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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

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

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.

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Form EEA – permanent residence applications

Criminal record check for Tier 2 UK migrants

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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 announces changes to Immigration Rules

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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.

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UK announces changes to Immigration Rules

UK Visas and Immigration provides premium sponsor licence

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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