May 28, 2019

UK Immigration and Brexit: 10 questions to ask


So, is the Brexit really coming soon, woudl it really to happen on 31st October 2019? Or the UK can still leave on 1 July with a deal?
Hopefully not! But be ready,as some essential changes with regard to the rights of EEA nationals and their family members could or will happen!

What is the legal position?

As things stand, the UK’s departure date from the EU has been extended to 31 October 2019. Although the political landscape remains uncertain, we set out 10 key questions which should provide some legal certainty and direction, and simplify the jargon as much as possible.

1. What rights do I have as an EU national in the UK at present? Until the UK’s date of departure from the EU, all EU/EEA nationals will continue to benefit from freedom of movement. The Government, however, is encouraging all EU nationals to register under its EU Settlement Scheme (“the scheme”) now.

2. What is the EU Settlement Scheme? How do I apply for the Settlement Scheme and do I need an Android device?

The scheme has been introduced by the Government to enable EU nationals to register their status in the UK. Those EU nationals who have resided in the UK for five years or more will be granted ‘Settled Status’ i.e. the right to reside permanently in the UK. Those EU nationals who have resided in the UK for less than five years will be granted ‘Pre-Settled Status’. This will be valid for five years and will enable individuals to apply for Settled Status once they have completed five years of residence in the UK.

Applicants must apply to the Settlement Scheme online. If you have access to an Android mobile phone (it can be yours or you can borrow one to make the application), you will be able to scan your passport using the Android device. If you do not have access to an Android device, you can either post your ID document to the Home Office or attend one of the ‘ID Document Scanner Locations’, (see here) where you can scan your passport.

It is free to apply under the scheme. The Government has said that it will consider applications with a view to approving them, rather than refusing them.

3. Can I become a British citizen? If you hold Indefinite Leave to Remain, Permanent Residence or Settled Status, or are eligible for these, you may also be eligible to apply for British citizenship.

If you wish to obtain British citizenship, you should seek legal advice on whether you are eligible and what options are available to you.

4. Do I need to be sponsored by a UK employer to work here? EEU/EEA nationals will not need to be sponsored by their employer and can pursue employment opportunities here in their own right, regardless of whether the UK leaves the EU with a deal or without a deal. However different legal provisions may apply in a deal or a no-deal scenario.

5. What do I need to think about and do, as an employer of EU nationals in the UK? What are my legal obligations now and when the UK leaves the EU? Should I actively support staff through this process?

In legal terms as an employer of EU nationals you are not required to do anything at present. However, it would be good practice to provide employees with information regarding the Settlement Scheme and how to apply under it. Right to work checks should be carried out normally.

Workforce planning should be conducted to cover all eventualities. It would be prudent to introduce a policy on what your business would do, especially in case of a no-deal Brexit and taking account of its effects on bringing new members of your workforce/new employees to the UK from the EU. You should also update the nationality and immigration status details of your employees so that you have up to date records. Active management now will mean not only that your business will be well prepared when the scheme closes, but your business will also be able to adapt should there be any unexpected developments.

Understandably the current uncertainty is a cause of concern and anxiety to all EU nationals. Although these individuals can also apply under the scheme, it would be helpful to have a policy in place on how your business would support family members.

You should also consider whether to send internal updates on Brexit so that staff are up to date and feel reassured. Although the soundbites might sound confusing, in reality there are several options available. From our experience clear communication with staff will provide reassurance.

6. When and how will non-EU nationals be affected by changes to the UK immigration system? Non-EU nationals at present remain unaffected.

The Government has published its White Paper for a post-Brexit single immigration system due to come into effect from 1 January 2021. Please see here for a summary of these changes.

These proposals should in theory make it easier for businesses to hire and sponsor skilled workers from outside the UK. However, it should be noted that these are proposals set out by the Government and are subject to changes after debate and consideration in Parliament.

7. What if there is a further extension beyond 31 October 2019? Until the UK’s date of departure from the EU, all EU/EEA nationals will continue to benefit from freedom of movement. It is however worth noting that although freedom of movement would continue to apply, the end of the transition period after (if) the UK leaves with a deal remains 31 December 2020.

8. What happens if the UK leaves without a deal? If the UK leaves the EU without a deal, then an individual will need to have been living in the UK before the exit date and will have until 31 December 2020 to apply under the Settlement Scheme.

If an individual arrives after the UK leaves without a deal, then they will be able to visit the UK for up to three months for work or study. They will however need to apply for a three-year European Union Temporary Leave to Remain visa if they wish to remain in the UK beyond three months. Please see here for further details.

9. What happens if Article 50 is revoked? If the UK decided to revoke its notification under Article 50 of the Lisbon Treaty, then the UK will remain a member of the EU. The two-year exit process will end. The UK will have to serve another notice under Article 50 of the Treaty for a subsequent two-year exit process to restart.

10. What happens next? Although it is unlikely that the UK will leave the EU without a deal given that Parliament has voted against it, please see below for key dates and how they have an impact on the Brexit process.

Potential change in withdrawal date If the UK and the EU ratify the Withdrawal Agreement at any time before 31 October, then the withdrawal will take place on the first day of the following month.

Brexit key dates

23 May UK takes part in EU elections.

Early June

A vote in Parliament is expected in early June. As we explained above, if for example the Withdrawal Agreement is ratified at any time in June, then the UK can still leave on 1 July with a deal.

New EU Commission/next five-year political cycle in Brussels begins on 1 November 2019.

20 – 21 June Brussels EU Summit where leaders will take stock of Brexit Progress.

If the Withdrawal Agreement is ratified in June, the UK can leave on 1 July. Although the UK will have taken part in EU elections, the 5-year political cycle in Brussels does not begin until 1 November.

August and September

f the UK and the EU ratify the treaty at any time before 31 October, then the withdrawal will take place on the first day of the following month, i.e. on 1 September or 1 October.

UK party conference season is between August and September. If there is a change in leadership, it might be that they are in place by the time Conservative party conference starts on 29 September.

17 – 18 October, Brussels

EU Summit. If the UK has not left the EU by this date and if a deal is not in place, this will be the crucial summit. If there is a change in leadership, this might mean a change in direction.

31 October

This is the new Brexit date if the UK and EU do not reach a deal. EU insisting that by this point the UK must choose to either ratify the exit, opt for a no-deal or cancel departure. However further delay cannot be excluded.

April 23, 2019

Disciplinary hearings in the High Court

In the short but landmark judgment of R (Hamid) v Secretary of State for the Home Department [2012] EWHC 3070 (Admin), the High Court affirmed that it has the power to oversee the conduct of lawyers in immigration cases. Judges have regularly used the disciplinary process that has evolved out of the Hamid case to scrutinise the work of lawyers and refer some to the regulator for formal investigation. This post traces the evolution and formalisation of what is now an established feature of the UK immigration system.

The Hamid jurisdiction

Hamid was decided against the backdrop of what the courts considered a flood of last-minute applications to stay removal from the UK. Many of these applications, the High Court charged, were deliberately filed at the end of the last working day before a removal flight and were totally without merit — merely a device to prevent a migrant’s removal in the short term.

An exasperated Sir John Thomas declared:

These late, meritless applications by people who face removal or deportation are an intolerable waste of public money, a great strain on the resources of this court and an abuse of a service this court offers. The court therefore intends to take the most vigorous action against any legal representatives who fail to comply with its rules. If people persist in failing to follow the procedural requirements, they must realise that this court will not hesitate to refer those concerned to the Solicitors Regulation Authority.

This “vigorous action” tends to be a Divisional Court hearing in which the lawyer is asked to explain themselves. In R (Butt) v SSHD [2014] EWHC 264 (Admin), the practitioners involved were instructed to write to the High Court within six weeks of the hearing to show how they were putting their practice in order. In Awuku (No 2) v SSHD [2012] EWHC 3690 (Admin), the firms were not told to take remedial action, but were named and shamed. And in R (B & J) v SSHD [2012] EWHC 3770 (Admin), the court accepted the firms’ apologies and did not name them.

The High Court says that it has the power to police lawyers in this way because of the “inherent jurisdiction to govern its own procedure”. The Upper Tribunal — which unlike the High Court is an all-UK body — claimed the same authority in R (Shrestha) v SSHD (Hamid jurisdiction: nature and purposes) [2018] UKUT 242 (IAC).

This power has become known as the Hamid jurisdiction, and the procedure a Hamid hearing, after Sir John Thomas’s original warning shot.

Evolution of the Hamid procedure

Where the misconduct is egregious, the explanations insufficient and/or the firm has form, the Divisional Court or Upper Tribunal will formally refer the matter to the Solicitors Regulation Authority. This is what happened in Shrestha, in R (Akram) v SSHD [2015] EWHC 1359 (Admin) and in what is now the leading case on the Hamid jurisdiction, R (Sathivel) v SSHD [2018] EWHC 913 (Admin).

The Sathivel judgment describes the procedure as follows:

When a Judge concludes that a lawyer has acted improperly that may be recorded in a court order. The papers are then referred to the High Court Judge having responsibility for this jurisdiction [more on this below]. A “Show Cause” letter may then be sent to the lawyers concerned who are invited to respond addressing the matters of concern raised in the Show Cause letter. If the Judge in charge considers the response to be inadequate the case may be referred to the Divisional Court. In the event that the Court finds that the conduct in question falls below proper standards the Court can admonish a practitioner. Alternatively, the Court can refer the file to the relevant regulatory authority, usually the Solicitors Regulation Authority (“SRA”), for further investigation and if appropriate the imposition of sanctions.

It concluded by modifying the procedure in future cases:

(iii) In future the Court will not necessarily refer the matter to a Divisional Court before deciding to pass the file to the SRA as a complaint. A complaint might be made to the SRA upon receipt of the response to the Show Cause letter, if that is considered to be an appropriate course to adopt.

(iv) The Court will in future consider referring a case to the SRA on the first occasion that the lawyer falls below the relevant standards.

Indeed, in the subsequent case of Jetly v Secretary of State for the Home Department [2019] EWHC 204 (Admin), Mrs Justice Andrews did not convene a Divisional Court before making an SRA reference. Nor is there explicit reference to a Show Cause letter — although there had been repeated failures to comply with the judge’s instructions throughout the case.

Jetly also shows that misconduct other than hopeless/last minute judicial review applications can trigger the Hamid jurisdiction. The nationality litigation in question was shambolic, but not tactically so. The judgment confirms that:

Although concerns about the behaviour of legal representatives instructed in immigration cases most often arise in the context of last-minute attempts to resist removal from the UK, the Hamid jurisdiction is not confined to that situation, nor is it confined to the situation in which the underlying claim is utterly without merit.

The Upper Tribunal broke further new ground in R (Hoxha & Ors) v SSHD [2019] UKUT 124 (IAC). In this case, for what appears to be the first time, the Office of the Immigration Services Commissioner rather than the SRA was the regulator called in. The lawyer involved was an OISC-regulated adviser rather than a solicitor, but the process operated in the same way.

The regulatory investigations, in turn, can lead to disciplinary proceedings. In 2017, solicitor Vay Sui Ip was struck off by order of the Solicitors Disciplinary Tribunal following a Hamid referral. The referral was reported as Re Sandbrook Solicitors [2015] EWHC 2473 (Admin).

The Hamid judge

Mr Justice Green was on the bench in many of the cases just mentioned. We know now that this was no coincidence: the Hamid jurisdiction is sufficiently formalised that there is a “Hamid judge” in charge of the whole business. Since October 2018 this has been Andrews J (which is why she took over the Jetly case just mentioned). Before that it was Mr Justice Green, since promoted to the Court of Appeal.

The role of the Hamid judge is to review files sent her way by judges who consider that a lawyer has fallen far below adequate standards and to issue the Show Cause letter. If the response to this is not considered good enough, the Hamid judge can then convene a Hamid hearing.

The Judicial Office told us:

The job of the judge responsible for this area comprises: keeping colleagues informed of developments in the area in particular by reporting at each start of term High Court meeting; reviewing cases referred by other judges; liaising with the ACO staff and with the President of UTIAC; deciding whether to refer a case to the Divisional Court or make an immediate reference/complaint to the relevant regulatory body; sitting on Divisional Court cases on references.

It added that “the issues arising are interesting and constitutionally important. It deals with the inherent jurisdiction of the Court to regulate its own procedure and involves the working out of the duties of legal professionals and the standards to be expected from those appearing before the court”.

Not just for immigration lawyers

Most, perhaps all, Hamid cases so far have been about immigration. Asked whether the Hamid jurisdiction can be exercised in any case or is reserved for immigration and asylum only, the Judicial Office told us that “in principle, the jurisdiction applies across the entirety of the Court system”.

This is a recent development, recorded in the November 2018 minutes of the Administrative Court user group:

The Hamid Jurisdiction traditionally dealt with immigration cases but the PQBD [President of the Queen’s Bench Division, Sir Brian Leveson] has directed that the jurisdiction will now be extended to all types of cases that are dealt with at the Administrative Court Office.

The minutes also record the court’s increasing concern about urgent judicial review applications being filed where the issue is not, in fact, urgent. Court officials has stressed that this can be a Hamid matter. Again, I understand that this concern is not limited to immigration and asylum cases.

We may, therefore, expect that the next major development in the Hamid jurisdiction will be a lawyer in a different area of practice experiencing its rigours.

March 13, 2019

Major changes to the UK Immigration Rules

There have been major changes to the UK Immigration Rules, most of which will take place from 29 March 2019. The main changes are to Tier 1 of the Points Based System and to the new EU Settlement Scheme.

Tier 1 (Investor) Category

Changes will take effect on 29 March 2019 that introduce more stringent regulations as follows:

The requirement to show source of funds if £2 million has been held for less than 2 years (previously 90 days). This includes funds later invested to reach accelerated settlement (permanent residence).
The requirement to have a UK bank account will be tightened, requiring the UK bank to confirm that they have carried out all required due diligence checks and Know Your Customer enquiries.
Investments in UK Government bonds will be excluded.
The definition of an “active and trading” UK company has also been tightened. Stronger evidence of trading in the UK as follows:
Registered with Companies House in the UK.
Registered with HMRC for corporation tax and PAYE.
Accounts and UK business bank account showing regular trading.
At least two UK employees who are not directors.
A limited acceptance of collective investments. Pooled investments that receive funding from a UK or devolved government department or one of its agencies will be made an allowable investment.
Tightening use of intermediary vehicles used for investment. The intermediary vehicle must be regulated by the FCA and the investor will need to produce evidence of the final investment destination and how funds were transferred there.
Clarification that £2 million investment is the price paid by the investor rather than the market value.
Extension applications submitted abroad will now be granted for 2 years rather than the previous 3 years 4 months so they are in line with extensions in UK.
Applicants can be refused the visa if the Home Office have reasonable grounds to believe the funds used for the investment breached exchange controls. This will also apply to extensions and settlement which means that if the Home Office think there is a breach of exchange controls the investor could lose their status.

There will be transitional arrangements in place for investors who applied prior to 29 March 2019 which means the Rules in place before 29 March 2019 will continue to apply to them until 5 April 2023 for visa extensions and 5 April 2025 for settlement (permanent residence) applications.

An important note is that the arrangements in place for those who entered the category under the Rules in force before 6 November 2014 i.e. the £1 million route, will end on 6 April 2020 for extensions and 6 April 2022 for settlement which means applicants applying for an extension or settlement after these dates will have to meet the 29 March 2019 criteria i.e. £2 million and no gilts.

Tier 1 (Entrepreneur) Category

This category will be closed to new applicants from 29 March 2019 onwards. Extension applications for those already within this category will remain open until 5 April 2023 and open for settlement applications until 5 April 2025. Tier 1 (Graduate Entrepreneur)route will be closed on 06 July 2019.

New Appendix W

Two new visa categories will be introduced – Innovator (replacing Tier 1 Entrepreneur) and Start-up (replacing Tier 1 Graduate Entrepreneur). They are set out in a new Appendix W which will come into force on 29 March 2019. It is anticipated that other worker categories (Part 5, Part 6A) will be added to Appendix W in a move away from the Points Based System.

Start-up Category

This is for those starting a new business for the first time in the UK, applicants need not be graduates and will not need to have secured any initial funding. Successful applicants will be granted 2 years’ leave (doubled from 1 year offered to Tier 1 (Graduate Entrepreneur)) and applicants can then progress into the Innovator category to continue developing their businesses. It is only possible to stay in the start-up category for a maximum of 2 years and therefore this category does not lead to settlement.
Innovator Category

This is for more experienced business people requiring endorsement and funding of £50,000 (reduced from £200,000 required for Tier 1 (Entrepreneur)). There is no time limit as to how long an applicant can stay in this category, however endorsement will be required at various stages based on innovation, viability and scalability at entry clearance/initial application, extension and settlement stages. The endorser must also be “reasonably satisfied that the applicant will spend their entire working time in the UK on developing the business venture” and the innovator cannot work for another business. The funding requirement can be waived for those switching from the Start-up category to Innovator.

Applicants whose initial business idea did not succeed may re-apply with a new business idea for endorsement under the entry clearance/initial application stage.

The Innovator category may also lead to settlement. Innovators will be eligible to apply for settlement after 3 years continuous residence in the UK as an innovator, provided they satisfy at least 2 of the following criteria:

at least £50,000 has been invested and spent in the business;

the number of the business’ customers has at least doubled in the 3 years and is higher than the mean number of customers for other UK businesses offering comparable main products or services;

the business has engaged in significant research and development activity and has applied for intellectual property protection in the UK;

the business has generated gross revenue of at least £1 million;

the business is generating at least £500,000 in revenue with at least £100,000 from exporting overseas;

the business has created at least 10 full time jobs for resident workers; and
the business has created the equivalent of at least 5 full time jobs for resident workers paying at least £25,000.

Start-up and Innovator Categories

Applicants within both routes will need to be:

Endorsed by trusted organisations in the UK – a list of organisations who can endorse someone for these visas has not yet been released.
Stay in contact with the endorsing body at regular intervals – 6, 12 and 24 months.
Meet the level B2 English Language Requirement.
Family members of applicants will be covered Under Part 8 (Family Member of a PBS Migrant).

Switching

Tier 1 (Investor), Tier 2 (General) and Tier 4 (General) or (Child) can switch into Start-up.

Tier 1 (Graduate Entrepreneur), Tier 1 (Entrepreneur), Tier 2 and visitor (Prospective Entrepreneur) can switch into Innovator.

Tier 2 (General)

The Codes of Practice within Appendix J have been amended, resulting in an increase in the minimum salary sponsors will need to pay applicants under many of the Standard Occupational Classification Codes.

Students with a Tier 4 (General) visa can now apply to switch into this category up to 3 months before the expected completion date of their course.

Those applying for settlement from within this category need earn a minimum salary of:

Applying before 6 April 2019: £35,500
Applying before 6 April 2020: £35,800
Applying before 6 April 2021: £36,200
Applying before 6 April 2022: £36,900
Applying before 6 April 2023: £38,800
Applying before 6 April 2024: £40,100

The EU Settlement Scheme will be fully open from 30 March 2019 and will include EEA and Swiss nationals. The changes will enable eligible applicants outside the UK to apply which means they can obtain their status without needing to travel to the UK. Applicants under the Scheme will now be able to rely on a wider range of documents as proof of their identity and nationality.

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