Brexit

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.

How many migrants live in the UK? By Charlotte Rubin

In 2019, the population of the whole of the UK was estimated to be 66,796,807. This is an estimate, because unlike some other countries, the UK does not have a population registry.

In countries with a population registry, the government collects data on all its residents. Residents are usually obliged to notify the government of any changes in their status such as changes of address, residency, or marital status. These countries usually also have a compulsory ID card for each resident, to keep the register up to date. Contrastingly, the UK government has no such database or register. General public opinion is against the introduction of such a system, as it is considered too intrusive and infringing on the right to liberty. Instead, the Office of National Statistics in the UK assumes a number for the current population, based on what is known about births, deaths and population ageing combined with expectations based on historical data about levels of immigration.

As a consequence, it is quite hard to estimate how many migrants come and go. This is the case both for regular migrants, especially those from the EU or other visa-free countries, but even more so for undocumented migrants.

Overall, the ONS reports that international migration in the year to mid-2019 was 16% lower than in the previous year. This was a result of 17,000 fewer immigrants (a 3% decrease) arriving than in 2018, and 28,000 (or 8%) more people emigrating. This downward change is estimated to have continued throughout 2020 as a result of the COVID-19 pandemic and the finalisation of Brexit. Some have said that the compound effect of COVID and Brexit have led to an “exodus” of foreign-born people from the UK, with some estimates reporting that 1.3 million people have left the UK since the end of 2019 (https://www.escoe.ac.uk/estimating-the-uk-population-during-the-pandemic/). But the numbers are not known, and impossible to confirm.

One illustration of how imprecise the numbers are exactly is the estimated amount of irregular or undocumented migrants in the UK. Preliminarily, it is important to know that until 30 June 2021, these statistics comprise only non-EU citizens, as immigration rules will not be enforced against EU citizens until after that date. Focusing on non-EU migrants in the UK, then, there are no accurate data on the number of lawfully resident non-EU citizens. The Home Office is required to report yearly estimates of the number of non-EU citizens holding a valid residence permit. They do this based on the number of temporary residence permits issued that year that remain valid. It includes for example, visas for entry and extensions where these have been granted. However, the estimate does not include migrants who have been granted permanent residence in the UK (i.e. indefinite leave to remain, or settled status). To make things worse, the government also has no way of knowing if those who were previously granted indefinite leave to remain still live in the UK now, or whether they are even alive. Any estimate of the migrant population, therefore, requires numerous assumptions to be made based on average yearly ILR grants, birth rates, death rates, etc. It is likely to have a significant margin of error for migrants with lawful residence, let alone for those without it.

Another recent example of how difficult it is to estimate population numbers is the Home Office failure to estimate the number of EU citizens living in the UK. Since 1 January 2021, free movement for EU citizens has ended, meaning they can no longer move to work and live in the UK as they please. EU citizens who lived in the UK before that date can apply to retain their residency rights under the EU Settlement Scheme. When the Home Office launched the EU Settlement Scheme in 2018, they estimated that three million EU citizens were living in the UK, and that this was about the number of applications they would receive. With over five months left to apply, over four million people have applied to the Scheme. In the five months to come before the Scheme closes on 30 June 2021, thousands if not a million more are expected.

In short, the government does not know exactly how many migrants there are in the UK, and has no real way of finding out unless it introduces a formal registration system like in the Netherlands or Belgium.

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

7 immigration changes you need to be aware of by Charlotte Rubin

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.

Briefing: will I need a visa to go to the EU after brexit? by Charlotte Rubin

The UK government is currently finalising Brexit talks with the EU before the end of the transition period in just under two weeks, on 31 December 2020. After that, EU law will no longer be applicable in the UK, and UK citizens will no longer fall under the scope of EU rules. This has significant effects on the movement of people, with which we are concerned.

From 1 January 2021, it will no longer be as straightforward for British people to move, live or travel in the EU.

For British citizens who want to reside in the EU after this date, everything will depend on when they move to the country in question. If they move before the end of the transition period, they will be able to retain broadly the same rights they had at the time they moved there, when EU law was still applicable in the UK. This is the case even if there is no UK-EU Trade deal by the end of the month, as this is guaranteed under the Withdrawal Agreement which became effective on 1 February 2020. It becomes more complicated if a British citizen wants to move to the EU after 1 January 2021, as their automatic right to live and work in the EU ceases after the transition period. They will then need to apply in accordance with that country’s existing immigration rules.

Those looking to work in the EU after 31 December 2020 will need to make sure that their professional qualifications are recognised in the EU.

To travel to the EU for a visit, British citizens will not need to apply for a visa initially, as the EU has agreed to waive the visa requirement and add the UK to their list of visa-exempt countries. Until the end of 2022, this means that all a British national needs to travel to an EU country is a valid passport.

Effectively, this means that British citizens can spend up to 90 days out of any 180 day period in the EU for business, tourism or to visit friends and family without having to apply for a visa. This is contingent upon the UK returning the favour, and allowing citizens of all EU member states to visit the UK under similar circumstances. If the UK introduces a visa requirement for nationals of at least one member state, the EU will reciprocate by introducing EU-wide visa requirements for UK nationals. The visa waiver will be applicable in all EU member states except Ireland, which has a specific bilateral arrangement which provides for visa-free travel between them. The Schengen associated countries (Iceland, Liechtenstein, Norway and Switzerland) also have a separate arrangement with the UK.

However, even if British citizens are not required to fill out a visa application, they will still face increased administrative burdens when traveling. From 1 January 2021, EU border guards may ask people travelling from the UK for additional information including the duration and purpose of their stay, and might then check their passports. In contrast with the current rules, under which a passport is deemed valid as long as it has not expired, traveller’s passports will have to be valid for at least six months after the end of their trip in order to be considered valid travel documents. Additionally, the British citizen traveling will need to have a valid travel insurance.

From 2023 onwards, the conditions for British citizens to enter the bloc will change, as the European Travel Information and Authorisation System (Etias) is set to come into operation then, introducing visa-style fees forms for people wanting to travel to the EU not unlike the American ESTA-system. Under Etias, visitors to the EU's Schengen Area will have to obtain a travel authorisation before their trip and pay a €7 fee. Those who have to pay the fee include people from countries on the visa-exempt list, and therefore British citizens. Other countries not on the visa-exempt list already have to obtain a full visa to travel to the EU, which is much more complicated and costly.

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

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