Category: Law Firms

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.

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

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.


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.

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 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

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

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

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: –

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 –

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

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.

Individuals to fulfill immigration related roles

To apply for a UK Employer Sponsor License, there must be persons within the organisation who will be fulfilling the immigration related roles in the organisation.

These persons are sometimes referred to as the Account/Compliance Officers.

The immigration related roles include: –

  • An authorised officer
  • A key contact
  • A level 1 user

An authorised officer is usually an office holder in the organisation. This person would normally be a paid staff member of the organisation. They must also be a senior person in the company as they would be responsible for the management and activities of the entire system and the entire process.

In summary, the authorised officer authorises the other immigration compliance personnel within and outside the organisation to act for and on behalf of the organisation with regards to its sponsorship of overseas workers. They would be ultimately responsible for applying for the licence as well as issuing the sponsorships to the prospective overseas workers in the organisation. Importantly, the authorised officer is responsible for all the activities, omissions, compliance and otherwise carried out by the other key personnel in the immigration and overseas workers’ aspect of the establishment.

A key contact is anyone who acts at the main point of contact between the organisation and the Home Office. Importantly, an individual who is not a staff of the organisation can be a Key contact as long as the authorising officer appoints them to be the key contact. The authorising officer may also be a key contact. The key contact deals with all the correspondences between the organisation and the UK Border agency (UKBA).

The level 1 user is that individual that performs the day to administration of the entire sponsorship management system (SMS). In more simple terms, the level 1 user has been authorised by the authorising officer to manage the SMS. The level 1 user assigns the Certificate of Sponsorship (COS) in the case of a business or a Confirmation of Acceptance for Studies in the case of an educational institution.

The level 1 user may also keep the Home Office informed of any changes in the migrant’s status or activities. For example, if the migrant stops coming to work, is no longer employed by the sponsor or has finished his course of study before the normal time or has even stopped attending lectures in the case of an educational institution. Importantly, the authorising officer may also be the level 1 user.

The activities of a level 2 user are limited to assigning COSs, CASs and keeping the home office informed of any changes in the migrant’s status or activities as described above. Importantly, the authorising officer can also be a Level 2 user or any other person appointed by him (the authorised user).

Effective HR systems: The organisation looking to obtain a sponsorship licence must also be able show that they have an effective HR system in place. It is important to note that an effective HR system is directly linked to effectively carrying out the employer’s sponsor responsibilities which includes but not limited to preventing abuse of the assessment procedures, capture early any patterns of migrant behaviour that may cause concern, address possible weaknesses in process which can cause those patterns and monitor compliance with Immigration Rules.

Please be informed that the HR systems in place need not be overly sophisticated; however, it will serve as a major yardstick to judge the employer’s ability to meet his responsibilities as a sponsor.

Meet other immigration requirements: Meeting other requirements here include, submitting all other supporting documents or evidence as required, etc.

It is also important to note that the success of a sponsorship licence application does not necessarily guarantee that every overseas employee chosen will be automatically given a leave to enter or remain in the UK. It is therefore very important that employers and businesses seek legal and professional advice for immigration lawyers on the entire process.

Refugee Week: ‘Sur place claims for the politically active refugee’

In BA (demonstrators in Britain – risk on return) Iran CG [2011] UKUT a short clip of an Iranian national was uploaded onto YouTube, where he is caught protesting outside of the Iranian Embassy in London, chanting anti-regime slogans following the re-election of the President of Iran. The Iranian national relied on his political activity to prove a ‘well-founded fear of persecution’ if he was to return to Iran and as a result was granted asylum.

The Geneva Convention Relating to the Status of Refugees (1951) holds that asylum seekers must show that they have a well-founded fear of persecution due to their race, religion, nationality, political opinion or membership of a particular social group and are unable or unwilling to seek protection from the authorities in their own country.

Whilst many assimilate a ‘well-founded fear of persecution’ with tales of refugees fleeing war-torn and politically unstable countries, for the purposes of the Geneva Convention, the fear of persecution can originate from activities undertaken whilst residing in the UK. A ‘refugee sur place’ refers to an individual who, on leaving their country of origin was not a refugee, but due to a subsequent risk of persecution arising becomes one at a later date.

Refugees sur place

Under the UNHCR’s Handbook on Procedures and Criteria for Determining Refugee Status, a person may become a refugee ‘sur place’ in two situations:

  • 95. A person becomes a refugee “sur place” due to circumstances arising in his country of origin during his absence.
  • 96. A person may become a refugee “sur place” as a result of his own actions, such as associating with refugees already recognized, or expressing his political views in his country of residence.

These guidelines are incorporated into the UK’s Immigration Rules at paragraph 339P which reiterate the validity of a claim made in response to ‘activities which have been engaged in by a person since he left the country of origin’.

Such claims inevitably give rise to questions of credibility where, hypothetically, a failed asylum seeker could undertake political activities in the hope of assisting his or her claim. This has left those considering asylum applications questioning the validity of claims arising from political activism undertaken in a third country, for fear of encouraging foreign nationals to manufacture a ‘well-founded fear of persecution’.

Can self-serving actions taken in bad faith automatically disqualify an individual from protection under the 1951 Geneva Convention?

The seminal decision of the Court of Appeal in Danian v Secretary for Home Department [2000] echoed the guidance of UNHCR publications and the underlying principles of the 1951 Geneva Convention in concluding that an applicant is entitled to protection from deportation provided that he can prove ‘a genuine and well-founded fear of persecution for a Convention reason and that there is a real risk that such a persecution may take place’. The Court further clarified that there was no legal requirement of good faith in asylum claims under the Convention, and as a result no asylum claim could be rejected on the basis that the activities undertaken were performed in bad faith, purely to enhance the applicant’s claim.

The limitations on manufacturing an asylum claim

Whilst the idea of someone submitting an asylum claim in bad faith as a result of actions taken once based in the UK may seem unsettling, the applicant is still required to establish a ‘well-founded fear of persecution’. Each case is carefully analysed and factors such as the applicant’s adoption of an inconsistent attitude from their behaviour exercised in their country of origin is taken into account. By probing the conviction of that person’s political beliefs, the validity of an application is being cross checked. Proving a well-founded fear of persecution is not an easy feat, particularly if the motivation for the political activism that has given rise to the fear cannot be proven to be genuine.

Those reluctant to accept such an interpretation of sur place refugees are encouraged to consider the overarching principles that underpin asylum law, notably extending refuge to those who would be at risk of discriminatory persecution as a result of deportation. The 1951 Convention offers no legal basis for denying refugees sur place the protection that it generally affords. The critical distinction to be made is whether or not the applicant has a well-founded fear of persecution. Those who fall under the definition of a refugee under the Convention are entitled to international protection regardless of political activism in their country of residence, although those who act in bad faith risk jeopardizing the credibility, and as a result success, of their claim.