Since 1 January, free movement of people, goods and services has officially ended between the EU and the UK. After months of uncertainty and negotiations, the EU and the UK finally came to agreement on a last-minute trade deal just a week before the end of the transition period. As for the movement of people, freedom of movement ended on 1 January and the new immigration rules, applicable to all non-British citizens (except people with Irish citizenship) have come into full effect. Here are 7 things which changed overnight, and which affect how people live, work and travel in the EU and the UK:
1. The new UK immigration system
On 1 January 2021, the all new, all different, points-based immigration system came into force. All foreign nationals (except Irish nationals) wanting to move to the UK will have to apply and pay for a visa under this system. The government has stated that the new system aims to attract people who will contribute to the UK economy. The basics of the new system include a minimum income threshold (requiring a minimum salary of £25,600 for skilled workers and £20,480 for those with job offers in a shortage occupation or in possession of a PhD relevant to the job), a preference for skilled over unskilled workers (“skilled” meaning people with a certain level of education or training), and an increased cost of visa applications. All applicants also have to pay a health surcharge of £624 per person per year, unless they are healthcare workers.
For a summary of how the points-based system works, check out our blogpost on the topic.
2. UK citizens traveling to the EU
UK nationals can still travel to countries within the Schengen area (which comprises most EU countries as well as Switzerland, Liechtenstein and Norway) without a visa, but no longer for unlimited periods of time, and with additional requirements.
Regarding time limits, UK citizens can spend up to 90 days out of any 180-day period in the Schengen area. In order to be able to cross the border, they will have to have at least six months before their passport expires, and have travel insurance with health coverage. Obviously, UK citizens will no longer be able to use the EU priority lanes at airports or other border crossings.
EU agreements which previously ensured things like no roaming or COVID-19 related arrangements such as travel corridors/exemptions during the pandemic will stop applying. This is a significant change; travellers from the UK are not able to visit the EU at the moment except for specific essential reasons.
3. UK citizens living in the EU
The rights of UK citizens who lived lawfully in the EU before 31 December 2020 were already protected to a certain extent under the Withdrawal Agreement. However, to enjoy those protections, UK citizens living in EU countries should check their country of residence’s specific rules and processes to ensure they can retain those rights. They may need to register or apply for residency, or apply for new documents evidencing their right to stay, or adhere to certain other requirements such as having a job, for example.
4. UK citizens moving to the EU
UK citizens looking to move to the EU now, after 1 January 2021, will no longer have an automatic right to live, work and study or retire there. They will need to apply for a visa if they are traveling for any other reason than tourism, and especially if it is on a more permanent basis. The rules and eligibility for visas will vary country by country.
The one significant exception is for UK citizens planning to move to Ireland. Thanks to the Common Travel Area, special rules apply to the Irish border.
5. EU citizens living in the UK
The rights of EU citizens living lawfully in the UK were already protected under the Withdrawal Agreement. Until 30 June 2021, EU citizens living lawfully in the UK will retain all their rights automatically. If they want to retain their rights further, they will need to apply to the EU Settlement Scheme by that deadline of 30 June 2021, or else they will be unlawful residents and potentially liable for deportation.
Again, because of the Common Travel Area, rights of Irish citizens will not be affected.
If you need any help or advice with your EU Settlement Scheme application, check out our blog posts on the topic, as well as our seminars, and resources.
6. EU citizens moving to the UK
EU citizens moving to the UK after 1 January 2021 no longer have the automatic right to live, work and study here. They instead have to apply under one of the routes available under the points-based system. For more information on the points-based system, check out our resources and summaries.
7. The exception of Northern Ireland
The recent trade agreement includes a section on Northern Ireland, where the EU and the UK have agreed to keep an invisible border (without checkpoints) between the Republic of Ireland (which remains an EU Member State) and Northern Ireland (which is no longer in the EU). There will also be no tariffs (extra charges on goods) for most trade between Great Britain and Northern Ireland. In exchange for this soft border, Northern Ireland will have to continue complying with many of the EU’s rules such as product standards and safety.
If you need assistance you can contact us here, call us on 020 8142 8211 or send us a question on WhatsApp.
The Home Office published guidance for EU Settlement Scheme (EUSS) applicants in or outside the UK who have been affected by restrictions associated with COVID-19 since the beginning of the pandemic.
The general rules of the Scheme are clear – for an applicant to be eligible for status, for them to be able to remain in the UK after the 31st of December 2020, they will need to confirm and prove a period of continuous residence in the UK. Depending on how long that period of residence is, the applicant will be granted either settled or pre-settled status.
To obtain settled status, or indefinite leave to remain, the applicant has to have been continuously residing in the UK for five years. The five years need not be ongoing; applicants who are not currently living in the UK may apply based on their historic residency, as long as they have not been outside the UK for a continuous five-year period immediately after the five-year qualifying period of residence on which their application is based.
If a person has been in the UK for less than five years, they will receive pre-settled status, which they will need to maintain until they reach the five-year continuous residence threshold to qualify for settled status. Continuous residency is calculated on a rolling basis, not based on calendar years, meaning that the applicant must be living in the UK for more than six months out of every twelve-month period.
The general rules state that applicants are permitted one period of absence of more than six months (but which does not exceed 12 months) for an important reason such as study or serious illness without losing their pre-settled status. This period of absence must be explained and proven when the applicant submits their settled status application. If an applicant is absent from the UK for longer than six months (but under 12 months), and it is not for an important reason, the absence will break their continuous residence, and they will not be able to apply for settled status.
Until today, it was unclear how the Home Office would deal with absences due to COVID-19 related reasons. The guidance published today confirms that they do not intend to be very flexible, but unfortunately does not clarify not much more than that, as it is not very detailed.
For applicants who were outside of the UK for a few months during the COVID-19 pandemic, the Home Office essentially applies the general exception rule. The guidance confirms that if an applicant was impacted by coronavirus public health restrictions and could not travel as a consequence, this will count as an exceptional circumstance which may justify absences from the UK of over six, but under 12, months. Examples given include if the applicant contracted coronavirus overseas and could not return to the UK because they were ill or in quarantine, or if imposed travel restrictions led to an increased absence from the UK for longer than planned.
In all cases where the applicant was prevented from travelling due to COVID-19 related reasons, they will have to provide a supporting letter explaining and outlining the various details of their time abroad – when they were ill or quarantining, when their flights were cancelled, and any other important dates. No additional detail is given about the standard or expectations of proof. In any case, an applicant is only allowed a single absence exceeding six months (but not exceeding 12 months) for an important reason in their five-year continuous qualifying period, meaning that if an applicant already had an important reason for which they had to leave the UK for more than six months before the pandemic hit, their counter for number of years with continuous residency will have to be reset to include only the latest period of absence.
An example could be a student who arrived in the UK in 2016, studied abroad from September 2017 until June 2018, for which they planned to use the “important reason” exception, and who in the past 12 moths has spent seven months abroad due to a combination of pre-covid trips, and a five-month lockdown which they spent in their home country. This applicant would not be able to claim an “important reason” both for their period abroad in 2018, and for their prolonged absence in 2020. As a consequence, they would have to “reset” their counter to when they returned to the UK after their year abroad, and will only be eligible to apply for settled status in 2023 instead of 2021, as they would have been under normal circumstances.
Another issue addressed in the guidance is that of people who need certain evidence of their identity and nationality to apply to the EUSS, but are unable to obtain it due to circumstances beyond their control specifically related to coronavirus public health restrictions. Examples given include the closure of embassies or consulates, or the inability to travel to the closest consular services which may mean that it is impossible to obtain the conventional identification documents. In these circumstances, the Home Office may accept alternative pieces of evidence of nationality such as expired passports or ID cards, another official document issued by the authorities of your country of origin or of the UK which confirms your identity and nationality or previous Home Office communication evidencing your nationality. People who apply to the EUSS with alternative means of identification documents must apply on a paper application form, applications which generally take longer to resolve than the electronic ones.
Both for applicants relying on alternative evidence of nationality and for those justifying a prolonged absence from the UK based on COVID-related public health restrictions, the Home Office evaluates claims on a case-by-case basis. There is no provision for leeway or discretion in any circumstance, for example if an applicant is only missing a few days to reach the official six-month threshold, nor is there any detail on how an applicant is meant to prove the reasons for their absence.
If you need assistance you can contact us here, call us on 020 8142 8211 or send us a question on WhatsApp.
In order to stay in the UK lawfully after the end of the transition period, all EU citizens in the UK have to apply for status under the EU Settlement Scheme (EUSS). Under the Scheme, EU citizens will be given either pre-settled or settled status. For an applicant to the EU Settlement Scheme to receive either pre-settled or settled status, they will have to prove three key things: their identity, their suitability, and a period of continuous residence in the UK.
For most applicants, this will be relatively straightforward. This briefing focuses on three groups of applicants for whom proving these things will be slightly more complicated: frontier workers, people with a criminal sentence, and extended family members. Of course, many other applicants will find the EUSS confusing or hard to navigate, and numerous other vulnerable groups in society have been identified as at risk of failing to secure their rights. This briefing focuses on specific issues with these three groups to break things up a little.
The Withdrawal Agreement between the EU and the UK provides that frontier workers must receive documents certifying their status as soon as possible, so that they are not prevented from exercising their rights after the end of the transition period, and can easily demonstrate proof of those rights at the border. That is why the government is launching a frontier worker permit scheme on 10 December, so that frontier workers can make free applications to receive such a document. Although this is a welcome development, the scheme seems to be cutting it quite short as it opens a mere three weeks before the end of the transition period, with very little information available as to the qualifying criteria and precise application process. Surprisingly, there seems to be more information available for family members of frontier workers than for frontier workers themselves, as there seems to be little certainty about what exactly is required of them
As for EU citizens without a right of permanent residence whose residence is interrupted by a period of imprisonment, the Withdrawal Agreement states that the “conduct” of these citizens may have an effect on their application under the Scheme. “Conduct” here relates to actions taken by the affected citizen, rather than the outcome of the action such as a sentence of imprisonment, meaning it is not the time or severity of the prison sentence but of the conduct which is important in assessing the relevant citizen’s eligibility.
Appendix EU clearly states that continuous qualifying period cannot include a period of imprisonment. In fact, EU law stipulates that periods of imprisonment in the host Member State interrupt the continuity of residence required by Article 16(2) of the Free Movement Directive for the purpose of acquiring a right of permanent residence.
There will be situations where the conduct of the citizen is committed before the end of the transition period, and the conduct is not be serious enough to result in their removal from the UK, but their prison sentence will conclude after the end of the transition period. If this is the case, the only route to status under the EU Settlement Scheme would be if the applicant already had settled status before he committed the offence. If he had been in the UK for less than five years when the offence was committed, and does not have settled status, he will not be able to acquire it. A citizen cannot link periods residence in the member state that are dissected by a term of imprisonment which in this example, began before the end of the transition period.
The result is that a citizen who was in prison during the transition period, but does not meet the threshold for removal from the UK, cannot begin a continuous qualifying period to obtain EUSS status. They are highly unlikely to be able to obtain any other immigration status due to the restrictive nature of UK immigration law and would consequently face removal on the basis that they do not have any lawful residence after 30 June 2020.
Lastly, concerning extended family members, Appendix EU requires that durable partners and dependent relatives apply to the EUSS with a valid “relevant document". The definition of a relevant document is a document issued for under the EEA Regulations. It can be a family permit, a residence card or a permanent residence card. Important to note is that the relevant document must be valid (i.e. not expired or revoked), meaning that an extended family member who has been issued a document which has now expired is unable to apply to the EUSS and will receive an automatic refusal of status should they submit an application. In effect, this raises the financial bar for durable partners of EU citizens, as they are required to make a second application under the EEA Regulations to receive a valid relevant document and then make a third application for EUSS status. The application fee here is 65 pounds.
This fee is entirely avoidable. In fact, when an extended family member applies to the EUSS, the process assesses whether the family relationship continues to exist (or did for a 5 year period in the past). Therefore, it is available to the Home Office to assess the continuing family relationship of an extended family member applicant through the EUSS process, even where their relevant document has expired. The Home Office approach puts a disproportionate burden on these applicants not only financially, but also practically, as they have to evidence and re-evidence their family relationships which could be considered detrimental to the rights of their sponsoring EU citizens.
Once family members of EU nationals succeed in their application and get status under the Settlement Scheme, they are issued a physical document to prove their right to residency in the UK. This physical document is a privilege not granted to EU citizens, meaning that in practice, durable partners receive physical proof of their status when the EU citizens on whose application they depend do not.
If you require any advice on the EUSS as a member of one of these three vulnerable groups of EU citizens or otherwise, do not hesitate to contact us for advice.
If you need assistance you can contact us here, call us on 020 8142 8211 or send us a question on WhatsApp.
In order to stay in the UK lawfully after the end of the transition period, all EU citizens in the UK have to apply for status under the EU Settlement Scheme. Under the Scheme, EU citizens will be given either pre-settled or settled status. To obtain pre-settled status (which gives EU citizens temporary residence in the UK for a limited period of five years), an applicant does not have to prove much: they must simply show that they have arrived in the UK before 31 December 2020. For settled status (which gives EU citizens permanent residence rights in the UK), it is a different story.
An applicant wanting to obtain settled status will have to demonstrate that they have been continuously resident in the UK for five years. What does that mean exactly? In this post, we have a look at the law which applies in this scenario to try and get a better idea.
The way Appendix EU to the immigration rules, which sets out the legal framework for the EU Settlement Scheme, defines continuous qualifying residence for the acquisition of permanent residence is based on the idea of a 6 month out of 12 months “rolling” residency. The definition of “continuous qualifying period” in Appendix EU states:
a period of residence in the UK and Islands…
(b) during which none of the following occurred:
(i) absence(s) from the UK and Islands which exceeded a total of six months in any 12-month period [emphasis added]
Imagine a scenario where an applicant, Serge, moved to the UK from France in April 2016. Until June 2019 he only went home for a few weekends and holidays, so he does not have to worry about his absences for his first three years of residence. In July 2019, his fourth year of residence, however, Serge went back to France for the summer and was absent from the UK until the end of September (three full months). He then came back to London, until January 2020, when he went back to France. He was supposed to return to London in February, but ended up staying abroad until May 2020, facilitated by him working from home during the COVID-19 pandemic. This is an absence of four full months in the calendar year of 2020.
But Appendix EU does not work in calendar years. Rather, it analyses periods of residence on a 12-month rolling basis. As a consequence, Appendix EU would interpret the above-mentioned scenario to mean that Serge has broken his continuous qualifying period on account of combining the three months absence in year 4 with the four-month absence in year 5 resulting in a combined absence of seven months in a 12-month period. The drafting of the criteria does not allow the citizen to demarcate the absences into separate 12-month periods.
When it comes to COVID-19 related absences, the Home Office have said that they will be flexible, and consider it as an exception to the 6-month rule if need be. Serge might then be able to rely on this exception when he applies for settled status in April 2021. However, the validity of this exception is not guaranteed, but rather subject to Home Office discretion. In addition, not all applicants will be able to do the same
The Court of Justice of the EU has held that periods of continuous legal residence confer on EU citizens the right of permanent residence with effect from the actual moment at which they are completed. This means that the continuous period of five years legal residence that leads to the acquisition of the right of permanent residence is to be counted from the moment the EU citizen takes up residence in the host Member State in compliance with the residence conditions of the Free Movement Directive.
In fact, the definition of “continuous qualifying period” in Appendix EU does not comply with provisions regarding continuous residence in the EU Free Movement Directive and the EU-UK Withdrawal Agreement. The rule from those legal instruments is that an EU citizen may have temporary absences not exceeding a total of six months within each year leading up to the acquisition of the right of permanent residence, and that each year starts on the anniversary of the date when the EU citizen took up residence in the host Member State in compliance with the residence conditions of the Free Movement Directive, meaning that absences in different years must not be added up.
It should be noted that the way the Home Office calculate qualifying residence for permanent residence under the EEA Regulations (implementing the Citizens’ Directive in domestic legislation), is not clear on this matter as there has been a change in Home Office guidance instructing case workers how to assess the continuous residence requirement. Former guidance stated that the Home Office would consider absence is based on a year 1 to 5 from when the EU citizen began their UK residence. Current guidance states that a six months absence in any 12-month period would break continuous residence without reference to calculating this on a year by year basis. Therefore, the current interpretation of continuous residence under the EEA Regulations is in conflict with Appendix EU. This could easily be remedied by changing the guidance back, and ensuring that EU citizens get the status they are entitled to.
If you need assistance you can contact us here, call us on 020 8142 8211 or send us a question on WhatsApp.
The UK is well-known for its sky-high immigration and visa fees. These fees, which have risen steeply up to 20-25% per year since the early 2000s, are big business for the Home Office. In fact, in 2018, the Home Office made over £500m from immigration fees alone. In addition to immigration and visa fees, individuals may be liable for the immigration health surcharge, which is currently priced at £400 per person per year, but set to rise to £624 this fall. On average, an applicant will have to spend over £2,000 to get leave to remain in the UK (rising to £2,500 in a matter of months with the planned surcharge increase), and that is excluding potential legal fees. In short, living in the UK on an immigrant visa is an expensive ordeal.
Unsurprisingly, not everyone who needs a visa can afford these fees. The courts have ruled that for human rights based applications, charging fees which the applicant cannot afford is unlawful. Thus, if you are facing a bill for visa fees that you cannot afford, and are considering borrowing money in order to be able to extend your stay in the UK, it may be worth considering an application for a fee waiver. Here, we go over how to go about it.
Unfortunately, the fee waiver is only available in limit circumstances. The first limitation is that only applicants with a human rights claim are eligible to apply for a fee waiver, and only where their human rights claim constitutes “a substantive basis of their application.” Examples of applications that fall into this category are applications for leave to remain under the five-year parent route, the ten-year partner, parent or private life route where the applicant claims that refusal of that application would breach their rights under Art. 8 of the ECHR, applications based on other ECHR rights, applications from victims of human trafficking or modern slavery, and some applications for leave to remain under the five-year partner route.
Additionally, applications for indefinite leave to remain are never eligible for fee waivers, no matter the basis on which they are being made (human rights or not), limiting the scope of fee waivers further. Applicants are advised to extend their temporary leave to remain until they can afford the indefinite leave to remain fee independently.
Fees waivers do not necessarily cover all fees. It is possible, for example, for an applicant to pay their own fee but apply for a fee waiver for one or more dependant. It is also possible to ask for a waiver of the Immigration Health Surcharge only, and not the main application fee, if the applicant can only afford one of the two.
If the application in question is eligible for a fee waiver, then applicants for fee waivers will have to show that one of the following applies to them:
- They cannot afford the fee
- They are destitute
- They are at risk of imminent destitution
- Their income is not sufficient to meet a child's particular and additional needs
- They are faced with exceptional financial circumstances
Whether you can or cannot afford the fee is a hard thing to prove, and the Home Office tend to only accept fee waivers based on affordability arguments in exceptional circumstances. Generally, officials are instructed to look at applications very restrictively and their point of departure seems to be that an applicant should be able to afford the fee. As such, they will also consider funds from friends and family, or non-liquid funds, when assessing if an applicant can afford the fee.
Applications are made through an online form. After an applicant submits their fee waiver application, the procedure is quite restrictive as well. If waiver is granted, the applicant will be issued with a Unique Reference Number to be used when applying for leave to remain online. The application for leave to remain must be submitted within ten working days of the date of the decision (careful, not the date that the decision is received, but the day it was made). The person must then make an appointment at a Service and Support Centre within 17 working days. If the applicant fails to make the application within these timescales, they may need to make a new fee waiver application. If their leave has expired in the meantime, they may become an overstayer.
If the waiver application is refused, the status of an applicant will depend on whether the applicant had valid leave at the time of the application. The guidance states that there are no service standards in fee waiver applications, meaning they do not provide a standard timeframe in which an application must be decided. However, caseworkers are urged to make reasonable efforts to decide applications requests promptly, especially those involving a child or an applicant who is street homeless, disabled or otherwise in vulnerable circumstances.
Those who have valid leave at the time of application will be told about the refusal and be given ten working days to submit additional evidence to challenge that decision. If the new evidence submitted satisfies the caseworker that they are in fact eligible for the waiver, their application will be accepted, and they will be given another ten working days to submit the application for leave to remain.
If the new evidence does not satisfy the caseworker that they are eligible for a fee waiver, however, their application will be refused, and they will be given ten working days to submit an application for leave to remain and pay the application fee independently. If they do not do so before their leave expires, they will become overstayers.
So, in summary – fee waiver applications are only made online, which poses its own challenges. It is very important that applications for a fee waiver are made before the expiry of leave, to maximise one’s chances. And finally, the requirements are quite restrictive but it is always worth a try. The fact that fee waivers are available is a good development in and of itself.
If you want to know more about how to apply for a fee waiver please do not hesitate to contact us here or send us a question on WhatsApp.
Notice: we do not help non-EU / overseas / foreign workers find jobs in the UK. Our service is available only to established national businesses that are looking to hire foreign workers, or for foreign workers with job offers in the UK.
Under the new immigration system, set to come into force on 1 January 2021, freedom of movement for EU/EEA/Swiss ('EU') citizens will end. Just like non-EU nationals, EU citizens who are not settled in the UK will have to apply for working visas if they wish to come work in the UK. Conversely, employers wanting to hire EU workers will have to apply for a migrant sponsor licence, just like they have to do now for third-party nationals.
Being a sponsor does not mean that the employer has to pay for the migrant worker’s visa application. It simply means that as a UK company wanting to hire overseas workers, the Home Office will do a check on the company’s organisation and trustworthiness in dealing with migrant workers, and assess whether the company is able to monitor and follow that their migrant employees comply with their visa conditions.
There are two types of working visas, and similarly, companies can get a licence to hire either type of worker. The first one is the Tier 2 worker visa, tailored towards non-British nationals coming to the UK as skilled workers with permanent, long-term job offers. This post will focus on how to apply for sponsorship to sponsor those Tier 2 workers. The second type is the Tier 5 worker, who comes to the UK temporarily. Good examples are seasonal workers (e.g. in agriculture) or charity workers.
For both types of sponsorship licence, the Home Office announced in February 2020 that “Employers not currently approved by the Home Office to be a sponsor should consider doing so now if they think they will want to sponsor skilled migrants, including from the EU, from early 2021." If you are an employer who intends to hire non-British workers from January 2020 onwards, it is now beyond time to apply for your sponsor licence, especially since the government has announced multiple changes to the sponsorship system which will make it easier for businesses to obtain a licence.
To facilitate the transition from free movement laws to the new points-based system, the government has proposed to lift the “cap” on numbers of migrant workers, meaning there is no longer a limit on how many companies can obtain such a licence every year. The government has also announced that the required skill level for sponsored job role will be reduced from January onwards, and roles requiring a skill level equivalent (roughly) to A-levels will be eligible for sponsorship, instead of the higher requirement of bachelor’s degree that is in place today. This, again, is to smoothen the transition from EU free movement to the stricter migration rules of the points-based system. Additionally, from January onwards, the Resident Labour Market Test (RLMT) will no longer apply, meaning that you will be able to hire foreign workers even if there are suitably qualified resident workers able to fill the role for which you are recruiting. This was previously not the case.
For all of these reasons, now seems like the perfect time to apply for a Tier 2 Sponsor Licence. So how should a business go about the application? Applications are made to a specific Tier 2 Sponsor Licence applications team at the Home Office. The process involves two different steps: an initial online form, and then a file of hard copy supporting documents which are due to be submitted within 5 working days of the online form.
The basic criteria that a company needs to meet to receive a sponsorship licence are numerous. Firstly, the business must be based in the UK. Secondly, the business must be “genuine,” and trading lawfully in the UK, meaning that the business will have to provide details of their organisational and sectoral structure. Supporting documents will need to include, for example, an up to date hierarchy chart detailing any owner, director and board members.
Thirdly, the business must be “honest, dependable and reliable,” a subjective and relatively vague requirement which is usually proven by submitting previous projects, reviews and contracts that show that the company lives up to its promises. Broadly, the supporting documents serve to show the Home Office that the sponsor company is capable of complying with sponsor duties and responsibilities and does not pose a threat to immigration control. The more details the sponsor provides, the better. That is why the business owner will also have to include details about the role(s) they are looking to fill, to ensure that these roles meet the skill, salary and qualification requirements for eligibility for foreign workers.
As such, to hold a Tier 2 Sponsor licence, the applicant organisation must have Human Resources systems in place to ensure that they are able to meet the various sponsor's duties and responsibilities as set out in the guidance. No details are provided as to what such a system entails, but broadly, the company must use this system to ensure accurate monitoring of employees’ immigration status, track and record their work attendance, and keeping copies of relevant documents for each employee.
As reiterated in the guidance, sponsorship is a privilege, not a right. That is why the process is not as straightforward as it could be – the applicant company has to earn the privilege of being a sponsor, and the burden of proof lies on them to demonstrate that they have done so. If you are looking to hire overseas workers, do not hesitate to contact us to help you with your Tier 2 Sponsor Licence application.
If you have any questions regarding absences or the EU settlement scheme, please do not hesitate to contact us here or send us a question on WhatsApp.
It is no secret that many couples and immigration practitioners have long been growing frustrated with the requirements to evidence family relationships when applying for a family visa in the UK. Every year, a significant amount of family applications are rejected on the basis of the applicant not providing the adequate documents to evidence relationship requirements.
For Spouse visas, the Home Office guidance states, “an applicant and their partner must provide evidence that they are in a genuine and subsisting relationship.” This is to avoid marriages of convenience or “sham marriages.” But what is a “genuine and subsisting” relationship and worse yet, how does one prove it?
Appendix FM-SE of the immigration rules deals with evidencing all the requirements set out for family visas in the UK. For married couples, it specifies that a marriage certificate is a mandatory requirement to prove the marriage. This is confirmed in the the Home Office guidance on family relationships for partners, divorce and civil partnerships. Unfortunately, neither the Appendix or the guidance specify what evidence is needed to satisfy the “genuine relationship” test.
Since the criterium is vaguely worded, and there is little clear guidance on the subject, it is only logical that applicants often do not realise how much evidence they are expected to present to fulfil the requirement. As a general rule, it is up to the person filling in the application form and, in this case, relying on the existence of a relationship, to prove any assertion made about it. The caseworker who looks at the application will not do their own investigatory work on an applicant’s behalf.
Unsurprisingly, when spouse visa applications get refused, lack of a “genuine and subsisting relationship” is therefore often cited as the reason for refusal. Almost always, the refusal does not mean that the relationship is not genuine, but rather that the applicant failed to give adequate or enough information (in the view of the deciding caseworker) to prove that it was genuine. This is a subjective factor, which depends on the caseworker reading your application. That is why the general advice is to prepare all your immigration applications for the most cynical caseworker on a bad day, to ensure that any caseworker who reads it will view it favorably.
So, what are examples of good evidence? Some of them are obvious – children or stepchildren for which both partners have cared, for example, are an example of strong evidence of a subsisting relationship. If a couple has been living together for a while, the requirement can be relatively easy to fulfil. Joint tenancy agreements, joint bills or mortgage deeds are good examples of proof the Home Office would most likely accept as evidence of the relationship. Any other correspondence, especially from government departments or local government, sent to the applicant at the same address as their partner would also get the applicant brownie points.
Home Office guidance specifies that cultural and external factors must be taken into account when evaluating the genuineness of a relationship. If for cultural or religious reasons, the applicant couple did not live together before they got married, for example, or did not know each other very well, that should not mean that their relationship does not satisfy the requirement.
Thus, if a couple has been living apart for a lengthy period of time, or have never lived together before making the application, the situation might be a bit more complicated, and the evidence needed a bit more creative. Good examples of evidence include joint holiday bookings, visits to each other’s home countries, shared financial responsibilities (e.g. bank accounts, savings, utility bills, membership accounts, …), and plans for the future in the UK (think accommodation, finances, etc.) Witness statements from the couple, their family members or neighbours can also be useful.
As ever, this briefing this is not a substitute for legal advice. Fulfilling the “genuine and subsisting relationship” requirement for the purposes of a UK spouse visa application can be one of the most challenging aspects of the process.
Couples who have received a refusal on such grounds could benefit from legal advice to strengthen their evidence in order to submit a subsequent successful application. If you would like an experienced immigration lawyer to talk about your specific application, you can book our one-off video consultation service here. If you have a question about this service you can contact us here or send us a question on WhatsApp.
On 14 May 2020 (1), amendments to the Home Office Nationality Policy Naturalisation guidance was indeed re-published. The Nationality Policy Naturalisation guidance is issued to Home Office caseworkers processing naturalisation applications to help them determine if an applicant meets the legal criteria to be naturalised. The guidance is publicly available so that those applying for naturalisation (and those assisting them to apply), can understand how the various criteria will be assessed and what evidence is required with the application to demonstrate the conditions are met.
In spite of what has been implied in certain media reports, the updated guidance does not constitute a change in the legal position for EEA citizens. Rather, it amended the sections relating to “Breaches of immigration law in the qualifying period”(2) and “People who are lawfully resident in the UK”(3) to include references to EEA citizens and their family members(4) who are relying on their grant of settled status (Indefinite Leave to Remain) under the EU settlement scheme (EUSS), to demonstrate that they are settled in the UK(5).
Nationality law requires a person naturalising to have a five-year or three-year lawful qualifying period, working back from the date they apply for naturalisation. The three-year lawful qualifying period is for those who are married to or are in a civil partnership with a British citizen. The five-year lawful qualifying period is for all other applicants. Before the EUSS existed, this lawful qualifying period criteria would normally be satisfied by an EEA citizen by acquiring EU/EEA permanent residency in the UK(6). The EEA citizen could then apply for naturalisation either 12 months after the acquisition of permanent residence or, immediately on obtaining permanent residence if they are married to or in a civil partnership with a British citizen.
The EUSS has changed the situation described above for some EEA citizens who wish to naturalise. This is because rather than applying for EU/EEA permanent residence documents, most EEA citizens with a 5-year residence in the UK now apply directly into the EUSS for settled status(7). However, because the EUSS application does not assess whether the applying EEA citizen was exercising their treaty rights in the UK, being granted settled status is not confirmation that the citizen was resident in the UK lawfully during the qualifying five years relied on.
The grant of settled status only confirms that the EEA citizen has been physically resident in the UK for five years at the point they applied to the EUSS. That is not to say that a citizen granted settled status has not been in the UK lawfully during their five-year qualifying period, only that the EUSS is not designed to assess this particular legal point. In other words, being granted settled status is not reliant on lawful UK residence. As a consequence, when an EEA citizen applies for naturalisation relying on their settled status to demonstrate that they are settled 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 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.
When assessing lawful residence, any period after the citizen was granted settled status (or granted pre-settled status which was then converted into settled status), will be considered lawful because it is leave to remain granted under the 1971 Immigration Act. However, because the EUSS has only been in existence since August 2018 (and open to the whole EEA population since March 2019), any EEA citizen applying for naturalisation at the present time will have to rely on a period of lawful residence that pre-dates their grant of EUSS status. Therefore, what the Home Office caseworker must do according to the new guidance, is assess the period of lawful qualifying residence that pre-dates the grant of EUSS status, through the prism of the exercise of treaty rights. This will be the only way to tell whether the EEA citizen was in the UK lawfully for that period.
Carrying out the assessment in this way means that some EEA citizens who hold settled status will not be able to naturalise as British citizens if their pre-EUSS status was not in accordance with the Free Movement Directive/exercising treaty rights (for example an economically self-sufficient person who did not hold comprehensive sickness insurance). A citizen in this situation will need to wait for either five years or three years from the date that they were first granted EUSS status, in order to meet the lawful qualifying period to naturalise. This is what, as we previously reported, complicates the naturalisation process for EEA nationals.
The guidance does contain a discretion for the caseworker to overlook certain breaches of lawful residence which, which includes a situation where an EEA citizen did not hold comprehensive sickness insurance for example. The wording of the discretion says that the requirement to be lawfully resident will be disapplied where:
"the breach was because the applicant did not meet an additional/implicit condition of stay, rather than illegal entry or overstaying, such as an EEA or Swiss national not having CSI and can provide sufficient evidence to justify discretion being exercised in their favour”(8)
There is no information in the wording of the discretion as to what evidence, or situation will constitute one that justifies discretion being exercised in the applicant’s favour. Therefore, an EEA citizen wishing to naturalise but who may fall foul of the requirement to hold comprehensive sickness insurance, will not know whether or not their application would be successful based on the information provided as to how the discretion should operate. They risk the £1350 naturalisation application fee without any guarantee of a successful outcome(9).
From a practitioner’s perspective, it would be advisable that any applicant in a situation where there is a risk of being refused for not holding comprehensive sickness insurance not to apply for naturalisation (unless they were prepared for the outcome to be unsuccessful). The reason for this stance is that irrespective of the existence of the discretion to overlook the lack of comprehensive sickness insurance, the discretion is so ill-defined as to be meaningless to base legal advice on.
As set out above, there has not been any change to the legal requirements to become a naturalised British citizen, as all applicants for naturalisation irrespective of their nationality must have a five or three-year lawful qualifying period to rely on. However, some of the reporting around this new guidance, including our own, indicates or implies that the Home Office has made it more difficult for EEA citizens wishing to apply for naturalisation. Carrying out these checks in relation to lawful residence by making citizens demonstrate they were exercising treaty rights undoubtably creates an increased evidential burden on EEA citizens apply for naturalisation, particularly for those who have not applied for an EU/EEA permanent residence document in the past. However, the Home Office was always able to request this evidence even before the explicit guidance was published, as the guidance does not create a new legal requirement to be lawfully resident. Instead, it clarifies the way in which case workers should assess lawful residence for EEA citizens applying with settled status. Given that the EUSS opened initially in August 2018 and then to all EEA citizens in March 2019, it is evident that this guidance document could and should have been provided at a much earlier stage. This way EEA citizens would have had clarity on exactly what they are required to evidence when applying to naturalise. The delay in clarifying this need for EEA citizens to evidence that they were lawfully resident in the UK for the period before their EUSS status grant will increase the perception that there has been a change in the law or approach of the Home Office, and that it was only implemented to make life more difficult for EEA citizens wishing to become British after obtaining settled status.
(1) See Home Office document Nationality policy: Naturalisation as a British citizen by discretion Version 5.0
(2) Note that this is different the condition in the Good Character Requirement that requires in the 10 years pre-dating the naturalisation application, the applicant has complied with immigration requirements. The guidance states “Breach of the immigration laws’ for the purpose of the residence requirements refers only to unlawful residence. It does not include contravening immigration law in any other way, but this is considered as part of the good character requirement.” [page 25]
(3) See pages 25 - 31
(4) References to EEA citizen should be read to cover their non-EEA family members
(5) Being a settled resident is a condition which citizens of all nationalities must meet to naturalise and means there must be no time limit on the amount of time they can reside in the UK.
(6) Generally permanent residence is acquired after a five continuous period in the UK where the EEA citizen has been exercising “treaty rights” under the Free Movement Directive or the EU treaties.
(7) Those who qualify for pre-settled status (Limited Leave to Remain) cannot apply for naturalisation as they are not considered settled in the UK, one of the conditions to naturalise.
(8) See Guidance document page 28
(9) £80 would be refunded out of the total fee in the event of an unsuccessful application
In Adrian Berry’s excellent blogpost, the author and barrister helpfully summarises the ways in which people automatically become British citizens. The complexity of this area of law means that some people may believe they are British when they actually aren’t, and others may already be British citizens without knowing it, especially since one can be a British citizen without having a British passport - a passport doesn’t give you nationality, it is only evidence of nationality.
The law in this area is particularly pertinent for those who may need to apply for the EU Settlement Scheme, but do not realise they need to do so because they mistakenly believe they are British citizens. These individuals must still apply to the EUSS before the deadline, which is the 31 December 2020. So how can you find out if you’re British, or if you need to apply?
You are automatically a British citizen if you were born in the UK or in British overseas territories to a British citizen parent or a parent with indefinite leave to remain. This means that even if you were born in the UK to parents who are EU nationals, you are not automatically a British citizen unless one of your parents had indefinite leave to remain at the time of your birth. Indefinite leave to remain means being ordinarily resident in the UK (i.e. not a visitor) and having no time restrictions on the permission to be in the UK. EU citizens can automatically acquire such a permanent residence status after five years of residence if they are working, self-employed or self-sufficient/student with comprehensive health insurance.
The parent could be either your mother or father. Prior to 2006, parents had to be married before fathers could pass on their British citizenship, so if you were born before 2006 to a British father you may have to register for citizenship. The parent passing on their citizenship could also be your adoptive parent if you were adopted in the UK or a Hague Convention country.
Those born in a foreign country can be British citizens by descent if they have a British citizen parent. However, this is only the case for one generation: British citizens by descent (those born outside the UK) cannot pass citizenship on automatically to children born outside the UK and British overseas territories. So, if you and your British parent were born outside the UK, you may not be a British citizen unless you have been registered.
Other people automatically became British citizens on 1 January 1983 if they were previously Citizens of the United Kingdom and Colonies with a right of abode in the UK, because this is when the British Nationality Act 1981 came into force. Similarly, some people in British overseas territories were automatically made British Citizens through the British Overseas Territories Act 2002.
British nationality comes in different forms so people without British Citizenship could still have British nationality. For example, British Protected Persons are British nationals who have connections to former British colonial possessions. British Protected Persons can be found in now independent countries such as Kenya, Uganda, Zambia and Malawi. People who were born pre-1949 in India or Pakistan but who did not become an Indian or Pakistani citizen after independence will have retained their British Subject status. Alternatively, under the British Nationality Act 1981, people acquire nationality if they were born Stateless and would remain stateless unless given British nationality.
Even if you don’t automatically possess British nationality, you could still acquire it if you register or apply for naturalisation.
If you’re European and unsure whether you hold British nationality, it is worth checking soon. You need to check so, if necessary, you can apply for the EUSS scheme before the deadline on the 31 December 2020, and ensure you remain in the UK legally after Brexit.
Summary: Children’s rights are not for the Home Office to block, and no child should be prevented from securing British citizenship to which they are entitled by law. On Tuesday November 26th, the first day of a court case challenging the lawfulness of the Home Office fee of £1,012 for a child to register as a British citizen, Amnesty International will be protesting outside the Royal Courts of Justice to visually demonstrate significant support for the children affected by this government profiteering. Show your support and join them.
The Secretary of State, on his British citizenship application form guide, outlines the importance of British citizenship to an individual:
“Citizenship is a ‘significant life event’. Apart from allowing a child to apply for a British citizen passport, British citizenship gives them the opportunity to participate more fully in the life of their local community as they grow up.”
The British Nationality Act 1981 ensures that children who grow up in the United Kingdom (either UK-born or not), who feel just as British as their British-born friends, have rights to register as British citizens. Failure to register means one is excluded not only in the present, for example because they are not allowed to go on certain school trips, but will also continue to be marginalised in the future, when it comes to obtaining all the perks which come with British citizenship, including the right to remain, the right to vote in all elections, access to public funds, health services, and other social benefits.
Registration is fundamentally different from naturalisation, which is the process adult migrants need to go through in order to acquire citizenship. The essential difference is the role of the Home Office when processing the applications. In naturalisation cases, that role is to decide, at the Home Office’s discretion and balancing all relevant factors, whether the applicant should be made a British citizen. Contrastingly, in registration cases, it is simply to recognise a pre-existing right to citizenship laid out in statute.
Academic researchers have estimated there to be around 120,000 children in the UK without British citizenship, around 65,000 of whom were born in the UK. However, many of these children do not register for citizenship, not because they are not eligible, but simply because they cannot afford to. Since 2007, the Home Office have started charging applicants more than the administrative cost of processing the application, aggravating the situation. The Home Office states that the fee, currently priced at £1,012 is made up of two parts: £372 for the administrative cost of processing registration, and £640 as a profit element to finance the immigration system. In other words, the Home Office is profiting off children who are merely claiming what is rightfully theirs, and they are making twice as much profit as the actual cost price.
In practice, the Home Office fee hinders children in exercising their rights under the 1981 Act. This sort of exclusionary policy not only jeopardises a child’s start in life; it also undermines their future. Ultimately, if a child is unable to pay the £1012 fee today, that may well be the reason why that same child cannot afford to go to university eight years from now, because they cannot get a student loan. In addition, their children won't be recognised as British either, even if they are the second or third generation in their family born and brought up in the UK.
This outrageously discriminatory Home Office policy needs to stop. Children’s rights are not for the Home Office to block because of finances, and no child should be prevented from securing their British citizenship. In order to allow children to exercise the rights which were conferred upon them by Parliament, the Home Office fee should be reduced; the profit element of the fee should be removed altogether. In addition, for people from disadvantaged backgrounds, public funds should be made available to cover the fee in full. Children should not have to raise funds to pay for their registration rights, particularly where these rights are by entitlement. That is why the Project for the Registration of Children as British Citizens (PRCBC), a London-based charity which fights for British citizenship rights of children born in the UK to migrant parent(s), is challenging the lawfulness of the Home Office fee in court.
PRCBC’s case is centred on challenging the Home Office’s flawed, quid pro quo argument on which they rely to justify the elevated fee. The basic premise of their approach is that those who are profiting from the immigration system, should also be paying for it. However, since these children are merely asking for recognisance of their entitlement, their applications for registration fall outside of immigration law and policy. Registering as a British citizen is not a benefit the Home Office grants these children. Rather, it is a recognition of a right these children already have by law. Therefore, they are not profiting from the system, and it is only natural that they should not be made to pay for it.
British citizenship, especially for children and young adults, is about much more than just getting the right documents. It is about identity, integration, a sense of belonging, and about confirmation that the UK is their home. It is about having the same rights, feeling part of their peer group and much more. That is why on Tuesday 26 November, the second day of the PRCBC proceedings, Amnesty will be protesting outside the Royal Courts of Justice to visually demonstrate significant support for PRCBC and for the children affected by this government profiteering.
Show your support and join them.