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Immigration briefing papers

 

 

 

 

 

 

 

This week saw the publication of two briefing papers—one by Bernard Ryan, Professor of Migration Law at the University of Leicester (for the Immigration Law Practitioners Association (ILPA); and the other by the Institute of Public Policy Research (IPPR)—that make significant contributions to the ongoing conversation on immigration policy, particularly in light of the inevitable changes due to Brexit.

The ILPA briefing paper, “Who will remain after Brexit? Ensuring protection for all persons resident under EU law,” identifies gaps concerning both EU citizens and third-country nationals who, potentially, will be negatively impacted by Brexit as they are not included in the government’s current thinking. These groups include, for example:

  • EU citizens and family members resident outside the UK at the point of Brexit who have a history of residence in the UK and may need or desire to resume residence in the UK in the future; and
  • EU nationals whose primary residence is outside of the UK but who, for either business/work or personal reasons, have a second place of residence in the UK. Post Brexit, these individuals may fail the required residency requirements to obtain residence or settled status, given their high absences from the UK, and instead be treated as visitors to the UK, a status that would obviously not permit them to work in the UK.

A summary of the paper, together with the full version, is available here.

The IPPR paper, “An immigration strategy for the UK: Six proposals to manage migration for economic success,” addresses the need to link immigration with the strategic priorities of the UK, particularly economic ones, in a post-Brexit world, and to understand the role that immigration plays in meeting these. The six proposals referred to in the title are:

This paper serves to remind us of the enormous challenge facing policymakers as they seek to ensure that all affected parties are captured in their thinking and that adequate protections are included in both the withdrawal agreement and future UK immigration legislation.

  1. Immigration strategy should clearly differentiate between types of immigration.
  2. Immigration strategy should actively address geographical imbalances in the economy.
  3. Immigration strategy should be designed to spur innovation.
  4. Immigration strategy should forge a new compact between employers and government, as a means to achieving a high-pay, high-productivity economy.
  5. Immigration strategy should support the UK’s trade balance.
  6. Immigration strategy should promote equality and integration.

In the lead-up to what will inevitably be an overhaul of the immigration system due to Brexit, the IPPR paper reminds us of the opportunity this brings, and the need to be active in the ongoing immigration debate.

The full report is available to download at the IPPR website. (The four-page summary is well worth a read.)

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Immigration briefing papers

UK government updates on Settled Status

The UK government has published further details on how the new settled status scheme for EU citizens and their family members will work as the UK leaves the EU. In the technical document sent to the European Commission, the government has pledged that this new system will be streamlined, low-cost and user-friendly, and will be designed with input from EU citizens.

EU citizens will have up to two years following the UK’s exit from the EU to apply to stay in the UK and obtain settled status. Applications will be decided based solely on the criteria set out in the Withdrawal Agreement and there will be no discretion for refusal based on other reasons. The criteria are not, as yet, conclusive. However, the government has confirmed that they will be simple, transparent and will minimize the need for documentary evidence. Unsuccessful applicants will have a statutory right of appeal in line with current rights provided by the Free Movement Directive.

There are also plans to set up a voluntary application process to provide those currently residing in the UK with the option to get new settled status at their earliest convenience—a recognition of the administrative challenge of granting status to potentially over three million EU citizens and their families.

Negotiations between the UK and EU are ongoing.

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UK government updates on Settled Status

Green card processing times for employment-based immigration expected to increase

 

Delays and increased processing times can be expected for employer-sponsored immigrants seeking green cards, based on a recently announced change by the US Citizenship and Immigration Services agency (USCIS).

In a press release dated August 28, 2017, USCIS stated that the agency plans, effective October 1, 2017, to begin interviewing employment-based immigrants. This will impact employer-sponsored professionals, skilled workers, executives, manager, and outstanding professors and researchers, as well as individually sponsored immigrants with extraordinary or exceptional ability.

The press release states: “Previously, applicants in these categories did not require an in-person interview with USCIS officers in order for their application for permanent residency to be adjudicated. Beyond these categories, USCIS is planning an incremental expansion of interviews to other benefit types.”

This statement is inaccurate. In fact, the agency used to personally interview all immigrants. Decades ago, the policy changed and employment-based immigrants were only interviewed if a review of the application showed a need for an interview or as a random, quality-control measure. The primary reason for the change was to devote agency resources to more important tasks, after the agency determined the incidence of fraud detected by in-person interviews was not significantly greater than for applications processed without interviews. In addition, waiving the interview process allowed the agency to consolidate processing at regional centers where government workers were better trained in the special requirements for such immigration. Finally, remote processing at regional centers without direct public contact minimized the inconsistent processing experienced at local offices, as well as the incidence of fraud and corruption by government workers in direct contact with the public.

As Sir Winston Churchill famously stated: “Those who fail to learn from history are doomed to repeat it.” Local interview processing times vary, but the new policy is likely to increase by more than four months the time it takes USCIS to process applications for adjustment of status and maybe much longer where local offices with significant immigrant populations, such as Silicon Valley, are doing the processing.

By the way, the State Department has always interviewed all immigrants. Although going this route is more costly in terms of travel and lost US work days, more immigrants and their employers may want to consider this option if USCIS processing times spiral out of control.

The full text of the agency’s press release can be found at the USCIS website and the Executive Order can be found at the White House website.

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Green card processing times for employment-based immigration expected to increase

New Form I-9 and E-Verify User Manual for US employers

The US Citizenship and Immigration Services (USCIS) issued a revised Form I-9 and E-Verify User Manual. Employers should use the new Form I-9 for all new hires and for re-verification of current employees when their temporary employment authorization expires.

Form I-9 is used for verifying the identity and employment authorization of individuals hired for employment in the United States. All employers must ensure proper completion of Form I-9 for each individual they hire for employment in the United States, citizens and noncitizens included.

USCIS, which is an agency under the US Department of Homeland Security (DHS), operates the E‑Verify program, an Internet-based system that allows any US employer to electronically verify the employment eligibility of a newly hired employee.

E-Verify is a voluntary program. However, employers with federal contracts or subcontracts that contain the Federal Acquisition Regulation (FAR) E-Verify clause are required to enroll in E-Verify as a condition of federal contracting. E-Verify is also a requirement for employers of F-1 foreign students employed under STEM Optional Practical Training. Further, employers in states that have enacted legislation require some or all employers to utilize E-Verify as a condition of business licensing.

The new Form I-9 is available at the USCIS website. The new E-Verify User Manual is available for download here.

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New Form I-9 and E-Verify User Manual for US employers

The rights of EU citizens in the UK

The UK government has published a policy paper setting out its offer to EU citizens and their families residing in the UK regarding their right to remain in the country post-Brexit. The offer differs depending on how long a person has been in the UK.

People who have been continuously living in the UK for five years will be able to apply to stay indefinitely by getting “settled status.” A settled status residence document will be issued to prove an individual’s permission to continue living and working in the UK. Those already with an EU permanent residence document will be required to apply. The application process should come online before the UK leaves the EU, hopefully in 2018. The government has pledged to make the process as streamlined and user-friendly as possible.

Other EU citizens in the UK will be subject to a “cut-off date” after which they will no longer be automatically entitled to stay. The date is still to be negotiated, but may fall at any point between March 29, 2017 (the date that Article 50 was triggered) and the date that the UK leaves the EU.

EU citizens who arrived in the UK before the cut-off date, but who have not been here for five years when the UK leaves the EU, will be able to apply to stay temporarily until they have reached the five-year threshold, at which time they also can apply for settled status as set out above.

EU citizens who arrive in the UK after the cut-off date will be able to apply for permission to remain after the UK leaves the EU, under future immigration arrangements for EU citizens. The arrangements have yet to be determined, but the government stated that there should be no expectation by this group of people that they will obtain settled status.

Please visit The Global Mobility Review next month for further information on this development.

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The rights of EU citizens in the UK

Status of EU citizens in the UK

The Home Office has sent a communication to interested parties following the government’s publication of a paper outlining its offer to EU citizens in the UK. The government has reiterated its position that no action need currently be taken. “The UK will remain a member of the EU until March 2019 and there will be no change to the rights and status of EU citizens living in the UK, nor UK nationals living in the EU, during this time. So, EU citizens do not need to apply for documentation confirming their status now.”

The government’s policy paper sets out that the government will be asking EU citizens to make an application to the Home Office for a residence document demonstrating their new settled status. It aims to make the process as “streamlined and user-friendly as possible for all individuals, including those who already hold a permanent residence document under current free movement rules.” It is expected the new application system will be up and running in 2018.

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Status of EU citizens in the UK

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

Travel ban executive order – the saga continues

The US Departments of State and Homeland Security both issued statements on February 6, 2017, confirming that the government has suspended the implementation of key provisions of President Trump’s travel ban on nationals from seven Muslim-majority countries, and that visas that had been provisionally revoked are now valid for travel and may be used, once again, to come to the US, subject to the normal laws and procedures that existed prior to the President Trump’s executive order dated January 27, 2017.

This action comes as a result of a Ninth Circuit Court of Appeals decision in State of Washington and State of Minnesota v. Trump, denying a US Department of Justice request for an immediate stay of a nationwide injunction granted by a US federal district court judge in Seattle in response to Washington State’s request for a temporary restraining order immediately halting implementation and enforcement of the immigration ban.

The EO initially barred the entry to the United States of lawful permanent residents with green cards, and imposes a 90-day suspension of admission for immigrant and nonimmigrant visa holders, and refugees and passport holders from the seven countries. Soon thereafter, the Department of State issued an urgent notice suspending visa issuance to citizens of those countries. The EO also suspended the resettlement of refugees from all countries to the US for 120 days, and bans Syrian refugees indefinitely.

Previous injunctions had been issued in federal courts in Massachusetts and New York. Those orders temporarily enjoined federal agencies from removing people with approved refugee applications, valid visas and the nationals from the seven Muslim countries. The Seattle court’s decision is the broadest and has the largest impact.

Citizens from these countries are impacted

Nationals from the following countries are detrimentally impacted:

  • Iran
  • Iraq
  • Libya
  • Somalia
  • Sudan
  • Syria
  • Yemen

The EO does not apply to citizens of other countries who merely visited the listed countries. Further, the US Customs and Border Protection Agency has stated that the EO does not apply to citizens of these seven countries, if they are dual citizens and use the passport of a non-affected country to enter the US.

Travel guidance

Nationals from the seven listed countries, including dual citizens traveling with the passport of another country and US permanent residents, may wish to delay travel to the US until the details of the implementation of the EO are more clear, even if they already hold a visa to enter the United States. If in the United States already, they may wish to defer departure as they may not be allowed to return or they may find themselves going through a more lengthy than usual secondary inspection on arrival in the US. There are also reports of airline personnel being understandably confused regarding the status of the EO, with resulting inconvenience to travelers.

Background

On February 4, President Trump tweeted the following about the Hon. James L. Robart, the district court judge who issued the nationwide order. “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!”

Criticism of the tweet and the EO was immediate and widespread. Senator Patrick Leahy (D-VT) said, “The President’s hostility toward the rule of law is not just embarrassing, it is dangerous. He seems intent on precipitating a constitutional crisis.” Senators John McCain (R-AZ) and Lindsey Graham (R-SC) said: “We fear this executive order will become a self-inflicted wound in the fight against terrorism.”

Broad media coverage of the confusion caused by the uncertainty surrounding the EO’s fate continues. Dentons continues to receive emails and calls from employers who are considering cancelling all travel for employees carrying passports from the impacted countries, including dual citizens and US lawful permanent residents. Similar concerns have been voiced by citizens of many countries that are not listed in the EO but are worried that their country might be next. Due to the reciprocal nature of diplomatic relations, it is likely that US passport holders traveling to the seven countries will experience similar difficulties upon their arrival. Iran, for its part, has said, it would stop US citizens entering the country in retaliation to Washington’s visa ban.

Dentons will issue further information as it becomes available.

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Travel ban executive order – the saga continues