News

13.01.2020 - Effects on Ms Meghan Markle’s route to British Citizenship if moved abroad

The Duke and Duchess of Sussex have recently revealed that they intend to step down as senior royals and intend to ‘balance their time between North America and the UK’. How would such a change affects the Duchess’ eligibility to obtaining indefinite leave to remain?

One of the requirements of applying for indefinite leave to remain obligates ‘the applicant and their partner to have intend to live together permanently in the UK’ ‘… or there is a good reason, consistent with a continuing intention to live together permanently in the UK, for any period in which they have not done so’.  This mean...

13.12.2019 - The Conservative plan for immigration after Brexit

The Conservative Party has confidently won the December general election and a mandate for their policy of an “Australian-style points based system” for immigration. Here are the following key changes the Conservative government plans to make after Brexit: 1. A points-based system The single new system will allocate points on a range of criteria. It will categorise newly arrived immigrants into three separate categories: • ‘Exceptional talent / contribution – highly educated migrants who have received world-leading awards or otherwise demonstrated exceptional talent, sponsored entrepreneurs setting up a new business or investors. These will not require a job offer and will receive fast-track entry. • ‘Skilled workers’ – workers who meet the criteria of the points-based system and have a confirmed job offer. Special types – such as our NHS Visa – will also receive fast-track entry and reduced fees. • ‘Sector-specific rules-based’ – made up of specific temporary schemes such as for low-skilled labour, youth mobility or short term visits (e.g., touring). These will be revised on an ongoing basis based on expert advice from the MAC. These visas will be time-limited and will not provide a path to settlement. Once the free movement is ended and electronic travel authorisation (ETAs) is introduced, all prospective migrants will be screened on the basis of previous criminality, and those with serious convictions will be barred from coming to the UK. 2. A new role of the Migration Advisory Committee (‘the MAC’) The MAC will be required to publish an annual report via a public letter to the Home Secretary, advising the Government on how to deliver on its objectives – i.e. to get net migration down while addressing emerging gaps in the labour market – including sector specific advice. The MAC will continue to perform advisory functions and the Home Secretary will have full discretion over decisions related to the future immigration system. The MAC will also be required to monitor the needs of the labour market on an ongoing basis to ensure that the Home Secretary has the information needed to make decisions rapidly. Once the new digital immigration status is in place, this will enable the MAC to better understand the impact of immigration on specific communities. 3. A digital immigration status to combat illegal overstaying beyond 2022 Beyond 2022, all migrants will have a full digital status, making it easier for legal migrants to prove their status, as well as allowing for improved enforcement. All visas will be time-limited, with usual indefinite leave to remain rules applying for those who are identified as ‘exceptional’ or ‘high-skilled’. In-country switching between visas will be allowed, but overstaying a visa will count against an individual in their new application. All migrants will pay the health surcharge for every year of their visa, unless and until they have gained settled status – usually not before they have been here for five years. There is a provision for equal treatment of EEA and non-EEA migrants’ regarding access to benefits, making sure people pay in before they can take out. In order to achieve the government will: • Immediately begin work to set up a formal exchange programme with the Australian and Canadian governments to allow experts to come to the UK and share best practice with officials during the development of the system. • Appoint an expert implementation group to ensure roll-out of the new immigration system from January 2021.

12.12.2019 - The public’s attitude toward immigration is changing

One fifth of British people have become more positive about immigration over the last few years, mainly because of a more “positive publicity” about immigration. Over 20% of people surveyed by the research firm Ipsos MORI have recently become more positive about the impact of immigration, of which half had changed their views after becoming more aware of how much migrants contribute to the country. Ipsos MORI has been surveying British adults on their attitudes to immigrants since 2015. The headline finding is that 47% of people now think that immigration has had a positive impact, compared to 29% who think it is negative. That is a significant improvement since the EU referendum. That question looks back at the impact of immigration to date; when asked to look forward to whether immigration should be reduced, a majority (54%) are still against this, but that has fallen from 67% in early 2015. Returning to the question of whether migration has had a positive or negative impact up to now, 21% of people had changed their mind over the past few years, becoming either more positive or less negative. Of those, 51% said that they had shifted views because “the discussions over the past few years have highlighted how much immigrants contribute to the UK”. That means that around 276 people out of the 2520 surveyed, or 11%, had both changed their mind and given positive coverage of immigration as a reason for doing so.

04.12.2019 - Consequences of missing the EU Settlement Scheme deadline

If you are planning to apply for the EU Settlement Scheme there is an application deadline, meaning that if you miss the deadline to apply for a post-Brexit status you will be unlawfully resident in the UK. It is not clear what will happen to people who have not made an application by the deadline. It is possible that the government may remove them from the UK. According to the Home Office people who miss the deadline for “a good reason” will still be able to apply. So far, no details have been given as to what makes a good reason. In the Home Office guidance covering late applications from non-EU nationals one can find a restrictive good reasons policy. Examples include hospital admission for emergency treatment or a close family bereavement. This restrictive policy applies to migrants who already know the conditions of their immigration status, including the date on which it expires. The situation with the EU citizens who have come to live in the UK, some of them many years ago, under free movement law and whose right to live in the UK was never conditional on a status being granted by the Home Office is very different. Under these strict rules, Settlement Scheme applicants will have to account for and possibly provide evidence for their delayed applications, even though they may never have been aware of the need to apply for settled status. Potentially, such people, may be denied their access to the NHS, benefits, employment and accommodation as well detained and even sent out of the country. It may also hinder their application, as unlawful residence is considered a criminal offence in the UK. Any Home Office policy on late applications should be in the spirit of its June 2018 statement of intent, according to which securing EU citizens’ rights is and always has been a top priority. Penalising those who fail to apply within the deadline can hardly been seen as a way to secure these top priority rights. An alternative approach is to make the EU Settlement Scheme a declaratory scheme rather than by way of application. Organisations such as JCWI and the3million are campaigning for a declaratory scheme as a way to automatically guarantee the right to remain, so people need only register and not apply to prove their residence status. Under such a scheme, if the EU residents miss the registration deadline they will be considered as undocumented and not unlawful. This would be the only sure way to avoid another Windrush scandal.

04.12.2019 - Home Office’s fee waiver policy is challenged in the Upper Tribunal

The Upper Tribunal is to consider a legal challenge to the government’s policy on immigration fee exemptions. The Home Office’s policy has been strongly criticised as it wrongly focuses on whether migrants would be made “destitute” by the fee, when the correct test should be whether they can afford to pay or not. According to the Home Office guidance the applicants for a fee waiver need to show that one of the following three circumstances apply: 1. They are destitute 2. They would be made destitute by the payment of the fee 3. There are exceptional circumstances If none of the above can be demonstrated, the waiver application will be refused. And without payment, the main application for leave to remain will be rejected as invalid. That is what happened to the family of five involved in this case, whose leave to remain fees amount to over £7,000. They provided evidence that they cannot afford this but were not able to establish destitution because they have somewhere to live. The family’s solicitors, Duncan Lewis, argue on the family’s behalf that this focus on outright destitution is unlawful. The correct test should be a simple affordability: do they have the money or not? The Home Office says that the policy is compatible with the leading cases of Omar [2012] EWHC 3448 (Admin) and Carter [2014] EWHC 2603 (Admin). Saul Stone of Duncan Lewis says that “if we are successful in this case, or are able to secure changes to the policy through settlement, it is likely to be beneficial for a large cohort of people”.

02.12.2019 - The new Home Office policy on statelessness

Background on statelessness Back in 2013 the Home Office introduced a statelessness determination procedure introducing Part 14 to the Immigration Rules. Eligible stateless people can regularise their immigration status and access some of the benefits guaranteed under the 1954 Convention on the Status of Stateless Persons. Under Part 14, applicants can be recognised as stateless and granted leave to remain in the UK. If granted leave to remain under Part 14, stateless people can reunite with their families on a similar basis with refugees and have access to nearly the same benefits as refugees. In April 2019 Part 14 was amended, bringing in the following main changes: • The duration of leave granted to persons under Part 14 was extended from two and a half to five years. • Paragraph 407 was amended to require that those granted indefinite leave to remain under Part 14 have had five years leave to remain as a stateless person, rather than a combination of different types of leave as had previously been possible. The most substantial changes • A new section introducing changes in how the Home Office should deal with applicants who have outstanding asylum claims and permitting, for the first time, asylum and statelessness applications to proceed in parallel in some circumstances. • The section on “General grounds for refusal” adds a helpful requirement that even where the general grounds apply, the caseworker “must still consider whether an applicant meets the definition of a stateless person”. If the applicant is stateless and inadmissible to any country (with a right of permanent residence), the Home Office may need to grant leave outside the Rules. The new section on “Further leave applications” also confirms that where the applicant is stateless and not admissible to any other country, but the general grounds apply, the caseworker “should look to grant leave outside the Rules”. • Changes to the administrative review procedure. These confirm that where caseworking errors are found on administrative review and the case is returned to the statelessness determination team, the case should go to a different caseworker. The new caseworker should reconsider it within three months and their decision should be subject to a “second pair of eyes” check by a Senior Caseworker or Higher Executive Officer. Although not stated in the policy instruction, the applicant should also be provided with reasons why their application for administrative review did or did not succeed. The instructions clarify that, on refusal, applicants must be advised that they are entitled to administrative review. There is also clarification that there is no fee for the administrative review of decisions relating to Part 14 because there is no fee for the underlying application.

28.11.2019 - Invalid applications result in gaps in continuous lawful residence

Mistakes made on application forms, including innocent mistakes may render an application invalid and accordingly result in a gap in an individual’s “continuous lawful residence” in the UK. This is important because in most cases of Indefinite Leave to Remain applications, there is a necessary period of “continuous lawful residence” in the UK as part of the requirements to meet in order to make a successful application. The applicant in Das (paragraph 276B – s3C – application validity) Bangladesh [2019] UKUT 354 (IAC) was unfortunate in this regard. Background facts of the case Mr Das made an application on 11 September 2008 to extend his student visa in the UK. Instead of using the August 2008 version, he mistakenly used to April 2008 version of the application form. When this fact was become known, he submitted his application on the correct form and subsequently was granted his student visa extension. When Mr Das applied for Indefinite Leave to Remain on the basis of 10 years’ continuous lawful residence 10 years, the Home office refused his application because of the wrong form mistake he made in 2008. At that time, he had submitted the new form after the expiry of his visa, which made him an ‘over-stayer’ until his application was granted several months later in March 2009. The Upper Tribunal’s reasoning The court propounded that submitting the wrong form automatically invalidates an application. The situation was deemed to be “materially indistinguishable” from failure to pay the required application fee, which also invalidates an application automatically. Accordingly, there was a gap in Mr Das’ “continuous lawful residence” in the UK and the appeal was dismissed.

28.11.2019 - The Innovator Visa Update

The Innovator visa, launched in March 2019 has attracted a total of 14 applications in its first six months of operation. That compares to 997 applications for its predecessor visa, Tier 1 (Entrepreneur), over the same period last year. Some applications for the now closed Entrepreneur route are still making their way through the system, but hardly any Innovator visas are replacing them. 12 out of those 14 applications have now been approved. The problem is that the visa is extremely unappealing to the type of experienced entrepreneurs it is pitched at.

20.11.2019 - A 54-day Stopover Recognised as “in transit” for Refugee Convention

In Idahosa v R [2019] EWCA Crim 1953, the Court of Appeal has ruled that an asylum seeker who had stopped over in the United Kingdom for 54 days en route to Canada can rely on the exception to false documents offences available to refugees. The court took a purposive and generous approach to interpreting the Refugee Convention to conclude that even a stopover of 54 days met the requirement of remaining “in transit” to another country to claim asylum. What is the ‘false documents offence exception’? The Refugee Convention necessitates that contracting states do not prosecute refugees for immigration offences, which are linked with seeking international protection, including using false documents to enter a country to claim refuge. UK law has accordingly applied the exception to domestic cases, such as in the decision in R (Adimi) v Uxbridge Magistrates Court [1999] EWHC Admin 765 where it was held that the protection awarded by the Refugee Convention must also apply to refugees who are “in transit” from their country of origin to the country in which they intend to claim asylum. Background facts to the case of Idahosa Mr Idahosa entered the UK lawfully from Nigeria and intended to travel onwards to Canada to claim asylum. His stay in the UK was expected to be brief however prolonged when his agent was unable to arrange his travel to Canada. After 54 days, he was arrested at Gatwick Airport attempting to board a flight to Canada using a false British passport, which he was using as it allows visa-free travel to Canada. The false documents offence exception was applied in his case as the court concluded that Mr Idahosa remained intent on leaving the UK for Canada to be reunited with his partner. He was not able to do so merely because he was prosecuted at Gatwick Airport. The Court of Appeal accordingly had quashed his conviction. This judgement demonstrates that the Court of Appeal grapples complicated issue of public international law to obtain a result which does not neglect fundamental rights.

19.11.2019 - The law that precludes a child from obtaining British citizenship from her biological British father in cases where her mother is married to someone else

There now may be a re-evaluation in the law in this area as a result of a government’s decision to drop its appeal against a landmark ruling made in the case of K [2018] EWHC 1834 (Admin). Brief background to the case Born in the UK, K’s biological parents were of British and Pakistan nationalities. She was then issued with a British passport shortly after she was born. However, the Passport Office later found that the child’s mother was still married to a Pakistani citizen and consequently have drawn back the child’s British Passport. In reality, the child’s mother had left her abusive husband several years before the child was born. The law in this area According to Section 50(9A) of the British Nationality Act 1981, a child’s father is defined as the husband of the woman who gives birth to the child at the time of the child’s birth, regardless of any biological relations. However, if the woman is unmarried, the biological father can be recognised as the child’s father for citizenship purposes. These definitions are crucial when it comes to determination of a child’s nationality at birth. According to Section 1(1) of the British Nationality Act 1981, children born in the UK are only British citizens at birth if at time of birth, one of their parents is British or has ‘settled status’ in the UK. Issues in K’s case Due to the facts that K’s mother was still legally married to her Pakistani husband at the time of birth of K and that K’s mother did not yet have settled status in the UK- K was not technically British at birth. Judge’s comments The judge in K considered that the effect of Section 50(9A) of the Act was discriminatory and incompatible with human rights law. Despite this, pursuant to the wording of the Act, the Passport Office’s action had not been unlawful. The judge had then made a “declaration of incompatibility”, which intends to convey a cue to the government to revise the law in this area. Furthermore, the judge thinks that the discretionary route for citizenship application under Section 3(1) of the 1981 Act is problematic for cases like K. Section 3(1) permits the Home Office to register children as British citizens if it “thinks fit” and provided they are of good character. A supplementing guidance states that caseworkers are to register such children “where there is compelling evidence that someone other than the mother’s husband is the child’s natural father”. The judge is of the opinion that this route was an unsatisfactory solution, as the determination upon a grant of citizenship in such circumstances should not be discretionary; it should be a legal right. Regardless of this, the Home Office at first decided to appeal the decision and propounded that to change the Section 50(9A) of the Act would have consequences in other areas such as in surrogacy cases. They were granted permission to appeal but has now withdrawn its appeal. It is unclear what moves the department plan to take next but hopefully this could be sign for change.