Author: Adarsh Girijadevi

EU citizens retain free movement rights after naturalisation in host state

The Court of Justice of the European Union has found in the case of C-165/16 Lounes that EU citizens who move to the UK and later naturalise as British retain their free movement rights under EU law even though they have become British. The court has held that the UK has wrongly been refusing to recognise free movement rights for such EU citizens since 2012.

The case has particular significance to those EU citizens who have naturalised as British following the Brexit referendum because it means that the UK has wrongly been denying them their EU law rights in the meantime. The victory is a Pyrrhic one for them, perhaps, because after Brexit these rights will be lost, unless the UK agrees that free movement law continues in some form, for example with a transitional deal.

The judgment does not just apply to EU citizens coming to the UK, though. It has considerable significance across the EU for the integration of long term residents from other EU countries.

New settled status updates for EU citizens

The government on 07th November 2017 offered further reassurance for EU citizens and their family members by setting out further details of how its new settled status scheme will operate.Those applying to stay in the UK after we leave the EU will not have their applications refused on minor technicalities and caseworkers considering applications will exercise discretion where appropriate. We expect the majority of cases to be granted.

EU citizens will also be given a statutory right of appeal, in line with their current rights through the Free Movement Directive, if their application is unsuccessful.In a technical document sent to the European Commission as part of negotiations, the government reiterates how the new system will be streamlined, low-cost and user-friendly, with EU citizens consulted on its design.

The Prime Minister has been clear that safeguarding the rights of EU citizens living in the UK and UK nationals in Europe is the first priority for negotiations and she said last month that an agreement is within touching distance. Secretary of State for Exiting the EU, David Davis said:

We have been clear that safeguarding the rights of EU citizens is our top priority in our negotiations. They make a huge contribution to our economy and society and we do not want to see that change as a result of our decision to leave the EU.

We will support everyone wishing to stay to gain settled status through a new straightforward, streamlined system.

The last negotiation round saw real progress in this area and I believe the document we have published today can facilitate the deal we need to guarantee the rights of UK citizens living in the EU27, and vice versa.

The document commits to:

  • giving EU citizens plenty of time to apply, with a 2-year grace period after we leave the EU to make an application for settled status
  • minimising the documentary evidence that applicants need to provide and enabling caseworkers to contact applicants to resolve minor issues
  • keeping the cost of an application to no more than that of a British passport
  • giving EU citizens a statutory right of appeal, in line with their current rights through the Free Movement Directive, if their application is unsuccessful
  • making decisions solely on the criteria set out in the Withdrawal Agreement, with no discretion for other reasons for refusal
  • introducing a digital, streamlined and user friendly application system
  • not requiring EU citizens to have held comprehensive sickness insurance or to provide fingerprints
  • a simpler, lower cost process for those who already have permanent residence documentation.

The document also sets out that applicants will be asked to declare any criminal convictions and be checked against UK security databases. This is a reasonable measure to keep the country safe from those who have abused our hospitality by committing serious crimes.

If you are unsure whether to apply for a EEA PR document now or wait for the simplified process as detailed above, please get in touch with us to discuss more on 020 3695 4626.

Immigration Act puts further obligations on banks to check the Immigration status of customers.

The Immigration Act 2014 prohibited firms from opening current accounts for people who don’t have leave to remain in or enter into the UK. The Immigration Act 2014 has been amended by the Immigration Act 2016 and these amendments come into force on 30 October 2017.

There will be a number of additional requirements on firms including a requirement to carry out periodic checks of the immigration status of existing current account customers. This will include accounts opened before the 2014 Act prohibition came into force and will encompass situations where accounts may have been opened during a period of lawful stay but where the migrant has remained in the UK after their leave has expired.

The first immigration check is required to be carried out for the quarter beginning on 1 January 2018. Firms will be checking for accounts operated by a disqualified person (i.e. a person who is in the UK but who does not have the required leave to enter or remain in the UK).

The firm must then inform the Home Office if any account is identified and the Home Office will then carry out a check. The Home Office will have a range of options including requiring firms to close the account as soon as possible and power to apply to the Court to freeze an account until the individual leaves the UK.

The Immigration Act 2014 (Bank Accounts) Regulations will be amended to extend the Financial Conduct Authority (FCA) duty to monitor and enforce compliance with the new requirements. The FCA is currently consulting on its approach to the amended Immigration Act and regulations including reporting, monitoring and enforcement.

What do you need to know?

New accounts

Where the check identifies that the applicant is a disqualified person, firms must refuse to open the account. This prohibition includes:

  • opening joint current accounts for any disqualified persons
  • opening a current account where the disqualified person is a signatory or is identified as a beneficiary
  • adding any disqualified person as a current account holder, signatory or identified beneficiary in relation to an existing current account

Where firms refuse to open a current account due to concerns the person is a disqualified person, the firm must tell that person the reason for the refusal (as long as doing so does not conflict with obligations under other legislation e.g. Anti-Money Laundering legislation). Particular wording has been prepared by the Home Office which can be used where firms have refused an account.

Existing accounts

In terms of existing accounts, from 1 January 2018, firms will also be required to carry out quarterly immigration checks and any accounts found to be operated by a disqualified person must likewise be reported to the Home Office.

What do firms need to do?

  • make arrangements to comply with the Immigration Act 2016 and ensure that the relevant checks are put in place and employees are aware of the obligations and receive the necessary training;
  • put in place record-keeping procedures so that they can demonstrate compliance with the Immigration Act 2016 to the FCA. Firms will need to keep these records for at least 5 years. Firms will also need to confirm to the FCA each year that they are complying with their obligations under the Immigration Act;
  • terms and conditions will need to be updated in order to take account of the new quarterly checks; and
  • any issues with compliance will need to be reported to the FCA in the usual way.

Implications of the Immigration Act

This will place yet a further obligation on firms to monitor account activity. Appropriate systems and checks will need to be put in place to ensure compliance with this new obligation. Industry experts have expressed concerns that these requirements will make it harder for legitimate customers to open bank accounts.

Questions have also been raised about where liability will lie if things go wrong. In circumstances where a search brings up a number of names this may lead to the incorrect bank accounts being frozen or closed which could lead to claims being issued against firms. Appropriate records will need to be maintained to show why decisions have been made in order to evidence a firms compliance with the act.

Firms will also need to ensure its policies and procedures are clear and comply with other legislative requirements.

Who is affected?

You have been refused a current account

Banks and building societies are required to carry out immigration status checks on people applying for current accounts. Under the Immigration Act 2014 they must refuse your application for a new current account (or an application to add you as a signatory or identified beneficiary to a new or existing current account) if you are a disqualified person.

You may be disqualified if you are in the UK and need leave to enter or remain (under the Immigration Act 1971) and don’t have leave to be here. This could be because you:

  • never had leave to enter or remain (because you entered the UK illegally)
  • had leave but stayed after it expired or was revoked
  • are an European Economic Area (EEA) national subject to deportation action who has exhausted all rights of appeal

Your account has been closed

Banks and building societies are required to carry out immigration status checks on people who hold current accounts. If you are identified as being disqualified from holding an account, then, under the Immigration Act 2014 the bank or building society must close your accounts (or restrict access where you are a signatory or identified beneficiary, or the account is jointly held with a non-disqualified person). You may be disqualified if you are in the UK and need leave to enter or remain (under the Immigration Act 1971) and don’t have leave to be here. This could be because you:

  • never had leave to enter or remain (because you entered the UK illegally)
  • had leave, but stayed after it expired or was revoked
  • are an European Economic Area national subject to deportation action who has exhausted all rights of appeal.

The Home Office has the power under the Immigration Act 2014 to apply for a freezing order in relation to current accounts for disqualified person.

Query the decision

If a bank or building society refuses your application for a current account or closes your current account under the Immigration Act 2014, it will normally tell you why. If you believe there’s been a mistake, you should contact the Home Office with evidence of your lawful immigration status. If you have a right to be in the UK, the Home Office will change your details so you can re-apply to open a current account or re-open your existing account.

If you have any further questions or require any assistance relating issues with your bank account give us a call on 020 3695 4626 or email us on enquiries@citylegalservices.co.uk

EEA (EFM) Appeal rights – Case of SALA overturned in the court of appeal

The EEA – Extended family member’s appeal rights were withdrawn further to the judgement in the case of Sala (EFMs: Right of Appeal : Albania) [2016] UKUT 411 (IAC). The Upper Tribunal in this case has ruled that there is no right of appeal against a decision by the Home Office to refuse a residence card to a person claiming to be an extended family member.

A a direct result of this judgement, the Home Office updated their guidelines regarding the appeal rights & all subsequent application refusals did not carry any right of appeal. The First Tier tribunal also invalidated appeals outstanding with them which caused a real panic among the appellants.

The court of appeal considered this in the case of MK Pakistan & overturned the judgement yesterday by allowing the appeal on the interpretation grounds. The effect of the decision is that all those appeals pending under the 2006 Regulations should now be able to proceed. Those that have resulted in notices of invalid appeal will need to be challenged. This point may be slightly academic now, in the sense that only the 2006 Regulations are directly affected, but the path to a challenge to the 2016 Regulations now exists.

If you are affected by SALA case and wants any further advise on how to challenge this, please call one of our experts on 020 3695 4626.

 

Figures show that one in five stopped by immigration enforcement is a UK citizen

One in five people stopped by immigration enforcement teams in Britain’s biggest cities is a UK national, according to newly revealed figures that critics say cast doubt on official claims that such stops are “intelligence-led”.The figures, obtained through freedom of information requests, show that out of 102,552 stopped in the past five years, 19,096 – 18.6% – were British citizens. Lawyers say they lend credence to suspicions of unlawful racial profiling.

The data, which covers 11 of the largest cities in England, Wales and Scotland, shows that in London alone, 8,002 British citizens were stopped. In Sheffield and Glasgow, nearly a third of those stopped were British citizens.

Full story can be read here.

Brexit: Businesses warn over ‘UK workers first’ proposal

Under the draft plan, leaked to the Guardian, firms would have to recruit locally unless they could prove an “economic need” to employ EU citizens.They could face a skills tax to boost training of UK workers if they still chose to employ unskilled EU staff.But business groups say a “sudden” cut could cause “massive disruption”.

The National Farmers’ Union claimed the “entire food supply chain” could be threatened.The leaked Home Office document has not been signed off by ministers, who will set out their post-Brexit migration plans later this year.But Defence Secretary Michael Fallon said: “The public voted to leave the European Union. That means freedom of movement has to end.”

He said “people with the right skills” would still be “welcome”.But he added: “Equally we have to make sure that British companies are also prepared to train up British workers.

Full story can be read here.

UK gov departments will share digital records to clamp down on immigration

Three government departments will share their data on citizens to develop a digital immigration system after Brexit, improving the prospects of both those coming into the country and existing UK residents.

Home Office, HM Revenue & Customs and the Department of Work and Pensions (DWP) will share the information they hold and introduce a system to make it easier for employers and public service departments to check immigrants’ identities, according to an anonymous source who revealed the documents to the Guardian.The document, called Border, Immigration and Citizenship System After the UK Leaves the European Union, will apparently be “as digital, flexible and frictionless for individuals and employers as possible.”

It includes a portal where employers and any other party that needs to find out information about those entering the country can check an individual’s immigration status and “take action where necessary.” The portal will link together all the information about each person, including their tax records, benefit status and other records in a fully digitized way. The report also goes into detail about other plans when the UK exits the EU, including employment restrictions on those who come to the UK from other countries in the EU, saying it will give preference in the job market to resident workers. EU nationals would be restricted from seeking work and reduce the opportunities for workers looking to settle in the UK for long periods of time.

We are clear that, wherever possible, UK employers should look to meet their labour needs from resident labour. It is now more important than ever that we have the right skills domestically to build a strong and competitive economy,” the paper said.The government also plans to scrap the rights for extended family members being able to reside in the UK. “We propose to define family members as direct family members only, plus durable partners,” the report said. For a spouse to be allowed entry, the UK resident must be earning a minimum of £18,000 a year.

“Put plainly, this means that, to be considered valuable to the country as a whole, immigration should benefit not just the migrants themselves but also make existing residents better off,” the report finished. The proposals are an attempt to address net migration, which the government aims to cut from 250,000 annually, down to “sustainable levels” in the tens of thousands.

EU immigration offer could lead to Brexit reversal, claims Adonis

The decision of the British people to leave the European Union could be reversed next year if France and Germany agree that the UK can take control over immigration while staying in the EU single market, the former Labour cabinet minister Lord Adonis said on Sunday.With concern over the government’s handling of Brexit growing ahead of a key parliamentary vote on Monday, the peer said Angela Merkel, who is expected to be re-elected as German chancellor later this month, and French president Emmanuel Macron could well make such an offer if they believe it could mean the UK remaining in the EU.

Writing in the Observer, Adonis said he believes a majority of peers in the House of Lords will support an amendment to the EU withdrawal bill – now passing through the Commons – requiring another referendum before Brexit takes effect, with the options being to accept the deal on offer, or stay in the EU.Such an amendment for another national vote, Adonis said, would stand a good chance of being passed by the House of Commons because Labour would by then have reason to support it, and sufficient pro-EU Tories would also rally behind it, he argues.

“The interplay between a referendum and such a Merkel-Macron ‘offer’ will be vital,” he writes. “If it is clear by next summer that Britain is going to hold a referendum, then the incentive for them to make a bold offer greatly increases.”He adds: “A lot depends upon whether the alternative is the status quo – or EU membership without freedom of movement in respect of right to work and right to reside for all EU nationals. If Chancellor Merkel and President Macron make an offer, probably over the heads of the British government, for the UK to stay in the economic institutions of the EU but with national control over immigration, then I believe the referendum can be won.

“Why might Macron and Merkel make this offer? Partly because – in Macron’s case – he (rightly) doesn’t believe that unrestricted free movement of labour is integral to the single market. Partly because many other EU leaders agree with him. And partly for the big strategic reason – which weighs on strategic thinkers in Berlin – that, if Britain leaves the EU, 80% of Nato resources will then be outside the EU, which is hardly a recipe for European security and stability if you are looking across at the Russian and Chinese bears.”While Theresa May is expected to avoid any significant Tory rebellion over the EU withdrawal bill at the second reading stage on Monday, there is growing concern among MPs of all parties at the prime minister’s plan to leave the single market and customs union, and the lack of progress in negotiations with Brussels. On Sunday around 30,000 people marched on Westminster demanding that the UK stays in the EU.

Adonis’s intervention also comes amid signs that opponents of a hard Brexit in all the main parties are ready to work together to amend the bill, both to ensure that the option of staying inside the single market is kept open, and that parliament, at the very least, has a binding vote on the final deal before Brexit happens in March 2019. The Observer understands that meetings about how to thwart a hard Brexit have already taken place between senior Labour figures, the Liberal Democrats and Scottish Nationalist party MPs and pro-EU Tories.

Full story can be read here.

Britain could remain under direct control of European court for years

Britain could remain under the direct control of the European court of justice for years after Brexit, it has emerged, and still be forced to implement the court’s rulings on vexed issues such as immigration.

The expanding scale of the prime minister’s climbdown over her promise to “take back control of British law” was revealed as the government published its latest position paper on dispute resolution before the next round of Brexit talks.While stressing that the range of options it contains are hypothetical, the government outlines only scenarios in which “direct” ECJ authority is eventually replaced by a new court or committee over which Europe maintains “indirect” control.

It has also become clear that the UK government is now open to preserving the direct authority of the ECJ throughout the interim transition period after March 2019 – during which it is expected to spend years negotiating a new trade agreement. News of the government’s evolving position has led to a growing political stormthis week, with Tory Brexit supporters claiming Theresa May is abandoning the hardline position she set out in last year’s Conservative party conference speech and in a speech at Lancaster House in January.

European determination to use the ECJ to protect the rights of its citizens and companies after Brexit is forcing the UK into a corner and threatens to derail talks in Brussels before the British negotiator, David Davis, can switch the discussion on to trade and future relations.

Speaking during a visit to Guildford, the prime minister said: “What is absolutely clear, when we leave the European Union we will be leaving the jurisdiction of the European court of justice. Parliament will make our laws. It is British judges who will interpret those laws and it will be the British supreme court that will be the arbiter of those laws.” The UK government is, however, prepared to enter negotiations about the role of the ECJ during the interim implementation phase that it admitted last week was necessary to negotiate new customs and trade relations. It is understood this may involve maintaining direct control for a limited period.

In the long run, the government draws a distinction between enforcement mechanisms and dispute resolution once the new Brexit agreement is in effect, arguing that individual complaints can be dealt with solely by UK courts and only government disputes escalated to the new arbitration body. However, test cases involving individuals appealing against unfair treatment by, for example, UK immigration authorities may quickly escalate into a dispute over the interpretation of the whole agreement, potentially allowing the ECJ to step in on behalf of aggrieved EU citizens.

The government insists there remains a meaningful difference between direct and indirect control, although it concedes that in some of the scenarios it outlines – such as in an agreement between the EU and Moldova – there may be little practical option but to agree to rulings from the ECJ or else see the whole agreement fall apart. It argues arbitration courts and committees are standard practice for the EU though and need not involve a direct role for the ECJ over national law in the first instance.

Sir Paul Jenkins QC, a former head of the government’s legal department, said the government paper contemplated a legal solution similar to that adopted by Efta (the European Free Trade Association), which has its own non-binding court. He tweeted: “If only those of us who predicted an Eefta-like solution a year ago had put money on it.”

Other legal commentators viewed proposals for “voluntary references” to the ECJ to interpret EU rules as a significant softening of the government’s red line over judicial independence in its Brexit negotiating position. The proposals were welcomed by Gunnar Beck, a barrister and EU constitutional law expert who also works for the thinktank Policy Exchange’s Judicial Power Project, which has adopted a pro-Brexit position. He said: “Today’s paper sets out an interesting and intelligent starting vision of future cooperation between UK and EU which more closely resembles other agreements between sovereign states rather than subjection to the European legal order.”

Mathew Rea, a partner at the law firm Bryan Cave, said: “This is a clear backtrack on the government’s previous stance that the ECJ would be a red line in the Brexit negotiations and that there could be no future role whatsoever for the ECJ post-Brexit.”

Changes to Spouse Visa income requirements.

Following the landmark Supreme Court decision in the case of R (on the application of MM (Lebanon)) v Secretary of State for the Home Department in February 2017, although the judges upheld in principle the Minimum Income Rule, which requires an income of at least £18,600 for British citizens and others to sponsor a foreign partner, the decision did offer a glimmer of hope for the countless number of couples who, although in possession of sufficient funds, cannot meet the onerous rules with regard to the source of the income. The judgment refers to the fact that 30,000 spouse applications were refused between 2012 and 2014 and only 26 were referred for further consideration outside of the Immigration Rules, relying instead on Article 8 human rights grounds.

The court did however rule that the Minimum Income Rule was unlawful in failing to protect children and failing to take account of other sources of income not permitted under the immigration rules.

For example, in the case of British citizens who are not in active employment, perhaps through child care commitments or study, unless these individuals can provide evidence of savings of at least £62,500, their foreign national partner will not be able to meet the minimum income requirement in an application for entry clearance, even if said partner is earning in excess of £18,600.

Viewers of the May/Corbyn Q and A session hosted by the BBC a few days prior to the General Election on 8 June 2017 might recall listening to the plight of a young member of the audience, pleading for these rules to be softened. She recounted how she had met her husband at university in the UK, fell in love and married, only to then have to immediately separate and conduct a long distance marriage once his studies ended, so that they could amass the necessary £62,500 in savings, which has to be held for six months!

So, what is this glimmer of hope offered by the esteemed Supreme Court judges? An opportunity for the government to amend this unfair rule to permit the income of the foreign partner to be taken into account you might think! Alas not so.

The government published its latest Statement of Changes on 20 July 2017 with the stated intention on giving effect to the decision in MM. The main provisions are:

  • new general provisions which require the decision-maker, in the circumstances specified, to consider whether the minimum income requirement is met if the other sources of income, financial support or funds set out in the new paragraph 21A of Appendix FM-SE are taken into account. The specified circumstances are that, firstly, the minimum income requirement is not otherwise met and, secondly, it is evident from the information provided by the applicant that there are exceptional circumstances which could render refusal of the application a breach of Article 8, because it could result in unjustifiably harsh consequences for the applicant, their partner or a child under the age of 18 years, whom it is evident would be affected by a decision to refuse the application.
  • Paragraph 21A of Appendix FM makes provision as to the other sources of financial support which the decision-maker will take into account in such cases. These are: a credible guarantee of sustainable financial support from a third party; credible prospective earnings from the sustainable employment or self-employment of the applicant or their partner; or any other credible and reliable source of income or funds available to the couple. Paragraph 21A also makes provision for particular factors which the decision-maker will consider in determining the genuineness, credibility and reliability of such other source of income, financial support or funds.
  • A requirement that the decision-maker, when an application does not meet the requirements of the rules, goes on to consider on the basis of the information provided by the applicant, whether there are exceptional circumstances which would render refusal of the application a breach of Article 8 because it would result in unjustifiably harsh consequences for the applicant or their family.
  • A requirement for the decision-maker, in considering an application under the new general provisions, to have regard, as a primary consideration, to the best interests of any child affected by the decision.
  • A stipulation that grants of visas under these new general provisions will put applicants on the 10-year route to settlement, with scope to apply later to enter the five-year route where they subsequently meet the requirements.
  • Measures to ensure that a child is granted leave of the same duration and subject to the same conditions as their parent, who is or has been granted leave under these rules.
  • Measures to ensure that the partner of a person with refugee status or enjoying humanitarian protection cannot qualify for indefinite leave to remain before their partner does.

It is hard to conceive of circumstances which are not exceptional when considering the enforced separation of a family. No doubt these rules will give rise to a substantial body of case-law to decide where the line should be drawn and most cases will inevitably be decided on their facts. It is regrettable that the government does not define ‘unjustifiably harsh’ consequences, which means that applicants will have to amass strong evidence in support of their application in the hope that it meets the unknown threshold of harshness in order to engage Article 8.

Where there are children involved, it is most likely that Article 8 will be engaged, in order to meet the requirement to ensure the best interests of the child are served.

Not only do these rules impact British citizens but also those with indefinite leave to remain (ILR) in the UK. Following Brexit, EU citizens will have to apply for ILR in order to secure ongoing rights to remain in the UK. They will also be subject to the Minimum Income Rule should they wish to bring family members to the UK. Until now EU citizens have been able to bring their non-EU family members to the UK by meeting a considerably lower income threshold.

Certainly the immigration rules continue to throw up challenges for couples and their children to get on with their lives in the UK and no doubt the EU dimension will engender further complexity.