Category: Students

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

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

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

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

In contrast, the Queen’s Speech announced:

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

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

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

The bill will:

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

Commentary

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

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

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

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

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

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

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

Compliance Requirements for UK Tier 2 and 5 Sponsor Licence

In this article, we explain the duties and responsibilities of a Sponsor Licence holder. It is imperative that licence holders understand sponsor duties and responsibilities because if compliance is not met, the Home Office can suspend or even revoke your Sponsor Licence. Not only can this lead you to losing talented employees, but those employees may also be forced to leave the UK if they cannot obtain a position with another licensed employer.

There is little doubt that companies who hold a Tier 5 or Tier 2 Sponsor Licence benefit from working with an expert immigration lawyer. Not only can they advise on compliance requirements, but they can also update you on changes in immigration law and perform six or twelve-month mock audits to ensure your organisation’s HR systems are functioning as they should.

Ratings for Tier 2 and 5 Sponsor Licences

If your application for a Sponsor Licence is approved, you will receive an A-rating. This allows you to start issuing certificates of sponsorship so you can recruit staff from outside the EEA.

If you do not meet your sponsor duties, your licence may be downgraded to a B-rating. If this occurs, your ability to issue certificates of sponsorship will be suspended until you make the improvements required to bring your rating back up to an A. The Home Office will issue an action plan, which if not implemented could mean that your licence is revoked.

HR policies and procedures needed to maintain an A-rating

The details of the sponsor duties and responsibilities are contained in the Sponsor Guidance (SG) Tiers 2 and 5 of the Points-Based System (SG).

It helps to understand the aims of the various duties and responsibilities when creating the policies and procedures to meet compliance. The SG notes that the aims of the sponsor duties are to:

  • prevent abuse of sponsor assessment procedures
  • capture any patterns of migrant behaviour early that cause concern
  • address possible weaknesses in the sponsor’s processes which cause those patterns
  • monitor compliance with immigration rules

The following are the key priorities that an organisation must consider and be able to demonstrate to comply with the duties and responsibilities of a Sponsor Licence holder:

  • There must be specific persons in the company responsible for the duties and responsibilities. These personnel must be adequately trained, aware of the importance of compliance and know of any others in the business who may have responsibility for maintaining compliance and the scope of that responsibility.
  • Key personnel responsible for compliance should have their duties and responsibilities referred to in their employment contract.
  • The sponsor must have a mechanism for keeping up with changes to the SG and reporting these changes to the relevant key personnel. One way to achieve this is to engage an experienced immigration solicitor to keep you up -to-date with any developments.
  • The person in charge of compliance must be supported, with backup personnel and systems in place in case they are sick or taken away from their duties.
  • Any changes to a sponsored worker’s job or circumstances which may affect the compliance of the organisation needs to be discussed with the persons responsible for compliance before the changes are implemented.
  • There must be efficient record-keeping and reporting systems in place, appropriate to the size and type of the business.
  • All sponsored migrants must be made aware of the Sponsor Licence holder’s obligations and any time limits for compliance. This can be mentioned in all:
  • job offer letters and contracts
  • Employment policies and staff handbooks
  • Induction procedures
  • Periodic follow-up reminders

In addition, UK Tier 2 and 5 Sponsor Licence holders must co-operate fully with the Home Office and make themselves and their HR systems available if an inspection visit is made.

Final comments

Complying with Sponsor Licence duties and responsibilities is a serious matter. Employers thinking about employing talent from outside the EEA need to consider whether they have the necessary time, knowledge and HR systems required to meet compliance. An experienced immigration lawyer is worth their weight in gold when it comes to updating you on changes to the SG and helping you comply with your duties and responsibilities.

Give us a call on 020 3695 4626.

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.

UK Immigration Policy Changes Ahead

Businesses in the UK who employ foreign workers have in recent years felt the impact of increasingly protectionist UK immigration policy changes. The introduction of the Immigration Skills Charge; closure of multiple visa routes; increases in the minimum salary requirement for Tier 2 skilled workers. Raising the cost, eligibility criteria and narrowing options for migrant workers to the come the UK has been part of the Government’s wider mandate to reduce net migration.

The 2017 Conservative manifesto took on immigration with renewed vigour, reducing its immigration target from 100,000 to the “tens of thousands”. While the make up of the new Government may make new policies more difficult to pass, immigration policy was high on the Conservative agenda, and in light of Brexit negotiations, decisions will have to be made on immigration policy. What UK immigration policy changes should UK businesses expect to see?

  • Align the visa system with Britain’s modern industrial strategy

The latest ONS figures show 11% of the UK labour market in 2016 were non-UK nationals. A significant proportion, demanding a framework that manages and supports migration effectively and in line with the economy’s need. Current immigration rules however come under great criticism from employers for being too rigid and inflexible to meet real-world business need. The Government has pledged to seek independent consultation to improve the current visa system and its alignment with UK business. In time, this may result in changes to existing entry routes or the emergence of new types of visa route that support specific needs (such as the Tier 1 Exceptional Talent visa). Although the most recent Government industrial strategy, focused on the UK digital sector, failed to address immigration and the role of foreign talent in moving the sector forward.

  • Immigration Skills Charge

The Conservative manifesto pledges to double the recently-introduced Immigration Skills Charge on employers of skilled, non-EU workers who earn more than £30,000.This will raise the charge to £2,000 per worker per year. Funds are intended to be used to invest in education and training development in the UK, to improve and align resident labour to UK business needs. While this additional cost may be tolerable for larger multinationals – start-ups and SMEs may become out-priced from the global market. There are concerns this could impact UK industries’ ability to remain competitive in instances where resident labour is still not meeting skills requirements.

  • EU immigration

The Conservatives have stated their intention to end freedom of movement through Brexit negotiations. Should this be an outcome of the Brexit deal, it will require change in UK immigration policy to include a new system for EEA nationals. There has been much speculation but little definitive vision about what this new system would look like. For example, if this would be an extension of the current Points Based System. Whatever the proposed new system, employers should expect additional costs and administration around hiring EU nationals following removal of freedom of movement. The Government is under time pressure to address this cohort since Article 50 has been triggered, certainly before the Brexit deadline of March 2019. Many are pressing for confirmation as a priority to remove the current uncertainty facing this cohort.

  • Student visas & graduates

Policy changes are expected requiring international students to return to their home country after graduating. For employers, this is likely to impact graduate and entry-level talent programmes. Recruitment strategies will need to be reconsidered accordingly, for example to explore alternative options to remain.

Time for certainty and sustainability

Since the referendum on Brexit was announced in 2016, UK business has operated under substantial uncertainty. The ability for organisations to plan, strategise and act has come with acute risk without clarity on future immigration policy. But with Brexit negotiations live and a new government mandate, businesses should expect to see changes ahead to immigration policy impacting their employment of migrant workers, and make preparations accordingly. We can only hope for these decisions to come sooner rather than later to enable businesses to move ahead with confidence and clarity.

What is a work Visa?

If you want to come to the UK to work, to set up a business and pursue your career, to invest, or to live and work as an entrepreneur, then you may wish to consider a work visa. This can lead to settlement. See the settlement in the UK page.

A ‘working visa’ is a generic term and the correct type of visa depends on your age, English language ability, qualifications, previous and future salary, work experience and maintenance funds.

What Types Of Working Visa Are There?

The following are the available categories of Visa available to overseas workers wishing to migrate to the UK.

Highly Skilled Worker – Tier 1 — Work and Live In The UK

This category is now closed for new applicants from within the UK and from Overseas

The Highly Skilled Worker Tier 1 (General) visa category is designed to attract highly skilled workers to live and work in the UK. This visa category is suitable for qualified individuals who wish to seek employment, attend job interviews or establish a business in the UK.

Applicants must be able to demonstrate they have the required English language ability, maintenance (funds) and a recognised qualification to be eligible to qualify under this visa category. In addition, applicants must meet the minimum point’s requirements on an assessment for attributes including age, previous earnings and any UK experience.

Successful applicants will be granted temporary residence under the Tier 1 (General) visa category, which will permit them to live and work freely in the UK for an initial period of three (3) years after which an extension can be applied for. Settlement can be gained subject to requirement after 5 years leave in such a category or with a combination of accepted categories.

Tier 1 Entrepreneur — Get A Visa to Establish a Business In The UK

This category is for migrants wishing to establish, join or takeover one or more businesses in the United Kingdom. For the purposes of this category a business means a sole trader, partnership or company registered in the United Kingdom.

Entry Clearance is not mandatory as individuals can switch into this category from within the UK, depending on which existing category an applicant falls into.

Following recent Government announcements allowing accelerated route to settlement in this category, contact us to see whether you are eligible to apply.

Tier 1 (Graduate Entrepreneur)

A new category comprised of those wishing to develop a business idea immediately upon graduating, and who have been identified by UK universities as having developed world-class innovative or entrepreneurial skills, but who are not at the time of their graduation ( and, presumably at the time of the expiry of their leave to remain as a Tier 4 (General Student ) in a position to meet the full requirements of the Tier 1 (Entrepreneur) route. Additionally from 6 April 2012 graduates from outside the European Area who have studied in UK educational institutions and who have been identified by their college as having ”world class innovative ideas” are entitled to switch from Tier 4 into Tier 1.

Tier 1 (Exceptional Talent)

For “exceptionally talented individuals in the fields of science, humanities, engineering and the arts”.

Tier 1 Investor — Get A Visa to Make Investments in the UK

This category is for migrants wishing to make substantial investments in the United Kingdom.

If successful the applicant will be granted Entry Clearance for an initial period of 3 years.

An applicant can apply for Indefinite Leave to Remain in this category after a period of 5 years.

However, following recent Government announcements allowing accelerated route to settlement in this category, contact us to see whether you are eligible to apply.

Tier 1 Post-Studies Work — Get A Work Permit After Completion of Studies in the UK

This category is now closed.

This category is for graduates who have studied in the United Kingdom to remain here and take on highly skilled work upon completion of their studies.

Upon completion of 2 years in this category, the applicant will need to switch into another Tier 1 or Tier 2 category or return to their home country.

This category is now closed for new applicants from within the UK and from Overseas.

Tier 2 – General — How to Get a Work Permit as A Skilled Worker in the UK

Tier 2 (General) is broadly equivalent to the previous work permit scheme i.e. skilled workers with a job offer. Under the recently introduced five tier managed migration plan an applicant must achieve a certain number of points but must have a job offer from a UK employer and a certificate of sponsorship.

Sponsoring Employer

If an employer wishes to recruit a migrant under tiers 2, 4 or tier 5 they will have to apply for a sponsor licence online and send in payment and documents in support of their application. Employers can currently apply for licences to sponsor tier 2 workers.

Under tier 2, the sponsor will need to be a UK-based employer. The sponsor must have good human resource systems and compliance in place to allow them to monitor and keep records of the migrants they employ or teach.

As a licensed employer, you will be given an A rating or a B rating and you will be added to a published register of sponsors. Sponsors that the Home Office thinks could be a risk to immigration control or those who they consider do not have the correct systems in place will be given a B rating.

B-rated sponsors must follow a sponsorship action plan designed to help them become A-rated or they risk losing their licence.

Sponsorship Duties

Licensed sponsors are held fully responsible for the actions of any migrant they employ and teach. They must ensure migrants comply with their immigration conditions by keeping records on each migrant. If a sponsor does not comply with their duties, they can have their licence downgraded to a B rating or withdrawn.

Certificates of Sponsorship

Licensed sponsors are responsible for issuing certificates of sponsorship to migrants. As well as having a certificate of sponsorship, migrants must also pass a points-based assessment to come to or stay in the United Kingdom (see below). This has now been split into unrestricted and restricted certificates.

Applicant

To be eligible to apply to come to the United Kingdom under Tier 2, skilled workers will need to have a job offer, a certificate of sponsorship from one of the licensed sponsors, and to have scored enough points to apply.

As well as scoring a certain number of points, an applicant will either need to be applying for a shortage occupation (defined by a new Skills Advisory Body) or will need to pass a ‘resident labour’ test and demonstrate that resident labour is not being displaced. Migrants will need permission to come to the United Kingdom (known as ‘entry clearance’) and a biometric identity card before entering the United Kingdom.

Tier 2 – Ministers of Religion — Visa for Missionaries and Pastoral Duties

The Sponsored Worker (Tier 2 Minister of Religion) visa is for Ministers of Religion coming to the UK to perform pastoral duties. The Sponsored Worker (Tier 2 Minister of Religion) visa category also caters to those seeking to come to the UK as a missionary or member of a religious order, such as monks, nuns or members of similar religious communities.

Applicants who are granted temporary residence under the Sponsored Worker (Tier 2 Minister of Religion) visa scheme are permitted to live and work in the UK for the duration of their employment for a maximum three (3) year period.

In the first instance, a prospective sponsor will apply to the UK Border Agency in order to be granted a licence. When successfully licensed, a sponsor can apply for a number of certificates of sponsorship, which they can then present to the people whom they intend to sponsor. Once a prospective employee has been allocated a certificate of sponsorship, he or she will be eligible to apply for UK entry clearance or leave to remain in the UK.

The Sponsored Worker (Tier 2 Minister or Religion) visa is issued for an initial grant of three (3) years. The individual can then apply for a further extension.

Upon successfully holding a Sponsored Worker (Tier 2 Minister of Religion) for a total of five (5) years, individuals may be entitled to apply for Indefinite Leave to Remain (ILR). ILR entitles individuals to permanent residency in the UK, as well as visa-free travel to and from the UK. It is also possible for eligible dependants to accompany the main applicant to the UK in which case they will be allowed to work and study without limitation.

Tier 2 – Sportsperson — How to Get a Visa for Coaches and Sportspersons

The Sponsored worker (Tier 2 Sportsperson) visa is for internationally established elite level sportspersons or coaches with a job offer in the United Kingdom. Applicants would be expected to make a significant contribution to the development of their chosen sport in the UK.

Applicants who are granted temporary residence under the Sponsored worker (Tier 2 Sportsperson) visa scheme are initially permitted to live and work in the UK for the duration of their employment for a maximum three (3) year period.

Tier 2 – Intra-Company Transfer — How to Get a Visa for A Transfer In Your Company

The Sponsored worker (Tier 2 Intra-Company Transfer) visa is for medium and highly skilled workers, with a job offer in the United Kingdom on the basis of a transfer or secondment with their existing employer.

In the first instance, a prospective sponsor will apply to the UK Border Agency in order to be granted a licence. When successfully licensed, a sponsor can apply for a number of certificates of sponsorship, which they can then present to the people whom they intend to sponsor. Once a prospective employee has been allocated a certificate of sponsorship, he or she will be eligible to apply for UK entry clearance or leave to remain in the UK.

Tier 5 – Youth Mobility Scheme — Live and Work in the UK

This category is for young people from countries participating in the scheme to live and work in the United Kingdom temporarily.

Holidaymaker or A Tier 5 (Youth Mobility Scheme) Temporary Migrant

Entry Clearance under this category is mandatory. If successful the applicant will be granted Entry Clearance for a period of 2 years. This cannot be extended.

Tier 5 – Temporary Workers — Live and Work in the UK

This category is for temporary workers required for cultural, charitable, religious and international objectives.

How Does it Work?

The main working visa categories are included under what is known as the “Points Based System”. This will allow you and your family to live and work in the UK. We can assist you with applications whilst you hold status in another category should you wish to switch into a working category or extend your current visa under the same category or simply enter from abroad into such a category.

According to these requirements you can access different Work Visas depending on your personal circumstances.

Can I Settle in The UK After Working in the UK?

After working continuously in the UK under a Tier 1 or Tier 2 visa, (or with specified variations of working visas) you may be eligible to apply for settlement in the UK after 5 years.

The Benefits of Securing a Working Visa:

  • You will enjoy the ability to live and work in the UK
  • You will be able to bring your family with you to the UK
  • You may be eligible to apply for settlement after 5 years of working continuously
  • It is important to note that should an individual with “ILR” remain absent from the UK for 2 consecutive years, the ILR status is likely to lapse.

 

Court of Appeal finds Theresa May acted unlawfully in denying refugees access to UK

In a unanimous decision the Court of Appeal has today (25 May 2017) found that Theresa May acted unlawfully by refusing to consider allowing entry to the UK to a group of refugee families stranded on the British Sovereign Base Areas (SBA) in Cyprus.

The unlawful decision was made in November 2014 when Mrs May was Home Secretary. The Court of Appeal has ordered the current Home Secretary to urgently reconsider the refusal of entry noting that “there can be no justification for any future decision which leaves these Claimants’ position unresolved for any further length of time”.

The judgment by Lord Justice Irwin together with Lord Justice Jackson and Lord Justice Briggs was delivered in the case of R [Bashir & Others] v SSHD.

The Claimants are the heads of six refugee families, who were amongst a group of 75 individuals who washed ashore on the SBA in October 1998, after the boat they were travelling in foundered off the Cypriot coast.

Following their arrival on the SBA, the six were detained for months. They were released after being recognised as refugees under the 1951 Refugee Convention (the Refugee Convention) in 1999/2000 following a procedure conducted in conjunction with the Home Office and the UN Refugee Agency (UNHCR). For the last 18 years the six refugee claimants and their nineteen children have had to endure deteriorating living conditions on the SBA where they are housed in ex-military accommodation which was due to be demolished in 1997. Many of the children have spent their whole lives on the SBA. The Claimants have always maintained that the UK is legally responsible for them and owes them direct obligations under the Refugee Convention. They have argued that their rights as recognized refugees cannot be delivered in the SBA and that the only durable solution for them and their families is resettlement in the UK.

However, the UK Government has consistently denied legal responsibility for the Claimants and their families. Instead, it has argued that the Refugee Convention was never extended to the SBA and that the families have no grounds on which to seek resettlement in the UK. In April 2016, the High Court quashed the November 2014 decision. Whilst it found that the Refugee Convention did not apply to the SBA as a matter of public international law, the High Court ruled that UK and the SBA Administration were required to act within the spirit of the Refugee Convention because they adopted a policy to do so from the outset.

Following an appeal by both parties, the Court of Appeal today went further than the lower court. It found that contrary to the UK Government’s position, the Refugee Convention does apply directly to the SBA by virtue of the earlier extension of the Refugee Convention to the colony of Cyprus in 1957. As such, the United Kingdom owes direct obligations to the six refugee claimants by operation of public international law. The Court noted that the United Kingdom has ample resources to fulfil its responsibilities under the Refugee Convention. In ordering the Home Secretary, Amber Rudd, to reconsider whether to give the Claimants entry to the UK the Court of Appeal stated:

“The Secretary of State must take the decision once more but on the basis that the Refugee Convention applies directly and the United Kingdom owes direct obligations to the Claimants by operation of public international law.” [Para 79]

“… There can be no justification for any future decision which leaves these Claimants’ position unresolved for any further length of time. As the Judge made clear, their present conditions are quite unacceptable. That appears to be common ground.” [Para 84]

“…. I would regard it as unreasonable and a failure of the obligations to the refugees if resettlement was not achieved rapidly.” [Para 85]

Tag Bashir, the Lead Claimant said:

“We are delighted that the Court of Appeal has found in our favour and confirmed what we have always known: that we are the responsibility of the UK Government. For the last eighteen years the UK Government has sought to ignore us and has left us stranded on the SBA living in awful conditions. All we have ever wanted is an opportunity to work and make a future for our children. We hope that the Home Secretary will now allow us entry to the UK. We will keep fighting until she does.”

Tessa Gregory, a partner from the human rights team at Leigh Day who is representing the refugees said:

“Our clients have been in legal limbo for 18 years living in wholly unacceptable conditions on a British military base. They have suffered enough. Now is the time for the Government to show compassion and a ‘strong and stable’ resolve to address this situation which has festered for far too long. We hope the UK Government will not seek to pursue further costly legal proceedings and will face up to its responsibilities by allowing this small group of recognized refugees entry to the UK.”

Net migration to UK plunges to below 250,000 after exodus of European workers in wake of Brexit

Net migration has fallen below a quarter of a million — driven by an exodus of European workers following the Brexit referendum result.

Business leaders warned of skills shortages in the housing and construction industries after a dramatic fall in net migration from eastern and central European countries. Official figures released today showed net long-term immigration fell below a quarter of a million for the first time in nearly three years. There were 248,000 more arrivals than departures in 2016, down by 84,000 on 2015, said the Office for National Statistics. ONS statisticians highlighted an increase in emigration by EU citizens, up 31,000 to 117,000. The change was most striking among citizens from Poland and the other seven central and eastern European countries that joined the EU in 2004.  Immigration from these EU8 countries was down by 25,000 to 48,000, while the numbers leaving Britain shot up 16,000 to 43,000. The fall in overall numbers will be a relief to Theresa May who has promised to cut levels, but they remain well above her promise to restrict numbers to “tens of thousands”.  However, there is mounting concern about a shortage of workers such as bricklayers and carpenters that threaten Mrs May’s promises of more housing and infrastructure projects.

Brian Berry, head of the Federation of Master Builders, said European labour was “a vital part” of the workforce  and there were already shortages of carpenters and bricklayers: “Nowhere is this truer than in London, where migrant workers make up nearly half of the industry’s workforce,” he said. “Over the last decade, those workers have typically been coming in from eastern European countries. While it’s too early to say whether these latest figures demonstrate a permanent reversal of this trend, there is a concern that they do.” He called on Mrs May to give reassurances about the position of EU citizens after Brexit.

Overall, 588,000 people arrived in the UK last year who planned to stay, a fall of 43,000. The last time overall net migration, which covers the EU and the rest of the world, was below 250,000 was in the year to March 2014.

Edwin Morgan, deputy director of policy at the Institute for Directors, said: “The figures confirm once again how unlikely it is that the Conservatives will hit their tens of thousands target if they are re -elected. Instead of a proper plan for migration, this unachievable and counter-productive target will only further undermine public trust in the ability of politicians to sensibly control our borders.”

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.