May 22, 2021

EU citizens are being denied entry to the UK – what are the visa rules for visitors?

Travel to the UK is opening back up, but not as we previously knew it. The news has been replete with examples of EU citizens being denied entry at UK airports and detained for removal. These stories are nothing new to jaded non-European ears. But for many European travellers, this early post-Brexit period has been the first time they’ve come up against the realities of UK immigration policy.

EU free movement rights ended at 11pm on 31 December 2020. All EU arrivals after that date must either already possess valid permission to enter or remain (for example, in the form of pre-settled or settled status under the EU Settlement Scheme), or they must seek permission to enter as a visitor at the border. Entry to the UK for other purposes without a visa is not permitted.

This Q&A explains the rules on entering the UK as a visitor and why people might be stopped at the border. If you want to skip the detail, you can go straight to the How does a border officer decide if a visitor should be allowed in? section, where we’ve included a couple of case studies.

Although we’ve aimed this at EU citizens, since that’s where the current controversy lies, it applies equally to non-Europeans. By “EU citizens” we mean citizens of the 26 European Union member states bar Ireland, the additional three European Economic Area states (Iceland, Liechtenstein, Norway), and Switzerland. There are practically no border restrictions for Irish citizens.

For the avoidance of doubt, none of this applies to existing residents with EU pre-settled or settled status (although even some of those people have been having trouble at the border).
Do EU citizens need to apply for a visit visa before travelling to the UK?

No. EU visitors can fly to the UK and ask for permission to enter the country as visitors at the border.

The Home Office publishes a list of “visa nationals” in the Immigration Rules at Appendix Visitor: visa national list. European countries are not on the visa national list. Only citizens of countries on the visa national list need to apply for a visit visa in advance of travel. Citizens of all other countries can just turn up at the UK border and seek entry as a visitor, either by going through the passport eGates or by speaking to a border officer at a desk.
Who counts as a “visitor” and what are the restrictions on them?

The basic definition is:

This route is for a person who wants to visit the UK for a temporary period, (usually for up to 6 months), for purposes such as tourism, visiting friends or family, carrying out a business activity, or undertaking a short course of study.
Immigration Rules Appendix V: Visitor

There are restrictions on what a person can and can’t do as a visitor. The standard conditions endorsed on a visitor’s entry stamp are “leave to enter for six months, employment and recourse to public funds prohibited” (or wording to that effect).The same conditions apply if a visitor enters via the eGates without receiving a stamp.

Looking beyond the passport stamp, the Home Office publishes a list of prohibited activities at paragraph V4.4. of Appendix V: Visitor. Visitors are prohibited from undertaking these activities unless expressly permitted by another appendix (which we’ll get to):

Marriage/civil partnership
Medical treatment

An intention to engage in prohibited activities is enough to be refused entry to the UK. This is an important difference between the situation under EU free movement rules and the situation now.

Those wanting to do any of the above prohibited activities can apply in advance for a visa to allow them to do so, for example a Skilled Worker visa, marriage visit visa or a private medical treatment visit visa. These types of visa cannot be obtained at the border; an application must be submitted via the government website.
This all sounds very complicated, I just want to go backpacking around the Highlands

Before we go any further, let me emphasise that the vast majority of tourists arriving in the UK from Europe will have no issues. Most will be able to go through the eGates and not even speak to a border officer. This article is not intended to scare people or to put off tourists. EU citizens arriving to do a bit of travel or tourism should have no trouble.

With all of the stories in the press lately, though, it is important to be aware of what a visit visa entails and what the limitations are — particularly when it comes to work-related activities.
What is a visitor permitted to do?

Appendix Visitor: Permitted Activities sets out all of the things a visitor is allowed to do. These permitted activities introduce exceptions to the broad list of prohibited activities. The permitted activities include:

tourism and leisure
visiting friends and family
school exchanges and visits
volunteering for up to 30 days with a registered charity
attend meetings, conferences, seminars, interviews
negotiate and sign deals and contracts
site visits and inspections
intra-corporate activities
interpreting and translation work as an employee of an overseas enterprise
tour group work
scientific and academic research
preaching and pastoral work by religious workers

At this point you may be saying to yourself: “wait, so some types of work are actually permitted?” That’s right: all work is prohibited except that which is expressly permitted. The rules say:

Visitors cannot work in the UK unless this is expressly allowed under the permitted activities set out in Appendix Visitor: Permitted Activities.
Immigration Rules Appendix V: Visitor

Permitted work activity is one of the murkiest areas of the visitor rules and guidance. I am probably not the only lawyer left feeling deeply uneasy when asked to interpret it because there are all sorts of income and work arrangements not expressly addressed. Interpretation of what is or is not permitted is generally going to turn on an individual border officer’s subjective interpretation of the visitor’s intention (see next section). This introduces a risk of refusal even if the would-be visitor believes their intended activities fall within the ambit of the permitted activities.
Is job-seeking allowed?

“Work” is defined as

(i) taking employment in the UK; or

(ii) doing work for an organisation or business in the UK; or

(iii) establishing or running a business as a self-employed person; or

(iv) doing a work placement or internship; or

(v) direct selling to the public; or

(vi) providing goods and services
Paragraph V4.4.(a) of Appendix V: Visitor

Job-seeking/searching is not caught by this prohibition. Visitors are allowed to look for future employment in the UK — but it is critical that they understand the limitations. Visitors cannot, under any circumstances, begin work if they find a job. If they manage to secure an offer of future employment they must leave the UK and apply for the appropriate entry clearance from abroad, likely under the Skilled Worker visa route.

Young adults arriving from Europe with no return flight and a stated intention to search for low-skilled work with no prospect of sponsorship are unlikely to be seen as genuine visitors and highly likely to be refused entry.
What about job interviews?

Under paragraph PA4. of Appendix Visitor: Permitted Activities, a visitor may attend “interviews”. The rule does not specify what type of interview is permitted, but a plain English interpretation suggests that a job interview is fine. A job interview is not work.
Is remote working permitted?

Yes. Although not covered in any of the Immigration Rules, Home Office guidance says:

Visitors are permitted to undertake activities relating to their employment overseas remotely whilst they are in the UK, such as responding to emails or answering phone calls. However, you should check that the applicant’s main purpose of coming to the UK is to undertake a permitted activity, rather than to specifically work remotely from the UK. Where the applicant indicates that they intend to spend a large proportion of their time in the UK and will be doing some remote working, you should ensure that they are genuinely employed overseas and are not seeking to work in the UK. You must be satisfied that the applicant will not live in the UK for extended periods through frequent or successive visits.
Visit caseworker guidance, page 30

My reading of this paragraph is that if a visitor declares remote working as their sole or main reason for coming to the UK they can be refused entry because remote working is not specifically listed as a permitted activity. If however the remote working is ancillary to another permitted purpose (for example visiting family or tourism) then it sounds like it should not be an issue.
How does a border officer decide if a visitor should be allowed in?

The border officer must be satisfied that the person is a genuine visitor and will leave the UK at the end of their visit. The officer will assess the visitor’s credibility and intentions on the balance of probabilities. In other words, the officer must ask themselves, is it more likely than not that the person is a genuine visitor? This is a subjective decision, and whilst there is a 76-page guidance document available, a lot of the guidance is vague. This can lead to variance in border decision-making.

Some of the most important factors an officer will consider are:

What is the main reason for visiting the UK?
Immigration history, including previous visa refusals, and duration and frequency of previous visits to the UK.
Are frequent and successive visits being used to make the UK the main home or place of work or study? Officers will often examine the cumulative time a person has spent in the UK in the past 12 months to aid their decision-making.
Personal and economic ties to country of residence. Does the person have a job, family, or home to go back to?
Is there a return flight booked?
Does the person have enough funds to cover the costs of their visit?

This is not an exhaustive list. Border officers have a lot of power and should generally assess all of an applicant’s circumstances holistically to reach a decision.
Example 1

A young Greek man, Dimitris, arrives at Heathrow and seeks entry as a visitor. He has no return ticket. Dimitris is asked by the border officer what his intentions are. He tells the border officer that his partner lives in London and he will be staying with her to look for work as a waiter or kitchen porter. The border officer is likely to err on the side of caution and refuse entry because of the following factors:

– The visit does not sound temporary and there is no evidence of a return flight.

– Dimitris intends to find low-skilled employment which has no prospect of future sponsorship.

– Dimitris has not shown an understanding that employment is prohibited and has implied that he will start working if offered a job.

– Dimitris has a girlfriend living in the UK. This introduces a potential motivation to remain in the UK beyond the six months normally given to visitors.
Example 2

A young Italian lady, Monica, arrives at Gatwick and seeks entry as a visitor. She has a return flight booked in one month’s time. Monica is asked by the border officer what her intentions are. She tells the border officer that she is visiting some friends in London and doing some sightseeing and tourism. She is also going to be looking for jobs as a research scientist and attending some job interviews with Pfizer and GSK. Monica has letters from both with the interview dates, times and locations. She knows that she needs to return to Italy to apply for a Skilled Worker visa if she is offered employment. The border officer should grant entry as a visitor because Monica has demonstrated that she is a genuine visitor.
Can refusal of entry be challenged?

There is no right of appeal against refusal of entry. The only way to challenge a refusal decision is to urgently initiate judicial review proceedings. Judicial review is an expensive remedy of last resort. The alternative option is usually to simply try again at a later date.
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For non-visa nationals, it might be an idea to consider applying for entry clearance in advance, the way that visa nationals would. This allows a written case to be made in advance of pitching up at the border desk.

May 20, 2021

The EU Settlement Scheme: Can I Have a Biometric Residence Card?

The EU Settlement Scheme (EUSS) enables Europeans and their family members to apply for immigration status in the UK. Once the grace period comes to an end on 30 June 2021, it will be necessary to have status under the EUSS in order to continue to live lawfully in the UK (although late applications will be possible in certain circumstances). Over five million people have now applied to the EUSS, and with most applications resulting in a grant of leave, there are several million people in the UK who now need to know how to prove their right to live and work here.

This post looks at how people who have Settled status or Pre-Settled status under the EUSS can now prove they have that status, and in particular, who can and cannot have a Biometric Residence Card.

Can EU Nationals Have a Biometric Residence Card?

Europeans have not had to attend biometric enrolment appointments in order to complete their EUSS applications. Rather, they have been able to upload their photograph and scan their European passport or national identity card on the EU Exit: ID Document Check smart phone app.

Europeans are not then issued with a Biometric Residence Card, and are not able to apply for one. Instead, they can ‘View and Prove’ their immigration status online. To log in to View and Prove, there is a three-step process:

First, you will be asked to provide the number on the identity document you used when you applied to the EUSS. This may be a passport number or a national identity card number. If you have since replaced this document, and properly updated your online View and Prove profile, you will need to use the new document’s number;
Next, you will be asked to enter your date of birth;
Finally, you will receive a code at the mobile number or email address you used when you applied to the EUSS. Again, if you have changed telephone number or email address, and properly updated your online View and Prove profile, you will need to access the new telephone number or email address. Once you type in the code, you are able to see your status information, including your name, photograph and the kind of status you hold (i.e. Settled or Pre-Settled).

A similar online checking service is available to prove your immigration status to employers, using a ‘share code’.

The View and Prove facility is quick and helpful to those with good IT skills, enabling users to bring up clear proof of their status on their telephone or computer in seconds. It is less helpful to those without a good grasp of technology, and may therefore leave some vulnerable Europeans with difficulty accessing employment or benefits, or even renting property. For people struggling to use View and Prove, they can call the EUSS Resolution Centre telephone line on 0300 123 7379, and they should be able to get confirmation of their status, including a share code for employers, over the telephone.

Can Family Members of EU Nationals Have a Biometric Residence Card?

This View and Prove facility is not only available to Europeans, but also to their family members. However, family members of Europeans will find that they often also need a Biometric Residence Card in order to prove their status. Without one, they will likely encounter delays re-entering the UK, difficulty opening bank accounts and renting, as well as problems proving both a right to work and to claim benefits.

For some non-Europeans, the situation has so far been very similar to their European family members. Those non-Europeans who held valid Biometric Residence Cards issued under the EEA Regulations 2016 (‘EEA Biometric Residence Cards’) at the time they applied to the EUSS, were usually also able to use the EU Exit app. Generally, they have not needed to attend a biometric enrolment appointment, because they have already provided their biometrics in the past, when applying for the EEA Biometric Residence Card. On being granted EU pre-settled or settled status, they did not get issued with a Biometric Residence Card under the EUSS, and instead have been using View and Prove and their old EEA Biometric Residence Cards to prove their status in the UK.

This is contrasted with those non-European family members who did not hold valid EEA Biometric Residence Cards on application to the EU Settlement Scheme. These family members will not have been able to use the EU Exit app to complete their application. Instead, they will have had to attend a UKVCAS (Sopra Steria) biometric appointment, where they will have provided their photograph and fingerprints in person. Thereafter, they will have been issued with a new Biometric Residence Card. This Biometric Residence Card will say on the front that it has been issued under the “EU Scheme”. Some more recent Biometric Residence Cards also state that they are “issued in accordance with the EU Exit Separation Agreements”.

These new Biometric Residence Cards will remain valid after the grace period comes to an end on 30 June 2021. However, the old EEA Biometric Residence Card will no longer be valid after this date. This is so even if the date given on the card is much later than 30 June 2021. This means that non-European family members who only hold the old EEA Biometric Residence Cards need to make an application to update their Biometric Residence Card.

Updating your Biometric Residence Card

The application to update a Biometric Residence Card is free and fairly simple. The online form can be found here. Applicants will be asked for the ID document number they used to apply to the EUSS, the unique application number from their EUSS application, a consent form, and proof of their continued residence in the UK since their EUSS application.

Once the application is submitted, applicants will usually be directed to book a UKVCAS (Sopra Steria) appointment to provide their biometrics in person. However, demand for these appointments has been so high that some applicants are now being invited to use a smart phone app called the IDV app, instead of attending an in-person appointment.

After biometrics have been provided, applicants should be issued with a new Biometric Residence Card.

It is advisable for the non-European family members with only the old EEA Biometric Residence Cards to make this application as soon as possible, to ensure that they have a new Biometric Residence Card with which to prove their continued status in the UK. This is particularly important where non-Europeans intend to travel outside the UK, and wish to re-enter without facing questioning, delays or uncertainty at the border.

Updating Identity Documents

As an additional point for all those using the View and Prove online facility, it is important to update the identity document saved on your profile as and when this document expires and is replaced. It is unclear what will happen if those with status under the EUSS seek to enter the UK with different passports than the one currently saved on the View and Prove profile. It is possible that unless the document shown online is the same as the documents shown at the border, even Europeans could have difficulty entering, especially at the E-Gates.

April 14, 2021

Late applications to the EU Settlement Scheme

From 1 July 2021, EU, EEA and Swiss citizens living in the UK without having applied for pre-settled or settled status under the EU Settlement Scheme will be here unlawfully. The Home Secretary confirmed a few months ago that people can apply after that deadline, but they must have “reasonable grounds to apply late”. Clarity on what grounds might be considered reasonable was lacking until 1 April 2021, when the Home Office released guidance on how it will deal with late applications: pages 26 to page 44 of the main caseworker guidance.

Since the Home Office also requires those with pre-settled status to make a further application in order to upgrade to settled status, this guidance also applies to those who fail to upgrade before their pre-settled status expires. It also applies to family members joining an EU citizen sponsor via the family permit route, and to a few other scenarios.

Overall, the guidance reflects the EU-UK Withdrawal Agreement and meets the majority of asks from the support sector — which raises the question of why it took so long to be produced.

Even though the guidance is helpful, there are a few aspects of it that will require further exploration and monitoring.

Non-exhaustive list of good reasons
The list of reasonable grounds for applying to the Settlement Scheme late is non-exhaustive and every case must be considered in light of its particular circumstances. Nevertheless, the guidance provides examples of situations that will “normally” be accepted as reasonable grounds for applying late.

Children (including children in care and care leavers)
Where a parent, guardian or Local Authority has failed to apply for a child, this will normally constitute a reasonable ground. The guidance stresses that the Home Office does not need to consider the reasons why the responsible adult failed to apply to the scheme.

Physical or mental capacity and/or care or support needs
Where a person lacks the physical or mental capacity to apply, or has care or support needs, that will normally constitute reasonable grounds. Flexibility will also be extended to adults with broader care or support needs, such as those living in residential care homes or receiving care and support in their own homes. The Home Office will expect evidence to support these claims, as well as evidence of legal authority for a third party to act on behalf of the person lacking capacity, if applicable.

Serious medical condition or significant medical treatment
Where a person has “a serious medical condition (or was undergoing significant medical treatment) in the months before, or around the time of, the deadline applicable to them”, that will normally constitute a reasonable ground. The Home Office will expect to see evidence supporting the medical claims.

Victim of modern slavery
Where someone was prevented from applying because they are a victim of slavery, including human trafficking, that will normally constitute a reasonable ground for applying late.

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If the person has a positive reasonable or conclusive grounds decision under the National Referral Mechanism, no further evidence will be required. Otherwise, the application will need to be internally referred to the Home Office safeguarding team for advice on referral to the National Referral Mechanism. If it results in a referral, then this will constitute a reasonable ground and the Settlement Scheme application can be considered without waiting for the outcome of the referral.

Evidence of slavery or trafficking is not required. The Home Office must be aware of indicators of slavery or trafficking and be alert to identifying such victims to ensure that they are referred into the National Referral Mechanism.

Abusive or controlling relationship or situation
Where someone was prevented from applying because “they are or were a victim of domestic violence or abuse (or the family member of such a victim) or are or were otherwise in a controlling relationship or situation which prevented them from applying”, then this will normally constitute reasonable grounds. The applicant will not need to provide specific evidence of the ill-treatment; any evidence, information or other factors that the EU citizen can provide will be considered by the Home Office, which must be flexible and pragmatic.

Other compelling practical or compassionate reasons
This is a catch-all for all other possible scenarios. For example, a person may have been unaware of the requirement to apply because they had no internet access, limited computer literacy, limited English language skills, lack of permanent accommodation, other complex needs, or was released from prison or immigration detention after the deadline.

This also includes those who did not apply in time because they did not have the required evidence (e.g. they could not get a valid ID document in time and did not know they can rely on an expired document). Such circumstances can be considered as a “compelling practical or compassionate” reason. The person will need to provide supporting evidence, which can include a letter or statement from a relative, carer or care home, explaining the barriers that prevented an earlier application.

Ceasing to be exempt from immigration control
Those who are exempt from immigration control altogether (for example, diplomats) may be able to apply late after they cease to be exempt. They will have a period of 90 days from the date they cease to be exempt to apply; if they miss that 90-day window, they can apply late. They will need to have reasonable grounds for applying late.

Existing limited or indefinite leave to enter or remain
Those with limited leave can apply to the Scheme any time after their limited leave expires so long as they have reasonable grounds for applying late in line with the overall guidance. Those with indefinite leave do not need to apply at all, but there may come a point in time that they want to do so to acquire the additional rights that come attached to settled status. They can apply late to the scheme so long as they demonstrate reasonable grounds for missing the deadline, in line with the guidance.

Document or status under the EEA Regulations
There are people who have a biometric residence card or other residence document issued under the EEA Regulations and who may not realise that they can no longer rely on them beyond the deadline.

Benefit of the doubt
The guidance also suggests that there will be flexibility, at least initially after the deadline, for those who are applying late but who do not have an obvious basis for their late application. A highly skilled EU citizen in full-time employment is just as likely as any other EU citizen to miss the deadline if they did not know that the Settlement Scheme applies to them. In such a scenario the “benefit of the doubt” will be applied. The guidance explains:

For the time being, following 30 June 2021, you will give applicants the benefit of any doubt in considering whether, in light of information provided with the application, there are reasonable grounds for their failure to meet the deadline applicable to them under the EU Settlement Scheme, unless this would not be reasonable in light of the particular circumstances of the case. Any change in approach will be reflected in a revision of this guidance.

The Home Office has confirmed to us that, for an “initial period” after the deadline, in most cases late applications will be accepted where a person was unaware of the need to apply. The person will simply need to explain why they were unaware and will not be expected to demonstrate reasonable grounds or provide any supporting evidence.

There remains ambiguity on how long this “initial period” will last. The Home Office has told us that it will look at reviewing the guidance “sometime later this year”.

Immigration enforcement
The policy says that where EU citizens are encountered by an immigration officer – and if it appears that they fall within the scope of the Scheme – they should be issued with a written notice. This should give them an opportunity to make a valid application under the Settlement Scheme, normally within 28 days of the date of the notice. No immigration enforcement action for being in the UK without permission will normally be taken during this period.

While appropriate and required, immigration lawyers are well aware of the pitfalls of written notices served on individuals. These written notices can easily be ignored, misunderstood, misplaced or forgotten about in the chaos of daily life. The format, content and language of this written notice is going to be key to its success. If complex, containing unnecessary legal jargon or written in a language that the EU citizen does not understand, it will have the intended effect.

Non-EU family members
As is the case with most immigration processes, it may adversely impact non-EU family members the most, particularly when thinking about how the enforcement process above will work in practice.

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Non-EU family members often have the most complex family relationships and the most complex methods of having acquired or retaining residence rights from their EU citizen sponsor. It is also not going to be immediately obvious to immigration officers undertaking a raid that, for example, the non-EU family member they encounter is also the carer of a self-sufficient EU child. The non-EU family member may even not fully understand it themselves and, even if they do, may find it hard to explain during the stress and chaos of the raid.

The guidance on enforcement up to 1 July explains the care that must be taken during enforcement interviews to ensure those with rights are protected — but unintended outcomes still occur. On occasion, enforcement officers inadvertently miss the residence rights that some people possess. It is not unreasonable to presume that some people who will need the protection of the 28-day written notice may fail to receive them because of mistakes by enforcement officers. What happens in this situation is unanswered in this policy and is likely to be covered in subsequent updates to the enforcement guidance.

Enforcement after the 28-day window
There will inevitably be some people who fail to apply to the Settlement Scheme before the notice expires. The policy does not provide any information on what happens to such a person. Presumably, missing the window means that immigration enforcement is restarted, and the person will have less basis to claim a reasonable ground for a late application that comes after the window. We will need to await further updates to the enforcement guidance to understand this better.

Pre-settled to settled status
Although the headline Settlement Scheme deadline is 30 June 2021, the Scheme was never going to fully close on that date. The Home Office intends for it to remain open for years to come for those with pre-settled status to apply to upgrade to settled status.

As things stand, the deadline for those with pre-settled status to apply for settled status will be unique to the individual: it is the date of expiry of their pre-settled status. So late applicants can be those who fail to meet the deadline of 30 June 2021 to apply for initial status, but also those who miss their personal deadline to “upgrade” their status in the years to come. The also guidance applies to this cohort of people.

Pre-settled status holders should be reminded to submit their upgrade application:

The first grants of pre-settled status, under the initial test phase of the EU Settlement Scheme which began on 28 August 2018, will expire in Autumn 2023. This guidance will be updated before then and we will send a reminder to those granted pre-settled status to apply for settled status before their pre-settled status expires.

Any kind of reminder is helpful, although people can change email addresses and telephone numbers, so not all reminders will reach the intended recipients. It is easy to imagine settled status applications in the future hinging on evidence that the reminder did not reach the recipient in order to establish a good reason for applying late.