of two parts: £372 for the administrative cost of processing registration, and £640 as a profit element to finance the immigration system. In other words, the Home Office is profiting off children who are merely claiming what is rightfully theirs, and they are making twice as much profit as the actual cost price.
In practice, the Home Office fee hinders children in exercising their rights under the 1981 Act. This sort of exclusionary policy not only jeopardises a child’s start in life; it also undermines their future. Ultimately, if a child is unable to pay the £1012 fee today, that may well be the reason why that same child cannot afford to go to university eight years from now, because they cannot get a student loan. In addition, their children won't be recognised as British either, even if they are the second or third generation in their family born and brought up in the UK.
This outrageously discriminatory Home Office policy needs to stop. Children’s rights are not for the Home Office to block because of finances, and no child should be prevented from securing their British citizenship. In order to allow children to exercise the rights which were conferred upon them by Parliament, the Home Office fee should be reduced; the profit element of the fee should be removed altogether. In addition, for people from disadvantaged backgrounds, public funds should be made available to cover the fee in full. Children should not have to raise funds to pay for their registration rights, particularly where these rights are by entitlement. That is why the Project for the Registration of Children as British Citizens (PRCBC), a London-based charity which fights for British citizenship rights of children born in the UK to migrant parent(s), is challenging the lawfulness of the Home Office fee in court.
PRCBC’s case is centred on challenging the Home Office’s flawed, quid pro quo argument on which they rely to justify the elevated fee. The basic premise of their approach is that those who are profiting from the immigration system, should also be paying for it. However, since these children are merely asking for recognisance of their entitlement, their applications for registration fall outside of immigration law and policy. Registering as a British citizen is not a benefit the Home Office grants these children. Rather, it is a recognition of a right these children already have by law. Therefore, they are not profiting from the system, and it is only natural that they should not be made to pay for it.
British citizenship, especially for children and young adults, is about much more than just getting the right documents. It is about identity, integration, a sense of belonging, and about confirmation that the UK is their home. It is about having the same rights, feeling part of their peer group and much more. That is why on Tuesday 26 November, the second day of the PRCBC proceedings, Amnesty will be protesting outside the Royal Courts of Justice to visually demonstrate significant support for PRCBC and for the children affected by this government profiteering.
Show your support and join them.