Category: Corporate

Frequently Asked Questions for EEA Staff and their Family Members

The following FAQs are intended to answer your most immediate questions relating to the effect of the UK’s exit from the EU on EEA citizens, and we will endeavour to update these as and when the situation develops.

How much attention should I pay to these proposals?

It is important to remember that they are merely proposals put forward by the UK as part of its negotiations with the EU. Whilst the proposals are a useful indicator of the government’s current intentions, depending on the outcome of the negotiations, they could, by the time they are implemented, become either more generous or (less likely) more onerous for EEA nationals in the UK.

The proposals refer specifically to EU citizens, but what about those of us in the UK from other EEA (non-EU) member states and Switzerland?

The government has said that it will discuss similar arrangements with Iceland, Liechtenstein, Norway and Switzerland on a reciprocal basis. Throughout these notes, we will use “EU citizens” when referring to the government’s proposals, but “EEA nationals” when discussing the current law and practice relating to the wider group of EU, EEA and Swiss nationals.

What are the relevant points of the proposals?

  • EU citizens who arrived before a specific cut-off date (see below) and who have been continuously resident here for five years will be allowed to stay indefinitely by obtaining “settled status”.
  • EU citizens who arrived before the cut-off date but have not been here for five years will be allowed to obtain temporary permission to stay until they have, after which they will be able to apply for settled status.
  • Family dependants who are living with or who join EU citizens before the UK’s exit will also be able to apply for settled status after five years in the UK.
  • There will be a grace period of up to two years after the UK leaves the EU to give EU citizens and their families sufficient time to make their applications.
  • All EU citizens and their families in the UK will need to apply to the Home Office for permission to stay before the end of the grace period, regardless of the date of their arrival and whether or not they already have permanent residence or documents to confirm that status.

What does “settled status” mean?

Settled status under UK law is expected to be the same as indefinite leave to remain (ILR) granted to non-EEA nationals after five years of continuous residence in the UK. ILR is similar but not identical to the permanent residence which is currently acquired by EEA nationals who have spent five continuous years in the UK in a qualifying status (i.e. as a worker, a self-employed or self-sufficient person or student). The main differences between permanent residence and ILR are:

  • Permanent residence provides an ongoing right to be joined in the UK by eligible non-EEA family members without meeting the rigorous financial criteria applied to non-EEA spouses and partners of UK citizens
  • Disputes relating to ILR are dealt with by the UK courts rather than the European Court of Justice
  • Qualifying EEA nationals are not currently required to obtain a document to confirm their permanent residence status, whilst non-EEA nationals must expressly apply for and be granted ILR

What will the cut-off date be?

The government has indicated that the cut-off date will be no earlier than the date on which Article 50 was triggered (29 March 2017) and no later than the date on which it is anticipated the UK will leave the EU (29 March 2019). In theory, this means that if you came to the UK after 29 March 2017, you may not be eligible for settled status. The actual cut-off date will be a key point in the negotiations between the EU and the UK. We think it is unlikely to be much before the UK’s actual exit date.

What will the qualifying criteria for settled status be?

The proposals refer to arriving in the UK before the cut-off date and being continuously resident for five years (and, in places, to lawful residence). It is possible the government intends to impose additional qualifying criteria, including proof that an EU citizen has been in a qualifying status (i.e. as a worker, a self-employed or self-sufficient person or student) during the five-year period (as is the case for EEA nationals to acquire permanent residence now). Thankfully, the government has indicated that it intends to remove the requirement that EU nationals who have been studying or economically selfsufficient in the UK (but not working) during any part of their five years in the UK must be able to show that they had comprehensive sickness insurance during those periods as a condition of their ability to obtain temporary permission or settled status.

What will the process be to obtain temporary residence or settled status?

We do not yet know what the process will involve or when it will be introduced. The proposals state that it will be “as streamlined and user-friendly as possible” using “existing government data, such as income records, to minimise the burden of documentary evidence required (e.g. to prove continuous residence)”. It is likely that the Home Office will require applicants to provide their biometric information during the process.

What will it cost to apply for a temporary residence permit or settled status?

The proposals state only that the government intends to set fees at a “reasonable level”. The current cost of an EEA residence document is 65 per person, but an ILR application (the closest equivalent to a settled status application) is 2,297 (without fast-tracking).

If I have already acquired permanent residence, will this mean that I am automatically granted settled status?

No. The proposals state that permanent residence status will no longer be valid after the UK leaves the EU (even if you have obtained a document to confirm that status). You would, therefore, still need to apply for settled status; although, the proposals also state that “for those who have already obtained a permanent residence document, we will seek to make sure that the application process for settled status is as streamlined as possible”, which is a positive indication that having a permanent residence document will be (as a minimum) helpful in obtaining settled status.

Can I still apply for a document confirming permanent residence now?

Yes, and you should not be put off by Home Office emails or website postings indicating that you should not apply. Many EEA nationals will find it useful and reassuring to have a formal record of their continuous residence in the UK in a qualifying status, given that the law in this respect has not yet changed and we do not know if, how or when it will do so. As stated above, having a document confirming permanent residence is also likely to facilitate the process of obtaining settled status.

The current online application process for permanent residence, https://visas-immigration.service.gov.uk/product/eea-pr, is now reasonably straightforward. The application fee is 65 per person; if you have not spent more than six months outside the UK in any 12-month period of the relevant five-year period, you are now not required to list all of your absences from the UK and it allows for an immediate passport return service (other than for dependants applying without a main applicant).

Having a document confirming permanent residence is also a prerequisite if you intend to apply to naturalise as a British citizen after six years in the UK.

Do I need to do anything now?

No, you do not need to do anything now unless you want to apply for a document confirming permanent residence. In the meantime, if you do not intend to apply for a permanent residence document, you may want to consider (merely as a precaution) locating and retaining formal original documentation to confirm your continuous residence in the UK, such as P60s or payslips. For non-working dependant family members, proof of residence would include formal original documentation indicating that they have resided with you at the same address in the UK, such as bank statements, tenancy agreements, council tax and utility bills, letters from GPs or schools, etc.

How will I know if I am eligible for a permanent residence document?

If you are an EEA national who has been in the UK for five continuous years in a qualifying status (e.g. as a student, worker or self-sufficient or self-employed person), then you will have acquired permanent residence. Under the current rules, any time spent in the UK as a self-sufficient person or as a student also requires you to have held comprehensive sickness insurance during that period (which, for practical purposes, generally means private medical insurance). If this applies to you, but you did not hold private medical insurance during the relevant period, then, given that the government intends to remove this requirement, you may want to seek further advice before applying and may be better off waiting for the new settled status process to be introduced rather than have your application for permanent residence formally rejected.

What does “continuous” mean for the purpose of qualifying for a permanent residence document?

It means being in the UK as a qualified person without a break of six months or more in any 12-month period. Absences from the UK or gaps in work of up to six months in any 12-month period will not usually prevent you from acquiring permanent residence (in certain circumstances, including maternity leave, longer gaps are also acceptable). Further advice should be sought where your work history or residence in the UK has material gaps.

Can my spouse/partner and children apply for a permanent residence document at the same time as I do?

They may qualify for a permanent residence document in their own right (as set out above) but will also have acquired permanent residence if they have been living in the UK as your family members for a continuous period of five years, even if they have not been here as qualified persons. In that case, they can apply for a permanent residence document at the same time as you. This will also be the case for your family members from a country outside the EEA, but they will have needed proof of their status in the form of a family permit or residence card from the beginning of their time in the UK. If your family members have not been in the UK for five years when you apply for a permanent residence document, they may still apply at the same time as you, but will be issued with a registration certificate (EEA nationals) or residence card (non-EEA nationals) instead of a permanent residence document.

How long does it take to obtain a permanent residence document?

Although the Home Office is strictly required to process EEA applications within six months, in light of the significant increase in applications the Home Office is currently dealing with, it could take longer. In some cases, particularly where the online process has been used, applications have been approved well before the six-month deadline.

Can I lose my permanent residence status once I have acquired it?

Under current law, having acquired permanent residence (whether or not you obtain a permanent residence document), you will only lose it if you leave the UK for more than two consecutive years. This will also apply to the settled status. In addition, of course, under the government’s new proposals, permanent residence will cease to be recognised as such once the UK leaves the EU, hence, the need to apply for settled status.

Can I apply for British citizenship?

Yes, if you have lived in the UK for a continuous period of five years and are the spouse or civil partner of a British citizen, or for a period of six years if you are not the spouse or civil partner of a British citizen. You would first need to obtain a permanent residence document before applying for British citizenship. There are also additional qualifying criteria, including stricter UK absence rules than those for acquiring permanent residence and a requirement to pass a “Life in the UK” and English language test. EEA nationals with non-EEA dependant family members with them in the UK should seek further advice before applying for British citizenship, as this will affect the rights of their non-EEA dependant family members. You should also check first whether your home country will allow dual nationality some do, but others do not, and acquiring British citizenship could lead to you forfeiting your nationality of origin.

Theresa May wants EU criminals out; following Brexit it may become more difficult to remove them

Last Monday’s announcement on the rights of EU citizens in the UK post-Brexit carried the headline grabbing statement that the Government will “apply rules to exclude those who are serious or persistent criminals and those whom we consider a threat to the UK”. The Daily Mail took the bait, publishing a story entitled “We’ll Kick Out EU Killers”. The reality is, however, that following Brexit it may be more difficult to remove serious criminals than it is under the law as it is now. The law does currently provide for the removal of EU citizens convicted of criminal offences in the UK. Where offences have been committed abroad, it is only through our membership of the EU that the UK has access to information about those offences and the ability to extradite accused or convicted persons.

There are two ways in which EU citizens accused of or convicted of criminal offences may be removed from the UK:

  1. EU citizens in the UK convicted of committing offences in the UK are in fact subject to deportation already: the UK Borders Act 2007 requires the Secretary of State to make a deportation order in respect of a foreign criminal unless exceptions apply. Under the Act, a ‘foreign criminal’ is defined as someone who is not a British citizen and who has been sentenced to a period of imprisonment of at least 12 months, or who has committed a specified offence under the Nationality, Immigration and Asylum Act 2002. This means that, on conviction, EU citizens can already be deported.
  2. EU citizens accused of or convicted of an offence in another country may be subject to extradition, under the EAW scheme. There is no requirement for such offences to be serious, in fact, as has been well-publicised, extradition can take place for relatively trivial offences, such as theft of a chocolate bar or cycling while drunk.

It is right to say that current legal provisions mean that it is more difficult to deport EU citizens exercising their treaty rights in the UK who have been convicted and served a sentence abroad than non-EU nationals. Nevertheless, as a result of information sharing across the EU, the prospects of determining whether an EU citizen has previous convictions from abroad are much better. The UK has access to information about previous convictions through its membership of the EU, and in particular through Europol, the Schengen Information System (II) and ECRIS. Without this access, it will in fact be more difficult for the UK to determine who is, or is not a “serious or persistent” criminal. If the UK is not permitted to remain part of the EAW scheme, extradition of those accused or convicted of offences abroad is likely to become more difficult than it is now. Further detail is awaited, however, in practical terms, if the UK does wish to exclude EU citizens who are “serious or persistent” criminals, UK negotiators may find that major concessions will have to be made in order to retain access to the key EU crime and security information databases and agencies.

EEA family members’ right to work during the renewal or application for residence documentation in the UK

The Immigration (European Economic Area) Regulations define a “family member” (a spouse, civil partner or a direct dependant relative of either EEA national or her/his spouse, a child or parent) and impose an obligation that “an EEA family permit issued under this regulation must be issued free of charge and as soon as possible” (Regulation 12(6) of the Regulations). Nevertheless, there are grey areas in the Regulations, which may affect the day-to-day lives and activities of family members residing in the UK with their EEA partners, children and parents.

Case Example (names have been altered)

Simon is a direct family member whose 5-year residence card expired in May 2016. He did not apply for his EEA (Permanent Residence) card (“EEA(PR)”) until July 2016 and was forced to leave his employment shortly after. The reason for that was that his employer was not convinced that Simon had a right to work until he obtained his permanent residence card. Upon contacting the Home Office, Simon received the following response: “The person in such a situation has a right to reside but not the right to work during the time in which he did not apply for his EEA(PR)“. It is clear that the Home Office referred to the period between the expiry of the residence card and the application date. And even if immigration solicitors advised employers differently, Simon has lost his employment.

According to Regulation 21 of the EEA Regulations that describes the procedure for applications for issue or renewal of family members’ residence card, the applicant must be in the UK. It does not, however, address explicitly applicants’ rights during the process. Therefore, the question remains: do applicants like Simon have a legal right to reside and work in the UK after the expiration of their residence card?

The answer is straightforward: Simon has the right to reside and work as long his EEA national sponsor remains a “qualified person” in the UK and the relationship is subsisting. Normally, the Certificate of Application (if the applicant had made an application either for a new residence card or for EEA(PR)) confirms these rights to stay and work in the UK and relays this information for the benefit of a current or prospective employer. It is important to bear in mind, however, that such a Certificate of Application is issued after the submission of biometrical data; this data within up to two months after the application submission. Hence a considerable delay in the confirmation of rights of the applicant in writing. And as Simon testifies, regardless of the immigration advice and the confirmation of his right to work, his employers stood by their decision to discontinue his employment.

To avoid the difficult situation Simon found himself in, it is advisable to apply in advance in order to receive the Certificate of Application and thus have a confirmation of the rights to stay and work in the UK.

The Queen’s Speech 2017 – what did it say about immigration?

The Government set out its objectives in the Queen’s Speech. This year’s speech is intended to cover a two year period, instead of the traditional 12 months, to allow MPs more time to debate Brexit legislation.

The 2017 Conservative Party manifesto had set out the following aims in relation to immigration:

  • reduce immigration to sustainable levels, which means annual net migration in the tens of thousands, rather than the hundreds of thousands seen over the last two decades;
  • ask the independent Migration Advisory Committee to make recommendations to the Government about how the visa system can become better aligned with modern industrial strategy. The Conservatives envisaged that the committee’s advice would allow them to set aside significant numbers of visas for workers in strategically-important sectors, such as digital technology, without adding to net migration;
  • double the Immigration Skills Charge levied on companies employing migrant workers to £2,000 a year by the end of the parliament, using the revenue generated to invest in higher level skills training for workers in the UK;
  • secure the entitlements of EU nationals in Britain and British nationals in the EU;
  • maintain the Common Travel Area and ensure that the movement of people, goods and services between Northern Ireland and the Republic of Ireland is as ‘frictionless’ as possible;
  • allow workers’ rights conferred on British citizens from the UK’s membership of the EU to remain;
  • increase the earnings thresholds for people wishing to sponsor migrants for family visas;
  • toughen the visa requirements for students. The Conservatives expect students to leave the country at the end of their course, unless they meet new, higher requirements that allow them to work in the UK after their studies have concluded;
  • overseas students to remain in the immigration statistics – in line with international definitions – and within the scope of the Government’s policy to reduce annual net migration;
  • establish an immigration policy that allows a reduction and control of the number of people who come to Britain from the EU, while still allowing the Government to attract the skilled workers the economy needs;
  • increase the Immigration Health Surcharge to £600 for migrant workers and £450 for international students to cover their use of the NHS.

In contrast, the Queen’s Speech announced:

‘A bill will be introduced to repeal the European Communities Act and provide certainty for individuals and businesses. This will be complemented by legislation to ensure that the United Kingdom makes a success of Brexit, establishing new national policies on immigration, international sanctions, nuclear safeguards, agriculture, and fisheries.’

The briefing notes which accompanied the Queen’s Speech, set out the following:

‘With the repeal of the European Communities Act, it will be necessary to establish new powers concerning the immigration status of EEA nationals. The bill will allow the Government to control the number of people coming here from Europe while still allowing us to attract the brightest and the best.

The bill will:

  • allow for the repeal of EU law on immigration, primarily free movement, that will otherwise be saved and converted into UK law by the Repeal Bill;
  • make the migration of EU nationals and their family members subject to relevant UK law once the UK has left the EU.’

Commentary

It will be welcome news to businesses, which find it difficult to recruit from the domestic skills force, that most of the immigration pledges from the manifesto (including reducing annual net migration to the tens of thousands) did not make it into the Queen’s Speech. However, with the end of free movement as we know it seemingly inevitable, both businesses and relevant sectors must make sure that they prepare themselves for changes to the way that EU nationals are able to come and take up work in the UK. It remains to be seen whether any new system will bring EU nationals into a set of immigration rules which apply equally to both EU and non-EU nationals or whether separate systems will be put in place.

Finally, while the bill refers primarily to EU nationals and is silent on non-EU immigration, the Government apparently remains committed to the net migration target although it has not yet set out what measures will be put in place to achieve this.

1.2 million foreign workers could flee the UK in the next 5 years

Close to half of the skilled EU nationals working in the UK could return home or move to other countries within five years. As many as 1.2 million foreign workers from around the globe are considering leaving Britain, a new report suggests. 36% of foreign workers based in the UK are thinking about leaving the country by 2022, while 26% could move by 2020. If those survey figures were extrapolated to the 3.4 million non-British workers in the country, then 1.2 million foreigners working here are considering moving in the next five years.

When it comes to skilled workers — those in jobs that require specific skills or training — the proportion of workers considering a move jumps to 47%. Not only are skilled workers more likely to leave, they are also the “most likely to leave first,” according to the report. This could create short-term challenges. Overseas workers, especially those from the EU, tell us they are more likely to leave the UK than before. That points to a short-to-medium term skills deficit that can be met in part by upskilling our domestic workforce but which would also benefit from an immigration system that is attuned to the needs of the economy. However, the UK still remains one of the most attractive countries for foreign workers to come to, with 89% of survey respondents saying they see the country as either “quite” or “highly” attractive to work in. The UK beat out places like the USA, Canada, and Australia in terms of desirability.

The new report comes the day after Prime Minister Theresa May announced a new set of proposals for EU nationals living in Britain after Brexit.

The prime minister told the House of Commons on Monday that all European citizens living in the UK before the date that Britain leaves will be able to apply for “settled status” to remain living and working here, as long as British citizens living in the EU are granted the same rights. Under the plans, EU citizens must have been living continuously in the UK for at least five years before an unspecified cut-off date in order to qualify.

What do we know so far – Post-Brexit offer on EU citizens

All 3 million EU citizens resident in Britain will have to apply for inclusion on a “settled status” register if they want to stay in the country after Brexit under Home Office proposals. A 15-page policy paper proposes a “light touch” online system to process applications that will give applicants the same “indefinite leave to remain” status as many non-European nationals who have also lived in Britain for five years.

The EU “settled status” residence proposals could entail an identity card backed up by entry on a Home Office central database or register. It has yet to be decided whether the residence document for “settled status” EU citizens will be issued as an identity card or simply exist as an entry on a Home Office database. The policy paper was published as Theresa May issued a statement detailing the government’s proposals on EU citizens’ rights after the UK leaves the bloc. After May’s statement, the EU’s Brexit negotiator Michel Barnier tweeted a sceptical response, saying: “More ambition, clarity and guarantees needed than in today’s UK position.”

The policy paper reveals that EU nationals who have applied for permanent residency status documents since the referendum – thought to number more than 150,000 – will be asked to apply again, albeit in a streamlined process. Those who have been asked previously to show evidence of comprehensive sickness insurance will no longer have to do so. The UK offer on the rights of EU nationals makes clear that after Brexit they will lose their right to bring in a spouse to live in Britain unless an £18,600 minimum income threshold is met. Announcing the UK offer in the House of Commons, May said those EU nationals who had “settled status” would have the same rights as British citizens to bring family members into the UK, but she did not mention the £18,600 threshold condition. EU nationals are currently exempt from the minimum income threshold, an immigration rule that supreme court judges have described as “particularly harsh”.

The plans could see EU citizens in the UK losing voting rights in British local elections. They will also lose the protection of the European court of justice, which will no longer have jurisdiction over citizens’ rights in the UK. But apart from these exceptions, their “settled status” will give them the right to live in Britain, to undertake any lawful activity, to access public funds and to apply for British citizenship.The UK offer includes guarantees on UK pensions including on uprating and aggregated rights paid out abroad and the ability of settled EU nationals to continue to have social security benefits, such as child benefit, paid in other EU countries.

But several key areas – including healthcare, professional qualifications and the rights of the self-employed – are put in a negotiating category of “seek to ensure continuity” rather than a unilateral guarantee from the UK. The Home Office said it wanted to avoid a “cliff edge” in applications the day after Brexit, and so would grant a period of up two years’ grace for EU nationals who could demonstrate five continuous years of residence in Britain.

The Home Office said it would make a blanket assumption that all EU citizens in Britain on the yet to be agreed cutoff date would be given temporary leave under British immigration law. There will be a provision for EU citizens to apply voluntarily before Brexit, but it will only be mandatory after the cutoff date. Those who fail to apply within the two-year grace period will no longer have permission to remain in the UK.

The application process is to use existing Department for Work and Pensions-HMRC income and wage records to minimize the need for applicants to supply documents such as wage slips going back years. It is expected that most applications will be “straightforward”, but the Home Office, which processes millions of visa applications each year, admits that the task will be challenging. The system will also allow those who arrive before the cutoff date to build up five years’ continuous residence after Brexit, but people who arrive after the cutoff point will be subject to the new immigration regime. The Home Office said it had a broad range of options under consideration and would publish proposals shortly.

In the Commons, May was forced to deny that families would be broken up as a result of Brexit. Her denial came in the face of sustained Labour questioning over the implications of applying the minimum income threshold to EU nationals. “No families will be split up. Family dependents who join a qualifying EU citizen here before the UK’s exit will be able to apply for settled status after five years,” the prime minister said. “After the UK has left the European Union, EU citizens with settled status will be able to bring family members from overseas on the same terms as British nationals.”

But legal experts said the decision meant that EU nationals would lose their entitlement to be joined by family members, including parents, without a financial means test and with minimal fees.

May said the package on EU citizens’ rights would offer certainty for the 3 million EU nationals residing in the UK and those who qualified for settled status would be “treated the same as if they were UK citizens for healthcare, benefits and pensions”.

The key points of the UK’s proposals are:

  • Those granted settled status will be able to live, work, study and claim benefits just as they can now
  • The cut-off date for eligibility is undecided but will be between 29 March 2017 and 29 March 2019
  • Family members of EU citizens living abroad will be able to return and apply for settled status
  • EU nationals in the UK for less than five years at the specified date will be able to continue living and working in the UK
  • Once resident for five years, they can apply for settled status
  • Those arriving after the cut-off point will be able to stay temporarily
  • But there should be “no expectation” they will be granted permanent residence
  • A period of “blanket residence permission” may apply to give officials time to process applications to stay in the UK
  • The Home Office will no longer require evidence that EU citizens who weren’t working held “comprehensive sickness insurance”

If you have any further questions give us a call on 020 3695 4626 or email us on enquiries@citylegalservices.co.uk

May tells EU migrants: “We want you to stay”

Theresa May’s deal for EU migrants would strip them of their ‘settled status’ if they leave the country for just two years, it was revealed today. The Prime Minister proudly announced her “fair offer” to EU citizens living in the UK on Thursday.The deal allows EU nationals who have lived in Britain for five years to apply for ‘settled status’.

On Sunday, Brexit Secretary David Davis said the deal “effectively” gave them the same rights as British citizens. But buried in the 22-page document outlining the plan, which was published today, is the revelation that ‘settled status’ can be revoked if migrants leave Britain for just two years. This brings it in line not with British citizenship, but with ‘indefinite leave to remain.’

People with ‘settled status’ will be allowed to apply for permanent British citizenship after a year, but this is not automatic. The 3.2 million EU migrants living in the UK would also be required to hold an ‘ID card’ to prove they can draw benefits and use the NHS. And those applying will have to provide “biometric information” like fingerprints as part of the process.

The major scheme was buried in a new 20-page document outlining details of Theresa May’s plan for EU citizens. The Prime Minister had already announced a new “settled status” for those who have been in Britain for five years, an offer EU leaders said didn’t go far enough. Now the government has said those staying will be forced to obtain “documentation showing their settled status” by law. The Home Office has not declared what form the documentation will take and has not ruled out ID cards.

A source said: “Further details on the scheme will be provided in due course.”

In Sickness and in Health: Appendix FM five years on

Appendix FM introduced a number of new requirements. Most notably, the controversial financial requirement was brought in and the route to settlement was made longer (from two to five years).

9 July 2017 will mark five years since the introduction of Appendix FM. The route’s trailblazers will now be gearing up for their indefinite leave to remain (ILR) applications this summer. They will be pleased to know that much has changed since the route was first introduced, but, have no fear, in this blog we will aim to identify the main pitfalls to be avoided.

English language requirement

If you are thinking about making an application this summer you should already be aware that, as a part of your application, you will be required to meet the English language requirement. Those of you who do not meet the English language requirement by way of your nationality, or a degree you have completed, will previously have had to take and pass an English language test at A1 of Common European Framework of Reference for Languages. However, since October 2013 a different requirement has been in place for ILR applications. In order to meet the criteria for ILR you will need to show that you are at B1 standard which, surprisingly, is actually higher than A1.

In addition, following changes brought in during 2015, only authorized English language tests can be relied upon and they must have been sat at a test center on the Home Office’s approved list. In practice, those who previously had to rely on an English language test will need to take and pass a new test for their ILR application – cue some last minute revision. The good news is that this test can be relied upon for a subsequent application for British citizenship.

Absences

There is no formal absence requirement that partners seeking to settle in the UK are required to meet. However, those preparing their ILR applications this summer may be surprised to see that in the application form they will be asked to provide details of all periods of absence from the UK during the time that they have lived here.

All periods?” I hear you say. Yes, all periods. This will mean preparing a comprehensive travel schedule covering the entire length of time that you have been here, even if you lived here before being granted leave as a partner – no mean feat.

“Why?” you ask. Well, one reason is that there is an underlying expectation that your time will be spent with your partner in the UK. In the Home Office’s words,

Where there have been limited periods of time spent outside the UK, [they must have been] for good reasons and the reasons must be consistent with the intention to live together [with your partner] permanently in the UK.

This could spell trouble for those of you who have been avoiding our manic weather (or your significant other) and spending extended periods abroad. On a serious note, if you have spent extended periods abroad individually or as a couple they will need to be explained as a part of your application. We know that there are often good explanations for absences, but it will be important to have those set out clearly so that the Home Office can take them into account. Again, your efforts spent going back over those wonderful holidays you had enjoyed and forgotten about will not be wasted. Preparing the travel schedule will be a useful opportunity for you to assess your absences in preparation for a future application for British citizenship. If you intend to make one you should be aware that you can do so immediately after your application for ILR has been approved.

Life in the UK

The final aspect of the application which is likely to be new to you is the Life in the UK requirement. This is satisfied by taking and passing the Life in the UK test. Be prepared to grapple with questions on the national flowers of the United Kingdom (yes, we have them), the origins of Halloween and the terms of Scotland’s devolution agreement.

Making your application

Once you have skilfully navigated your way through the above and the other application requirements, you will need to prepare and submit your application. We have been working with couples and their families for over 10 years and have been preparing and submitting applications under Appendix FM ever since its introduction. We understand how important it is to get the application right – the first time – and our extensive experience means that we are well placed to submit the first settlement applications under the route this summer.

What to do if your application is refused

If you are reading this too late you will need to act quickly. Although you may have a right to appeal the decision, appealing may not be the quickest resolution but that is something we can discuss and advise you on. If you find yourself in this position please feel free to contact us and we would be happy to arrange a consultation with you.

Suspension of the Sponsor licence

Tier 2 of the Points-Based System is the primary immigration route for non- EEA migrants who wish to work in the UK. An organisation or a company that holds a valid Tier 2 licence must sponsor these migrants. A licence is a permission given to an organisation/company to sponsor workers in its business. As a UK sponsor, the organisation/company is opening its doors to the Home Office for an on site visit. The Home Office officials are able to visit and conduct checks to ensure that the sponsor duties are being complied with on an immediate, unannounced basis.

If the Home Office believe that the organisation/company is breaching its duties and posing a threat to immigration control, they may suspend the licence while they make further enquiries.

What happens if the licence is suspended?

If the licence is suspended, it is suspended in all the tiers and categories the organisation/company is licensed under and will be removed from the public version of the register of sponsors during the suspension period.

If the Home Office is satisfied with the evidence to suspend the licence without further investigation, they will write to the organisation/company giving reasons for the suspension. Where the Home Office have evidence that warrants the licence being suspended pending a full investigation, they will write to the organisation/company giving initial reasons for suspension and confirming that an investigation will take place. It may not be possible to say how long the investigation will take, but the Home Office are supposed to update the organisation/company on their progress at regular intervals.

The organisation/company has 20 working days from the date of the written notification, to respond to the Home Office letter with mitigating arguments and further supporting evidence. If the Home Office identifies any additional reasons for the suspension of the licence during that 20 day period, including any additional information gained during the course of discussions or interviews with migrants, they we will write to the organisation/company again, giving another 20 working days to respond in writing to the additional reasons. Please note that when the Home Office receives the response from the organisation/company they may ask any compliance officer, other law enforcement agency, government department, agency, local authority, the police, foreign government or other body for information about the organisation/company.

Action taken after receiving a response from the organisation/company

Appropriate action may be to re-instate the licence with either an A-rating or a B-Rating, and/or stop the organisation/company from assigning CoS and prevent the use of any assigned but unused CoS, or to revoke the licence. Any action taken will take effect from the date of the letter the Home Office sends to the organisation/company, informing of the decision. If the licence has been suspended and the Home Office do not later revoke it, they will reinstate it either as an A-rating or a B-rating.

The organisation/company will not be able to assign any certificates of sponsorship (CoS) to migrants when the licence is suspended. While the licence is suspended, if a migrant makes an application supported by a valid CoS that the organisation/company assigned before the licence was suspended, the Home Office will not decide their application until the reason for suspension has been resolved. If the licence is re-instated to A-rating the organisation/company is able to continue to sponsor migrants and return to their sponsor duties as they were prior to the suspension. If the licence is re-instated to a B-Rating, the organisation/company will not be given a further 20 working days to reply as this process will have been completed during the suspension period. Re-instatement with a B-rating means the organisation/company must comply with an action plan. A B-rating is a transitional rating. If the organisation/company is a B-rated sponsor, they must improve their performance enough to be upgraded to an A-rating within a specified time limit, not exceeding 3 months. If they do not, the licence will be revoked.

Certain circumstances can lead to the licence being revoked. If this happens, it will be revoked in all the tiers, categories and sub categories, which the organisation/company is licensed under. There is no right of appeal and the organisation/company will not be allowed to apply again for a sponsor licence until the end of the appropriate cooling off period from the date the licence is revoked.

What Seed Funding Competitions are available for a Tier 1 Entrepreneur visa?

Under the £200,000 financial requirement, the funds may either be owned by the applicant or by a third party. Note that the third party must sign a declaration that the money is accessible by the entrepreneur in the UK. Also, anyone, irrespective of whether or not they have been in the UK can apply by meeting the £200,000 financial requirement. Under the £50,000 financial requirement however, different sets of rules apply. Applicants can only be using this route if: –

  1. They have successfully completed a course of study in a UK tertiary educational institution and have been endorsed the UK tertiary educational institution as having a good and special business idea. Here, the university accepts to sponsor the student under the Tier 1 Graduate Entrepreneur scheme.
  2. They have secured seed funding from a Seed funding competition endorsed by the Department of Trade.
  3. That have secured seed funding from a venture capitalist firm registered with the Financial Conduct Authority.
  4. They have already invested at least £50,000 in a UK business 12 months before the date of application.

The Home Office recognizes several major seed funding competitions that have been endorsed by the UK Department of Trade and Investment (UKTI). Some of which include:

  • Seedcamp
  • Entrepreneur First
  • Founders Factory Accelerator
  • Tech stars
  • Pi Lab
  • Emerge Education
  • Oxygen Accelerator
  • Wayra UK

Seedcamp: – Seedcamp’s offers three options for investment: –

  1. €75,000 for 7% equity – The Structured Equity deal.
  2. 3% as a Warrant
  3. €200,000 in Seed investment

Please visit their website http://seedcamp.com/ for more details

Entrepreneur first – This is a tech startup seed funding competition aimed at engineers and computer scientists who have strong business ideas in the tech industry.  Their program is a 6 month intensive bootcamp followed by an 18 months general support for the business idea. They run their program in both London and Singapore. Find out more on their website https://www.joinef.com/

Founders Factory Accelerator – This is also another tech startup seed funding competition. Their offer is in two folds. Accelerator and Incubator. The accelerator option is designed for tech entrepreneurs who are in the beginning stage of their business idea. If selected, they will normally be invited for a 6 months bootcamp to network and grow their business idea. The next option is the Incubator. Here products are built from the scratch along with their in-house business growth hackers and business development experts. Visit their website for more information https://foundersfactory.com/

Tech Stars – Generally acclaimed to be the most competitor mentor program in the world. They position themselves as a global eco system that helps entrepreneurs and build great businesses. Every year, the company announce what industries or sectors they will be focusing on; and this year, the focus is on digital health and sensor technology. See more on the website http://www.techstars.com/

Pi Lab – Pi Lab is a property Tech Venture Capitalist firm. Their offer is similar to SeedCamp’s: –

  1. Accelerator Investment of up to £100,000
  2. 5% accelerator warrant
  3. Seed investment of up to £2m

Website: – http://pilabs.co.uk

Emerge Education – Emerge education offers an accelerator program of a 3 month bootcamp for individuals looking to improve educational outcomes. They welcome edtech startups at any stage of the business development. View more here – http://emerge.education/

Oxygen Accelerator – They are also a tech startup. They offer €21,000 per team in exchange for 8% equity. They have a 13 week intensive bootcamp program as part of the package. Click here to go to their website http://www.oxygenaccelerator.com/

Wayra – They offer venture capitalist funding of up to £34,000. Importantly, they are not restricted to the tech industry like the others. Click here to go to their website

City Legal Services is a specialist Immigration Law firm and we can help with any part of the Tier 1 entrepreneur visa application. We do not assist you with securing funds but can suggest to you what venture capitalist firms or competition are available and endorsed by the UKTI.

Contact us on 020 3695 4626 if you need help with your entrepreneur visa application.