Category: Protecting

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.

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.

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.”

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.

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.

Right to Rent – How the Home Office is expanding the scheme

The right to rent scheme has recently come under attack from the Joint Council for the Welfare of Immigrant (“JCWI”), who have threatened a pre-emptive challenge to the Government’s plan to expand the scheme into Scotland, Wales and Northern Ireland. JWCI claim that the Government has failed to properly assess whether, as they allege, the scheme has a discriminatory impact on BME, non-British and non-European people who are trying to find rented accommodation. Separate research conducted by JWCI and the Residential Landlords Association has shown evidence that minorities are disadvantaged by the right to rent scheme when looking for accommodation.

There is little doubt among industry professionals that if a Conservative majority is returned to Parliament, the Government will seek to expand the scheme to cover the whole of the United Kingdom. A prolonged legal battle appears to be inevitable; there is little appetite for ‘Right to Rent’ among the devolved governments of Scotland, Wales and Northern Ireland. Immigration is a reserved matter (meaning the Westminster Parliament makes laws covering the whole UK), but right to rent also touches on housing policy, which is a devolved matter. By convention, Parliament does not make laws relating to devolved matters without the consent of the devolved legislatures.

There are political and legal challenges to the geographic expansion of right to rent, but the Government is also quietly expanding the scope of the scheme in England. Internal Home Office guidance for immigration enforcement staff now requires a Notice of Letting to a Disqualified Person (“NDLP” in Home Office jargon) to be served on landlords where officials identify that a person who has no right to rent has been granted a residential tenancy agreement.

The NDLP is a two-edged sword – the landlord must make steps to end the tenancy agreement within a reasonable timeframe or they might commit a criminal offence. However, service of the NDLP will also activate additional lawful methods of eviction for the landlord. We expect that NDLPs will start to be seen more frequently now that Home Office staff are required by departmental policy to serve them wherever the opportunity is there. There are also plans for “bespoke data sharing exercises” between the Home Office and other government departments to identify opportunities to serve an NDLP. If so inclined, Landlords can request an NDLP if they wish to evict a person who has no right to rent and they need to rely on an eviction power created by the Immigration Act 2016. In some circumstances, requesting an NDLP may be the only way for a landlord to avoid committing a criminal offence. These activities will be administered by a specialist “Evictions Team” within the Home Office.

The enforcement guidance also shows that Home Office are prepared to serve an NDLP with respect to a tenancy which began before the right to rent scheme was rolled out across England (on 1 February 2016). This means that the right to rent scheme will now touch all tenancies in England, no matter when they began.

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.

Court rules in favour of non-EU parents having a right to live in Europe

An interesting judgment has been handed down by the Court of Justice of the European Union (“CJEU”), which rules in favour of a non-EU parent’s right to reside in an EU country if his or her child is an EU citizen of that EU country.

The judgment

This judgment (Chavez-Vilchez) clarifies the position in a previous decision made on Zambrano children. The principle from the Zambrano case is that Member States are precluded from refusing a non-EU parent (with a dependent EU child) a right of residence in the Member State of residence and nationality of that child.

This legal principle has been whittled down over the years to the extent that immigration authorities are now prepared to expel non-EU parents so long as there is an EU parent (who is a citizen of the Member State) who can look after the EU child in that Member State. Incredibly, the interpretation has been taken so far that it would still be the case even if the EU parent does not want to take care of the EU child. As many immigration authorities (including the UK) have adopted such legal interpretations, the Chavez-Vilchez’s decision now realigns the interpretation of a non-EU parent’s right of residence in that EU country where the child is a citizen.

The case involves a Venezuelan mother who traveled to Europe on a tourist visa and had a relationship with a Dutch national. She ended up staying and subsequently gave birth to their Dutch child. The Venezuelan mother separated from the Dutch father and became solely responsible for the child’s care. She came into difficulty when she was refused social welfare benefits as it was decided that she did not have a right of residence in the Netherlands and would need to leave. This decision would ultimately mean the child would have to leave with the Venezuelan mother. As such, the question arose as to what is ‘the genuine enjoyment of the substance of EU children’s citizenship rights’.

What is ‘the genuine enjoyment of the substance of the rights of European citizens’?

In the Chavez-Vilchez case, the CJEU held that it was the Member States’ responsibility to assess whether the EU citizen child is genuinely dependent on the non-EU parent. The fact that the other EU parent is actually able and willing to assume the role of sole responsibility for the primary day-to-day care of the child is only a relevant factor. It is not a sufficient ground to conclude that the dependency relationship of the child and non-EU parent is not such as to compel the child to leave the EU if that parent was expelled. Therefore, even if there is an EU parent who might be able to care for the child, the key is still and always the dependency relationship of the child with the non-EU parent. If such dependency exists, then the non-EU parent has a right of residence (and to social benefits) and the Member State must consider the right to respect for family life under Article 7 EU Charter of Fundamental Rights.

For non-EU parents who are living in the UK with children who are UK citizens (and also EU citizens), this judgment reaffirms the importance of respecting ‘the genuine enjoyment of the substance of rights of EU citizens’, which includes UK citizen children. This right cannot be easily displaced and the authorities are obliged to take the best interests of the child into account as the main factor in any decision which they make regarding the residence status of the child’s parents. If the child is dependent on the non-EU parent then the fact that there might be another EU citizen parent available to care for the child will not displace the child’s right to live with the parent on which it is dependent and, in turn, the non-EU parent would have a right of residence and a right to claim to social benefits, including child benefit.

Further information

Should you have any questions about the status of children born to European nationals, or any British citizenship or permanent residence query, please contact City Legal Services on 020 3695 4626.