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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.

Status of EU citizens in the UK

Slowly getting there – what might immigration look like after Brexit?

It may not have been accompanied by the usual pomp and circumstance, but the Queen’s speech yesterday did give us some further clues as to what the government has planned for EU nationals post-Brexit. In her speech, the Queen confirmed that there were plans for an immigration bill which would 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”. She also stated that the bill would require EU nationals and their families to be “subject to relevant UK law”. 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 those EU nationals already working in the UK to be allowed to remain, if they choose to do so. However, those who choose to do so will be subject exclusively to UK law, and not enjoy the protections afforded by the European Court of Justice. Presumably this would work along the lines of Norway’s membership of 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 that 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 those 3 million EU nationals currently residing in the UK, and the 1 million UK citizens currently residing elsewhere in 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.

Slowly getting there – what might immigration look like after Brexit?

EU family members’ rights

Family members ‎of EU nationals can join them in another member state if the EU national is exercising treaty rights. This may mean, for example, that they are studying or working.

The EU national may qualify for permanent residence after a qualifying period of time in the UK. Once an EU national gets permanent residence they 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, they are no longer entitled to rely on EU law and the rights derived from it for family members.‎ However, the 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. The Advocate-General considered that the treatment of Mr Lounes’ wife (the dual national) should be no less favourable than before her naturalisation, or than would be granted to her if she were 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 court 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 naturalising 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.

EU family members’ rights

Adult dependent relatives – judicial review challenge

The Immigration Rules on visa applications ‎made by adult dependent relatives of UK citizens were changed in July 2012. An adult dependent relative may be a parent, grandparent or other adult dependent relative. There was concern at the time that the Home Office had tightened the Rules too much.

The Rules 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 they are living. This must be because it is not available and there is no person in that country who can reasonably provide it, or it is not affordable.

Home Office statistics bore out that concern. Since the Home Office changed the Rules, the average number of successful applications each year may have reduced by at least 93 per cent.

BritCits, a campaign group, challenged the current requirements. It brought a judicial review application. It argued the Rules defeated the purpose of the law under which they were made. It also argued the Rules raised expectations without there being any real possibility of the Rules being met! Its third argument was that the Rules interfered with family life.

However, the Court of Appeal has dismissed the challenge brought by BritCits to the High Court’s dismissal of the judicial review application.

Applicants applying in this category will have to make applications in the knowledge that their success rate is exceptionally low, and, despite a challenge to the Immigration Rules, the Rules will remain as drafted. Applicants will continue to have to pull together as much evidence as they can to show 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. Such an approach could mean the difference in the outcome of an application for an adult dependent relative.

If BritCits pursues its challenge to the Supreme Court we will of course keep you informed.

Adult dependent relatives – judicial review challenge

General Election countdown: Immigration – what’s next?

What’s going to happen to immigration in a post-Brexit era? That’s the million dollar question. Whilst 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.

Following the leak of the draft Labour Manifesto, it has been reported that Jeremy Corbyn has agreed to toughen up his message on immigration. The Labour Party has acknowledged that free movement of workers is unlikely to be possible once the UK leaves the EU, but has stated that imposing new immigration controls will not be 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 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 so far how they hope to achieve this, although Prime Minister May has reiterated that when we leave the EU we will have the opportunity to make sure we have control of our borders.

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 maths to achieve a net migration level of zero.

And then there’s the Liberal Democrats who are against stricter migration controls. Details of the party’s policies on migration are yet to be revealed but Tim Farron recently tweeted that “immigration is a blessing and not a curse”.

General Election countdown: Immigration – what’s next?

Two-year visa for young Europeans?

Given that, in the UK, more than half a million EU nationals work in the retail, hotel and restaurant trades (accounting for 14 per cent of the workforce), there is real concern as to whether post-Brexit there will be an adequate supply of low-skilled workers to fill these roles. Our previous blog post looked at permanent residence applications as an option for European workers already in the UK. However, the government is now looking at ways to ensure that the supply of low-skilled workers is sustained post-Brexit.

The government is currently considering a two-year fixed visa for young Europeans who want to work in the UK in certain low-skilled sectors (nicknamed the “barista visa”), a proposal put forward by crossbench peer and Migration Watch UK chair, Lord Green. Applicants for such a visa would not be able to claim benefits or bring dependants into the UK. This would be similar to the youth mobility scheme which allows young people from certain countries (for example, Canada and Australia) to come to the UK to work for up to 24 months. If this were to be implemented, the government would be looking for reciprocal arrangemets in Europe for the UK’s young people.

Whether or not the government implements such a visa programme remains to be seen. However, it is good to see that there is growing momentum in working out what the post-Brexit immigration system could look like.

Two-year visa for young Europeans?

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 12 April 2017 the Home Office updated its guidance notes setting out information on what an applicant should send with their application. See https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/608088/Form-EEA-PR-guidance-notes-v3.pdf. 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. Official English translations provided by a qualified translator must be sent with all documents not in English or Welsh.

EEA – permanent residence applications

Tier 2 Immigration Skills Charge – another fee to pay

As part of the government plans to reduce Britain’s reliance on migrant workers, from 6 April 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 6 April 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 incentivise employers to train British staff to fill those jobs.

Tier 2 Immigration Skills Charge – another fee to pay

The future of migrant workers in the UK?

With the Prime Minister preparing to trigger Article 50 around 15 March, and so begin the process of Britain’s exit from the European Union, the Cabinet’s Brexit Committee has started to prepare a two-stage plan to deal with immigration. The plan will seek to deal with EU nationals already in the UK, and to set up a new visa regime for those who arrive in the UK in future. The Prime Minister intends that this will go hand in hand with the deal with EU member states to safeguard the rights of British citizens living in the EU, as well as those of EU citizens living in Britain. If such a deal can be reached, it is expected that all EU citizens residing in the UK as at the date Article 50 is triggered will be protected.

The focus of the proposal, which is thought to be outlined in a consultation document to be published this summer, is to take steps to enable the UK to access the skills of workers in key industries in the short term, and to ultimately seek to reduce migration. The proposal, which is subject to the consultation and is not expected to be introduced as a bill until early 2018, is expected to include:

  • five-year working visas for new arrivals who are coming to the UK to take up jobs in key industries (including health and social care, and construction);
  • creation of a “migration advisory committee” to advise on how many visas should be issued in each key industry; and
  • plans to train British workers so that they can fill jobs in sectors which currently rely heavily on migrants, so that the number of visas issued can be reduced over time.

The bill would become law before March 2020. This will be of particular interest to employers who rely heavily on migrant workers.

The vote in the House of Lords last week also means that the government may need to amend the Brexit Bill to guarantee the rights of EU citizens already living in the UK. This will hopefully result in more clarity for the thousands of EU citizens working in the UK and the companies that employ them.



The future of migrant workers in the UK?

New penalties in place under the Immigration Act 2016

The Immigration Act 2016 is now in force and its substantive provisions seek to reflect the Home Office’s aim of making the immigration system more robust in the face of illegal working. The key terms include two new penalties for employers.

1. Illegal Working Closure Notices and Compliance Orders
Where an employer repeatedly employs illegal workers, or fails to pay a civil penalty notice, a Chief Immigration Officer may issue an Illegal Working Closure Notice to close the employer’s premises for up to 48 hours. The notice will restrict paid or voluntary work or access to those premises during the 48-hour period.

Once the officer issues the notice, he or she can then make an application to the court for an Illegal Working Compliance Order. This will impose specific requirements on the employer to ensure it does not commit further offences, and the provisions of the Compliance Order can be extended for up to two years in total. The court has wide discretion and can:

  • restrict or prohibit access to the premises;
  • require the employer to perform right to work checks; and
  • produce right to work check documents.

Where an individual contravenes an Illegal Working Compliance Order, they will commit an offence punishable by up to 51 weeks’ imprisonment and/or a fine.

Employers should be live to the risk that they might be repeat offenders even if they unintentionally employ someone who does not have permission to work in the UK. An example of this would be where the worker has forged a document proving their eligibility to work in the UK.

2. Right to rent provisions
It is now also a criminal offence to rent a property to someone who is not lawfully living in the UK and the landlord knows, or has reasonable cause to believe, the premises are occupied illegally.  Therefore, employers who provide housing as part of the terms of their workers’ employment (in particular, employers with a cross-border workforce) might be at risk if they rent to a person without the right to live in the UK. This may result in an unlimited fine and/or a custodial sentence of up to five years. Where this offence is committed by an employer, it is possible that the directors will be personally liable to serve the custodial sentence.

Employers should note that this is a continuing obligation. Therefore, when carrying out the usual periodic right to work checks, employers should also consider whether an individual’s right to rent has expired during tenancy. It is particularly important that employers keep up-to-date records of their tenants (including visa expiry dates) and make sure that terms are in place to end the tenancy where it is discovered that an individual is disqualified from renting. However, employers might be able to avoid these duties, and any resulting criminal penalties, by appointing agents who will have responsibility for any immigration checks in the employer’s place.

New penalties in place under the Immigration Act 2016