1. Skip to navigation
  2. Skip to content
  3. Skip to sidebar

Adult dependent relatives—judicial review challenge

The Immigration Rules pertaining to visa applications ‎made by adult dependent relatives of UK citizens were changed in July 2012. According to the Rules, an “adult dependent relative” must be a close family member of the UK sponsor, i.e., a parent, grandparent. The Rules also require that:

  • The applicant must—because of age, illness or disability—require long-term personal care to perform everyday tasks.
  • The applicant must be unable—even with the practical and financial help of the UK relative—to get the required care in the country where he or she is living, either because it is not available and there is no person in that country who can reasonably provide it, or because it is not affordable.

There was concern at the time of the Rules change that the Home Office (the government department responsible for immigration, passports, counter-terrorism and crime policy), had tightened the Rules too much.

Home Office statistics have borne out the validity of that concern. Since the Home Office changed the Rules, the average number of successful applications each year decreased by at least 93 per cent!

BritCits, an advocacy group, challenged the current requirements. The organization, which campaigns for fair family immigration rules that don’t divide families or force British citizens into exile, brought a judicial review application in the High Court of Justice (BritCits vs. SSHD) challenging the legality of the Rules. It argued that the Rules defeated the purpose of the law under which they were made; that the Rules raised expectations without any real possibility of those expectations being met; and that the Rules interfered with family life.

The High Court issued a judgment dismissing the judicial review application. BritCits requested and was granted permission to appeal. This was dismissed by the Court of Appeal.

Applicants applying in this category will have to make applications with the knowledge that their chance of success is exceptionally low and that despite a recent challenge to the Immigration Rules, they will remain as promulgated. Applicants will continue to have to pull together as much evidence as they can to show that they meet the requirements. Although the Rules require scrutiny of the available care in the adult dependent relative’s home country, the Home Office will consider whether the care is “reasonable” for the applicant and “of the required level” for the applicant. This can include the psychological and emotional needs of elderly parents, for example. Taking such an approach could mean the difference between an application for an adult dependent relative being accepted or rejected.

If BritCits pursues its challenge to the Supreme Court we will of course keep you informed.

, , ,

Adult dependent relatives—judicial review challenge

EU family members’ rights

Family members ‎of EU nationals can join them in another member state if the EU national is exercising treaty rights, for example, studying or working.

The EU national may qualify for permanent residence after a qualifying period of time in the UK. Once an EU national is granted a right to permanent residence, he or she may then apply for British citizenship. One would assume that this also means that they can enjoy family life in the UK.

Until now this has not been so, but the position may be about to change. Once an EU national becomes a British citizen, he or she is no longer entitled to rely on EU law and the rights derived from it for family members.‎ However, the EU’s Advocate-General has given an opinion in Lounes (C-165/16) that non-EU family members should be able to remain in the UK with their dual EU and British family member. Ms. Ormazábal, a dual Spanish and British national, married Mr. Lounes, an Algerian national. The Advocate-General considered that the treatment of Ms. Ormazábal (the dual national) should be no less favorable than before her naturalization, or than would be granted to her if she was forced to move to another EU state to keep her family together.

While this is only the Advocate-General’s opinion, and is therefore only advisory and non-binding on the Court of Justice of the European Union, it is rare for the Advocate-General’s opinion to not be followed. The 15 judges at the CJEU will consider the case in the summer.

This could have a far-reaching ‎impact on EU nationals who wish to obtain dual citizenship to be sure of their right to remain in the UK once the UK leaves the EU. Previously EU nationals have held off naturalizing as British citizens for fear that their family members would not be able to remain in the UK. We will watch the progress of this case carefully and bring you an update as soon as there is more news.

,

EU family members’ rights

Form EEA – permanent residence applications

Applicants use Form EEA (PR) to apply for, replace or renew a document certifying permanent residence or a permanent residence card.

On April 12, 2017, the Home Office updated its guidance notes detailing what an applicant should send with his or her application. See here for full details. The guidance notes now include a table of examples of people in different circumstances. This acts as a helpful guide for applicants thinking about the evidence they might need to provide specific to their own circumstances.

The documents and evidence sent must be originals. The Home Office makes an exception for online applicants who have their passports verified, copied and sent to the Home Office by a local authority participating in the European Passport Return Service. All documents not in English or Welsh must be accompanied by an official English translation provided by a qualified translator.

Dentons will issue further information as it becomes available.

, , ,

Form EEA – permanent residence applications

Criminal record check for Tier 2 UK migrants

uk-intracompany

From April 6, 2017, individuals applying to come to the UK to undertake certain jobs will be subject, along with any adult dependants (over the age of 18 years old) applying with the main applicant, to the requirement under the Immigration Rules to produce a criminal record certificate. The certificate must be produced from any country in which the applicant has been resident for 12 months or more, consecutively or cumulatively, in the previous 10 years.

Effective January 1, 2017, sponsors must inform prospective employees at the point they assign their Certificate of Sponsorship (CoS) that they may become subject to this requirement by the time they make their application. This will enable them to begin seeking certificates where needed at the earliest opportunity, and to lodge a complete application for entry clearance sooner.

Affected job titles are:

  • Dental practitioners
  • Education advisers and school inspectors
  • Further education teaching professionals
  • Health professionals not elsewhere classified
  • Health services and public health managers and directors
  • Medical practitioners
  • Medical radiographers
  • Midwives
  • Nurses
  • Occupational therapists
  • Ophthalmic opticians
  • Pharmacists
  • Physiotherapists
  • Podiatrists
  • Primary and nursery education teaching professionals
  • Probation officers
  • Psychologists
  • Secondary education teaching professionals
  • Senior professionals of educational establishments
  • Social services managers and directors
  • Social workers
  • Speech and language therapists
  • Teaching and other educational professionals not elsewhere classified including Special needs education teaching professionals
  • Therapy professionals not elsewhere classified
  • Welfare professionals not elsewhere classified

The requirement to produce a criminal record certificate already applies to those applying under Tier 1 (entrepreneur) or Tier 1 (investor) and any adult dependant relative of the main applicant in either of these categories.

, , , , , , , ,

Criminal record check for Tier 2 UK migrants

UK announces changes to Immigration Rules

uk-flag-and-passport

On November 3, 2016, the UK Home Office announced several changes to its visa policies. The new Immigration Rules, which go into effect on November 24, will primarily affect Tier 2 migrants and nationals of countries outside the European Economic Area (EEA).

Tier 2

The following changes will affect all certificates of sponsorship assigned by Tier 2 sponsors on or after November 24, 2016:

Increasing the Tier 2 (General) salary threshold for experienced workers to £25,000, with some exemptions

  • Increasing the Tier 2 (Intra-Company Transfer) salary threshold for short-term staff to £30,000
  • Reducing the Tier 2 (Intra-Company Transfer) graduate trainee salary threshold to £23,000, and increasing the number of places to 20 per company per year
  • Closing the Tier 2 (Intra-Company Transfer) skills transfer sub-category

The government has not yet announced a date from which intra-company transfer migrants will be liable for the immigration health surcharge.

Non-EEA partners

The government has introduced a new English-language requirement for non-EEA partners and parents. This affects those applying to extend their stay after 2.5 years in the UK on a five-year route to settlement under Appendix FM (Family Member) of the Immigration Rules (introduced in July 2012).

The new requirement will apply to partners and parents whose current leave under the family Immigration Rules is due to expire on or after May 1, 2017.

The English-language requirement applies to most immigration applications. This includes those seeking to enter the UK for employment under the points-based system, and students seeking to enter the UK under Tier 4 of the points-based system.

, , , , , ,

UK announces changes to Immigration Rules

UK Employment Law Round Up, Volume 1, Issue 10 – 2016


UK Employment Law Round-up

In this issue we look at recent case law decisions which have provided a useful reminder of the position when dealing with contracts tainted by illegality and taking prior disciplinary warnings into account. We also bring you up to date with the latest thoughts on calculating holiday pay, and the scope of ACAS Early Conciliation certificates. We review the new judicial assessment procedure in the employment tribunal, along with proposals to inspect corporate governance and to ask employers to disclose employed foreign nationals.

Read the full newsletter here.

, , , , , ,

UK Employment Law Round Up, Volume 1, Issue 10 – 2016

Dual nationality may be an option for Brits who live or work in the EU

EU passport GBThe German vice chancellor has called on certain EU countries (including Italy and France) to offer young British citizens who live or work in those countries the opportunity to apply for dual nationality. This follows the speculation and confusion after the UK referendum to leave the European Union. This would allow those British citizens a chance to remain EU citizens.

Some countries (EU and otherwise) permit dual nationality, sometimes under limited circumstances, while others do not. France allows naturalization without renouncing foreign citizenship, as does Italy. The UK, US and Germany, on the other hand, generally does not and only fairly recent created an exception that requires German citizens to apply for a waiver before naturalizing in another country.

Recent opinion polls showed that more than 70 percent of UK young citizens voted to remain in the EU and there is increasing concern from UK citizens about their long-term status in other EU countries. Many fear the UK’s exit from the EU will remove the existing free movement of people, or make this ability limited with excessively burdensome and restrictive procedures. Therefore, it is likely that many Britons will want to explore this alternative and hold on to the opportunity to live and work in the other 27 countries that form the EU.

Residents of Germany can apply for citizenship after eights years on the condition that they pass a German language skills test and a naturalization assessment (among other things). Further, German law requires non-EU citizens to give up their existing nationality when applying for German citizenship. However, the German ministry has suggested that it would like to allow British individuals to hold on to their UK citizenship even if they apply for naturalization after the UK subsequently leaves the EU.

For all of the positive aspects of dual nationality giving the right to live and work in an EU country, it is worth pointing out that there are obligations that may accompany taking on another country’s citizenship. Some EU countries have mandatory military service that would probably be more likely to impact the “young” Brits. And while tangential to the topic of dual citizenship, it should be noted that many EU countries have exit taxes on unrealized capital gains that might be imposed if an individual changes their residence for tax purposes or moves taxable assets from one country to another.

For now, while leaders negotiate the exit strategy, the UK remains part of the EU and British citizens still have full rights to work or study in other EU countries. Only time will tell whether they will continue to have this opportunity in the post-Brexit world.

, ,

Dual nationality may be an option for Brits who live or work in the EU

New UK penalties for unauthorized foreign workers and their employers starting July 12, 2016

Suit in handcuffs

Effective today, July 12, 2016, employers found guilty of “knowingly” employing unauthorized foreign workers in the UK may face an increased prison term, and unauthorized foreign workers will be subject to criminal liability. This results from provisions of the Immigration Act 2016 which are aimed at further deterring workers who do not have the legal right to work in the UK from entering the nation. Provisions of the Immigration Act 2016, which take effect today, are slated to be implemented in stages over the coming months and while Brexit will certainly have implications for UK immigration law in the long-term, in the short-term our concern is with the provisions that begin to take effect today, which are as follows:

There will be an increase in the criminal penalties that may be applied to employers who employ illegal workers.

  • It is already a crime to knowingly employ an illegal worker, the penalty for which has been a fine of up to £20,000 and a prison term of up to two years. While the level of the fine remains the same under the 2016 Act, the maximum sentence upon conviction has been increased to five years in prison from the current two. In addition, experience has shown that proving that an employer knew that an employee was working illegally can be difficult. Therefore, beginning today an employer will be guilty of this criminal offence if the employer has reasonable cause to believe that an employee was working illegally. It is no longer necessary to prove that the employer actually knew this; only that he should have known it in view of the circumstances.

Illegal working will become a criminal offence.

  • Prior to today, the sanction applicable for employees guilty of working illegally is deportation, and a record of the illegality became part of the person’s immigration file. From today, working illegally will be a criminal offence subject to a sanction of up to six months in prison and/or a potentially unlimited fine. As working illegally is now a crime, any proceeds from working illegally also be subject to seizure as proceeds of crime. This provision has caused particular concern among certain human rights groups who have argued that it may lead to illegal workers feeling unable to speak out against exploitation for fear of themselves being criminally charged.

While UK employers should already be undertaking appropriate right-to-work checks, the stricter provisions that take effect today should serve as a reminder to make sure that current right-to-work checking processes are as robust as they can be.

The ever-changing landscape of UK immigration law has never been more fluid or uncertain than it will be over the coming months. We will keep you updated as matters develop.

, ,

New UK penalties for unauthorized foreign workers and their employers starting July 12, 2016

Brexit, a global perspective in the immediate aftermath…

Brexit Immigration

Following the UK’s EU referendum, the UK has a clear mandate for exit from the European Union. There is doubt, however, about what the future may look like for the UK and its relationship with Europe or the rest of the world. It is likely that there will now be a prolonged transition period, with the next UK government needing time to plan, prepare and negotiate the UK’s future.

Some key thoughts in the meantime:

  • For UK nationals living elsewhere in the EU, and EU nationals living in the UK, there will be no immediate change. Protection of citizens already established in those states is likely to form part of negotiations between the UK and the EU.
  • Free movement of EU citizens is expected to be negotiated as a condition of any trade deal between the UK and the EU. However, if ultimately the UK decides to no longer share in the EU’s right to free movement of labor, then citizens of other member states will not enjoy an automatic right to work, travel and live in the UK. Similarly, UK citizens will not enjoy EU citizenship rights. Prior to the referendum, the UK had already made it more difficult for EU citizens to gain permanent residence in the UK. However, the UK government will be aware that imposing fundamental limits on the free movement of labor at this time could make the UK a much less attractive destination for international businesses and skilled and educated migrants.
  • Nationals of other countries working in the UK, such as from the US, should see no imminent changes. The UK government is saying that the UK is open for business on a global scale. This is an opportunity to grow and strengthen relationships across the globe. At present the UK is not seeing any large-scale recruitment freezes or job losses.
  • Trade and investment are good for the UK’s employment growth and stability. The UK government will want to keep a level playing field with the UK’s European counterparts, and look for opportunities across the globe, at this crucial time. One key area where it will want to display its good practice is data protection. Realistically, a trade deal between the UK and the EU may also mean the UK continuing to be subject to key EU legislation.
  • The UK has a body of homegrown legislation protecting UK employment law rights. The fundamental right that exists in the UK to claim unfair dismissal will not be affected by its withdrawal from Europe. The UK also had discrimination laws in place before its ascension to the EU; EU aims and legislation are so established in UK good employment practice that they are likely to remain fundamentally the same for now. While moving to a US-style system, where employees receive lower overall protection, is possible, it is unlikely in the short term, given the broader cultural change needed to accept the US norms.
  • Subject to the above, EU rights, or improvements in those rights, in the UK may eventually be diminished or lost. However, it seems likely that grand proposals will eventually be reduced to a few smaller, less significant changes. If the UK is not required to keep EU legislation in these areas as part of a broader deal, the government may review and make changes to the current position in a number of areas, such as: (i) harmonization of terms following a TUPE transfer, (ii) limits on bankers’ bonuses, (iii) working time controls, (iv) collective redundancy consultation, (v) agency workers’ rights and (vi) the absence of a cap on discrimination awards.
  • If the UK is no longer subject to the jurisdiction of the European Court of Justice, UK case law may develop in a slightly different direction. This may mean a gradual parting of ways between the UK and EU states.

On balance, it is most likely that the next government will want to preserve the status quo, at least in the short term, and wait for the dust to settle before looking for opportunities to make more fundamental and valuable changes. Dentons will keep you posted as the picture evolves.

, , , , , , ,

Brexit, a global perspective in the immediate aftermath…