UK Leaving EU - BrexitBy Thalej Vasishta:

 It has been a busy and uncertain 24 hours in politics and what appears below is the text of my commentary in the media yesterday, following confirmation that Teresa May had negotiated a transition deal and was putting it to her cabinet. In the last 12 hours I have had the chance to read (quickly!) the 500-page negotiated draft Withdrawal Agreement. The document is a huge step forward in what is a difficult situation for any leader or Government in trying to please all sides of the division. The document in my view makes it clear that transition and the backstop are not intended to be a permanent solution but sets the scene for a future deal and gives some certainty to businesses, is a step towards frictionless trade and the first steps to avoid the perils of a no deal and the years of unravelling that would cause.

My expertise is UK immigration law and policy. This is what I will focus on in the remaining part of this article. When reading the Withdrawal Agreement, it is clear that negotiators had the outcome of the Brexit referendum result in mind which was primarily based on two factors. Immigration, taking back control of our borders and secondly taking back control of our laws. The document achieves this.

Deal or no deal, the Government has given certainty as to the position of EU Nationals currently residing and working in the UK; and a degree of certainty as to how future immigration law and policy will be framed.

Therefore, whilst there remains uncertainty in respect of trade, customs etc. business should however be in a better position to plan to protect their existing EU workforce and consider their strategy in terms of meeting future labour shortages once the UK leaves the EU.

EU Nationals who are already here or continue to arrive in the UK up until 31 December 2020 (end of the transition period) will be entitled to apply up until June 2021 for settled status if they have been in the UK for 5 years by the time they apply, or pre-settled status if they have been here for less than 5 years allowing them to upgrade to settled status later.

This scheme will benefit 3m EU Nationals currently in the UK but it is important that employers keep an eye on when the scheme is opened up to their EU colleagues, encourage them to apply and once the colleague receives their new digital status document to obtain a copy of this status to confirm their continued right to work in the UK. By 28 November the scheme will have opened to colleagues working in higher education institutions, NHS and other related health and social care professions and then the scheme will be open to all by April 2019.

The Home Secretary confirmed at the Conservative Party conference that after the end of the transition period free movement for European Nationals will end. It would appear that little research has been carried out by the Government on the impact this will have to businesses that depend on skilled and unskilled workers from Europe. However, past experience dictates that successive Governments have not been able to get a handle of migration to the UK and therefore any Government that can finally promise the end of free movement will be hoping to have the support of the electorate at large.

Whilst we are waiting for the much-anticipated Government Whitepaper on the future of immigration law and policy, what we can be certain of is that the Rules will be a skills-based, single system for EU and non-EU Nationals meaning that EU Nationals and their employers will have to satisfy the requirements of the existing Tiers of the points-based system for skilled EU workers to work in the UK. This will further mean that businesses that depend on workers from the EU will need to register as sponsors with the Home Office.

The Government is likely to follow the recommendation of the Migration Advisory Committee that there should not be any special schemes or provision for low skilled workers from the EU. The Government instead will be encouraging businesses to align with their industrial strategy and to automate these processes, to increase wages and train UK workers for these jobs. Whilst this is commendable the concern I have is that these initiatives will not alleviate the immediate short-term pressures that businesses will face in recruitment and nor am I convinced that the Government have a handle on the longer-term pressures of an ageing population which will require hundreds of thousands of jobs to be filled in the coming decades.

The Government is however introducing a pilot seasonal workers scheme for 2 years next March, which will allow 2500 workers from outside the EU to work in the UK for up to 6 months to fill labour shortages during peak production periods. My view is that the Government may be forced to consider similar schemes when shortages become apparent in other sectors such as hospitality and care workers in nursing homes if there is enough pressure from industry to do so. It is important that businesses continue to have a dialogue with Government in order to shape future immigration laws which work for UK PLC.

With both the UK and EU committing to citizens rights of those EU nationals already settled in the UK and UK nationals settled in the 27 EU Member States the Withdrawal Agreement sets out that British Nationals will not require visas to travel for short stays to the 22 EU member counties that are members of the Schengen area and four Schengen- associated states. It will also apply to Romania, Bulgaria, Croatia and Cyprus. Short stays have been defined as up to 90 days in any 180-day period. This is likely to include travellers for the purpose of business visits, leisure and family visits but not for work.

There is at this stage uncertainty as to whether British travellers will need to apply for electronic travel authorisation (Etias – the EU Travel Information and Authorisation System) which is modelled on the US ESTA and is being introduced by the EU for security grounds for all countries outside the bloc, even if they are visa-exempt. However, what is clear is that the European Health Insurance Card will no longer give British citizens rights to reciprocal healthcare meaning that arrangements should be made for travel insurance.

The UK Government has also declared its intention of EU 27 Member State Citizens not requiring visas for short stay visits (likely to be 6 months as is the case currently with non-EU Nationals) for the purposes of leisure and business.

All is still up for negotiation but that said, short of us deciding to stay in the EU this is the shape of the UK immigration policy – deal or no deal.

 

As negotiations with the EU have now properly commenced, one of the first priorities on both sides is to agree what will happen to EEA nationals living in the UK, and for British Citizens living abroad in other EU countries. The UK have now published a document ‘Safeguarding the Position of EU Citizens Living in the UK and UK Nationals Living in the EU’ which provides us with some long-awaited detail about what will happen to EEA nationals once the UK leaves the EU. This article summarises some of the key pieces of information disclosed in the publication for EEA nationals and their right to remain in the UK. I have also identified some key information that we do not yet know.

There will be changes
The document published confirms that as the UK wish to have the option of controlling migration from EU countries, there will be a new system which requires all EU nationals and their family members to apply for status documents proving their right to live in the UK.

The government’s proposals confirm:
“This will be a legal requirement but there is also an important practical reasons for this. The residence document will enable EU citizens (and their families) living in the UK to demonstrate to third parties (such as employers or providers of public services) that they have permission to continue to live and work legally in the UK. Following the UK’s exit from the EU, the Government may wish to introduce controls which limit the ability for EU citizens (and their families) who arrive in the UK after exit to live and work here…”
The document confirms the application procedure will be announced in more detail closer to the time, but that the application will be made ‘as streamlined and user-friendly as possible’. For example, the government will seek to minimise the burden of providing documentary evidence and access existing government data held such as income records.
Further, the government have confirmed that all EEA nationals will need to apply for this new form of status, even those who have previously been granted documents showing they have a right of permanent residence in the UK. However, they will aim to make the system ‘as streamlined as possible’ for those in this situation.

Who will qualify for Status Documents?
Currently, EEA nationals qualify for a right of permanent residence once they have lived in the UK as a ‘qualified’ person for a continuous period of 5 years. This has presented difficulties for many EEA nationals who may have had breaks in their ‘qualified status’. One common problem is that many EEA nationals were not aware that they were required to hold a private medical insurance policy or other insurance cover to be a ‘qualified’ person whilst they were a student.
This system is going to be replaced with new criteria for EEA nationals. The government have indicated that there will be two primary criteria to qualify:
1) That the applicant has been ‘resident’ in the UK for a set period of time (most likely to be 5 years); and
2) The applicant is not considered a threat to the UK on an assessment of their criminality and conduct.
Happily, the government have confirmed that they will no longer require evidence of holding insurance documents in order to be considered continuously resident. This will enable many EEA nationals to apply for ‘settled’ status under the new system who would not qualify for a permanent residence document under the current set of rules that apply to EEA nationals.
The published offer further confirms that, as long as an EEA national arrives before a particular ‘specified date’ then they will be given the opportunity to establish 5 years residence and qualify for settled status. We have not yet been told what the ‘specified date’ will be, but we know that it will fall between the 29th March 2017 and the date that the UK leaves the EU. This date is to be decided following negotiations with the rest of the EU.
The document also confirms that ‘family members’ of EEA nationals will also be able to apply for settled status following 5 years continuous residence.
If an Applicant will not have reached the 5 year point before the UK leaves the EU, they will be given a grace period within which to apply, and if necessary, can apply for a period of leave to remain after the UK leaves the EU to allow them to get up to the 5 year point and qualify for settled status at that point.

When do EEA nationals need to apply?
The documents says there is no need for EEA nationals to apply now for EEA documents, as their current rights will continue until the UK leaves the EU. However, the government will continue to process applications which are received. It is therefore only those EEA nationals who wish to apply to naturalise as British Citizens who will need to go through the process of applying for a document certifying permanent residence now.
The government have confirmed that there will be a ‘grace period’ for EEA nationals to make an application after the UK leaves the EEA. This is likely to be a period of 2 years. During this period of time EEA nationals will be ‘deemed’ to be granted leave to remain which means they will continue to be lawfully present in the UK. EEA nationals will need to make their application to regularise their position within this 2 year period to continue having a right to remain in the UK.
The grace period of 2 years is clearly a sensible measure given the impracticalities of the government having to process applications from approximately 3 million applicants simultaneously. The government have further confirmed that they will introduce the ability to apply under the new application procedure before the UK leaves the EU to enable EEA applicants who wish to apply at the earliest opportunity to make the application even before the UK leaves the EU.

What we do not know:
We have yet to be provided the following key information:
1) What the specified date is by which time EEA applicants will need to be in the UK to benefit from the proposals in the offer;

2) What new system of rules will apply to EEA nationals or their family members who arrive after the ‘specified date’;

3) What the fee for the new application procedure is – the document states this will be set at a ‘reasonable level’. The current fee for applications for indefinite leave to remain (which is the status that will be given to EEA nationals who qualify) is £2,297.00. This contrasts with the fee for making a permanent residence application under the EEA regulations of £65.00. Clearly the cost of making the application (given that there will be approximately 3 million people needing to apply) will be of considerable interest;

4) What documentary evidence of ‘residence’ will need to be provided as part of the new application procedures; and

5) Whether the UK will win on its negotiating position that it will be the UK domestic courts that are responsible for settling disputes over the rights of EEA nationals rather than the European Court of Justice.

Paragon Law have an experienced and established team of Immigration lawyers who specialise in providing advice to EEA nationals and their family members. We have also been regularly involved in providing training on the impact of Brexit to staff members at Universities and Employers. Please contact us if you require expert assistance in these areas.

In recent times, there have been many reports in the media about the possible implications of the outcome of the Brexit referendum and its potential impact on EEA nationals who are living in the UK. Uncertainty of the situation has caused many EEA nationals to scramble to make permanent residence applications before a potential “cut-off” date is announced. However, for those who may not yet have lived in the UK for long enough, or may have spent time in a UK prison, there is concern that they may be removable, potentially subject to deportation action, from the UK to their home countries, now that Article 50 has been triggered.

There are many uncertainties, including the rights of EEA nationals already present, and negotiations are about to take place between the Prime Minister, Theresa May, and the EU member states for a reciprocal agreement on the rights of free movement. The Cabinet Office on the 11th July 2016, indicated that EU nationals in the UK would continue to have the same rights as they held prior to the Brexit vote, by stating:

When we do leave the EU, we fully expect that the legal status of EU nationals living in the UK, and that of UK nationals in EU member states, will be properly protected. The government recognises and values the important contribution made by EU and other non-UK citizens who work, study and live in the UK.”

Of course, there will be EEA nationals living in the UK who do not fit within the criteria described by the Cabinet office, either because they have not secured work, or because they have concern over whether they meet the very strict criteria for immigration applications the Home Office has put in place.

Deportation is a word that has been widely publicized in the media and is a word that strikes fear into the hearts of those who may be seen to fit the criteria to invoke such action, but it is important to understand that enforcement action (such as being detained, and given a flight back to a person’s country of origin, and particularly deportation) will not be possible in many of these EEA cases.

When deportation can take place – EEA cases

Deportation mostly becomes applicable, but is not limited to, cases of criminality where EEA nationals are concerned. Deportation action not only removes a person from the UK but prevents a person from re-entering the UK for a minimum period of ten years under the current Immigration Rules. This is very different to an administrative removal, which simply seeks to expel a person who is not exercising the rights that they set out to gain entry for, or has abused those rights. Administrative removal can result in a re-entry ban of up to five years, but, again, this does not apply in all cases.

The Immigration (European Economic Area) Regulations 2016 set out examples of why a deportation order might be made against an EEA national, at regulations 23 which states:

“(5) If the Secretary of State considers that the exclusion of the EEA national or the family member of an EEA national is justified on the grounds of public policy, public security or public health in accordance with regulation 27 the Secretary of State may make an order prohibiting that person from entering the United Kingdom.”

Therefore, if removal is not taking place for any of the reasons described, then it is potentially arguable that the action being taken is not lawful.

Legislative protection from deportation

One of the EEA Regulations describes what factors need to be taken into account when deciding EEA deportation cases. These are that:

  1. the decision must comply with the principle of proportionality;
  2. the decision must be based exclusively on the personal conduct of the person concerned;
  3. the personal conduct of the person must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, taking into account past conduct of the person and that the threat does not need to be imminent;
  4. matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision;
  5. a person’s previous criminal convictions do not in themselves justify the decision;
  6. the decision may be taken on preventative grounds, even in the absence of a previous criminal conviction, provided the grounds are specific to the person.

It is important to be aware that it is not enough by itself that a crime has taken place and, in fact, if it can be shown that a person has been rehabilitated sufficiently by the prison and probation regimes in the UK, so that their future risk of re-offending is low, then the decision to deport them will not be proportionate.

In addition to the considerations that need to be taken before a decision to deport can be made, there are several levels of protection based on length of residence, which are shown later in the same set of Regulations. They are:

  1. If a person has accrued “permanent residence” (after 5 years of residence in the UK as a qualified person), then deportation action can only be taken on serious grounds of public policy and public security.
  2. If a person has accrued ten years residence in the UK as a qualified person then deportation action can only be taken on imperative grounds of public security.

These are very high thresholds to meet and may mean that deportation action cannot be taken at all.

The current situation

It seems from reports that have been carried out by various charitable organisations (Bail for Immigration Detainees (BID)) that the above criteria are not being properly examined by the Home Office before decisions are made in respect of EEA nationals.

A report compiled by the joint select committee report entitled “The human rights implications of Brexit 16 Dec 2016” sensibly concluded that “It is not realistic to imagine that the UK Government would be in a position to deport the large numbers of EU nationals currently in the United Kingdom. Under Article 8 of the ECHR, individuals are entitled for respect to their private and family life and home.” Therefore, those EEA nationals, who can demonstrate that they have strong family ties to the UK, in the form of partners or children, will not realistically, be easily removable. Those EEA nationals too, who have been living in the UK for a number of years, and can show that the centre of their lives is located here in the UK, either by work, or property, or simple length of residence, may also have good grounds to appeal against any decision made to deport them.

Shockingly though, it has been reported that the number of EU nationals detained in immigration centres has increased fivefold since the Conservatives came to power. In 2015, the last full year for which Home Office data is available, 3,699 EU citizens were detained under immigration powers, making up 11.4 per cent of all detainees. An investigation showed that, in many cases, no crime had been committed, with people detained for reasons such as losing their ID card or having a birthday party in a park. The detention of EU citizens has continued to rise rapidly, with 1,227 detained in the third quarter of 2016, making up 17 per cent of the total number recorded in that period.

Publically, the government want to be seen to be nurturing and protecting of EEA nationals present in the UK from what was, for all involved, a shock outcome of the Brexit referendum. As The Guardian reported on 1 December 2016 “a Home Office spokesperson said: “The home secretary has been clear that she wants to protect the status of EU nationals already living here, and the only circumstances in which that wouldn’t be possible is if British citizens’ rights in European member states were not protected in return.” Amber Rudd sent a letter asking the House Of Lords not to vote against the government on their Brexit Bill in which she said that there was no question of treating European citizens with “anything other than the utmost respect.” Looking at the above statistics, it is hard to see how this could be the case.

In such times of political and legal uncertainty, and before any possible changes to the law and policy guidance, is important to take positive and affirmative action in cases concerning any EEA national at an early stage to prevent what could be devastating consequences.

Now that Article 50 has been triggered, the Home Office is very quiet regarding possible changes of policy, especially in light of the election result. Negotiations with the EU seem to be key to whether the Prime Minister will seek to protect the rights those EEA nationals already present in the UK or tighten what is already a tightly controlled immigration policy. It is difficult to see what this means in the future in terms of administrative removals, but deportation appeals are likely to remain very complex cases.

Anyone who receives notification of potential deportation proceedings should always seek assistance from a specialist immigration advisor. For those EEA nationals receiving such decisions, this is especially important, as many of these decisions are not in accordance with either the law or current published policy.

Our dedicated team of immigration lawyers have experienced in preventing such cases from proceeding to deportation and welcome enquiries from all EEA countries. Anyone requiring should assistance should not hesitate to contact us via email enquiries@paragonlaw.co.uk or telephone 0115 9644123.

european job seker image

 

EEA Nationals are allowed to remain in the UK whilst they are exercising their right to freedom of movement under the EEA Regulations. In order to have a right to remain in the UK however, EEA nationals must fit within one of the ‘qualified’ categories, which are:

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

Over the years, the EEA Regulations have been amended a number of times by the UK Government. These amendments appear to have reduced the rights that EEA jobseekers have to remain in the UK. This can be particularly important for EEA nationals who wish to apply for permanent residence. A permanent residence application requires a continuous period of 5 years ‘qualified status’ with no breaks, and EEA Nationals may need to show that they were present in the UK as a jobseeker to fill any gaps between work or studies.

Two recent decisions of the Court have helped to re-affirm the rights that EEA Nationals have to remain in the UK whilst job seeking.

In the case of KS v Secretary of State for Work and Pensions [2016] UKUT 269 AAC the Tribunal looked at the requirement within the regulations that a person provide ‘compelling evidence’ where they had been job seeking for more than 91 days. This requirement was controversial, as the previous case of Antonissen (C-292/89) had found that a person should be permitted a period of at least 6 months to find work and be treated as a ‘worker’ during that period. In KS the Court explained that the requirement to provide ‘compelling’ evidence however was just a requirement that on the ‘balance of probabilities’ a person establish that they have a genuine chance of finding work. That is the normal standard of proof applied in civil courts and therefore the use of the word ‘compelling’ does not introduce an additional hurdle for EEA nationals to jump through.

In the case of MB and others v Secretary of State for Work and Pensions [2016] UKUT 372 AAC the Court went on to consider the ‘compelling evidence’ test of genuinely searching for and finding work. The Courts confirmed that a person must have a chance of being engaged within a ‘reasonable period’ and that the test involved looking forward, including if the person was to obtain qualifications which would enable them to obtain work. There must be ‘real prospects’ of obtaining work and the burden is on the jobseeker to show this.

The Court’s decisions in these cases are re-assuring as the Courts have shown that they will continue to interpret EU law in a manner which continues to strongly protect free movement rights for EEA nationals and their family members.

Mark Lilley-Tams

For further information please contact Mark Lilley-Tams at markl@paragonlaw.co.uk.