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UK Queen’s speech: What might immigration look like after Brexit?

It may not have been accompanied by the usual pomp and circumstance, but the Queen’s speech on Wednesday, June 21 did provide some further clues as to what the government has planned for EU nationals post-Brexit. In the speech, the Queen confirmed that there are plans for an immigration bill that, if passed, will enable the government to end the free movement of EU nationals into the UK, but still allow the country to attract “the brightest and the best.” The bill would require EU nationals and their families to be “subject to relevant UK law,” she said.

This seems to suggest that we can expect to see a skills-based immigration system for EU workers following Brexit. Reading in between the lines, it also seems we can expect that EU nationals already working in the UK who choose to remain will be allowed to do so. However, those who do choose to remain will be subject exclusively to UK law, and will no longer enjoy the protections afforded by the European Court of Justice. Presumably this would work along the lines of Norway’s membership in the single market.

Currently EU nationals in the UK are advised to apply for permanent residency if they meet the qualifying criteria. The thinking being this may be sufficient to secure their stay in the UK after Brexit. Theresa May is in Brussels for Brexit talks today, where she is set to address EU leaders on her plans for the 3 million EU nationals currently residing in the UK, and the 1 million UK citizens currently residing in mainland Europe. We understand that full details of her plans will be published on Monday, ending the uncertainty that currently hangs over those who have exercised their right to freedom of movement, and over their employers.

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UK Queen’s speech: What might immigration look like after Brexit?

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.

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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.

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EU family members’ rights

UK General Election–immigration manifesto

What’s going to happen to UK immigration in a post-Brexit era? That’s the million-dollar question. While there has been huge speculation as to what our immigration system and net migration figures are likely to look like going forward, little clarity has been provided as yet.

Jeremy Corbyn has sent the message that he intends to toughen up on immigration. The Labour Party has acknowledged that free movement of workers across borders is likely to not be possible once the UK leaves the EU, but has stated that imposing new immigration controls will not be at the top of its list of priorities if it wins the election. It’s not really clear where that message leaves us when trying to predict what the new model is going to look like.

The Conservatives, for their part, have indicated that they will stick by pledges made in David Cameron’s 2010 manifesto to cut migration to “tens of thousands,” despite having missed the target after making the same promise in 2010 and 2015. Again, it’s not clear from their rhetoric how they hope to achieve this, although Prime Minister Theresa May has reiterated that when the UK leaves the EU, the nation will have the opportunity to make sure it has control of its borders.

Meanwhile, the UK Independence Party (UKIP) has gone one step further, as it is prone to do, pledging to cut net migration levels to zero within five years by asking skilled workers and students to get visas and banning migration into the UK for unskilled and low skilled workers. This time it’s not clear how UKIP intend to do the math to achieve a net migration level of zero.

And then there are the Liberal Democrats who are against stricter migration controls. Tim Farron, their leader, recently tweeted that “immigration is a blessing and not a curse.”

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UK General Election–immigration manifesto

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.

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Criminal record check for Tier 2 UK migrants

UK Visas and Immigration provides premium sponsor licence

uk-visas-and-immigration

For an additional fee of £200, sponsors will be able to subscribe to a new optional premium service.

This will enable sponsors licensed under Tier 2 and Tier 5 to receive expedited review of their sponsor management system (SMS) applications.

This will help sponsors who are frustrated by the long delays in government responses to certain types of SMS requests, including requests for:

  • Annual allocation of Certificates of Sponsorship
  • One-off request for a Certificate of Sponsorship
  • The appointment of a new authorising officer
  • The appointment of a new Level 1 user

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UK Visas and Immigration provides premium sponsor licence

Update on EEA applications for UK permanent residence

Due to continuing uncertainty following the Brexit vote, EEA nationals who qualify are acting now to secure their right to stay in the UK.

No doubt to help with the influx of permanent residence applications received from EEA nationals, the Home Office is making changes to its application procedures. Starting October 1, 2016, European passports filed with applications on forms EEA(QP) or EEA(PR) can take advantage of a “return service.”

This means that a local authority, such as a county council or city council, can, for a fee, photocopy the passport and forward a copy, with the checklist and application, to the Home Office. This will enable the applicant to keep his or her passport while the Home Office https://www.viagrasansordonnancefr.com/ou-acheter-du-viagra/ is processing the application. If the application is caught up in a backlog, at least the EEA national retains the original passport.

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Update on EEA applications for UK permanent residence

Byron Burger: A cautionary tale?

UK Border Controls

Popular UK “posh” burger chain Byron Burger has been at the center of a media flurry over the past week or so, as 35 members of its staff were rounded up and arrested in a controversial immigration sting. The controversy largely relates to Byron’s involvement in the sting.

The UK Home Office confirmed that on the morning of 4 July 2016, immigration officers raided Byron branches and arrested 35 “migrant workers” of Albanian, Brazilian, Egyptian and Nepalese nationality. https://www.viagrasansordonnancefr.com/ou-acheter-du-viagra/ In the initial reports, a senior manager in one of the branches alleged that staff, some of whom had been employed by Byron for as long as four years, had been falsely duped by Byron into attending a health and safety meeting at 9:30 a.m., when immigration officials quickly arrived and started to interview people.

Byron has confirmed that it facilitated the raid at the Home Office’s request but has refused to respond to the claims that it set up the staff meetings on false pretenses. Sometimes silence speaks a thousand words, as they say.

As such, in amongst the few messages of support for Byron, the critics have shouted louder, calling for a boycott of the chain. Two London branches have already been targeted in the backlash, where activists went so far as to release cockroaches and locusts into the restaurants, forcing them to be closed to customers.

But what are the rights and wrongs of this incident? First, the Home Office has acknowledged that Byron complied with its legal obligations, in particular its obligation to carry out “right to work” checks. The Home Office has issued guidance on what checks UK employers need to carry out on new workers (https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/536953/An_Employer_s_guide_to_right_to_work_checks_-_July_16.pdf). Provided that an employer has carried out the appropriate checks, it will have a statutory excuse against liability for a civil penalty if it later comes to light that any worker has been working illegally in the UK. Employers must therefore ensure that the necessary checks are carried out, https://www.acheterviagrafr24.com/achat-viagra-en-ligne-quebec/ as the penalty for failure to do so (up to £20,000 for each illegal worker) could be substantial.

The issue with the Byron workers is that, in the course of its own investigation, the Home Office identified that those workers at the center of the alleged immigration breaches had provided false or counterfeit documentation as proof of their right to work in the UK. The Home Office then made a specific request to Byron to assist it with its investigation, which Byron did.

Perhaps, then, the PR nightmare that is the Byron story should be treated as a cautionary tale of how not to assist in a Home Office investigation. The recent trend seems to show that the Home Office is really cracking down on illegal workers and, accordingly, Home Office investigations are likely to become a live issue for a number of employers. Employers need to balance their legal obligations against their more human responsibilities to their staff.

No one is condoning illegal working or the falsification of documentation. However, arguably, if Byron had dealt with the issue more sensitively and compassionately, it could have mitigated the negative press it received. In an era when people have the world at their fingertips, consumers are calling out to see the human face of business.

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Byron Burger: A cautionary tale?

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.

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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.

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