small businessAs of 18th July, sponsors must report to UKVI if the size of their business changes from small to medium/large or vice versa. This does not apply to charities.

Why do I have to report this?

The Immigration Skills Charge was introduced in April 2017.Sponsors pay a set amount for each year that they sponsor a Tier 2 (General) or Tier 2 (ICT- long term) migrant.

Small companies pay a reduced rate, currently £356 per year of sponsorship. Medium and large companies pay a higher rate of £1000 per year.

UKVI record the size of the business when they first grant a licence, because small businesses also pay a lower application fee. However, some sponsors will move from being ‘small’ businesses to being ‘medium’ or ‘large’ businesses during the life of their licence (or vice versa). UKVI therefore need to know this in order to charge the correct rate of Immigration Skills Charge.

How do I know if I am a ‘small’ business?

A small company must meet at least two of the following conditions:

  • annual turnover must be not more than £10.2 million
  • the balance sheet total must be not more than £5.1 million
  • the average number of employees must be not more than 50

The definition of a ‘small company’ for this purposes is the same as the definition of a ‘small company’ for the filing of small company accounts. Therefore, as a rule of thumb, when your business starts having to file accounts according to the rules for medium or large companies, then you must make the report. UKVI does not draw any distinction between a medium and large business, so this change does not have to be reported.

When must the report be made?

The report must be mad within 10 days of it taking place. Therefore, the Authorising Officer should be mindful of this duty when the annual accounts are being collated, so that the report can be made in a timely manner.

Therefore, you should also consider whether you are still a small business when you assign a certificate of sponsorship and pay the Immigration Skills Charge.

However, if you do realise that you forgot to report in time m you should make the report as soon as you realise that it is due. You may then have to pay the extra Immigration Skills Charge for certificates assigned after the change.

How do I make the report?

The report must be made through the Sponsorship Management System by a level one user. If you require help with this, please contact your usual Paragon Law contact or Lydia Watkinson at Lydiaw@paragonlaw.co.uk

The UK Government has released a toolkit aimed at assisting employers who are employing EU Nationals, or who employ family members of EU nationals. This toolkit will be very useful for any employers who currently rely upon employing EU nationals or their family members, or who may wish to do so in the future.

One of the negotiation items which has been agreed between the UK and the EU is that all EU nationals and their family members who currently reside in the UK, or who arrive in the UK before the end of December 2020, will need to apply for ‘settled status’.

There will be a need to make an application for all EU nationals, regardless of whether they have already been issued with documents by the government proving their right to stay.

If any EU nationals do not make an application before June 2021, other than Irish nationals, who are a special category and will not need to apply, then they will no longer have a right to remain in the UK and they will no longer have a right to work.

This places the employee at risk of breaching criminal laws by working without permission, and places employers at risk of civil fines for employing people where they do not have a right to work.

There are approximately 3 million people in the UK who must make an application to avoid becoming unlawfully present. Whilst the Home Office will have discretion to allow applicants in special circumstances to apply after the cut-off date, there is a high risk that any out of time application will be automatically rejected.

The government have released a toolkit for Employers as part of their information campaign to spread awareness of the need for employees to make an application and to avoid finding themselves unlawfully in the UK.

The toolkit that has been released consists of:

  • Key things that Employers need to know
  • Key Information that can be used for ‘presentations’ or ‘face-to-face events’ or ‘webinars’ with EU Citizen Employees
  • Information Videos
  • Leaflets which can be provided to EU Citizen employees
  • Posters which can be placed in communal areas spreading information

The information has been provided in a way that allows employers to pass on the relevant information without needing to interpret it. The information has been summarised to highlight the key points without going into the nitty gritty. A more detailed statement of intent provides much more information over what the settled status scheme will involve.

There is no legal obligation for employers to provide information to their employees, and, although employers may contribute towards the costs of employees making applications, there is no requirement for them to do so. It is however important that employers do not provide immigration advice to employees as this is not permitted without the necessary accreditation.

To access the governments toolkit click here.

Paragon Law have delivered seminars, workshops and one-to-one advice for EU employees and their family members to provide assistance in light of Brexit. If you are concerned about the potential negative impacts on your workforce, and you employ EU nationals or their family members, please get in touch with your usual Paragon Law contact or contact us at enquiries@paragonlaw.co.uk

to see what support we may be able to provide you.

NHS nursesNHS Overseas Visitor Charges

 

Concerns over so called health tourism in in the UK has led the government to introduce changes to treatment provided to overseas visitors. The government’s aim is to recoup as much as £500 million a year by 2017-2018 from overseas visitors’ and migrants’ use of the UK National Health Service (NHS).  Consequently, in April 2015, the first of these changes were made to the way the UK National Health Service (NHS) charges overseas visitors for NHS hospital care. These regulations were amended most recently on 23rd October 2017 by the NHS (Charges to Overseas Visitors) (Amendment) Regulations. This Article provides an overview of the circumstances in which a person may be subject to NHS charges.

 

Who is an overseas visitor?

Within the UK free NHS treatment is provided on the basis of an individual being ‘ordinarily resident’ in the UK. It is not dependent on one’s nationality, payment of UK taxes, national insurance contributions, having an NHS number or owning property in the UK.

A person is said to be ordinarily resident in the UK when their ‘residence is lawful, adopted voluntarily, and for settled purposes as part of the regular order of their life for the time being whether of short or long duration’.

In practice, one is ‘ordinarily resident’ in the UK if they are living and working in the UK and are:

  • A British citizen
  • Naturalised within the UK
  • Settled within the UK i.e. holding Indefinite Leave to Remain.

The Charging Regulations place a legal obligation on any provider of relevant service including non-NHS organisations such as private and voluntary providers supplying NHS services to establish whether a person is an overseas visitor to whom charges apply or whether they are exempt from charges.

How will this change affect NHS users?

From 23rd October 2017, overseas visitors requiring treatment will be told upfront if their care/treatment is chargeable before treatment begins. Providers of relevant care are required to recover these charges in full in advance of providing them unless to do so would prevent or delay provision of urgent or emergency care. All treatment received at an NHS facility will be chargeable unless it is an exempt service such as:

  • Treatment at GP surgeries
  • Accident and emergency (A & E) services (whether provided at an A & E department or similar e.g. at an urgent care centre, minor injuries unit, walk-in centre etc.) This does not include A & E services provided after an overseas visitor has been admitted as an in-patient or at a follow-up outpatient appointment.
  • Family planning services – this excludes termination of an established pregnancy as this is not considered to be a method of contraception or family planning and also excludes infertility treatment.
  • Services provided as part of the NHS 111 telephone advice line
  • Treatment required for a physical or mental condition caused by torture, female genital mutilation, domestic violence or sexual violence -except where the overseas visitor has travelled to the UK for the purpose of seeking that treatment

 

Exempt Categories of person- who will not be charged for NHS hospital treatment?

There are also some special groups who will not have to pay for NHS treatment

  1. Those who have paid the Immigration Health Surcharge
  2. Those with an enforceable EU right to free health care
  1. Vulnerable patients (including refugees and asylum seekers) and those detained

Evidencing your entitlement to NHS treatment

NHS providers have a duty to check evidence of entitlement from those patients who assert that they qualify for NHS treatment under a specified exemption. It is imperative that NHS users have the correct documentary evidence to avoid being charged for NHS treatment received. The NHS provider may ask for both evidence of immigration status and address. For applicants whose immigration status documents have expired but they have submitted an in time application for further leave to remain, the NHS providers’ Overseas Visitor Managers (OVMs) are authorised to make enquiries about a patient’s immigration status. Such enquiries are sent via email to the Home Office’s Evidence and Enquiry Unit who will respond to such enquiries within 5 working days. OVMs are not required to obtain a patient’s consent before sharing non-clinical data with the Home Office for purposes of determining the patient’s immigration status. However, the patient must be notified that their data is being shared and how this data may or will be used

Travel and Health insurance

People living outside the EEA including former UK residents are advised to make sure that they are covered by personal health insurance unless an exemption applies to them. The lack of personal health insurance could be very costly as any chargeable treatment received will be charged at 150% of the NHS national tariff. Failure to pay this charge may have an effect on any future immigration applications for entry clearance or leave to remain that an individual makes.

Conclusion

It can be seen from the level of fees generated through the introduction of these provisions, that they are relevant to many coming to the UK. It is important that one does not owe a debt to the NHS as this could impact upon one’s ability to qualify for leave to enter or remain in number of categories such as a spouse. In our experience, people are not always aware that they owe a debt to the NHS as they may not have been advised of the charges at the point of service. Since 6 April 2016, the NHS has an obligation to inform the Home Office of certain debts where they are outstanding for more than two months. As such we would suggest that applicants may wish to make enquiries of the NHS to pre-empt a refusal of leave to enter or remain and to check that why do not have an outstanding debt with the NHS. Where an applicant is unsure whether their immigration status in the past allowed them to access free NHS treatment then we can advise on this prior to contact being made with the relevant NHS body.

 

If you have any queries about this article, please contact Emma Okenyi at emmao@paragonlaw.co.uk

HMT Empire Windrush

An article by Karen Rimmer, Paragon Law

On 22 June 1948 the ship MV Empire Windrush arrived at Tilbury Docks, Essex, bringing workers from Jamaica, Trinidad and Tobago and other islands, as a response to post-war labour shortages in the UK. The ship carried 492 passengers – many of them children.

This now infamous docking has given its name to a generation of people present in the UK who have come to represent the devastating impact that so many recent drastic changes of legislation and Immigration Rules have had on our society.

In 2012, official figures showed that net immigration was still running at about 250,000 a year, well above the “tens of thousands” that the Conservatives promised the Coalition would deliver. In response to this, Theresa May gave a speech in Parliament about her wish to ensure fairness by introducing a new Immigration Bill[1]. At the time, she told the Telegraph newspaper that it was her aim to “to create here in Britain a really hostile environment for illegal migration”. [2] There has been much media coverage of the speech Mrs May gave in parliament that day. She loudly declared:

Part 3 of the Bill is about migrants’ access to services. We want to ensure that only legal migrants have access to the labour market, health services, housing, bank accounts and driving licences. This is not just about making the UK a more hostile place for illegal migrants – it is also about fairness. Those who play by the rules and work hard do not want to see businesses gaining an unfair advantage through the exploitation of illegal labour. They don’t want to see our valuable public services – paid for by the taxpayer – used and abused by illegal migrants.”

The reality is, however, that even those migrants perfectly legally present have been impacted by the measures taken, and found themselves in dire straits. The Windrush generation are a prime example of this.

The Immigration Act 1971 allowed for those who came from Commonwealth countries to remain in the UK indefinitely and to be exempt from deportation in certain circumstances. However, recent changes in the law have meant that gradually more and more responsibility for immigration control has been delegated to every day service providers.

The hostile environment created by government changes have resulted in the need to present valid ID and proof of immigration status for tenancies, bank accounts, a driving licence, employment opportunities and access to benefits, access to NHS care and financial support. It is also important, as legal professionals have discovered, that the proof of status, is in the correct format. In the current climate, those immigrants who entered the UK prior to the introduction of the new-style biometric residence permit struggle to convince employers of their right to work.

Initial experiences of the Windrush generation came in September 2012, when many people were wrongly accused of having overstayed. A variety of methods were used to inform people of this accusation. Initially, letters were sent. The letters indicated that, without evidence of their right to stay, people would be expected to leave the UK immediately or it would be made difficult for them to remain in the UK. This was usually followed up by a barrage of texts, phone calls and even, in extreme circumstances, knocks on the door.

The government’s response to this was to ask people to make an application to prove their right to remain in the UK. This application, at the time, cost £220[3] (currently £229). Unsurprisingly, many people were not aware of this requirement, and those who were did not apply for various reasons, not least because of the fee. The result of not applying was that many people lost their benefits entitlement, were suspended from work, some even losing their jobs because of the risk of prosecution for employers or have been threatened with eviction. It is also impossible to travel to and from the UK without proof of your immigration status and a national passport (something also required for any paid immigration application at present)

As a firm, we have experienced cases where people have been made homeless, those on long-term sick have had to rely on the support of family and friends whilst their benefits were investigated.

The government officially states, in a statement on the Gov website[4], that they recognise that people will not have documents from 40 years ago. They go on to state that the types of documents that can help an application are exam certificates, employment records, your National Insurance number, birth and marriage certificates, bills and letters.

The reality is that they require a much more detailed demonstration of time spent in the UK. They must be satisfied from the evidence that the applicant has not left the UK for more than 2 years at any time during the period that they have lived in the UK. Some applicants are required to provide documentary evidence to cover every single year of over 60 years residence, which amounts to vast swathes of documents. Routinely, legal practitioners find that, despite a consenting signature to a background check of records, such checks are not carried out. If they were, then it would be seen that the generation of Windrush applicants had validly been present for the requisite time, without them having to be threatened with deportation. The onus is placed squarely on the individual to apply with the right documents, and a correctly completed application or it will be rejected as invalid.

Adding to the trauma of attempting to meet the documentary threshold is the fact that, in recent days, it has come to light that thousands of landing cards were destroyed[5], a phenomenon that we as a firm have come across resulting in difficulty for our clients. It is unclear what it was hoped that this action achieved.

Scaremongery and fear tactics have caused anxiety amongst a generation of people who originally only came to the UK to assist with the post-war effort. They legitimately assumed that they were legally present. Indeed, they were, but did not have the proof to show it.

It is important to receive advice and representation as soon as possible when the Secretary of State indicates that she believes that you may not be legally present in the UK. We can assist with document gathering and make representations to demonstrate eligibility to benefit from the concessions that allowed for indefinite stay in the UK for the Windrush generation. Obtaining sound legal advice early in the process can help to prevent the possibility of removal action being taken at all.


 

To find out more on this subject please contact the writer, Karen Rimmer, at karenr@paragonlaw.co.uk

 

 

 

 

[1] https://www.gov.uk/government/speeches/speech-by-home-secretary-on-second-reading-of-immigration-bill

[2] https://www.telegraph.co.uk/news/uknews/immigration/9291483/Theresa-May-interview-Were-going-to-give-illegal-migrants-a-really-hostile-reception.html

[3] http://webarchive.nationalarchives.gov.uk/20121206084216/http://www.ukba.homeoffice.gov.uk/aboutus/fees/

[4] https://www.gov.uk/government/publications/undocumented-commonwealth-citizens-resident-in-the-uk/undocumented-commonwealth-citizens-resident-in-the-uk

[5] https://www.theguardian.com/uk-news/2018/apr/17/home-office-destroyed-windrush-landing-cards-says-ex-staffer

Home Office Fees

Every year, the fees that are charged for immigration applications, are reviewed and changed. In the past few years, the increase in fees charged has been dramatic and, on occasion, left Applicants struggling to save the required fees to pay for applications before their leave expired.

 

For example, the cost of a family consisting of two parents and two children applying from within the UK for indefinite leave to remain in 2014 would have been £4,372. The same application made now would cost the same family £9,188.

Another example is an applicant applying for leave to remain as a spouse in 2014, would have paid a fee of £601. Nowadays, taking into account the Immigration Health Surcharge, the same application would cost £1,493.

Traditionally, the Home Office have raised fees on the 6th April each year (although they did catch everyone by surprise by raising the fees on the 18th March in 2016). This year will be no different from the normal however, and the Home Office have confirmed that fees will be raised from the 6th April 2018.

Further, the actual Home Office fee increases have now been announced and are available to view here. Although, as anticipated, the fees have gone upwards, the good news is that the rise is not as meteoric as it has been in previous years. In most application types, the Home Office fees have gone up by 4%.

Here are some examples of what the new fees will look like:

In Country Applications

Application Type Current Fee New Fee from 6th April 2018
Indefinite Leave to Remain £2,297 £2,389
Leave to Remain (example as a family member) £993 £1,033
Tier 2 General £677 £704
Naturalisation Fee £1,282 £1,330
European Residence Card £65 £65 (no change)

 

Entry Clearance Applications

Application Type Current Fee New Fee from 6th April 2018
Visit Visa (< 6 months) £89 £93
Settlement £1,464 £1,523
Adult Dependent Relative £3,250 £3,250

 

As can be seen, a rise of 4% is still pretty significant when you are dealing with large sums in the first place, and Applicants will be trying to get their applications submitted before the 6th April 2018 to avoid the higher fee.

Immigration Health Surcharge

As well as the normal Home Office fee increases, the Home Office have confirmed that the Immigration Health Surcharge, introduced in 2015, will be DOUBLING. This is a significant increase in the cost that Applicants applying for limited leave to remain will have to pay.

For Example, an Applicant who is currently applying for leave to remain as a spouse needs to pay:

Home Office fee – £993

Immigration Health Surcharge – £500

Total Cost – £1,493

However, after the Immigration Health Surcharge fee and Home Office fees go up, the same applicant will need to pay:

Home Office Fee – £1,033

Immigration Health Surcharge – £1,000

Total Cost – £2,033

Official Confirmation has not been provided as to when the Immigration Health Surcharge will go up, but it would be sensible to assume that it will go up from the 6th April 2018 (or even sooner!). Applicants should try and get applications submitted as soon as possible if they have the choice of applying before the fee rises.

When to Submit your Application

It is very important that Applicants who are preparing to make extension applications, submit their applications as soon as possible if they want to avoid the fee increase. This will only be possible if you qualify for an extension of leave before the 6th April 2018. If you have the choice of whether to apply now or later, you may decide you wish to apply now and avoid any additional fees that will otherwise need to be paid.

It is important that if Applicants are trying to avoid the fee rises, they remember the date the application is considered to be made depends on what type of application is being made and how it is submitted.

For non-citizenship postal applications, the date the application is made is the date that the application is posted (always retain proof of postage and used a tracked delivery service).

However, for citizenship postal applications, the date the application is made is the date that it is received by the Home Office.

Tip: Historically, where Applicants have applied to the Home Office using the same day premium service, the Home Office have only charged the fee which is paid by the Applicant when the appointment is booked, even if the appointment takes place after the fee rise. It may be that the Home Office will continue this practice this year and Applicants can avoid paying the higher fees if they book and pay for their same day service prior to the 6th April 2018 even for appointments taking place after that date.

 

 

Paragon Law Managing Director, Thalej, Vasishta, explores the Points Based System immigration law changes which are coming into play in 2018:

 

 

 

 

Tier 4 (General) Switch to Tier 2 (General)

Students who hold a Tier 4 (General) visa no longer have to wait for their final results to be released by their academic institution before switching to the Tier 2 (General) category. Instead, students can now make the application as soon as they have finished their course. This will not, however, apply to individuals on PHD courses.

Family members of points-based system migrants

Dependent partners of applicants in the UK under the points-based system (including Tier 1 and Tier 2) will now also be brought under the same requirements whereby they are not permitted to be out of the country for more than 180 days in any 12-month period during the qualifying period in order to qualify for indefinite leave to remain. This change will apply to partners who are granted new periods of leave after 11 January 2018. Therefore, even those partners who have already been granted leave before this date will be subject to the new rules following any grant or extension of leave post 11 January 2018. A further requirement is that dependent family members will have to prove that their relationship to the applicant is “genuine” as part of any applications after 11 January 2018.

Tier 1 (Exceptional Talent)

There are two main changes coming into effect in 2018:

  1. The number of visas available for this category will increase from 1,000 to 2,000 per year for the 12 months from 6 April 2018. The additional 1,000 visas will be held separately, in an unallocated pool, which will be distributed on a first come first serve basis; and
  2. “World leaders” in their field of expertise may be able to qualify for accelerated indefinite leave to remain after three years, rather than the usual five years. This will not apply to those holding an “exceptional promise” visa.

Tier 2 visa holders

Tier 2 visa holders who have more than 60 days’ gap between holding Tier 2 jobs will no longer be prevented from applying for indefinite leave to remain when they have accrued five years’ employment in the UK. This means that applicants will no longer have to be employed continuously throughout the five-year qualifying period to be eligible for settlement.

If you have any further queries please contact Thalej Vasishta on 0115 9644 123 or thalejv@paragonlaw.co.uk

 

Paragon Law, the Nottingham-based niche immigration specialist, has started the year with a string of promotions on the back of a strong 2017 performance.

2017 saw the firm, which works with both companies and individuals, once again ranked in The Chambers and Partners (Guide to the Legal Profession) and the Top Tier of the Legal 500 in the East Midlands for Immigration Law.

That success and reputation has been forged by attracting and developing high calibre talent from within, according to founder and managing director of Paragon Law, Thalej Vasishta.

‘As you might imagine, 2017, with all its political drama and continuing uncertainty was another very strong year for the business. We’ve been fielding a huge number of enquiries and dealing with cases from across the EU with regards immigration, both from individuals and especially from larger organisations who need advice on their workforce strategy, notably within academia, manufacturing and engineering.

‘The reason we have been able to work so proactively and indeed respond so swiftly for our clients is down to our excellent team and many of them have been justly recognised and rewarded for the efforts with these promotions’.

Two new directors have been appointed, Mark Lilley-Tams and Deirdre Sheahan.

Mark originally joined the firm as a legal clerk before completing a Masters in Human Rights funded by Paragon Law as part of the Paragon law Scholarship. Mark is part of Paragon’s private immigration team specialising in cases involving family members and cases which have a strong human rights dimension to them.

Deirdre, whose LPC was funded by Paragon Law and also has a Masters in Human Rights from Nottingham Trent University now heads up Paragon Law’s Asylum and Human Rights team.

Sally McEwen has been promoted to Senior Associate having relocated from London to work with Paragon Law on a recommendation and will work closely with Deirdre Sheahan.

Aldijana Hoad, who originally came to the UK aged 13 with assistance from the British Red Cross and whose family was originally represented by Thalej Vasishta with Aldijana translating for her parents was one of the first trainees at Paragon Law. Aldijana has been made Senior Associate and will work closely with Mark Lilley-Tams.

Nigel Smith originally qualified in New Zealand before moving to London and up to Nottingham. With over 15 years experience in global immigration Nigel has been promoted to Associate, working within the personal immigration team. Paragon Law is currently funding his “Qualified Lawyer Transfer Scheme”.

Also promoted to Associate is Lydia Watkinson, a former employment lawyer working alongside Thalej Vasishta and co -director Kirin Abbas in the Corporate Immigration team.

Thalej concludes;

‘It is fantastic to have such a diverse team working with us who can also offer their own unique perspective, experience and expertise but the one common denominator here is quality. These are all high calibre, talented individuals working right here in Nottingham. It is fantastic that we can attract them, retain them and develop them here in the city and the team and I look forward to them playing their part in another fruitful year.’

 

The UK and EU, after a series of tough negotiations, have now reached an agreement over the framework for EU Citizens’ Rights. A joint document, prepared by negotiators on both sides of the table, has now been prepared and gives clarity on what EU nationals living in the UK (and UK nationals living in the EU) can expect in terms of their future rights.

The challenge faced by UK negotiators has been creating a system that acknowledges that EU nationals within the UK have, to a large extent, been allowed to remain without any immigration enforcement action taken against them (apart from limited circumstances where, for example, a person has engaged in serious criminal conduct). The transition to a system, for millions of EU nationals, where it would be necessary to make applications to obtain status to remain in the UK, needs to be handled with great sensitivity. The ultimate fear is that a trickle of EU nationals leaving the UK would turn into a flood, with severe consequences (not least for businesses and sectors that are dependent on EU workers such as the NHS).

It appears that these concerns have informed the approach of the UK’s negotiating position, and to a large extent, the approach to citizens’ rights has softened since the original position paper was published by the UK government on 26 June 2017. Over the last 6 months of negotiations, but in particular in the final stages, there have been some important concessions with respect to citizen’s rights, and in general they are good news for EU nationals currently living in the UK.

Deciding which date the new rules will come into force

It has always been the case that EU nationals will continue to enjoy freedom of movement within the UK until the UK leaves the EU. The question has been what will happen to EU nationals and their family members after the UK leaves the EU and what rights will they have?

One of the issues that needed to be decided was what the ‘cut-off’ date would be for EU nationals who wanted to benefit from the provisions of any withdrawal agreement. There was uncertainty whether the ‘cut-off’ date would be the date the UK triggered Article 50 (29th March 2017) or the date the UK leaves the EU. Following negotiations, it has been decided that the specified date will be the date that the UK leaves the EU (i.e. barring any unexpected developments, the 29th March 2019). Any EU nationals who arrive before that date will benefit from the provisions of the withdrawal agreement. EU nationals arriving after the specified date will be subject to new rules which have yet to be decided.

The focus of negotiations therefore has been what rights EU nationals who arrive in the UK before the 29th March 2019 will have and what they will need to do in order to be able to remain in the UK.

Implementation Period

The UK Government have agreed that there will be an implementation period that will last at least 2 years. All EU nationals will be allowed to continue living in the UK for the two years following the UK’s departure from the EU, and EU nationals will also be able to travel to the UK within this period. This period has been set in part, to enable the large numbers of EU nationals currently living in the UK to regularise their status.

Making an Application

The UK government has decided that all EU nationals, regardless of what previous EU residence documents have been issued, will need to make an application if they want to remain in the UK in future.

The Withdrawal Agreement will set out the circumstances in which an EU national will be able to get a permanent right to reside in the UK. The general position that has been agreed is that EU nationals who have lived lawfully in the UK for 5 years will obtain the right to the new ‘settled’ status that is being created. If EU nationals do not get to the 5 year point before the end of the implementation period, they will be granted a shorter period of leave to remain so that they can get up to the 5 year point and will then be able to apply for settled status.

The UK government and the joint agreement goes to great pains to set out that the application process will be designed to be as straightforward as possible. The agreement includes that the application form will be ‘short’, that the Home Office will need to work with Applicants to remedy problems with their application, and that there should not be an excessive administrative burden in connection with the application. EU nationals who have had experience of completing the current forms for a residence card (100 pages) or permanent residence documents (85 pages) will be relieved! The cost of the application is going to be no more than the cost of applying for a UK passport.

The intention is for the application process to be opened towards the second half of 2018, although it will also be possible to make the application for up to two years after the UK leaves the EU.

Good news for those who have permanent residence documents

There is no requirement under old EU laws for EU citizens to apply for residence documents, however the numbers making applications have increased rapidly since the UK voted to leave the EU.

Although it will still be necessary for those with permanent residence documents to make an application under the new system to obtain settled status, the good news is that:

  1. The application will be free; and
  2. In order to succeed, it will only be necessary to provide proof of ID, current proof of residence in the UK and there will be a criminality check.

It appears therefore that the application will be more straightforward for those who have gone to the trouble of submitting a permanent residence application in the past.

The other positive is that the agreement confirms that EU nationals who have obtained a permanent right of residence will be able to leave the UK for a period of up to 5 years and still retain the benefit of that status (whereas absences of only up to 2 years are permitted under the EU Directives).

Proving lawful residence in the UK

In order to decide whether an EU national or their family member have been ‘lawfully’ living in the UK to qualify for settled status, the test will be whether a person was living lawfully under the EU regulations. The main categories of lawful residence under the EU regulations are:

  • Workers
  • Self-employed
  • Jobseekers
  • Students
  • Self-sufficient persons

The UK authorities will take a ‘pragmatic’ approach to deciding whether people have been lawfully present in one of these categories. Previously published technical notes have stated that, for example, there will be no need to evidence that a person holds comprehensive sickness insurance which is usually a requirement for students or self-sufficient persons. This will be a great relief to many EU nationals who have spent periods in the UK as a student and who never knew of the need to hold insurance policies. Another pragmatic approach will be taken with respect to EU nationals not needing to show that the work they have been involved in is ‘genuine and effective’. This suggests there will be less emphasis on EU nationals showing the number of hours they worked to be considered a ‘worker’.

It remains to be seen the extent to which documents will need to be provided however the suggestion has been that the Home Office will try and use technology to limit the amount of documents that will need to be sent (by, for example, instead accessing HMRC records). This is a new approach for the Home Office and certainly very different from what was required for many applicants applying for EEA permanent residence documents.

Family Members

Another important concession has been that the withdrawal agreement will protect EU nationals with respect to their right to bring family members to the UK, even after the UK leaves the EU.

As long as a person was a family member of the EU national at the date of the UK’s withdrawal, the EU national will continue to have the right to sponsor that family member to come to the UK in the same way as they are currently able to, and this right will continue for the life of the EU national.

Children born after the UK’s departure from the EU will also the right to come to the UK with parents if:

  1. Both parents are EU nationals with a right to reside in the UK on the specified date;
  2. One parent is an EU national with a right to reside in the UK on the specified date and the other parent is a British citizen; or
  3. The parent is an EU national with a right to reside on the specified date, and has sole responsibility for the child.

Remedies if an application is refused

The rights for EU nationals will be contained within the Withdrawal bill, and they will take precedence over any other laws that are incompatible with those rights. An applicant will have a right of appeal to the UK courts if an application is refused.

If there is uncertainty over the interpretation of provisions relating to citizen’s rights, there will continue to be a mechanism that allows UK Courts to refer questions to the European Court of Justice for a period of up to 8 years following the UK’s departure from the EU.

Conclusion

The process of registering millions of individuals under a new scheme, which has had to be implemented in a very short space of time, will present an administrative burden on the Home Office the like of which has never been seen. However, the documents published by the government stress that they will make the process of application user-friendly and it is a positive development that the scheme will be open for applications even before the UK leaves the EU.

There is a potential for serious injustice in any new system, where a set of rules which have existed for decades but never been enforced suddenly start being applied on a mass scale. It is easy to imagine many circumstances where an individual may not fit neatly within the rules to qualify for settled status – one example would be a parent who stopped working to care for a child with a disability. It is to be hoped that the Home Office produce detailed guidance which sets out the circumstances where discretion will be exercised even if individuals don’t fit neatly within the ‘qualified’ categories to obtain settled status.

Decla Palmer of Paragon Law explains the changes and why more needs to done to help victims of modern slavery:

 

 

 

The National Referral Mechanism (NRM) is the process by which potential victims of modern slavery are identified as victims and provided with support.

If the decision is positive, meaning that the NRM has recognised the individual as a victim of modern slavery, that person has two weeks to leave his or her safe house accommodation and specialist support is withdrawn at the same time. Many organisations have criticised the current procedure for leaving individuals vulnerable and at risk of further exploitation. There is a significant risk that victims of modern slavery will be left destitute, become homeless and disappear. Not all victims of modern slavery will be offered any form of leave to remain and those that do will only be offered one year. Often the prospect of having to return to their country of origin is enough for people to go underground and choose not to engage with services for fear they will be forced to return.

The Home Secretary has announced that recognised victims of modern slavery will now have access to ‘move-on’ support for up to 45 days after the positive Conclusive Grounds decision. There will also be the opportunity for victims to attend drop-in services for up to six months after leaving support. It is likely that these changes will be welcomed by NGOs however the issue of a person’s immigration status still remains. If that person is not granted leave to remain as a victim of modern slavery then they will be expected to return to their country of origin either voluntarily or by force unless they make another application to regularise their stay. The Home Secretary has not announced that she intends to grant all recognised victims with six months leave to remain at the very least so they can access the support she is now offering. It is worth noting that the US has a specialist victim of trafficking three year visa with a view to settlement. If the Home Secretary did feel strongly about protecting victims of modern slavery, more could be done to make sure they receive the support they need and protect them from re-exploitation in the long term. Many forms of psychological treatment cannot start until a person’s immigration status is secure. Secure immigration status also prevents re-exploitation by providing that person with access to the welfare state and with victims more likely to come forward as they would not fear removal.

Potential child victims of modern slavery do not currently receive any specialist support with the Government relying solely on social services to care for them. The current situation does not recognise that, like adults, child victims require specialist psycho-social support to recover from their experiences. Child victims are especially vulnerable due to the separation from their family. Section 48(1) of the Modern Slavery Act 2015 does provide for the appointment of Independent Child Trafficking Advocates (ICTAs). The Government has piloted the scheme twice, and has on 26 October 2017 announced the programme will be rolled out nationally.

Specialist support for child victims is certainly welcome given the current situation. Section 48 of the Modern Slavery Act 2015 makes clear that these advocates will be independent from the decision maker. However, it does not state that the advocate has a duty of confidentiality to the child.

Furthermore, it is unclear whether it will be a requirement of the process that a child has an independent advocate prior to the investigation stage of the process. If the government do not provide enough advocates, it may be that a requirement to have one could cause significant delays to the process. Delays are often not in the best interests of children. The Act also provides that the ICTA can appoint and instruct a legal representative. It is not clear at this stage whether this means that the ICTA would be the individual instructing the legal representative rather than the child. Currently, unaccompanied minors who are deemed mature enough to understand advice and give instructions are not required to have a guardian to instruct on their behalf. If this is what parliament intended by this provision, the concern again would be whether the ICTA has a duty of confidentiality to the child and the significant delays in obtaining legal advice should the government not provide enough ICTAs. It is also not clear who the ICTAs will be accountable to and where a child can take a complaint should she or he take issue with the ICTAs performance or behaviour.

Whilst the changes announced are welcomed, it is clear that more needs to be done to ensure the rights and needs of victims of modern slavery are full provided for.

Paragon Law’s dedicated Asylum & Human Rights team represents many victims of modern slavery and should you have any questions or queries on this area of law, please do not hesitate to contact us on 0115 9644 123 or email declap@paragonlaw.co.uk

banking ID

The requirement for banks and building societies to check on the immigration status of their existing current account holders came into force on 30 October 2017. Measures have already been in place for banks and building societies to carry out immigration status checks on those applying for a new current account since 2014.

 

 

 

Banks and building societies are now prohibited from continuing to operate an existing account for an individual who is disqualified by reason of their immigration status from accessing bank services. An individual is ‘disqualified’ if they are a foreign national who requires permission to be in the United Kingdom but does not have it. The following examples have been provided by the Home Office:

  • never had leave to enter or remain because of illegal entry
  • had leave but stayed after it expired or was revoked
  • European Economic Area (EEA) national subject to deportation action who has exhausted all rights of appeal

To ascertain whether individuals are disqualified, banks and building societies are required to check their customer data against details of known illegal migrants supplied by the Home Office, via a specified anti-fraud organisation (Cifas). If an account holder’s name, address and date of birth match the Home Office data on known illegal migrants, the bank or building society must notify the Home Office. The Home Office will then conduct a secondary immigration status check to confirm the match. If the Home Office confirms the individual is disqualified from operating an account, it may instruct the bank or building society to close the account, or it may apply to court for a freezing order.

Where an individual believes that there has been a mistake in the closure of their account, they are required to contact the Home Office and provide evidence of their lawful status. If a mistake has been identified, the Home Office will change the details so that the account can be re-opened.

There is currently no information on how long the Home Office will take to carry out their review, this is worrying as an individual whose current account has been closed by mistake could be waiting for weeks before anything is done about it.

This is the latest measure by the Home Office to create a ‘hostile environment’ for illegal migrants. If you are currently residing in the United Kingdom without immigration status and require advice and assistance with regularising your status, please contact Aldijana Hoad of Paragon Law on 0115 964 4123 or aldijanah@paragonlaw.co.uk. Similarly, if you believe that your current account has been closed by mistake and you require assistance with corresponding with the Home Office, please contact us and we will be happy to assist you.