Briefing: UK Domestic Workers by Charlotte Rubin

The UK provides a way for domestic workers to come to the UK with their private employers under certain specific circumstances: the domestic worker visa. Any non-British or Irish national wanting to come to the UK as a domestic national after 1 January 2021 has to satisfy the requirements for such a visa. Though a domestic worker is not defined in the immigration rules, the visa is typically employed by nannies, chauffeurs, au pairs, cooks, cleaners, etc.

Preliminarily, it is important to note who this visa applies to. Until 1 January 2021, EEA nationals did not need to get a visa in order to come to the UK as domestic workers, as they were exercising EU free movement. This all changed after Brexit. Those EEA nationals who came to the UK as domestic workers before 31 December 2020, therefore, can apply for status under the EU Settlement Scheme and remain in the UK doing their job lawfully. All those who arrived after 1 January 2021 can only work as domestic workers in the UK if they get a domestic worker visa. For non-EEA nationals, nothing has changed – they already had to apply for the visa before 31 December 2020.

Preliminarily, there are a few eligibility requirements for domestic workers wanting to come to the UK with their employers. As such, the applicant must be at least 19 years old, they must be able to are able to support themselves in the UK without the need for public funds, and they must intend to work as a full-time domestic worker.

There are then three core requirements for a domestic worker visa. Firstly, the domestic worker must have already worked for their employer for at least a year before a visa can be applied for. Secondly, the applicant must not intend to stay in the UK for more than six months. Lastly, the employer must be (i) a British or (at present) an EEA national who usually lives outside the UK and who does not intend to return for more than six months, or (ii) a non-EEA national who is coming to the UK to visit and who does not intend to remain for more than six months. If these three core requirements are not met, an application for a domestic worker visa cannot succeed.

The burden of proof for the eligibility and core requirements is on the applicant. They can demonstrate that they meet all requirements with different documents, ranging from bank statements to letters from employers. They will always have to provide the following documents as part of their application: payslips or bank statements showing payment of salary, confirmation of tax paid, confirmation of health insurance paid, their contract of employment, their valid work visa, residence permit or equivalent passport endorsement for the country in which the domestic worker has been employed by that employer; or visas or equivalent passport endorsement to confirm that the domestic worker has travelled with the employer. Additionally, the applicant and their employer must have agreed on terms and conditions of employment in writing. These terms and conditions must confirm that the applicant will be paid at least the Minimum Wage applicable in the UK.

Importantly, the domestic worker must not intend to stay in the UK for longer than six months. The visa cannot be extended beyond six months – if the worker wants to stay for longer, they have to leave the UK and make a fresh application. Though there is no specific limit of the number of times a domestic worker can come to the UK / reapply for the same visa, domestic workers can never live in the UK on a continuous basis. Domestic workers can thus not be working in the UK for extended periods based on frequent, successive visits. There are no hard and fast rules involved in the assessment of subsequent applications, but rather the Home Office caseworker in question will have to evaluate the individual circumstances of each case.

If you need legal assistance, or have any other questions, you can contact us here, call us on 020 8142 8211, or send us a question on WhatsApp.

Home Office publishes guidance targeting rough sleepers

On 01 December 2020, the Home Office amended the Immigration rules to include a new discretionary refusal or status cancellation ground where a person is deemed to be rough sleeper. The newly issued guidance clarifies key points in respect of how the guidance should operate:

- The rule was amended on 6 April 2021 to clarify that permission may only be refused or cancelled where a person has repeatedly refused suitable offers of support and engaged in persistent anti-social behaviour.

- Rough sleeping means sleeping, or bedding down, in the open air (for example on the street, in doorways or parks) or in buildings or other places not designed for habitation (for example stairwells, sheds, car parks, stations, or tents).

It should be noted that the policy explicitly states that it should not be applied to EEA/Swiss citizens and family members who have been granted status under the EUSS. However, the policy will apply to EU citizens who come to the UK under the new immigration system. With respect of the EUSS, the guidance confirms that anyone with status under the scheme should not have their status considered for cancellation on the basis of rough sleeping. The policy also confirms that there may be EU citizens who have not applied to the EUSS before 30 June 2021 deadline and confirms that they would be eligible to apply late to the scheme, if they have good reason for missing the deadline. Unfortunately, the guidance does not direct members of Immigration Enforcement teams to signpost and assist rough sleeping EU citizens to apply to the EUSS (by contrast the EUSS caseworker guidance contains explicit instructions for Immigration Enforcement when they encounter EU citizens who have not applied to the EUSS by 30 June 2021; it would be beneficial for these instructions to be repeated in the guidance on rough sleepers).

This Home Office policy is controversial as some organisations consider this to be targeting migrants already in highly vulnerable situations. Comparison is made to a previous unlawful Home Office policy to remove homeless EEA citizens and there is a legal challenge against the policy in motion.

If you need legal assistance, or have any other questions, you can contact us here, call us on 020 8142 8211, or send us a question on WhatsApp.

Removal or Deportation? What it means to be forcefully removed from the UK by Charlotte Rubin

The end of the grace period is near. From 1 July 2021, free movement will end, meaning UK citizens will no longer be able to move through the continent without restrictions, and EU citizens living in the UK will need to apply for status or become unlawful residents. With the passage of Home Secretary Priti Patel’s new immigration bill and the points-based immigration system, they will become subject to the same rules that have exposed non-EU nationals to discrimination, abuse and extortionate fees for years, ever since the hostile environment came into force.

EU citizens who fail to apply to the EU Settlement Scheme (EUSS) before the transition period ends have a six-month grace period, until 30 June 2021, in which they can still apply and resolve their status without becoming unlawfully resident. If they fail to do so, they will be cut off from a range of rights and entitlements, including homelessness assistance, welfare benefits and free NHS care. Worse yet, they could be liable for forced removal or deportation from the UK. What is the difference between the two?

Forced removal or administrative removal is when the Home office enforces an individual’s removal from the UK if that person does not have leave to remain. Section 10(1) of the Immigration and Asylum Act 1999 as amended by the Immigration Act 2014 states explicitly that a person who “requires leave to enter or remain in the United Kingdom but does not have it” may be removed from the UK. This can be because their application for leave has been refused, or their valid leave expired and they overstayed past the expiry date. Specific removal directions can only be set for an individual once they have no outstanding casework barriers, the person liable for removal is fit to fly, they have a valid travel document, and there are no other human rights interfering with the removal (for example, if there is a risk of family separation, that needs to be sorted out first.) Once an individual gets removal directions, they might be able to challenge it. Valid reasons to challenge removal include having a pending asylum claim, or a pending appeal. Certain types of judicial review may also form a barrier to removal. As mentioned before, an individual should also not be removed from the UK if it would breach the UK’s human rights obligations, whether under the European Convention of Human Rights (ECHR) or the Refugee Convention.

Deportation, on the other hand, is a different form of enforced removal, when removal is happening for the “public good.” This is set out in Part 13 of the Immigration Rules. Usually, deportation happens after an individual serves a criminal sentence in the UK. Under the current rules, if an individual is sentenced for more than 12 months in prison, their deportation is “conducive to the public good and in the public interest”. The Home Secretary must then make a deportation order against that individual. The rules also state that deportation is “conducive to the public good and in the public interest” if the offending “caused serious harm” as determined by the Home Office, or the offender is a “persistent offender who shows a particular disregard for the law”, irrespective of how long they were sentenced for. If an individual is liable for deportation, their immediate family (understood as spouses, civil partners or children) can also be liable for deportation unless they have Indefinite Leave to Remain, are British nationals, or have been living separately from the foreign offender.

If the Home Office makes a deportation order against an individual, they will be issued with notice of deportation arrangements. In order to challenge deportation, they will have to show that deportation would breach their rights under the Refugee Convention or the ECHR, in particular the right family and private life under Art. 8 of the ECHR. Generally, the balancing act between the offender’s human rights and the public good is in favour of deportation. The threshold of what the individual must prove in order to successfully challenge the deportation order against them goes up the longer their sentence is. As such, those who are convicted of a crime and sentenced to four or more years in prison (or more than one year and don’t fit within the exceptions) will need to show that there are “very compelling circumstances” in their case to outweigh the public interest in their removal. The standard to prove “very compelling circumstances” is extremely high. These rules apply to all foreign nationals in the UK.

For EEA nationals, Brexit adds a new dimension to the rules applicable to them. An EEA national with settled or pre-settled status can still be liable for deportation if they commit a criminal offence. However, the balancing act of their individual human rights against the public good will be influenced by when the crime was committed. As such, if the criminal offence was committed before the end of the transition period (i.e. before 31 December 2020), the Home Office will need to consider the pre-Brexit rules on EU nationals. This means the Home Office have to show that deportation is in the interests of “the public good, public health or public security”. The threshold for showing that deportation is in one or more of these interests was generally higher for EEA nationals than the “public good” arguments for deportation of non-EEA nationals. If the criminal offence was committed after 31 December 2021, the same deportation rules apply to EEA nationals as to third party nationals.

Removals and deportations are usually carried out either on a commercial airline or by private charter flights, though the latter have been the subject of some controversy. Individuals who are forcibly removed from the UK – whether by administrative removal or deportation – usually are banned from re-entering the country for ten years. After those ten years, a forcibly removed individual may re-enter the UK. A person who was deported, however, cannot re-enter the UK as long as the deportation order is in force against them, which may last beyond the ten-year period.

If you need legal assistance, or have any other questions, you can contact us here, call us on 020 8142 8211, or send us a question on WhatsApp.

The Policing Bill: dangers for migrants and wider society by Charlotte Rubin

On 16 March 2021, the government voted on seminal and highly controversial criminal justice legislation in the form of the Police, Crime, Sentencing and Courts Bill 2021. The Bill includes major government proposals on crime and justice in England and Wales.

The Bill strengthens police powers to deal with public order and to “tackle” non-violent protests which have “a significant disruptive effect on the public or on access to Parliament” – whatever that means. The new increased powers in the face of such vaguely-worded “annoying and disruptive” protests include the imposition of noise limits, setting starting and finishing times, and increased sentences and fines for breaching conditions imposed on assemblies and processions by the police. Clearly, such enhanced powers have significant implications on the right to protest, an aspect of the rights to free speech and free assembly which are guaranteed under the European Convention of Human Rights (ECHR) and protected under UK law by the Human Rights Act 1998.

Another issue which draws any reader of the Bill’s immediate attention is the government’s strange obsession with memorials and statues. Amongst a long list of crimes for which sentencing will get tougher if the Bill makes it into law, the legislation proposes a maximum penalty for criminal damage of a memorial of 10 (ten!) years instead of 3 months as the law currently stands.

The Bill also contains a new offence targeted at persons residing on land without permission, coupled with powers to seize property. This criminalisation of trespass has implications for the right to respect for the home and the right to peaceful enjoyment of possessions, of both the landowner and the resident, and may have a disproportionate impact on particular vulnerable (migrant) groups such as Gypsy and Travellers. Although the majority of Gypsies and Travellers in the UK live in permanent housing, a significant proportion live nomadically in accordance with their culture and traditional way of life. As it stands today, one in four caravans have no legal place to park or stay as there is a shortage of legal caravan sites across the UK.

Under the proposed legislation, many in the Traveller community face harsh police actions such as fines of up to £2500, imprisonment and family separation. Amongst the Gypsy, Roma and Traveller communities, many are non-British nationals who are at heightened risk of exclusion by the current immigration system. Compounded with this criminalisation of trespass, the Traveller communities may face unprecedented infringements on their rights to private life and to the prohibition of discrimination under Art.8 and Art. 14 of the ECHR respectively.

There are some welcome developments – for example, profoundly deaf people will be able to sit on juries for the first time as a British Sign Language Interpreter will be allowed into the jury deliberation room - but they are only tiny bright spots in a bill that mostly broadens police powers with very little checks against it, threatening to interfere with a number of human rights which the Human Rights Act protects. Examples of rights potentially infringed include the right to liberty (Art. 5 ECHR), the right to freedom of expression (Art. 10 ECHR), the right to freedom of assembly (Art. 11 ECHR) and the prohibition of discrimination (Art.14 ECHR).

The Police, Crime, Sentencing and Courts Act in its current form puts communities that are widely recognised as being amongst the most marginalised and disadvantaged groups at further risk and compound existing inequalities in British society. The proposed measures have been found by the government itself to disproportionately affect Black, Asian and minority ethnic people, including many migrants. This potential for abuse and discrimination is considered by the government to be “a proportionate means of achieving the legitimate aim of protecting the public.”

In other words, the ends justify the means. Yet, in a separate paper, the government states that there is “limited evidence that the combined set of measures will deter offenders long-term or reduce overall crime, begging the question of how much public protection the Bill will actually ever ensure. It seems, from the government’s own analysis, that rather than public protection being the one and only noble aim of the legislation, a mix of ulterior motives heavily influenced the proposals. To name a few, the government seems determined to save costs on things like appeal and review procedures, to cut down on administration, and to ensure that the daily activities of government are disturbed as little as possible by what is going in amongst the civilians they are meant to protect.

EU citizens applying for leave late must prove “reasonable grounds” for missing government deadline by Charlotte Rubin

At Seraphus and across the immigration law sector, we have been stressing one date for EU citizens living in the UK: 30 June 2021, the end of the Grace Period, and the deadline set by the government for EEA citizens and their family members to apply to the EU Settlement Scheme (EUSS) and remain in the UK lawfully thereafter.

This fast-approaching deadline is important for all EU and EEA citizens living in the UK. From 1 July 2021, any EEA citizen living in the UK without settled or pre-settled status under the Scheme will be here unlawfully and the hostile environment policies will start kicking in against them. This means that those who fail to apply by the deadline will be unlawful residents from 1 July 2021. The Home Secretary confirmed a few months ago that late applicants may still get status, but that this will broadly be at the Home Office’s discretion for those with “reasonable grounds to apply late.” Clarity on what grounds might be considered reasonable was lacking, until this morning, when the Home Office released its official guidance on how it will deal with late applicants to the Scheme.

Preliminarily, it should be stated that though the deadline for the EUSS is set on 30 June 2021, the Scheme was never going to fully close on that date. It will remain open for years to come for those with pre-settled status (EU citizens who applied to the EUSS based on less than five-year residency in the UK) to upgrade their status to settled status once they reach the five-year mark. The deadline for those with pre-settled status to apply for settled status is the date of expiry of their pre-settled status, usually five years from the day of the grant of status. The guidance confirms that the Home Office will send reminders to those granted pre-settled status to apply for settled status before their pre-settled status expires.

So, late applicants can be those who fail to meet the deadline of 30 June 2021 to apply for initial status, but also those who miss their personal deadline to “upgrade” their status in the years to come. All late applicants will have to show that they had “reasonable grounds” for failing to meet the deadline. Reasonable grounds are expanded upon in the guidance, which states that caseworkers must “take a flexible and pragmatic approach to considering, in light of the circumstances of each case, whether there are reasonable grounds for the person’s failure to meet the deadline applicable to them under the EU Settlement Scheme.” It also states that “For the time being, following 30 June 2021, you will give applicants the benefit of any doubt in considering whether, in light of information provided with the application, there are reasonable grounds for their failure to meet the deadline applicable to them under the EU Settlement Scheme, unless this would not be reasonable in light of the particular circumstances of the case.” This all points to a generous approach by the Home Office when assessing late applications.

The guidance provides examples of reasons which may be considered reasonable grounds to miss the deadline of 30 June 2021. These examples include where the applicant as care or support needs, lacks the physical or mental capacity to make their application, is undergoing significant medical treatment around the time of the EUSS application deadline. The onus is on the applicant to provide evidence that one of these situations applies to them, for example by providing medical evidence from a doctor, health professional, legal representative or other appropriate third party confirming the circumstances. Other situations laid out in the guidance which may constitute reasonable grounds for missing the deadline include victims of modern slavery, those in abusive or controlling relationships, and a wide discretion for “other compelling practical or compassionate reasons” as to why someone had to make a late application for the Scheme. The first example stated is quite an important one, as it refers to persons who may not have been aware of the requirement to apply to the EUSS by the relevant deadline, including those with limited digital literacy or English language skills, or those who believed the EUSS did not apply to them. Here, the guidance also specifically refers to those who are unable to apply or provide the required evidence in time due to the COVID-19 pandemic, and emphasises that a flexible approach must be taken to those applications.

Importantly, all these reasons will also normally constitute reasonable grounds for a late application to the EU Settlement Scheme in respect of a child or other dependent family member who was reliant on the person to make an application to the scheme on their behalf.

A general rule is included in the guidance for applicants who are exempt from immigration control beyond 1 July 2021 (e.g. family members of EU citizens on family visas, or those with a permanent residence card expiring after 1 July 2021). Those applicants have 90 days from the date of their leave expiring to apply to the Scheme without having to fulfil the reasonable grounds requirement. Beyond that 90-day period, they can still make a late application to the Scheme, but it will only be accepted if they satisfy the reasonable grounds requirement.

The longer an applicant waits to apply after their deadline expires, the higher the threshold will be for them to show that at the date of application, they have reasonable grounds for their failure to meet that deadline. There are some exceptions to his mentioned in the guidance, such as when a person established that a parent or guardian failed to make an application on their behalf years earlier when they were a child. Combined with yesterday’s judgment in W and Re Z (EU Settled Status for Looked After Children) [2021] EWHC 783 (Fam) where the High Court ruled that social workers can get settled status for EU children in care without parental consent, it seems like government is made aware that making the Settlement too restrictive will backfire as thousands of UK residents, and especially vulnerable groups such as children, are at risk of missing the deadline.

Overall, the guidance is more lenient than many practitioners were fearing. It emphasises that the Home Office is looking to grant and not refuse status (for now), and that they will give the benefit of the doubt to late applicants at least for the time being. The guidance rightly highlights that children, the elderly and incapacitated and those in controlling domestic or employment relationships are at a higher risk of missing out and need specific attention, and accepts that there are a wide variety of compassionate grounds due to which an applicant may miss the application deadline. These are welcome developments. However, as is often the case, the late applicants will be at the mercy of Home Office discretion (following the guidance) and will therefore not have an automatic right to remain as they do if they apply before 30 June 2021. Additionally, even if a late applicant proves they had reasonable grounds to miss the deadline and is granted status, they will still be unlawfully resident for duration of the period between 1 July 2021 and the conclusion of their application, with all the consequences that entails. The deadline therefore remains of paramount importance.

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