Category: Detroit’s Lawyers

EU citizens must bring family over before Brexit or face tougher immigration

The Prime Minister has decided not to heed the call from the European Commission to allow EU citizens living in the UK the right to be joined by family members after Brexit, as part of a deal on citizens’ rights for the estimated 3.2 million EU nationals living in the UK. Instead, Mrs May said family dependents joining EU citizens living in the UK after Britain’s exit “will be subject to the same rules as those joining British citizens” who arrive after the cut-off point.

The Government also again rejected calls from the EU that the rights of citizens be upheld by the European Court of Justice, stating in its offer document today that the ECJ “will not have jurisdiction in the UK”, but would instead be guaranteed by UK law.

Following the PM’s statement, the European Commission’s chief Brexit negotiator Michel Barnier tweeted: “EU goal on #citizensrights: same level of protection as in EU law. More ambition, clarity and guarantees needed than in today’s UK position.”

The differences in position – both on rights and who enforces them – underline how tough these negotiations could be in the coming weeks, as the two sides try to thrash out a deal that will affect one million Britons living in the EU and an estimated 3.2 million EU citizens living in the UK. The scale of the administrative task facing the Government was also laid bare on Monday, as the Home Office said it had given itself a two-year window to process applications from EU citizens for “settled status” to protect their rights.

That could amount to over 4,000 applications a day.

“It’s most definitely a challenge for the Home Office,” said an official.

The Government said it would scale up the operations to process applications but admitted that it had not done a study on whether there will be a surge in migration before the cut-off point. The 15-page document will grant EU citizens who have lived in the UK for five years “settled status” after Britain leaves, meaning they will be treated as if they are UK citizens for healthcare, education, benefits and pensions.

There will be a “cut-off date” which will be no earlier than the day Britain triggered Article 50 – 29 March 2017 – and no later than Britain’s withdrawal from the EU. However, the Government said EU citizens had a two year window after Brexit to apply for “settled status” in order to avoid a cliff-edge. The paper also says that EU citizens who arrive before the cut-off date, but with fewer than five years as a resident, will be given time to stay in order to obtain settled status.

Those who arrive after the cut-off point can stay in the UK for a temporary period but “should have no expectation of guaranteed settled status”.

Key points from the paper include:

  1. EU citizens applying for “settled status” will have to bring over dependants before the UK’s exit from the EU. After Brexit, dependents will be subject to the standard UK immigration rules.
  2. EU citizens with “settled status” will continue to have access to UK benefits on the same basis as a comparable UK national.
  3. EU citizens who do not have five years’ residence at the time of the UK’s exit but are on “pathway” to settled status will be able to access the same benefits as now – equal access for those in work and limited benefit access for unemployed.
  4. The Government will create new rights in UK law for qualifying EU citizens resident here or before exit. This will be enforced by UK courts. The European Court of Justice will not have jurisdiction in the UK.
  5. EU citizens will no longer be able to vote in local elections.
  6. EU nationals will be allowed to keep sending their UK benefits to other countries in the EU – such as child benefit – if they were already doing so before the “cut-off date”.
  7. The UK will continue to pay out state pension within the EU to qualifying EU nationals.
  8. The UK will protect healthcare arrangements for EU citizens who arrive in the UK before the “cut-off date” for UK nationals living in the EU.
  9. The UK will protect a UK European Health Insurance Card (EHIC) so British citizens can continue to benefit from free temporary healthcare while in the EU.
  10. EU citizens who arrived before the “cut-off date” will continue to be eligible for student loans, and “home fee” status in line with persons with settled status in the UK.

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.

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

Easy to claim, harder to prove – The challenges of refugee status based on sexual orientation and gender identity

According to the Home Office, the number of Lesbian, Gay and Bisexual, Transgender, and Intersex (LGBTI*) individuals claiming asylum has risen by 400% in the last 5 years. Although the number of individuals who have specifically claimed sexual orientation and gender identity as their reason for refuge is unclear, these figures are expected to rise. As such, it is important that the UK appropriately deals with these individuals in a sensitive manner in order to first establish that the individual does in fact fall under the LGBTI* bracket.

Article 1A(2) of the 1952 Refugee Convention defines a refugee as

Any person who … owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable to, or owing to such fear, is unwilling to avail himself of the protection of that country.’

From this definition, the European legal framework has been shaped in order to include LGBTI* individuals who face persecution on the ground of sexual orientation and gender identity. Although individuals are able to rely on this definition to claim asylum, the difficulty lies in proving their queerness. By failing to match the western hetero-normative understanding of what queer means, LGBTI* individuals face the difficult task of evidencing their sexuality and gender identity in what can be described as degrading interrogations by the Home Office.

LGBTI* persecution is still very much a real issue in the 21st century as there are more than 80 countries around the world that consider homosexuality illegal and in 5 of these countries, the death penalty can apply. With countries like Jamaica, Nigeria, and Pakistan known for their discriminatory laws and treatment towards the LGBTI* community, it is often easy to associate this persecution with continents other than our own. However, recently, the media has turned its attention to the barbaric detainment and torture of men suspected of being gay in Chechnya, highlighting how the persecution of those supposedly gay can and is occurring closer to home.

Reflecting on this background, UK law has undergone changes in relation to how LGBTI* individuals, making asylum claims, are dealt with. It was the case that asylum claims made by gay men and lesbians were refused as it was believed that they could return to their home country and be discrete, essentially hiding their sexuality. This was decided by the Court of Appeal in the case (HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [2010]. In this case, two men from Iran and Cameroon claimed asylum in the UK on the basis of their homosexuality. This Court of Appeal ruling received widespread criticism; however the Supreme Court overturned this decision soon after. As it cannot be expected to hide your religion, the Court argued that you could not be expected to hide your sexuality. Despite this positive development, it appears that the Home Office has shifted its direction from telling applicants to be discreet, to a culture of disbelief as caseworkers have on occasion struggled to believe certain individuals fall into the LGBTI* bracket.

For an applicant to prove their sexuality or gender identity, they must provide an oral testimony at their Home Office interview. At this stage, individuals can face inappropriate and discriminatory treatment because of their testimonies. Previous accounts tell of a lesbian asylum seeker who was told she could not possibly be homosexual because she had children, and a bisexual asylum seeker who was pressured to show the caseworkers explicit images of him having same-sex intercourse to prove his sexual orientation. Therefore the asylum seeker’s credibility is dependent on the caseworker’s own understanding of sexual orientation and gender identity. If the asylum seeker does not match the caseworker’s perception of what it means to be queer, then they cannot be deemed to be LGBTI*. Therefore, by relying on stereotypes to shape their understanding LGBTI*, these stereotypes are perpetuated.

The asking of these invasive questions and relying on a ‘one fits all’ principle has prompted a response from the Home Office. This response came in the form of ‘Asylum Policy instruction – Sexual orientation in asylum claims’ (API). This document provides clarity on how to carry out interviews:

Questions based solely on stereotypical behaviour cannot be relied on in order to assess evidence put forward by a claimant… it does not allow those authorities to take account of the individual situation and personal circumstances of the claimant for asylum concerned.’

Instead of asking explicit questions about sexual activity, the guidance states:

‘The focus of the interview must be on allowing the claimant to provide a narrative that supports their claimed sexual orientation’

Whilst the API, to some degree, positively helps to prevent individuals being asked degrading questions, caseworkers need to be cautious about how they approach these sensitive topics. Probative interrogation may be perceived as offensive, disrespectful and can degrade the claimant’s human dignity. In spite of this, caseworkers are still allowed to quiz the individual on their understanding, links and associations with LGBTI* groups in their own country, for example where they socialise.

The API offers a much-needed improvement to regulating the types of questions that are asked to LGBTI* asylum seekers. However, with an increasing number of LGBTI* people seeking asylum, more needs to be done to ensure that interviews with these asylum seekers are treated sensitively and respectfully, taking into account their cultural difference. By not treating LGBTI* asylum seekers’ claims with openness, and by having a narrow understanding of sexual orientation and gender identity, the prejudice that these foreign nationals face from their home country will be mirrored upon their arrival in the UK.

The SSHD’s abuse of immigration powers

In the recent case of Ibori v Secretary of State for the Home Department (“SSHD”), the High Court ruled that the SSHD had abused her immigration powers to detain a foreign criminal in the UK to face confiscation proceedings.

The SSHD’s policy within the Enforcement and Instructions Guidance (“EIG”) explicitly states that immigration detention must only be used for one of the statutory purposes, namely for preventing a person’s unauthorised entry or with a view for a person’s removal (although not necessarily deportation). In addition it states that any detention must comply with domestic and ECHR case law and should only be used for a reasonable period in all the circumstances. Mr Ibori, a Nigerian national, was serving a 13-year prison sentence in the UK for embezzling public funds as the ex-governor of Delta State, Nigeria. He had been issued a notice to initiate proceedings to confiscate his assets pursuant to s71(1)(a) Criminal Justice Act 1988. The SSHD informed Mr Ibori that he was liable for automatic deportation as a foreign criminal pursuant to s32 Borders Act 2007 and subsequently on 8 May 2015 issued a deportation order. Mr Ibori was due to be released on licence on 20 December 2016 but the SSHD wrote on 8 December stating, ‘we cannot deport Mr Ibori until the confiscation matter had been resolved,’ and thereafter issued an order for his immigration detention the following day. Mr Ibori’s solicitors filed for a judicial review of the both the decision not to deport him and the decision to detain him. In doing so the CPS were asked whether they objected to Mr Ibori’s removal to Nigeria upon his conditional release from prison. The CPS responded that ‘any decision regarding the deportation is a matter for the Secretary of State for the Home Department.’ Upon urgent consideration of Mr Ibori’s judicial review claim, the judge ordered Mr Ibori’s immediate release from immigration detention on the condition that he remained with the jurisdiction. On 13 January the SSHD finally allowed Mr Ibori to depart the UK voluntarily, thus he managed to avoid the stigma of being deported.

In this case it was clear that the SSHD had disregarded the limits on her to detain Mr Ibori. Accordingly, his detention for a period of one day, 18 hours and 10 minutes was declared unlawful.

‘Deport first, appeal later’ policy ruled unlawful

In a landmark case concerning two foreign national criminals, the court ruled that having to appeal from abroad denied the men an effective appeal. Both men were convicted of drug offences and served prison sentences. The so-called ‘deport first, appeal later’ policy was introduced as part of the Immigration Act 2014.

Kevin Kiaire, from Kenya, and Courtney Byndloss, from Jamaica, had been granted indefinite leave to remain in the UK. Both have longstanding family ties in Britain. They received 24 months and three years in jail respectively after being convicted of unrelated drugs offences. In October 2014, the then-Home Secretary Theresa May made orders for their deportation to their home countries and rejected their claims that deportation would breach their right to a private and family life.

Mrs May then said that the men’s appeals could only be brought after they had returned to Kenya and Jamaica. Article 8 of the European Convention of Human Rights – the right to family and private life – requires that an appeal system against deportation has to be effective.

The Supreme Court ruled that deporting the men before appeal breaches their human rights as it is likely to significantly weaken their case.

It ruled:

  • The men and their lawyers would face difficulties in giving and receiving instructions before and during an appeal hearing
  • A factor in an effective appeal is the ability of the applicant to give live evidence on their family ties in the UK and whether they are a reformed character
  • Evidence via video link may suffice but the financial and logistical barriers to giving evidence that way from abroad are insurmountable

The court ruled that the home secretary had failed to establish that the ‘deport first, appeal later’ rule struck a fair balance between the rights of the men and the interests of the community. As a result, the decision was unlawful. While there is little, if any, sympathy for convicted foreign criminals, the fact is that parliament has given them a right to appeal against their deportation.

‘Deport first, appeal later’ was introduced as part of the Immigration Act 2014 and the Conservatives pledged to extend it in their 2015 manifesto. It removes a foreign criminal’s right to appeal in the UK unless they can show a ‘real risk of serious irreversible harm’ if they are deported to their country of origin.

It was designed to reduce the number of offenders fighting deportation by using human rights grounds, especially the right to a private and family life.Today’s ruling is a hammer blow to the Home Office. Appeals will have to be ‘effective’ and that will often mean that they have to be conducted with the appellant in the UK. ‘Deport first, appeal later’ is damaged. Since December, in what amounts to a ‘remove first, appeal later’ policy, the process for certifying removal before appeal has been extended to other cases such as those brought by people who are not convicted criminals, but have overstayed their leave to remain here.

So today’s decision is likely to have significant implications for both the deportation of foreign offenders and the removal of others who are in the UK unlawfully. The lead judgment given by Lord Wilson pointed out that between 28 July 2014 and 31 December 2016, the home secretary issued 1,175 certificates in relation to foreign criminals. Of those, the vast majority were likely to have been deported before their appeals,

By 31 December 2016, only 72 of them had filed notice of appeal from abroad. The court noted that a few of the appeals may yet have been ruled upon by 13 February 2017. But it noted that, as of that date, not one of the 72 appeals had succeeded.

Court of appeal: human rights cannot be raised in EEA appeals

The Court of Appeal upheld decisions of both the First Tier and Upper Tribunal that human rights cannot form part of an EEA appeal (Amirteymour v SSHD, EWCA Civ 353).

The applicant had applied for a residence card to confirm his derivative right to reside in the UK on the basis of his relationship with his daughter (a Zambrano application). The applicant sought to rely on human rights but did not make a distinct human rights application. The application for the residence card was refused but no removal directions were given. The applicant appealed the refusal and again mentioned his human rights. A section 120 notice was served by the Secretary of State for the Home Department (“SSHD”) asking if there were any other grounds she should be aware of. No human rights arguments were explicitly made at that stage but they were again raised at the appeal. The judges throughout the appeal process found the human rights arguments could not form part of the EEA appeal.

The reasoning is that the right of appeal (under regulation 26(1)) is specifically a right of appeal against an EEA decision. The EEA appeal should focus on EEA law (note the ruling relates to cases where there are no removal directions in place). The regulation that gives the right of appeal does not create a general arena where arguments on immigration rules and human rights can be raised. Instead of an applicant being able to include human rights arguments as part of the EEA appeal they need to make a separate human rights application. The ruling means that there could then be two appeals, one for EEA law and one for human rights issues (except where prior notice is given to the SSHD through the s.120 process). The decision is all the more surprising due to UK case law on the need to recognise human rights claims even where they are not explicitly made (albeit relating to the Immigration Rules rather than to EEA law). As the applicant was applying based on his relationship with his daughter, it is no jump to see that their rights to family and private life (Article 8 EHCR) are relevant.

Of course the difficulty with this for applicants looking to reside in the UK is that it is becoming more complex and it is the outcome which is important to them, not which route of law it takes to get there. They will now face bearing the legal costs of preparing for two applications and possibly two appeals, covering many of the same issues but under different legal headings, rather than one all encompassing application and appeal. The additional applications and appeals will also lead to increased costs for the public purse. Individuals will need to consider whether a separate human rights application should be made under the Immigration Rules in addition to their EEA application. If not, in the case of a refusal it is particularly important to explicitly make human rights arguments where a section 120 notice is served.

For those making a human rights application as well as an EEA application there may be wider implications and we strongly advise applicants where this may apply to seek legal advice.

Home Office tightens the Sponsor Licence compliance screws on IT service providers

In order to obtain a Sponsor Licence from the Home Office, IT service providers must sign up to various duties and obligations as part of the UK’s Sponsor Licence compliance regime. The Home Office takes the view that as employers benefit directly from sponsorship, they must play their part in ensuring the system is not abused. Significant trust is placed in a Sponsor and with this comes a responsibility to be fully compliant with the Home Office rules. In R (Raj and Knoll Limited) v Secretary of State for the Home Department, the court outlined that the role of the court is simply supervisory and the Home Office is entitled to maintain a “fairly high index of suspicion” and a “light trigger” with enforcing compliance. The courts further noted that they will respect the experience and expertise of the Home Office to ensure robust immigration control. In short, it is essential that sponsors keep the Home Office on side.

Increasingly, the Home Office has been undertaking unannounced audits, particularly but not exclusively, for those employers who are deemed to score highly in the Home Office’s risk assessment matrix. Compliance audits are now more robust and detailed, frequently lasting several hours and including interviews with HR staff and Tier 2 visa holders. HR systems will be tested during a compliance visit and failure to comply can lead to the suspension and possible revocation of the Sponsor Licence. It is fair to say that no company can be 100% compliant all of the time; human error, IT issues and rogue employees exist in all walks of business. It is therefore important to have procedures and policies in place to catch these issues.

We have identified four recent changes to the way in which the Home Office undertakes these compliance visits:

  • Reporting lines – the Home Office asks not only the Tier 2 migrant but also client staff who the migrant is reporting to and who is responsible for their day to day role. Where this is the client, the Home Office correctly states that this is a breach of the sponsor guidance. The Home Office is clearly focusing on migrants who are spending long periods at a single client site where they suspect they are filling a full time vacancy in the client’s business.
  • Roles – compliance officers will interview Tier 2 migrants and ask them to go through the detailed duties and responsibilities for their role to see if this matches with the information on the Certificate of Sponsorship (CoS). If the migrant gives vague general answers, the Home Office may decide they are not doing the job for which the CoS was assigned.
  • Recruitment and the resident labour market test – The Home Office is now asking to see CVs of unsuccessful candidates for positions filled after a resident labour market test and is looking behind the reasons why British or resident applicants were rejected. We have seen examples of the Home Office insisting that certain British candidates were in fact suitable for the role.

Home Office visits to client sites

The Home Office has begun a more worrying trend of visiting client sites and interviewing Tier 2 visa holders based at these sites. The Home Office guidance was recently amended to emphasise the need for sponsors with migrants working at client sites to ensure that the third party is aware of the possibility of unplanned and unannounced visits and checks being conducted at their premises and ensure their full cooperation. We have very recently had experience of this two-pronged approach where a compliance officer will attend the sponsor’s office and a second officer will visit the client site at the same time!

Why does the Home Office scrutinise the IT service sector?

The alleged abuse of the Tier 2 route by IT service providers has been mooted for years. It is true that such companies account for a very high proportion of all Tier 2 workers in the UK. Critics have been harsh in suggesting they are a vehicle to undercut the UK’s resident IT workforce by providing IT services on low-cost services contracts. The Migration Advisory Committee (MAC) made various recommendations to address this issue and we have seen the closure of the Tier 2 ICT short term visa route, an increase in minimum salary requirements and the introduction of the skills charge for Tier 2 ICT route. This is clearly aimed at cutting out the lower end of the ICT scheme by making it too expensive to bring over less experienced IT staff to the UK.

Whatever the arguments are about the need for skilled IT workers and whether they are undercutting resident IT workers, it remains a fact that huge government contracts rely on overseas companies providing outsourced software development and IT services.

What should IT service providers be doing?

Steps IT service providers can take to safeguard their businesses and ensure compliance include:

  • Prepare for a Home Office visit – The Home Office is focusing on compliance audits. The genuineness of the IT services will be examined thoroughly and even small administration errors in record keeping can be enough to revoke a sponsor licence. The message for sponsors is that preparation is key in order to put in place robust HR processes to prevent compliance breaches.
  • Implement well defined reporting lines – Create a hierarchy chart and update this regularly to ensure that you as the sponsor have full responsibility for the duties, functions and outcomes, or outputs of the job. The Sponsor must be the manager, responsible for salary, monitoring absences, approving holidays etc. Communicate this to your sponsored workers regularly.
  • Update Master Service Agreements (MSA) – Include a paragraph in the contract to put your client on notice that the Home Office may require access to the client’s offices in order to question the Tier 2 workers based there.
  • Review Statements of Work (SoW) regularly – The Home Office will require evidence that the contract in place is time bound. Therefore, update each project with a SoW. Please note, informal vague MSAs are not sufficient – they can form the basis of the relationship but you need the SoW signed by both parties agreeing that the sponsor is responsible for the project. Please note the SoW must be to perform specialist software tasks consistent with the sponsored migrants job descriptions and CoS.
  • Keep interview notes – Keep full interview notes for all unsuccessful resident candidates showing clearly the reason why they were unsuitable and how the criteria that were applied were advertised.
  • Include the Tier 2 sponsored employees in the visa process – Consider the scenario if one of your Tier 2 visa holders was interviewed by the Home Office, how would they respond? In preparation for such a scenario, discuss their role with them and be clear with reporting lines. Provide your Tier 2 sponsored workers with a copy of their CoS and ensure they have the skills and qualifications to undertake the role.
  • Job descriptions – Spend time in drafting job descriptions correctly. Do not simply draft vague, generic wording or exaggerate duties. Review what employees on client sites actually do on a day to day basis and present this in plain English.
  • Retain evidence of work undertaken – Copies of timesheets, invoices, appraisals, emails of instruction, client feedback etc. should all be kept.
  • Sever ties with non-compliant customers – If you have multiple UK client contracts in place, note that one non-compliant contract is sufficient for the Home Office to revoke your licence, which will ultimately damage all of the contracts.
  • Implement reporting system – Put a system in place to ensure that sponsored migrants report where they are working if they work at multiple sites and ensure that these addresses are either on their original CoS or that a report is made if a new client site is added at which they will work.
  • Protect your reputation – Anyone on your premises will need to have the right to work. Most worryingly, Home Office compliance officers have been visiting the end client’s site, which can be a very embarrassing and a difficult trend to manage, not to mention the possible reputational damage to the end client who is paying for the service.