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Home Office publishes details of settlement scheme for EU citizens

 

 

 

 

 

 

 

EU citizens will be able to apply for settled status in three easy steps and for less than the price of a passport, under plans outlined by the Immigration Minister today. For more information, please contact your Dentons lawyer. For the full text see the Gov.UK website.

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Home Office publishes details of settlement scheme for EU citizens

The travails of the ‘Windrush generation’ and the lessons for EU nationals

UK Minister of State for Immigration Caroline Nokes has set out the government’s commitment to support the “Windrush generation,” immigrants who migrated legally from British colonies or former colonies in the Caribbean between 1948 and 1973. The term “Windrush” derives from the name of the ship, the Empire Windrush, that brought the first arrivals in Britain’s post-war drive to fill a labor shortage. The ship carried 492 passengers, many of them children, from the Commonwealth country of Jamaica. Under the British Nationality Act, they and thousands who followed after, enjoyed British citizenship and full rights of entry and settlement. In 1962, however, British law changed to end the automatic right of entry and, throughout the 1960s and 1970s, as the Caribbean colonies gained independence—and their people different citizenship—a series of British laws further tightened immigration controls.

The story of Caribbean-born Britons took an inauspicious turn in 2012. Changes to immigration law that required documentation to work, rent a property or access benefits, including healthcare, left people fearful about their status. As it turned out, their fears were justified. Recent reports in the British press about longtime legal residents of West Indian and Caribbean ancestry losing their jobs, being denied medical care, being evicted, and even detained and threatened with deportation because they could not prove that they had lived in the country since before 1973 produced a public outcry and, on April 17, 2018, an apology from Prime Minister Theresa May.

The current “hostile environment”—aimed at making it difficult for illegal immigrants to settle in the UK—has meant that many people living in the UK legally are being asked to document their right to stay in the UK when trying to access healthcare, applying for a job, opening a bank account, or renting a property, and some of the Windrush generation who arrived here as children are finding it difficult to do so because they have never had a need to update their passports and immigration documents.

Their plight, however, is not dissimilar to that of EU nationals, who must also think about what documentation they can produce to prove their right to remain in the UK. There are thousands of EU nationals who do not hold passports and/or do not have a paper trail to evidence their nationality or time spent in the UK. Without such documents, they will find it difficult to meet the requirements to apply for residency documentation confirming their status. Such EU nationals will feel the same level of anxiety and experience the same hostile environment that the Windrush generation are contending with. However, for EU nationals there’s the added pressure of having to complete their application within six months of December 31, 2020, being the end of the implementation period. Those who fail to do so enter uncharted territory, as there is no information at present on what will happen to EU nationals who haven’t obtained new residency documents.

Guy Verhofstadt, the European Union’s chief Brexit negotiator, identified this very issue when speaking to The Telegraph for an article that appeared on April 18 on how the UK government’s handling of its Windrush citizens has led to fears that EU nationals could face similar problems. Verhofstadt said, “This could be worrying for millions of EU citizens in the UK who may fear that they could face similar treatment after Brexit.” He added that he expects that MEPs will be looking for safeguards for their constituents.

The UK government has accepted that the Windrush citizens are entitled to reside in the UK and to access public services, and has asserted its commitment to working with any individuals who do not have documentation to prove their right to be in the UK. A new dedicated Home Office team will help such individuals gather the evidence necessary to prove that they have been living or working in the UK, and when such evidence is gathered, will endeavor to resolve cases within two weeks and at no cost to the applicant. Unfortunately, however, while the Brexit talks have gone more smoothly as of late, there is not the same commitment between the UK government and EU governments to help EU nationals. Given the current climate of uncertainty, we are advising EU nationals and employers of EU nationals on their best course of action.

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The travails of the ‘Windrush generation’ and the lessons for EU nationals

Brexit latest: EU nationals who arrive during the post-Brexit transition period can stay

On February 28, the UK government announced that EU nationals who arrive in the UK after Brexit Day (scheduled for March 29, 2019), but before the end of the so-called “implementation” or “transition” period, will be able to stay permanently. This is a shift from the UK’s previous position that arrivals after Brexit Day would be entitled to remain on a temporary basis only and would become subject to immigration controls at the end of the transition period. While this announcement brings the UK closer to the EU’s stance on this matter, there are still some fundamental differences to be negotiated.

Overall this is positive news for employers, especially those who rely on EU talent, who will now have a longer period to build new talent pipelines to replace workers from the EU.

However, this concession may have come too late for some employers who have already lost valuable talent due to a general feeling of uncertainty among EU nationals and negativity around citizens’ rights. It remains to be seen whether this latest shift in negotiating position will be enough to convince EU nationals that the UK remains an attractive destination to work and build a career.

The UK’s original position was partly based on an assumption that EU nationals would rush to move to the UK before a given cut-off date. The dramatic fall in net migration from the EU since the referendum shows that there was never a risk of this happening.

EU nationals who arrive in the UK during the transition period will be subject to a registration system in line with what is already common practice in other EU member states. After accumulating five years’ residence in the UK an EU national will be able to apply for indefinite leave to remain (ILR), which will allow them to live in the UK permanently.

It should be noted that ILR is not the same as “settled status,” which EU nationals who arrive before Brexit Day will be able to apply for. The application process for ILR usually requires the applicant to satisfy minimum salary requirements, demonstrate English language ability and pass the “life in the UK” test. ILR is also more restrictive than settled status; for example, the holder of ILR will lose this status if they are absent from the UK for a period of two years, while for the holder of settled status, absence up to five years is permitted. It remains to be seen what the qualifying criteria for ILR in this situation will be, and whether a special procedure will be established that is more closely aligned to settled status.

Looking to the future, employers should also be encouraged by the following section of the announcement, which relates to a new immigration framework to be implemented post Brexit:

“… leaving the EU does not mean the end of migration between the EU and the UK. The new framework will therefore be designed to support the UK economy, enable businesses and key public sector workforces such as the National Health Service to access the skills they need, and underpin our trading relationships with partners in Europe and around the world.”

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Brexit latest: EU nationals who arrive during the post-Brexit transition period can stay

Brexodus continues

 

Net migration from the EU has plummeted from 165,000 in 2016 to 90,000 in 2017.

As expected, in the latest statistics released by the Office of National Statistics today, net migration from the EU has plummeted, with fewer EU nationals moving to the UK and more leaving:

2016 2017
EU nationals who immigrated to the UK 268,000 220,000
EU nationals who emigrated from the UK 103,000 130,000
Net migration +165,000 +90,000

This is of significant concern to industries and sectors that rely heavily on EU talent, with health and medical services, and farming and agriculture already dealing with considerable labour shortages.

The UK will officially leave the EU on March 29, 2019, and even though this is still over 12 months away, employers are already feeling the impact.

The other interesting statistic released today is the huge increase in EU nationals applying for British citizenship. In 2016 15,460 EU nationals applied for British citizenship—following the Brexit referendum this number more than doubled to 38,528 in 2017.

What we can take from both of these statistics is that the lack of certainty in citizens’ rights and future immigration policy following Brexit is forcing individuals to consider and protect their position in the UK. At one end of the spectrum we can see that EU nationals are securing their rights in the UK by naturalising as a British citizen, and at the other end EU nationals are reassessing whether the UK is the place to establish a life and career in the first place. Without certainty on citizens’ rights and future immigration policy we can expect these statistics to continue on the same trajectory.

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Brexodus continues

Cooking up a storm: Tier 2 chefs

 
 
 
  
 
 
       
 
 
 
 
 

UK immigration rules make a distinction between chefs working in takeaway establishments and those working in restaurants.

If the job requires five or more years of relevant experience in a role of at least equivalent status to the one in which the visa applicant is proposing to start, and the job is neither a fast food outlet, standard fare outlet or takeaway outlet, then the position will fall under the chef roles on the Tier 2 Shortage Occupation List.

This has recently been the subject of High Court cases in which chefs argued that it’s arbitrary and unreasonable to exclude from the Shortage Occupation List those working at restaurants that provide high-quality cuisine just because the establishment also, incidentally, happens to offer takeaway service. The chefs argued that all skilled chef roles should be on the Shortage Occupation List, and that the focus should be on the nature of the establishment rather than the fact that it incidentally provides takeaway food.

The Secretary of State argued otherwise and the court agreed, finding that the exclusion of jobs in takeaway, fast food and standard fare outlets from the Shortage Occupation List was justified. The court based its decision on evidence provided by the government that takeaway establishments were generally not associated with the kind of cuisine requiring highly skilled chefs.

In view of the rise in the number of gig economy delivery drivers delivering takeaway orders from fine-dining establishments, this is surely an issue that will rumble on.

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Cooking up a storm: Tier 2 chefs

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

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

Important new regulations for immigrant workers

The US Citizenship and Immigration Services (USCIS) published important new regulations for immigrant workers on November 18, 2016. The regulations become effective January 17, 2017.

Summary

The agency has amended its regulations to provide benefits to those in the employment-based first (EB1), second (EB2) and third (EB3) immigrant visa categories and their employers. The agency’s stated goal is to improve processes and increase certainty for employers seeking to employ and retain such workers, provide greater job flexibility for those workers, and clarify relevant Department of Homeland Security (DHS) policies.

New Rules

There are a number of new regulations, some of which adopt current agency policy and others that are new. The following are some of the most important ones.

For occupations in which a license is required (e.g., doctor, lawyer, etc.), the USCIS will grant the H1B visa for up to one year, if the only obstacle to license issuance is lack of a Social Security number.

For the purpose of counting the number of days spent in the US in H1B visa status towards the normal six-year limit, the USCIS will consider any twenty-four-hour period spent outside the US as one day, regardless of the reason for the absence.

A former H1B visa holder who is no longer in H1B visa status, and regardless of whether he or she is in the US or abroad, may seek an exemption from the normal six-year limit. The foreign worker must be otherwise eligible and the beneficiary of an approved EB1, EB2 or EB3 petition for whom the visa is not current under the quota system as of the date that the H1B petition is filed.

Lengthy adjudication delays of permanent resident status will not support an extension of H1B status beyond the normal six-year limit if the immigrant fails to file for permanent residence or an immigrant visa within one year of the visa becoming current under the quota system. If the visa becomes unavailable again, a new one-year period will be afforded when an immigrant visa again becomes available. The USCIS may also in its discretion excuse failure to timely file upon a showing that the failure was due to circumstances beyond the immigrant’s control.

Credible documentation that an H1B visa worker faced retaliatory action from the sponsoring employer regarding a violation of that employer’s H1B labor condition application obligations may be considered by the USCIS as grounds to grant an extension of H1B stay, or a change of status to another visa classification, notwithstanding the worker’s loss of, or failure to maintain, his or her H1B status.

The definition of “same occupational classification” for purposes of establishing the portability of immigrants to new jobs, has been modified to mean an occupation that resembles in every relevant respect the occupation for which the EB petition was originally granted. “Similar occupational classification” is now defined as an occupation that shares essential qualities or has a marked resemblance or likeness with the original occupation. This guidance is similar to what agency memoranda have already stated.

Employment eligibility verification regulations are amended to authorize employers to accept as proof of employment eligibility Form I-797C and also state that the original employment authorization document is automatically extended for up to 180 days. This is a new rule and will help employers.

Background

The US limits the number of employment-based immigrants annually, by both visa category and country of birth. The quota allocation set in 1990 has never been increased. The annual supply for most categories and countries of birth seems sufficient to prevent lengthy waiting periods; the greatest source of delay are USCIS and Department of Labor (DOL) agency processing times.

The most significant exceptions are for immigrants born in India and mainland China. So many employment-based immigrants born in those two countries are in the queue that waiting periods of for most immigrant visa categories now are many years.

Employer-sponsored EB visas tend to be for specific jobs, at specific work sites, with stated duties and compensation. In general, sponsoring employers and immigrant workers must intend after immigration is complete to work in the same job at the same work site with the same duties for the same (or similar) compensation.

Congress addressed this problem in the American Competitiveness in the 21st Century Act of 2000 (AC21). The USCIS (and its predecessor, the Immigration and Naturalization Service) issued implementing policy guidance, which has been clarified and revised over the years.

The lengthy processing delays were also a problem for H1B professional workers, since there is normally a limit of only six years of status. AC21 provided for extensions beyond the six-year limit.

The EB1 immigrant visa category includes individuals of extraordinary ability, outstanding professors and researchers, and multinational managers and executives. The EB2 category is for professionals with advanced degrees and individuals with exceptional ability. The EB3 category is for professionals and skilled workers, while the EB3W category is for other workers in short supply.

Read the full text of the new regulations here.

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Important new regulations for immigrant workers