Category: Immigration Rule Changes

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

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

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

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

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

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

What do you need to know?

New accounts

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

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

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

Existing accounts

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

What do firms need to do?

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

Implications of the Immigration Act

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

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

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

Who is affected?

You have been refused a current account

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

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

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

Your account has been closed

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

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

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

Query the decision

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

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

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

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

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

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

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

 

Changes to Spouse Visa income requirements.

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

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

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

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

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

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

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

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

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

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

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

UK must agree implementation period for EU migration curbs – Lords committee

The European Union and Britain offered few compromises at their first full round of Brexit talks which ended on Thursday, and the pound fell on worries that British ministers were prepared to walk away without a deal.

While negotiators laid out their disagreements in Brussels, Prime Minister Theresa May met company bosses at home, with one employers’ group saying her government needed to engage in “sustained and structured” discussions with business over Brexit and avoid an abrupt departure from the bloc. Separately, academics warned of “widespread, damaging and pervasive” costs if Britain failed to reach at least a transitional trade deal with the EU before its scheduled departure from the bloc less than two years from now. At the European Commission, the negotiators laid out their opening positions in four days of talks that showed some common ground. But they also confirmed differences over how to protect the future of expatriate citizens, while uncertainty persisted over a financial settlement and the future of the Irish border, which will become an external frontier for the EU in 2019.

Chief EU negotiator Michel Barnier said there was “a fundamental divergence” on how to protect the rights of EU citizens living in Britain and of Britons in the remaining 27 EU countries after Brexit. He said European courts should guarantee citizens’ rights after Brexit. “Any reference to European rights imply their oversight by the Court of Justice of the European Union,” he told a joint news conference with British Brexit Secretary David Davis. Britain, however, says people voted in last year’s Brexit referendum to end shared EU sovereignty, and its judges should therefore have jurisdiction.

Davis said the meetings in Brussels had provided “a lot to be positive about”. But when asked if Britain would accept the principle of a net payment from London to Brussels – and not vice versa as some British ministers have suggested – he gave no direct answer. Barnier called on Britain to clarify at the next round of talks in August how it would maintain a common travel area with the Republic of Ireland, which will remain in the EU.

Both sides have said they want to avoid reimposition of border controls between the republic and British-ruled Northern Ireland. However, so far neither has proposed a solution to an issue that remains sensitive almost two decades after a peace deal ended years of violence in the province.

Full story can be read here

Wrong Brexit immigration policy could leave north-east industries without a workforce

The Under-Secretary of State for Scotland said he had grave concerns for the north-east’s fish processing, soft fruit and seasonal farming sectors, which rely heavily on EU nationals.

Lord Duncan said there needed to be more focus on how to allow EU nationals to continue to work in the north-east of Scotland after Brexit. He said: “The area I have most concern about is the EU nationals question, particularly on the fish processing side, where upwards of 90% of workers are EU nationals. These are challenging but very well-paying jobs but they are not attractive jobs and so they are filled with migrants in places like Peterhead.

“How do we create a system that allows EU migrants to continue to fill these processing jobs as well as those in farming and seasonal work?”

Lord Duncan said he did not think rural affairs minister Michael Gove’s preferred points-based system was workable. He said: “It needs to be a non points-based system.”

Full story can be read here

Theresa May under pressure to drop migration target after warning over Brexit recruitment crisis.

Theresa May has come under new pressure to drop her target to reduce migration after a report warned that Brexit is already causing recruitment problems for UK companies.

The Recruitment and Employment Confederation (REC), the professional body for the recruitment industry, said the Government’s failure to outline a post-Brexit immigration policy was adding to uncertainty for both business and EU workers in the UK. REC’s survey of 607 employers found evidence that a growing number are taking on temporary workers to plug gaps caused by skill shortages. Some 87 per cent intend to maintain or increase their use of temporary staff in the next three months.

Kevin Green, REC’s chief executive, said: “Brexit is making the situation more challenging. In London for example, a third of people working in construction are from the EU and it’s difficult to see how firms will manage if their workforce aren’t encouraged to stay in the UK and continue to contribute to our economy.”

Mr Green added: “Decisions about the future immigration system are too important to be subject to political whim – we need policy to be built on sound evidence and data. Businesses need access to people to deliver growth, and that the current UK workforce alone cannot meet demand.” The REC’s “jobs outlook” report said the engineering, construction and education sectors could face unfilled vacancies in September or October.

Full story can be read here

Brexit talks must not lose sight of immigration issue.

We hear masses about a Brexit “Bill” and about the future role of European Court of Justice. But what has happened to the issue of free movement? Wasn’t this supposed to be one of the Government’s fabled “red lines”?

While Theresa May  in her manifesto renewed David Cameron’s vow to bring net migration down to 100,000 a year we have scarcely heard a thing on the subject since the election. There has to be a suspicion that the Goverment is preparing for a climbdown, that it is opening the way for a deal in which Britain would remain partially in the single market with EU citizens free to travel to Britain, to look for work here and to claim benefits here much as before. In fact the Government began to change tone subtly on free movement as early as the first week in April even before Theresa May made her decision to call a general election.

Speaking on a trip to Jordan, about as far from the political fray of Westminster as she has been in recent months, the Prime Minister started to talk of an “implementation period” in which free movement could continue to operate for an unspecified time. There has been a similar shifting of position in the Government’s promise to guarantee the rights of EU citizens already resident in Britain. There is widespread agreement that people settled in Britain should have the right to stay in return for UK citizens resident abroad having the right to remain there.

But there is the issue of a cut-off date: since when should an EU citizen have had to be living in Britain to qualify for the automatic right to stay? At first it was suggested that it should be the date of the referendum: June 23 last year. But the date keeps slipping forward. It now could be any date between when Article 50 was triggered – in March this year – to the date on which Britain officially leaves the EU, expected to be March 2019.

Full story can be read here

There’s going to be ‘chaos’ in the food industry after Brexit, report warns…

A report from food policy specialists has said that ministers need to establish a clear plan for how a new food system will operate. As it stands, the UK gets 31% of its food from the UK and the report’s authors have warned that provisions need to be put in place before Brexit occurs in 2019. The absence of a trade deal could push the price of imported food up by 22%.

Even a ‘soft’ Brexit – which would see the Uk remain in the single market or customs union, could badly impact the food and farming industries.Ahead of the departure deadline, there are thousands of pieces of legislation concerning food which require consideration, covering areas such as agriculture and fisheries.

Author Tim Lang, a professor from City University in London, accused the government of a ‘serious policy failing on an unprecedented scale’ for its handling of the situation. Mr Lang said: ‘The Government has provided next to no details on agriculture and fisheries, and there has been total silence on the rest of the food chain where most employment, value adding and consumer choice are made. ‘With the Brexit deadline in 20 months, this is a serious policy failure on an unprecedented scale. Anyone would think they want a drop into the World Trade Organisation abyss.’He added: ‘At least the UK entered World War Two with emergency plans. No-one has warned the public that a Food Brexit carries real risks of disruption to sources, prices and quality.’

These include a “clear integrated plan for UK food”, new legislation to ‘replace 4,000 pieces of EU law relating to food’ and subsidies to cover the EU’s Common Agricultural Policy, which the UK is expected to leave. The report, which is based on more than 200 sources, continues: ‘Prices, which are already rising and likely to rise more, will become more volatile, especially harming poor consumers.’

Full story can be read here

 

Brexit could cost UK Treasury tens of billions in lost tax revenue.

The Treasury’s official watchdog has highlighted the significant risk posed by Brexit to the UK’s public finances in a new report.

The Office for Budget Responsibility, in its Fiscal Risk Report published on Thursday, said that a possible Brexit “divorce bill”, which some have suggested could be up to €100bn (£88bn), would only be a “one-off hit” to the Exchequer and that the far bigger risk related to the damage that leaving the EU could do to the UK’s long-term growth rate.

It said that if Brexit ended up reducing the UK’s annual trend productivity growth rate – the amount the UK produces per hour of labour – by just 0.1 per cent over 50 years, the economy would be 4.8 per cent smaller than otherwise. That would be equivalent to a cost in lost GDP of almost £100bn in today’s money – which would translate into a £36bn hit to tax revenues.

The OBR said there was “no meaningful basis” on which to predict the outcome of the Government’s Brexit talks in terms of the UK’s future trade arrangement, and so it has not assumed any long-term hit to the UK’s productivity growth rate in its current official forecast. However, many private sector forecasters have downgraded their potential productivity growth forecasts for the UK due to the decision to leave the EU, some by as much as 0.3 per cent.

Berenberg Bank has downgraded its base-case estimate for long-term annual UK potential productivity growth from 2.1 per cent to 1.8 per cent due to Brexit. Combining that with the OBR’s estimates implies a £100bn hit to tax revenues over the next half-century.

Full story can be read here

Great Repeal Bill Human Rights Clause Sets Up Brexit Clash With Labour

 

The government has set itself on a collision course with opposition parties by insisting that it will not bring the EU charter of fundamental rights into domestic law on Brexit day.

The shadow Brexit secretary, Keir Starmer, has made the incorporation of the charter – which interprets EU human rights – one of the six tests he will apply when Labour decides whether to vote for the bill when it returns to parliament in the autumn. The Liberal Democrats have also made it a key demand.

The government believes the charter, which interprets existing EU rights rather than creating new ones, will no longer be necessary after “exit day”, when Britain leaves the EU. But refusing to incorporate it will set up one of a series of parliamentary struggles as Theresa May tries to get the legislation through parliament.

The Lib Dem leader, Tim Farron, who has said the passage of the bill in the autumn will be “hell” for the government, said: “The charter of fundamental rights is a cornerstone of what makes Britain what we are. I cannot understand what issue the government have with it. Is it the right to life, the ban on torture, protection against slavery, the right to a fair trial, respect for privacy, freedom of thought and religion, free speech and peaceful protest? These are not frustrations, these are integral to what it is to be British.”

The first and most historically significant line of the bill says simply: “The European Communities Act 1972 is repealed on exit day.” But the legislation also brings EU law into domestic UK law, to create continuity after exit day. And it contains controversial new powers for ministers to tweak laws and create new institutions, where these are deemed necessary to make EU law work when it is transferred to UK law.

Full story can be read here