The Barracks Explained by Charlotte Rubin

In September 2020, the government decided to start using two former army barracks in Wales and Kent to house asylum seekers, most of whom arrived in small boats crossing the channel. The barracks, Napier (Kent) and Penally (Wales), can house up to 665 people.

General government policy is to house asylum seekers within communities whilst they wait for a decision on their asylum claim. Where housing in communities is not possible, the government started putting people in barracks as “temporary solutions.” The solutions, it turns out, were not so temporary, as some residents are kept at the barracks for weeks, if not months, on end.

The barracks are managed by private contractor Clearsprings. Ever since their opening, they have been criticised for their living conditions, including overcrowding, limited access to healthcare and legal advice, as well as abominable food and sanitary services.

The pandemic has exacerbated these circumstances. Social distancing is impossible in the barracks; people sleep in bunk beds separated only by a sheet. There have been rumours of curfews and limitations on residents’ movement, which the Home Office steadily deny, stating that the only restrictions in place for the residents are the COVID-19 related restrictions in force across the nation.

To make matters worse, a recently-leaked report shows that Public Health England warned against using dormitories in army barracks to house asylum seekers months ago. This advice was ignored, with the residents bearing the consequences. At Napier barracks, residents with negative COVID-19 test results were made to stay in the same room as those who tested positive. Add do that the lack of access to a GP and other standard healthcare provisions, and a COVID outbreak seemed unavoidable. The inevitable ultimately happened, and in January, as many as one out of four residents at Napier tested positive with the coronavirus.

After the outbreak, the government released most, but not all, residents from Napier barracks. 63 asylum seekers remain at Napier today. Trapped in the camps, their mental health is deteriorating. Many of them have lived through trauma either in their home country or during their journey to the UK, and are therefore extremely vulnerable.

Six asylum seekers brought a case against the government, arguing that conditions at the barracks are inhumane. Their case was heard in the High Court last week, during which the Home Office conceded that it was arguable that the use of Napier barracks to house refugees is unlawful and in breach of human rights. Judge Martin Chamberlain ruled for the asylum seekers, and a two-day judicial review hearing of the government policy and the circumstances in the barracks is set to begin on 13 April.

The atrocious situation in the barracks is not an isolated event. Rather, it is symptomatic of the way this government has treated migrants all along. The outsourcing of services to private contractors, the segregation of migrants, and the demonisation of those seeking to enter the UK via unconventional routes are not new policies. The hostile environment’s aim, after all, is to make the UK as inhospitable as possible so as to make migrants leave the country voluntarily. Its methods inherently lead to stigmatisation and segregation, and in this case go as far as putting the migrants in objectively abhorrent conditions in the middle of a global pandemic.

If you want to take action in the meantime, sign Freedom from Torture’s petition to empty the barracks here, write to your MP to highlight the issue and help spread awareness of that is going on.

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.

Can your family members join you in the UK after Brexit? by Charlotte Rubin

If you are an EU/EEA or Swiss national living in the UK, and you have pre-settled or settled status under the EU Settlement Scheme (EUSS), your family members may be able to join you subject to certain conditions.

If you are an EU/EEA or Swiss national and you have not applied for the EU Settlement Scheme yet, we urge you to do so as soon as possible, since the deadline for application is 30 June 2021. All you need to prove to obtain pre-settled status is that you moved to the UK / lived in the UK before 31 December 2020.

Once you have obtained (pre-)settled status, you can then look into getting your non-British family members who do not live in the UK to join you here. If they are in the UK with you, they should be able to apply to the EU Settlement Scheme directly and obtain leave that way. If they are abroad, and they have a valid UK document such as a UK permanent residence card or derivative residence card, they can apply to the EU Settlement Scheme directly as well. If they do not have such documents, they will have to apply for a family permit to enter the UK. Once they get to the UK, they will then be able to apply to stay under the EUSS.

There are two types of family permit. One is the EEA Family Permit, and the other is the EUSS Family Permit. The former will no longer be valid after 30 June 2020, and the route to apply for it will close that same date. This guide therefore focuses on how to apply to the new EUSS family permit instead.

Broadly, there are three requirements for family members to receive an EUSS Family Permit: they will have to be a “close family member,” they will have to prove that your family relationship existed before the end of the transition period (i.e. before 31 December 2020), and that the family relationship exists at the time of application.

“Close” family members are defined in the immigration rules as either a spouse, civil partner or unmarried partner, a child or grandchild aged under 21, a dependent child or grandchild of any age, or a dependent parent or grandparent.

To prove the existence and length of the family relationship, many different types of documents are accepted. For married couples or civil partners, the most common type of proof is a marriage certificate or document evidencing civil partnership. For unmarried durable partners the proof can consist of joint tenancy agreements, joint accounts, joint bills, pictures together, or any other proof that shows a long-term (long-term is defined as longer than two years) relationship. For other family relationships birth certificates and/or evidence of dependency such as court orders or bank statements may be necessary.

You will also have to show that your family member will be joining you in the UK within six months of their application for an EUSS Family Permit. This means that they must either be traveling to the UK with you, or joining you there within six months of the date of application.

Applying for a family permit is free of charge. If granted, the Permit allows for the family member to enter and stay in the UK for six months, during which they are expected to apply for the EUSS. In the event that their application is successful, they can then stay with their EEA family member indefinitely. If their application is unsuccessful, they are expected to return home at the end of the six months when their family permit expires.

If you need assistance with your EUSS Family Permit application, or have any other questions, you can contact us here, call us on 020 8142 8211, or send us a question on WhatsApp.

Hong Kong British National Overseas visa officially introduced into UK immigration law by Charlotte Rubin

On 1 July 2020, Prime Minister Boris Johnson announced plans to introduce a path to citizenship for Hong Kong British Nationals (Overseas) (BN(O)) wanting to emigrate to the UK. This proposal came after China passed its controversial national security law in June 2020, granting the Chinese government sweeping powers to crack down on opposition and dissent by people in Hong Kong and by Hong Kongers abroad. The UK government considers these laws a failure in China’s behalf to live up to its international obligations with respect to Hong Kong under the Sino-British Joint Declaration.

BN(O) status is a form of British nationality created for people from Hong Kong when the territory was controlled by the UK. During British rule, Hong Kong residents were categorised as British Dependant Territory Citizens (BDTC). In the years leading up to the handover to China, the Hong Kong Act 1985 and the Hong Kong (British Nationality) Order 1986 were enacted, allowing people from Hong Kong to apply to register for the new British National (Overseas) (BNO) status instead.

Many Hong Kong residents chose to register for BNO status, either to retain a connection to the UK or simply because this was their only way to obtain a passport at the time. The final deadline to apply for BNO was 1 July 1997, when Hong Kong was officially handed back to China. Hong Kongers who were left stateless on 1 July 1997 due to, for example, not being recognised as Chinese nationals, also automatically received BNO status, even if they had failed to register for BNO status by the deadline, to avoid them becoming stateless.

At the time, British National (Overseas) status did not allow to move to the UK freely; status holders had to comply with UK immigration rules like other third-party nationals. Since the passing of the national security laws, however, the government stated that “The Chinese Government, through its actions, has changed the circumstances that BN(O) status holders find themselves in, and it is right that we should change the entitlements which are attached to BN(O) status.”

Last week, the Home Office laid out the new BN(O) visa route in full. As expected, the Hong Kong BN(O) visa enables BNO status holders ordinarily resident in Hong Kong, and their immediate family members, to settle in the UK to live, work and study.

Under the new route, a five-year visa will cost £250 per person. Applicants will also be able to apply for a 30-month visa which will cost £180 per person. In addition, applicants will have to pay the immigration health surcharge, and prove that they can support themselves and their family for six months from the date of planned entry.

There is no quota on numbers - anyone who is a BN(O) status holder and normally resides in Hong Kong can apply for the Hong Kong BN(O) visa. Applicants do not need a valid BN(O) passport to demonstrate eligibility, and they do not need to request a new passport if it has expired or been lost. They simply need a valid travel document and proof of their BN(O) status. Importantly, however, there are no plans for BN(O) registration to reopen, meaning BN(O) status is not something one can obtain – holders of BN(O) status were fixed when the application system closed on 1 July 1997.

Family members of BN(O) status holders must be living with the status holder in order to be eligible to apply. Examples of family members include a spouse, civil partner or unmarried partner, children under the age of 18, adult children born on or after 1 July 1997 (and their spouse, or child under the age of 18), and other family members (parents, grandparents, brother, sister, son or daughter) in exceptional circumstances where there is a high level of dependency. Family units must apply together, not separately. If family members of BN(O) status holders do not apply together with the status holder, they will not be able to join the BN(O) at a later date.

All those eligible will be able to apply for settlement in the UK after five years if they meet the requirements, and British Citizenship 12 months thereafter. The framework is meant to be clear, generous and easy to navigate, considering the sheer amount of BN(O) status holders. As of February 2021, there were approximately 470,000 holders of BN(O) passports in Hong Kong. The Home Office, however, estimates of the number of BNOs actually living in Hong Kong is closer to 3 million with as much as 2.3 million additional eligible dependants, totalling to over 5 million potential applicants.

If you need assistance with your immigration status you can contact us here, call us on 020 8142 8211, or send us a question on WhatsApp.

What are the UK long residency rules? by Charlotte Rubin

Under certain circumstances, the immigration rules in the UK allow for people to apply for leave to remain in the UK on the basis of long residence. This means that people who have been in the UK for long enough, are able to settle in the UK if they fulfil certain requirements. The two main routes under the Home Office long residency process are the 10 year route for those with continuous lawful residency, and the 20 year route for those who have had periods of unlawful residence during their time in the UK.

The 10 year rule on long residence is laid out in paragraph 276 of the Immigration Rules. It enables people with 10 years continuous and lawful years of residence in the UK to apply for indefinite leave to remain, meaning they can stay in the UK indefinitely, and without being tied to employment, studies or other family members to retain that right. During those 10 years, they must always have had some form of leave to remain, without interruption. That is the “lawful” component of the “10 continuous and lawful years.” Living in the UK with leave to enter or remain is lawful for the purpose of a long residence application, as is temporary admission or time spent out on immigration bail (important for asylum seekers) or exemption from control (important for diplomats, as long as that (temporary) status is immediately followed by leave to remain. If the applicant overstays even just one day, this will be unlawful residence breaking their 10 year count, even if the overstaying is short or by accident. It is not completely impossible to qualify under the 10 year rule if you have short gaps in lawful residence, but it is very difficult and certain criteria must be met.

For the 10 years to be considered as “continuous,” then, the applicant must have spent at least six out of every 12 months in the UK every year of the 10 years they are relying on in their application. Any absence of more than six months will break “continuous residence.” Prison sentences put the counter back to zero, and certain reasons for departures do so as well. Notably, the applicant is not allowed to have spent more than 18 months outside of the UK in total in that 10-year period. Only whole days (more than 24 hours) are counted. If an applicant has spent too much time abroad, caseworkers are instructed to exercise discretion based on the reasons for absence and whether the applicant returned to the UK as soon as was reasonably possible.

If an application under the 10 year rule is successful; the applicant will be granted indefinite leave to remain, and be able to settle in the UK freely.

The 20 year rule on long residence is laid out in paragraph 276 of the Immigration Rules as well. To apply for leave to remain under this rule, the applicant does not have to have lived in the UK lawfully, only continuously. The definition of “continuously” here is similar to the one for the 10 year rule. The main difference is that for the 20 year rule, time spent in prison will not break the count. Instead, time in prison will simply not be counted towards the period of residence. Time before and after imprisonment can thus be added up to calculate the full amount of time spent in the UK.

The main issue with the 20 year rule is the difficulty of proving one’s time spent in the UK, especially the time where the applicant was not residing in the UK lawfully. Evidence is often patchy and hard to obtain.

If an application under the 20 year rule is successful, the applicant will be granted limited leave to remain for a defined period of 30 months. During those 30 months, the applicant will usually not be able to access public funds. To get indefinite leave to remain, the applicant will have to accumulate 10 years of lawful residence through renewed periods of limited leave. In other words, for an applicant with unlawful periods of stay to be eligible for settlement in the UK with indefinite leave, they will have to wait 30 years from the date of entry.

For people who moved to the UK at a young age, there are some special long residency rules. For examples, those under 25 years old can apply for indefinite leave to remain if they have spent over half of their life in the UK. Additionally, a child who has lived in the UK for seven years might qualify for limited leave to remain, if he or she can show that it would not be “reasonable” for him or her to leave the UK.

To sum up, there are a few long residency routes to stay in the UK. The most common ones for adults are the 10 year rule and the 20 year rule. To qualify for the former, the residency has to be lawful and continuous. For the latter, residence need only be continuous, but obtaining indefinite leave to remain will be a long and arduous process.

If you need assistance with your immigration status you can contact us here, call us on 020 8142 8211, or send us a question on WhatsApp.

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