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Safeguarding the status of EU citizens: UK and EU negotiation update

 

 

 

 

 

 

The EU and UK have concluded their fifth round of negotiations.

Progress has been made on coming to an agreement in relation to the rights of EU citizens living in the UK. Some points are still to be negotiated.

The UK has confirmed that its “settled status” scheme, to be introduced next year, will be streamlined, digital and low-cost. For EU citizens who have permanent residence documents, the process of updating their status to “settled status” will be more straightforward. There may not be a cost, but if there is it will be greatly reduced.

The UK government has confirmed that safeguarding the status of EU citizens in the UK, and of UK nationals in the EU, will remain a priority. Prime Minister Theresa May said this week, “We want you [EU citizens] to stay.”

Keep your eye on The Global Mobility Review blog for further developments.

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Safeguarding the status of EU citizens: UK and EU negotiation update

MAC consultation on the future of the UK immigration system

As highlighted in our September Round-Up, we are participating in a call for evidence published by the UK’s Migration Advisory Committeee (MAC).

The UK government asked the MAC to advise it on the economic and social impacts of the UK’s exit from the European Union and also on how best to align the UK’s immigration system with a modern industrial strategy.

The MAC’s findings and recommendations will be based on the evidence it receives from interested parties. We will be your voice to the MAC. But to do so, we need your input and have developed a short survey to gather some general opinions.

Please find the survey here. It should not take you more than 5–10 minutes to complete the 13 questions. All responses will be anonymous and used to inform our response.

Please complete the survey by Wednesday, October 18, 2017.

Note: The acronym “EEA” refers to the European Economic Area, which includes all EU countries plus Iceland, Liechtenstein and Norway. The EU countries are Austria, Belgium, Bulgaria, Croatia, Republic of Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and the UK.

If you have any queries, please contact your usual Dentons lawyer.

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MAC consultation on the future of the UK immigration system

MAC to examine the role EU nationals play in the UK

The UK government has tasked the Migration Advisory Committee (MAC), the government’s independent advisers on migration, to examine the role EU nationals’ play in the UK economy and society.

Amber Rudd, the Home Secretary, engaged the MAC to look into the British labor market, the overall role of migration in the wider economy, and how a modern industrial strategy should align with the UK’s immigration system. The MAC will consult with a wide cross-section of businesses, employer organizations and EU citizens working in the UK.

The importance of this initiative should not be underestimated, as free movement will end when the UK exits the EU. The government is working on plans to develop the flow of migration from Europe. (See: The rights of EU citizens in the UK, The Global Mobility Review, July 13, 2017 blog post). The UK and the European Commission had key discussions at the end of July, and the next round of negotiations is scheduled for late August 2017.

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MAC to examine the role EU nationals play in the UK

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

Show Me the Money: What the Trump administration’s budget and spending priorities reveal to employers

May 25, 2017
1:00 PM – 2:00 PM EDT
Webinar

Our Employment and Labor team marked the passage of President Trump’s first 100 days with a webinar on May 25, 2017 that looked at whether the president’s budget proposal backed up his prior public statements about wanted changes to employment, benefits and immigration regulations, as well as the impact on employers of the spending bill passed by Congress to prevent a government shutdown. By “following the money,” you can better prepare for future compliance demands and enforcement risks. For your convenience, the program can be viewed in it’s entirety and to register to the webinar by visiting the event page.

We hope you are able to join the program.

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Show Me the Money: What the Trump administration’s budget and spending priorities reveal to employers

Q. Do US border inspectors demand passwords and inspect phones and laptops?

US Customs and Border Protection (CBP) searched 14,993 electronic devices during the six-month period between October 1, 2016 and March 31, 2017, according to an ‘agency press release issued on April 11, 2017. The press release did not reveal how many of those devices, if any, were seized as evidence.

The CBP’s numbers constitute a dramatic increase compared to the 19,033 searches of electronic devices conducted during the 12-month period commencing on October 1, 2015, and ending on September 30, 2016 (up from 8,502 searches during the prior 12 months).

The CBP’s border search authority is considered by the agency to require no warrant, a position that has been upheld in federal appellate courts. The CBP has stated that it adjusts the level of search activity to align with current threat information regarding terrorist activity, child pornography, violations of export controls and intellectual property rights and visa fraud.

“These searches, which affect fewer than one-hundredth of one percent of international travelers, have contributed to national security investigations, arrests for child pornography and evidence of human trafficking,” stated John Wagner, Deputy Executive Assistant Commissioner, Office of Field Operations. “CBP officers are well trained to judiciously conduct electronic device searches and to protect sensitive information that may be encountered.”

The CBP has an information sheet, titled “Inspection of Electronic Devices,” which agents provide to travelers whose property is being searched detailing the various reasons individuals are selected for a search, including:

  • Travel documents incomplete
  • Does not have proper documents or visa
  • Previously violated one of the laws the CBP is charged with enforcing
  • Name matches that of a person of interest in one of the government’s enforcement databases
  • Randomly selected

The CBP advises that the agent retain a device, along with copies of any documents or information in the possession of the person who was searched relating to immigration, customs or other enforcement matters, only if such retention is consistent with the privacy and data protection standards of the system in which such information is retained. Otherwise, if after reviewing the information, there exists no probable cause to seize it, the CBP states that the agency return the device and not retain copies of any documents seized.

The information sheet explains:

“If CBP determines that the device is subject to seizure under law—for example, if the device contains evidence of a crime, contraband or other prohibited or restricted items or information—then you will be notified of the seizure as well as your options to contest it through the local CBP Fines, Penalties and Forfeitures Office.”

The information sheet also addresses privacy and civil liberties protections during the conduct of border searches.

The full text of the April 11 press release is available at the US CBP website and the published agency’s information sheet can be found here.

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Q. Do US border inspectors demand passwords and inspect phones and laptops?

Tier 2 immigration skills charge – another fee to pay

As part of the government plans to reduce Britain’s reliance on migrant workers, from  April 6, 2017 employers may have to pay an immigration skills charge of £1,000 per employee.

The skills charge will apply to a sponsor of a Tier 2 worker assigned a certificate of sponsorship in the “General” or “Intra-Company Transfer” route and who applies from:

  • outside the UK for a visa
  • inside the UK to switch to this visa from another
  • inside the UK to extend their existing visa

The skills charge does not apply if you are sponsoring:

  • a non-EEA national who was sponsored in Tier 2 before April 6, 2017 and is applying from inside the UK to extend their Tier 2 stay with either the same sponsor or a different sponsor
  • a Tier 2 (Intra-Company Transfer) graduate trainee
  • a worker to do a specified PhD level occupation
  • a Tier 4 student visa holder in the UK switching to a Tier 2 (General) visa
  • Tier 2 family members (“dependants”)

As the charge applies to the sponsor and not the individual, if a sponsor has paid it in respect of an individual who then seeks to change sponsor, the new sponsor will also be required to pay the levy.

A lower rate of £364 per certificate of sponsorship applies for smaller sponsors and charities. You will usually be considered a small business if:

  • your annual turnover is £10.2 million or less
  • you have 50 employees or fewer

The charge is in addition to all other application fees. Its purpose is to cut down on the number of businesses taking on migrant workers and to incentivize employers to train British staff to fill those jobs.

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Tier 2 immigration skills charge – another fee to pay