The “New Plan for Migration” explained by Charlotte Rubin

After Home Secretary Priti Patel laid out her new Plan for Immigration in Parliament yesterday, the Home Office published the proposals today. Its focus is on the asylum system as a whole as well as those migrants who enter the UK illegally.

Before diving in, it is useful to have a look at numbers and understand exactly what is happening to the “broken” asylum system. In 2019, 9,000 appeals were lodged following an initial asylum claim. The Home Office’s document states that of those appeals determined over the same period, 56% were dismissed. 56% dismissed means 44% were allowed, meaning the Home Office gets it wrong at the initial decision stage in 46% of the cases.

As for the much-discussed backlog, there are 109,000 asylum claims in the asylum system and the number of those awaiting initial decision rose to 52,000 by the end of 2020. Almost 73% of these claims have been in the asylum system for over one year. This is largely not the fault of the asylum seekers, but of the system itself. In fact, asylum numbers are historically low and falling, whilst waiting times for Home Office decisions have soared. Importantly, more asylum seekers are found to be genuine refugees (and their claims accepted) than ever before. As such, the proportion of asylum seekers granted refugee status, or a related form of international protection, at the “initial decision” stage has been around 50% over the past couple of years. This is a significant rise: the 2010-2018 average was 35%. Upon appeal, that number rises even further, as initial refusals are overturned. For immigration applications in general, the appeal success rate is even higher: almost half of all immigration appeals against the Home Office are won by the claimants.

Throughout the document, the Home Office wants to differentiate between “legal” and “illegal” entries to the UK. The idea is to separate clandestine entry, including small boat crossings of the Channel from Calais, with the orderly administrative process of resettlement, where asylum seekers are brought to the UK directly from refugee camps under government programmes. The former will receive less protection once they claim asylum in the UK.

As such, resettled refugees will receive indefinite leave to remain immediately, rather than five years’ temporary permission leading to indefinite leave to remain under the current system. Contrastingly, “anyone who arrives into the UK illegally – where they could reasonably have claimed asylum in another safe country – will be considered inadmissible to the asylum system, consistent with the Refugee Convention”. If an inadmissible person cannot be removed to another country, for example because there is no returns agreement with that country (spoiler: no return agreements exist with any third country at the time of writing), then the UK will be obliged process their claim. If the applicant did not come to the UK directly, did not claim without delay, or did not show good cause for their illegal presence, the applicant will be considered for temporary protection. Temporary protection will be granted for periods no longer than 30 months, after which individuals will be reassessed for return to their country of origin or removal to another safe country. In addition, temporary protection status will not include an automatic right to settle in the UK, family reunion rights will be restricted and there will be no recourse to public funds except in cases of destitution. People granted temporary protection status will be expected to leave the UK as soon as they
are able to or as soon as they can be returned or removed.

On Returns, the Plan states that the UK’s “ability to enforce immigration laws is being impeded, contributing to a downward trend in the number of people, including Foreign National Offenders, being removed from the UK.” A foreign national offender (FNO) is a non-British citizen who has been convicted either in the UK of any criminal offence, or abroad of any serious criminal offence.

This statement is misleading. Crucially, not all forced returns are foreign national offenders, and merging the two is misleading. We know that in the year ending March 2019, the total number of FNOs removed (voluntarily or forcibly) from the UK was 5216, and that the total number of enforced returns in that same period was 8,637. This means that at the very least, 30% of people (2274 in absolute numbers) who were forcibly returned from the UK were not foreign national offenders or “dangerous criminals,” and the figure is likely to be higher.

Except of this, there are plans for a new system for age assessment, to make assessments stricter and reduce the backlog in judicial reviews on this topic. There are plans to expedite asylum claims, to make claimants pay more costs, to change the human trafficking flagging system to make it more restrictive, etc.

The reasons for the asylum system being broken and overloaded are plentiful. From this preliminary analysis, it seems like a lot of the problems can be ascribed to an understaffed, underfunded Home Office that makes many mistakes when assessing claims. Unfortunately, the proposals in the Plan do not exactly deal with those structural issues. Instead, it offloads issues onto the migrants themselves by excluding as many people as possible from the scope of protection and chipping away at existing rights for asylum seekers. That is the proposed solution to deal with an overcrowded, mismanaged and overloaded system. Arguably, a more adequate and effective solution would be to replace management and invest in the system to catch it up with the realities it faces – but that is not the government we are facing today.

A public consultation on many of the proposed measures will run until 6 May 2021 at https://newplanforimmigration.com.

Briefing: Statement of Changes to the Immigration Rules and its effect for EU citizens by Chris Benn and Charlotte Rubin

On 04 March 2021 the Home Office published the latest Statement of Changes to the Immigration Rules and the accompanying explanatory memorandum. The Statement of Changes amend Appendix EU and Appendix EU (family permit) in additional a number of other immigration routes. Some the changes will take place on 06 April 2021, the remainder will happen on 01 July 2021 once the Grace Period has concluded. For an overview of general changes please read our previous blog post on the topic. This post will focus on the changes that apply to EU citizens in the UK after Brexit and the EU Settlement Scheme specifically.

Many of the changes to the EU Settlement Scheme (EUSS) introduced here are technical changes which will not affect the overall qualifying conditions of the Scheme. The two most important changes relate to an apparent clarification on the late applications process and the rules to allow family members of EEA citizens who were resident before the end of the transition period to qualify for EUSS status even if the EEA citizens themselves do not. The current wording of the rules would have barred these family members from obtaining status themselves once the Grace Period concluded on 30 June 2021. This appeared to offend the Withdrawal Agreement between the UK and the EU and would have created unjust outcomes for affected family members.

Regarding late applications to the EUSS, the rules will be changed to enable a person who relies on having reasonable grounds for missing the deadline applicable to them to make one application to the EUSS, so that the Home Office can consider those grounds in assessing their eligibility for EUSS status. Contrasting this with the current wording, which indicated there would be a two-part approach to assessing late applications where the first stage would be to assess the reason for the late application and the second stage being substantive consideration of the applicant’s eligibility for EUSS status, subject to stage 1 being successful, this is a significant improvement. By clarifying in the rules that the late application reasons and EUSS eligibility criteria will be dealt with in a single application, the Home Office is bringing the EUSS in line with the way that the wider immigration system operates.

Applying on time (before 30 June 2021) is still paramount, as the current position of the Home Office is that late applicants to the EUSS do not have any lawful residence rights until they are granted status. Those who apply late, even where they are found to have good reasons, will therefore still face the impact of the hostile immigration environment in the period between 30 June 2021 and the date of the positive outcome of their application (assuming they meet the eligibility and suitability requirements).

Regarding suitability requirements for the EUSS, the Statement of Changes amends the suitability provisions of the EUSS and the EUSS family permit after the end of the transition period, which ended on 31 December 2020. The new rules enable an application to be refused (and the leave or entry clearance granted following such an application to be cancelled) where the applicant’s presence in the UK is not conducive to the public good because of conduct committed after the end of the Transition Period. This is a lower threshold for deportation than under EU law, which applies to conduct committed up to the end of the Transition Period. EU citizens are thus easier to deport for conduct or crimes committed after 31 December 2020.

The second significant change concerns family members of EEA nationals. Where both the national and the family members were continuously resident in the UK before 30 June 2021, or the end of the transition period, the changes will allow for the family member making an application on or after 1 July 2021 to rely on either the qualification of the EEA citizen for EUSS status if they had made a valid application under Appendix EU before 1 July 2021, or that prior residence of the EEA citizen, regardless of whether that EEA citizen has EUSS status or could have qualified for it if they had applied before 1 July 2021. This also applies where the EEA citizen has died (and was resident in the UK as a worker or self-employed person at the time of their death), or where the applicant relies on their documented right of permanent residence or existing indefinite leave to enter or remain.

The purpose of this change is to prevent a situation where the family member of an EEA citizen is prevented from obtaining EUSS status because the EEA themselves has not applied to the EUSS. The current iteration of Appendix EU would have prevented this and it was argued that this breached the Withdrawal Agreement. The Home Office appears to have made these changes to avoid that breach.

Additionally, changes were made to the rules of evidence for family members of EEA citizens applying to the EUSS. Under the new rules, a family member applying to the EUSS can rely on a family permit issued under the old (pre-Brexit) Immigration (European Economic Area) Regulations 2016 as a relevant document evidencing their relationship. Generally, they can rely on the family permit if it was issued on the basis of an application made under the EEA Regulations before 1 July 2021, except where the family member is an extended family member dependent relative. In those cases, the application under those Regulations must have been made by the end of the Transition Period (31 December 2020). Most family members can also rely on those family permits as evidence if the family permit has expired since the end of the Transition Period and before they apply to the EUSS, where they arrived in the UK after the end of that period but before 1 July 2021. Unmarried, durable partners or an extended family member dependent relative applying to the EUSS, however, will not be able to rely on an expired family permit issued under the EEA Regulations.

These changes will make it easier to evidence the family relationship as the Home Office will already have carried out an assessment on the family relationship in order to issue the old family permit. Additionally, there is a change to allow an applicant for an EUSS family permit to rely on alternative evidence of identity and nationality where the applicant is unable to obtain or produce the required document due to circumstances beyond their control or compelling practical or compassionate reasons. This brings the Appendix EU (family permit) approach into line with the way the Appendix EU operates.

Overall the changes should make the EUSS function more smoothly and it is important that family members who have previous residence with an EEA citizen are not penalised solely because that person did not apply to the EUSS (for example because they have left the UK). In terms of late applications, the process should be made as straightforward as possible and so relying on a single application process rather than a two-stage process, is an improvement. This said, the Home Office policy of forcing eligible EUSS applicants into the hostile immigration environment until they are granted status – which could take a long time depending on the complexity of the application – is a harsh penalty for missing a deadline for potential good reason. We know that there are still many people out there who do not know the EUSS applies to them, or who are facing difficulties with the application process; the policy towards these people could and should be more generous.

Statement of Changes to the Immigration Rules: the Points-Based system in action by Charlotte Rubin

Last week, the Johnson government published an important Statement of Changes to the immigration rules which amongst other things officially introduces the Graduate route for students and the Global Talent visa into law. Here, we take a look at the main changes, most of which relate to so-called points-based system visas.

The new Graduate route will open for applications on 1 July 2021, allowing international students to stay in the UK for two to three years after completing their studies. In sum, to be eligible for the Graduate route, international students must have completed an eligible course at a UK higher education provider with a track record of compliance with the government’s immigration requirements. Eligible courses are degree-level courses at undergraduate level or above – certain professional qualifications like the Law Practice Course (LPC) also qualify. Bachelor’s and master’s students on the Graduate route will be able to work or look for work after their studies for a maximum period of 2 years. For Doctoral students, the period of leave granted will be for 3 years. Individuals who already have permission as a dependant of students applying on this route can apply to extend their permission as a dependant accordingly. New dependants, however, are not permitted on this route.

All students who began their studies in the fall of 2020 and entered the UK before 21 June 2021 will be eligible to apply. There is no cap on numbers, no minimum salary requirement, and no requirement for applicants to be sponsored by employers. This means that Graduate visa holders will potentially become an important recruitment pool for employers unable to sponsor Skilled Workers.

As for the fine print, the Graduate route will require applicants to make a new visa application before their student visa expires. Making the application will only be possible from inside the UK – which is why applicants who started their course during the pandemic (fall 2020) will need to show they came to the UK before 21 June 2021. Applicants will be expected to pay a visa fee of £700 as well as the Immigration Health Surcharge at the full rate of £624 per year. Students will also need to know the Confirmation of Acceptance for Studies (CAS) they used for their most recent Student (or Tier 4) application in order to apply for the Graduate route.

Important to note is that a period of leave under the Graduate route is not a path to settlement; time spent in the UK on the Graduate visa does not count towards settlement or indefinite leave to remain applications. The idea is that once graduates on the Graduate Route find a suitable job, they will be able to switch into the Skilled Worker category, which can then lead to settlement in the UK. If they do not find a suitable job, they can try to switch into another visa category, or they have to return to their home country.

A second important adjustment in this Statement of Changes is the detailed annex on the Global Talent visa, which is a more flexible, broader rebrand of the old “Tier 1: Exceptional Talent” visa category. Some of its more flexible characteristics include the fact that there is no cap on the number of people who can enter the UK on this visa, that it does not require an employer sponsorship, and that it reduces the leave needed to obtain indefinite leave to remain to 3 years instead of 5 in comparison with other Skilled Worker routes.

Generally, getting a Global Talent visa is a two-stage process. Preliminarily, an applicant will need an endorsement by a recognised organisation in the UK. The organisations are listed on the government website and include the British Academy for humanities and social science, Arts Council England for arts, culture, fashion, film and television, Tech Nation for digital technology, etc. The idea is that specialist bodies across different industries select individuals with a particular talent in their field for this visa. Each endorsing body has different criteria for applicants – it is therefore important that anyone thinking of making an application reads the guidance from the specific endorsing body in detail and ensures that they include all the information needed. The fee to make an application to an endorsing body is £456.

In addition to endorsements, there will also be a list of “prestigious prizes”, the winning of which will qualify applicants for a Global Talent visa without needing an endorsement, bypassing the first step of the visa process. The “prestigious prizes” include Nobel Prizes, Oscars, Golden Globes, Tony Awards, etc.

The second stage of the Global Talent application, then, is the visa process. This is quite straightforward, since there are no quota or financial requirements involved. Most applicants simply need a confirmation that they’ve been endorsed, a valid passport, and a tuberculosis test result if from certain countries. The visa application fee is £152, with a price drop to £97 for nationals of Austria, Belgium, Croatia, Republic of Cyprus, Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Luxembourg, Malta, Netherlands, North Macedonia, Norway, Poland, Portugal, Slovakia, Spain, Sweden or Turkey. Global Talent visa holders will also have to pay the immigration health surcharge in full at £624.

A third important change concerns the conditions of leave to allow Hong Kong BNO’s to access public funds in the UK. Generally, foreign nationals who are not residents in the UK cannot access public funds such as Universal Credit, income support, child benefits, etc. In light of the new route to settlement for Hong Kong citizens which the Prime Minister unveiled last month, the immigration rules soften this requirement for Hong Kong BNO’s using that new visa to move to the UK. They will now be able to to apply for a change of conditions if destitute or at imminent risk of destitution.

Another change concerns the minimum salary for Skilled Workers, which now has to be calculated not only annually, but also hourly. The new Rules state that minimum pay for skilled workers can be no less than £10.10 an hour, even if the annual salary is above the required £25,600 a year (or the lower annual thresholds for new entrants, shortage jobs and people with PhDs). Except of this, some minor changes to the Skilled Worker visa were introduced, including an expansion (finally) of the Shortage Occupation List and changes to make it easier to recruit health and care staff from overseas.

Those are the main game changers contained in the new Statement of Changes. In addition, some other updates were released, including the numbers for the Youth Mobility Scheme allocations for 2021. There have also been some changes to the EU Settlement Scheme (EUSS) suitability criteria, and the EUSS rules for family members, but these concern mostly technical matters.

The new rules will take effect on 6 April 2021 unless otherwise specified in the Statement, kicking off the implementation of the new immigration system the government promised to deliver on in 2019.

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.

Briefing: residency rules for naturalisation as a British citizen by Charlotte Rubin

There are different pathways to British citizenship. If you were born in the UK, you may be automatically eligible to register for British citizenship your year of birth and your parents’ circumstances at the time. Otherwise, you can become British through the process of naturalisation.

To naturalise as a British citizen, the applicant will need to meet certain statutory criteria concerning their immigration status, their length of residence in the UK, their future intentions, their knowledge of the English language and life in the UK, and finally, good character.

Generally, they must have lived in the UK lawfully for five years (or three years if they are married to a British national), with only a certain number of absences from the UK permitted during that period. This is what is called a “lawful qualifying period of residence.” The general rule for a qualifying period is relatively straightforward - if you are at least 18 years old, and have been living in the UK for the required period of time, you should be able to apply for naturalisation. Before Brexit, this five-year qualifying period could be proven by showing that applicants had acquired a right of permanent residence or indefinite leave to remain in the UK.

Since the rollout of the EU Settlement Scheme (EUSS), this has become more complicated. Settled status under the EUSS is, according to government guidance, a form of indefinite law to remain. In theory, it should therefore be enough to prove a five-year qualifying period. Yet it turns out that that is not the case. Government guidance on the EU Settlement Scheme states that a: “grant of settled status (also known as indefinite leave to enter or remain) will not confirm that they were here lawfully under the EEA Regulations during that time, as defined by the British Nationality Act 1981 as this is not a requirement of the EU Settlement Scheme. You may therefore need to request further information from the applicant to demonstrate this. The naturalisation application form (Form AN) asks for information to confirm the applicant was lawfully in the UK for the relevant 3 or 5 year qualifying period.”

In other words, EUSS settled status, technically a form of indefinite leave to remain, does not suffice as proof of lawful residence for the purpose of naturalisation. The EUSS was designed to be broad and inclusive, so that most EEA citizens who had been living in the UK before Brexit would be able to register to stay. It was not designed to assess whether applicants were actually lawfully in the UK at that time. Thus, a grant of settled status confirms that the EEA citizen has been physically resident in the UK for five years at the point they applied to the EUSS, but not necessarily that they were resident lawfully.

As a consequence, when an EEA citizen applies for naturalisation relying on their settled status have to demonstrate that they have spent their lawful qualifying period in the UK, the Home Office caseworker cannot tell whether they were lawfully residence in the UK for the period before they were granted EUSS status. Therefore, part of the naturalisation process for EEA citizens has to include an assessment as to whether the EEA citizen was lawfully resident (rather than just resident), in the UK for the three or five-year qualifying period that applies to them.

If there is not enough proof that the period of residence relied upon was a lawful period, the EEA applicant may have to start their five-year count again from when they received settled status. This means that they effectively will have had to be resident in the UK for ten (or eight, if they are applying based on their spousal relationship) years instead of five, consisting of five years of residence to obtain settled status, and then five additional years with their settled status. According to the Immigration Rules and government guidance, the only way around this relies on the Home Office exercising discretion when assessing the application. The inevitable conclusion is that EU citizens are less likely to successfully naturalise than others, or at the very least that it will take them more time to do so successfully.

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.



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