The Nationality and Borders Bill: “fixing” a broken system by breaking it down further by Charlotte Rubin

Last week, Home Secretary Priti Patel introduced her Nationality and Borders Bill into Parliament for its first reading. The Home Secretary said that the bill is “the change we need to fix the UK’s broken asylum system.” Its main provisions include an attempt to criminalise certain asylum claims, expand powers of detention and making more asylum claims inadmissible.

The Bill clearly brings change, if not in practice, then at the very least in black letter law. The question of whether it fixes anything is a whole different issue. It is clear as day that the asylum system in the UK is overloaded. It takes a long time for the Home Office to reach decisions, and when they do, those decisions are often overturned. The Migration observatory reports that the share of asylum applications resulting in an initial decision within six months fell from 87% in the second quarter of 2014 to 22% in the second quarter of 2020. As for appeals, 43% of appeals on initial refusals are overturned in court, meaning the Home Office gets it wrong almost half the time. These certainly are symptoms of a problematic – or potentially “broken” – system.

Ms. Patel blames this “broken system” on the asylum seekers crossing the Channel to the UK, proposing this Bill to fix this. However, the number of asylum applications is historically low, with the COVID-19 pandemic continuing a trend of falling applications that started in the early 2000s. Contrastingly, success rates are higher than ever, meaning that a high percentage of asylum applicants are recognised as refugees in need of sanctuary. In other words, as the amount of asylum seekers falls and their successful claims increase, the system has become progressively slower and inefficient. The problem does not seem to be with asylum seekers, but rather with an overly bureaucratic and complicated asylum system that is designed to make applications fail. Ms. Patel’s proposed solution only adds more legislative barriers to that process, meaning that rather than fixing its problems, it will most likely amplify them.

Substantively, the Bill introduces a differential treatment of refugees based on their means of entry to the UK. Refugees who do not arrive in the UK directly from a country of persecution, such as those who travel through Europe, will find that their asylum application upon arrival in the UK will be automatically filed as inadmissible. The Home Office will then attempt to remove them from the UK, and will only hear their asylum claim if removal turns out to be impossible. Effectively, this means more people will be stuck in detention or other forms of government accommodation for longer periods of time, when their case is likely to end up being heard at a later point anyway. Keeping people in detention when they have not even had their case heard is not only immoral and potentially in breach of the 1951 Refugee Convention, but also expensive.

Once their case is being heard, those refugees who came through “safe” third countries who are granted asylum will no longer receive leave to remain. Instead, they will receive “temporary protection” to be renewed regularly. Under ‘temporary protection,’ the refugees will be at risk of being removed every time the Home Office assesses their status for renewal. This is in contrast with those asylum seekers who are deemed to have entered the UK legally, who will receive indefinite leave to remain immediately upon the grant of asylum. This differentiation between legal and illegal entry flies in the face of the Refugee Convention, which expressly states that an asylum claim should not take mode of entry into the country of refuge into account. Evidently, this arrangement suits the Home Secretary well. The UK is an island, after all, and does not border any war zones. It is therefore highly unlikely that any asylum seeker entering the UK will have done so without crossing multiple borders, sometimes without all necessary paperwork or through unconventional routes.

Home Office rhetoric on immigration has emphasised the need for refugees to come to the UK through legal routes, and to support the expansion of those routes to then penalise those who fail to use them. However, this Bill only does the latter, failing to increase or expand on legal routes at all. It does not set a target for resettlement numbers, it limits rights to family reunion for those with ‘temporary protection,’ and limits safe routes of entry. The story Ms. Patel is selling to the British public is one of reducing the “burden” of asylum seekers on the UK, yet all her proposal will do is increase that burden by making the asylum process more complicated, more costly, and more bureaucratic. How that is going to fix anything remains a mystery.

Briefing: Late applications to the EU Settlement Scheme by Charlotte Rubin

Since 1 July 2021, all free movement laws which previously applied to EEA citizens in the UK stopped applying. Those who applied to the EU Settlement Scheme (EUSS) by 30 June 2021 can retain their previously acquired residence rights when they get pre-settled or settled status. EU citizens who did not apply to the Settlement Scheme by 30 June are now unlawful residents in the UK. What does this mean, and can it be remedied?

Those with pre-settled or settled status, as well as those who have made an application to the Scheme in time and are still waiting for a response, retain their rights. This means that they can live, rent, work and stay in the UK indefinitely if they have settled status, and for five years if they have pre-settled status (which may later be upgraded to settled status.)

Additionally, proof of application before the deadline of 30 June 2021 guarantees EEA citizens the same rights as proof of (pre-)settled status, even if the application has not been concluded or decided yet. In other words, people with a pending application submitted before the deadline retain all their residency rights whilst awaiting the final decision.

Those EEA citizens in the UK without status under the EUSS and who have not applied by the deadline, on the other hand, are unlawful residents: they do not have legal status to be and remain in the UK. This means that they do not have access to public funds such as benefits, even if they were previously entitled to them. Unlawful residents cannot work or rent in the UK, nor can they access all health treatments or NHS services. They are also technically liable for removal from the UK, though the Home Office have said that this will not immediately be enforced against EEA citizens.

Thus, from 1 July 2021 onwards, employers are required to check that their EEA citizen employees have the right to work in the UK. Similarly, landlords will have to ask for proof of residency status before renting to EEA citizens. In these scenarios, the only valid proof of residency is settled or pre-settled status for those EEA citizens who moved to the UK before 30 December 2020, or another visa (e.g. a Skilled Worker Visa) under the points-based system for those who moved to the UK after 1 January 2021. Old EU residency cards and derivative residency are no longer accepted as valid proof – all EEA citizens eligible for the EUSS must show proof of status under the Scheme, or if the outcome of their application is pending, they must show proof of application.

EEA citizens eligible for the EU Settlement Scheme who failed to apply by the 30 June deadline may still submit a late application if they have “reasonable grounds” for their tardiness. Reasonable grounds are not clearly defined, but should normally be interpreted flexibly. Once a late application is submitted and the applicant is waiting for a response, they receive certain protections until they know the outcome of their application. Existing tenancies and employment contracts may thus be protected.

Home Office guidance for employers carrying out right to work checks states that those EEA citizens who are already in employment but who have missed the deadline should not immediately be fired; rather, the employer must issue them a warning to apply for the EUSS. If they then do so within 28 days, the employer can keep the EEA citizen employed whilst they await the result of their late application with no repercussions and in compliance with the rules. This temporary protection mechanism will be in place until 31 December 2021.

For landlords, there is no requirement to carry out retrospective checks on EEA citizens who entered into a tenancy before 30 June 2021. It is only new tenancies with prospective EEA citizens which require the landlord to fulfil immigration checks. Landlords are encouraged to inform EEA citizens they should apply to the Scheme should they come across anyone who has not done so yet.

Concerning access to NHS services, EEA citizens can register with a GP and receive primary NHS care free of charge regardless of their immigration status. To access secondary care free of charge, they must be considered “ordinarily resident” in the UK. The easiest way to prove that one is “ordinarily resident” is by showing proof of status under the EU Settlement Scheme. Those who are waiting for the outcome of their EUSS application submitted before the 30 June deadline will similarly remain entitled to free secondary care until the outcome of their application is known. The general rule for those EU citizens without settled or pre-settled status after 1 July 2021 is that they are not considered “ordinarily resident” and therefore not entitled to secondary care free of charge. Rather, they will be charged 150% of the NHS tariff for services received. Similarly to protection frameworks for landlords and employers, those who make late applications for the Scheme will be protected during the time period between the submission of their application and the resolution of the application, so that they will not be charged for any care during that timeframe. If the applicant receives settled or pre-settled status, they remain non-chargeable from the date on which the late application was made. Charges incurred before the late application was submitted, however, will still apply.

Importantly, EEA citizens who have missed the 30 June 2021 deadline should still apply for the Scheme. If you need legal assistance with the EU Settlement Scheme, or have any other questions, you can contact us here, call us on 020 8142 8211, or send us a question on WhatsApp.





Briefing: EU citizens doing business in the UK by Charlotte Rubin

On 31 December 2020, free movement between the UK and the European Union (EU) ended. EU citizens who lived in the UK before 31 December 2020 must apply to the EU Settlement Scheme to retain their residency rights in the UK. The deadline for such applications is 30 June 2021, though late applications may be accepted under certain circumstances. All other EU citizens are now subject to the points-based immigration system as all non-British nationals are. In other words, anyone entering the country since 1 January 2021 must either already possess valid permission to enter or remain in the UK, or they must seek permission to enter as a visitor at the border.

For many EU citizens trying to come to the UK, this has led to confusion and in some cases immigration action has been taken against them. Since January, some EU citizens have been detained upon arrival in the UK because they did not have the right to work or the correct visa to enter the UK. What are the rules exactly?

Preliminarily it should be stated that EU countries are not on the visa nationals list. EU citizens seeking to come to the UK as a visitor will not need to apply for a visitor visa. They can simply fly to the UK and ask for permission to enter the country as a visitor once they land at the border. Visitors are defined as persons “who want to visit the UK for a temporary period, (usually for up to 6 months), for purposes such as tourism, visiting friends or family, carrying out a business activity, or undertaking a short course of study.” This definition indicates some of the restrictions that come with visitor status. Importantly, EU visitors are not allowed to access public funds during their stay in the UK, nor are they allowed to work.

The “business activity” exception does not allow for EU citizens to find a job and work in the UK. Rather, it allows the visitor to undertake certain permitted activities relating to work. For EU-based businesses wanting to send their EU citizen employees to the UK for secondments or other business activities, Appendix V of the Immigration Rules is of paramount importance as it lays out the only route for them to do so, including which type of activities are allowed.

To what extent work is permitted whilst one is in the UK on a visitor visa is a complicated matter, laid out in Appendix V. The rules state that all work is prohibited except the types of work specifically laid out in there. Permitted activities thus include attending meetings, conferences and seminars in the context of the visitor’s job abroad. Meetings may include contract negotiations, closing business deals as well as job interviews. Importantly, however, if a job interview leads to a job offer, the visitor can under no circumstance start the job without applying for a work visa first. If a visitor secures an offer of future employment, they must leave the UK, apply for the appropriate entry clearance from abroad, and then return once they have the right status. Additionally, certain sectors such as journalism, religious work or scientific and academic research are permitted on a visitor visa.

The maximum length of stay for a visitor in the UK is of six months from the date of entry. This is the same for visa and non-visa nationals; if the visitor stays for longer than six months they will be registered as overstayers and be in the UK unlawfully. This may lead to issues the next time they try to return to the UK, as a border officer will be suspicious of their motivations. Considering the potential consequences, it is therefore important to understand what one is and is not allowed to do once they arrive in the UK on a visitor visa.

To sum up, if you are an EU citizen working for an EU company without residency rights in the UK (whether under the EUSS or otherwise), your ability to work in the UK on a visitor visa is limited to the visitor visa requirements. This includes a time limit of six months and also a set list of permitted activities. If you or your employer want you to work beyond that, they will have to apply for a business licence in the UK and set up a structure here.

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

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