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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

Tier 2 Restricted Certificates of Sponsorship hit quota

Tier 2 Restricted Certificates of Sponsorship (CoS)—which employers use to employ non-EU/EEA nationals in the UK—are scarce.

All Tier 2 Restricted CoS applications that employers lodged before the April CoS allocation meeting on April 11, 2018, were successful, provided they scored 46 points or more. This meant that migrants had to be earning a minimum salary of £50,000. The pressure on the Tier 2 system is due to the drop in the number of EU/EEA migrants coming to the UK to work.

Only 1,975 Restricted CoS were available in the May allocation. Based on recent allocations, this will (again) not be sufficient to meet demand. In April, the Home Office granted 2,193 CoS. April was the fifth consecutive month that the allocation limit was exceeded. Employers across all industry sectors are urging the government to increase the cap amid a growing skills shortage.

Only prioritized applications, such as those on the shortage occupation list, PhD level occupations and where the salary is more than £50,000, will have a chance of success in May. Figures to be released at the end of the month will reveal the true picture.

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Tier 2 Restricted Certificates of Sponsorship hit quota

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

Stretched resources: immigration and gender pay equity

Two stories in the UK headlines today relate to stretched resources: The Home Office preparing its immigration system for life after Brexit, and the Equality and Human Rights Commission (EHRC) enforcing employers to publish information on their gender pay gap.

Immigration system

According to the British House of Commons, it is unlikely the UK will have an immigration system in place when Britain leaves the EU in March 2019. The government has not published its future policy. This is causing distress for EU citizens living in Britain, and for UK businesses that rely on EU citizens.

An estimated three million EU citizens will need to register as having the right to be in the UK. Border force agencies will struggle to carry out checks on EU citizens arriving in the country. Agencies like Visas and Immigration, Immigration Enforcement and other departments of the Home Office will also feel the impact of the extra caseload. These services are already finding it difficult to cope, resulting in occasional poor decision-making. Dentons has worked with clients to help overcome these poor decisions.

The UK government is due to publish a white paper on immigration policy; already postponed from last autumn, it seems unlikely to see release before March 2019. Ministers working on the white paper have said the delay is to consider the Migration Advisory Committee’s report due in September 2018. Dentons contributed to this report, so we hope to see the collated views of our clients reflected in the future shape of UK immigration rules.

Gender pay equity

By April 4, 2018 companies with 250 or more employees are required to report the gender pay gap in their workforces. Questions have already been raised about whether the gender pay gap regulations under the Equality Act have teeth to motivate business to properly comply. On top of this, it seems likely the EHRC will struggle with having sufficient resources to enforce the regulations.

However, EHRC Chief Executive Rebecca Hilsenrath has distanced the commission from the responsibility of ensuring compliance. She has described the EHRC to the Financial Times as a “strategic enforcer” that looks at novel points of law”, and “at cases which will clarify the law”, and “where impact lies.” Therefore, the EHRC does not see itself as taking on all breaches of the Equality Act.

This bears out in the EHRC’s budget information: The government is not allocating additional resources for work on gender pay reporting. The EHRC will seek to increase its budget if many companies fail to comply with gender pay reporting. Having already seen its funding cut by 25 percent in the 2016–2020 spending review, a crystal ball is probably not needed to predict how any request for a budget increase will be answered.

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Stretched resources: immigration and gender pay equity

Home Affairs Committee issues report: Building consensus around immigration policy

The Home Affairs Committee consists of 11 Members of Parliament drawn from the three largest political parties (Conservative, Labour and the Scottish National). It has been chaired by Yvette Cooper MP (Labour) since 2016.

The Committee is currently managing a number of immigration-related inquiries. The most relevant to business immigration are:

  • Home Office’s capacity to deliver immigration services post-Brexit (launched October 5, 2017), which explores the capacity of the Home Office to meet the demands that Brexit will present, such as whether it can process applications from the 3 million EU nationals currently residing in the UK. Evidence has been gathered and we are currently awaiting the Committee’s report.
  • Building a consensus around immigration policy (launched October 17, 2017), which looks into the public perception of immigration and how the government might go about achieving greater consensus on immigration policy.

On January 15, 2017, the Committee published its report on the latter topic: “Immigration policy: basis for building consensus.” Click the UK Parliament website to read (i) the report summary, (ii) the report conclusions and recommendations and (iii) the full report.

To summarize the report’s main themes:

  • There is a lack of trust in official data, targets and decision-making on immigration policy.
  • Rules are complex and hard to understand, and there is concern that they are not being enforced.
  • Stronger coordination is needed between immigration policy and labor market policy.
  • Action is needed to address the impact of immigration, including appropriate investment in housing, public services and integration plans.

As the saying goes, perception is truth. While immigration rules are arguably easier to understand now than prior to the introduction of the points-based system, if public perception is the opposite then there is work still to be done.

If we look at the last 15 years there have been a number of events that have had an impact on the perception of immigration, such as the global financial crisis, the EU’s expansion into Eastern Europe and, most recently, the referendum on exiting the EU.

The report makes a number of compelling recommendations to address the public’s negative perception of immigration. With inevitable changes due to Brexit we have an opportunity to develop an immigration system that will be viewed positively by the wider population.

Some of the recommendations that are most relevant to business immigration and employers are:

  • Scrap the current net migration target and replace it with a new framework of targets and controls based on evidence.
  • Publish an annual migration report on migration flows, the economic contribution from migration and the measures taken by the government to manage impacts and pressures.
  • Link immigration policy for work purposes to strategy for improving investment in domestic skills and training with the target of reducing dependency on migrant labor.

Assess whether over reliance on migrant labor in some low-skilled jobs is due to poor pay, terms and conditions, and what restrictions and controls are needed to prevent undercutting and exploitation.

 

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Home Affairs Committee issues report: Building consensus around immigration policy

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

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

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 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