September 2, 2020

U.K. Government Releases Details on Post-Brexit Immigration System

Big News! Like a earthquake!

On 13 July, the U.K. government released further details about the U.K.’s future immigration system, which will apply to EU and non-EU nationals from January 2021. Under normal circumstances, such a significant change would be top of mind for companies operating in the U.K., but it has slipped off the business world’s radar as leaders grapple with the COVID-19 pandemic and related economic challenges.

But the immigration system in the U.K is going to change, regardless of how prepared the business world is for the new system. The U.K. government has made clear that it is still committed to roll out this new system first thing next year.

This new system has been created to reflect more flexibility for employers while also ensuring EU and non-EU nationals are treated equally. The 130-page document doesn’t contain a lot more detail than the proposals released earlier in the year, but there a number of details to be aware of.

End of free movement for EU What does this mean for employers with EU-national employees? What about for EU nationals currently living in the U.K.?
Changes to skilled worker migration. What changes to skilled worker migration will impact companies looking to recruit foreign migrants using this route?
Practical preparatory steps for employers. What can employers do now to prepare to comply and adapt to a new immigration system?

August 7, 2020

You can’t just decide to not obey the law, immigration officials informed

On 4 August 2020, the Home Office issued new guidance to its civil servants on how to respond to immigration appeals that the department has lost. The 18-page document can be found here (pdf download). For the most part, the guidance is welcome. Anyone who has ever won an appeal knows the pains of writing to the post-decision team again and again trying to actually get the decision implemented. The new guidance looks to eradicate or at least minimise that.

The guidance acknowledges straight off the bat that:

It is unlawful to “deliberately delay giving effect to the ruling in the hope that something might turn up to justify not implementing it” Mersin (2000) EWHC Admin 348.

This is, unfortunately, how it feels for a lot of practitioners. In the most recent appeal I did, it took four months and a pre-action protocol letter complaining about the delay before the decision was implemented.

Entry clearance appeals are even worse because applicants usually need to hand in their passport, meaning it’s common to wait for the better part of six months from the appeal being allowed to the visa being issued. That may not sound like long but that’s potentially another six months of separation for a torn-apart family, or six months of lost employment income for someone struggling to pay the bills for lack of a right to work.

Presumably this new approach is an attempt to reduce any complaints/claims arising from delay. The guidance acknowledges those risks:

An allowed appeal should be implemented promptly, otherwise the individual may not be able to access benefits and services to which they are entitled, and they may bring a judicial review challenging the delay in implementation.

Another useful bit of clarification is that, where the determination finds that the relevant Immigration Rules are met, the Home Office agrees that it should grant the leave or entry clearance provided for in those rules.

This is particularly important in Appendix FM cases. There was a period of confusion when the Immigration Act 2014 was implemented because appeals could no longer be brought on the basis that the decision was not in accordance with the Immigration Rules. We had to do a detour and explain why that misapplication of the rules was a breach of human rights in order to appeal against certain decisions. That led to a lot of people who were successful being granted leave on the ten-year route to settlement rather than the five-year route, because the Home Office considered they had been successful on “human rights grounds”. Being forced to wait double the time for settlement means spending huge chunks of cash on extension applications. Having this clarity is a welcome addition, even if it does come five years late.

The guidance is also arguably more generous than necessary. It notes that where a parent’s appeal has been allowed but where a dependent child did not appeal the same decision, the caseworker:

should consider whether implementation of the allowed appeal has implications for the dependants and, if so, take the necessary action.

It also does a decent job of telling officials to stop moaning about judges and get on with the job:

You cannot decide not to implement an allowed appeal because you think the Tribunal had no jurisdiction to allow the appeal. Any dispute about the Tribunal’s jurisdiction must be raised at the appeal or in an onward appeal. Where the jurisdiction of the Tribunal is not successfully challenged, the determination of the Tribunal will be valid and must be implemented.

The Tribunal is responsible for interpreting the law. Where the Tribunal allows the appeal any disagreement about the decision must be raised at the appeal or in an onward appeal, otherwise the appeal must be implemented. You cannot refuse to implement an allowed appeal simply because you do not agree with it.

The one part where this guidance falls down is where it talks about facilitating re-entry for people who were removed from the UK before their appeal. This might be if their human rights claim was certified as “clearly unfounded” or — the one that still annoys me the most — people who were removed during pending EU law appeals.

In those cases, you would expect the Home Office to do the legwork. After all, you’ve won your appeal and been considerably inconvenienced by potentially having left your job and your family behind.
eBook Visit visa refusals: how to challenge decisions

Full guide to visit visa applications, appeals and judicial reviews for family and general visits to the UK, including how to prepare and what to expect on the day.

Not so, says the guidance. The template letter to be issued to successful appellants says that they must formally apply to return online (selecting “the return to the UK” option at this link). So that’s exactly what I did, filling in the form from the point of view of someone whose appeal was successful.

There is no application fee but the process is as tortuous as ever. Why do you need to know my parents’ names and every country I’ve travelled to in the last ten years? They also have the audacity to make you go through the usual appointment booking process, meaning you need to register on VFS Global or TLSContact websites with their Kafkaesque technical issues. You are then treated like any ordinary punter and are even offered paid-for slots at the visa centres.

The document is silent on who pays the airfare for a successful appellant to return. No doubt the Home Office will try to dodge responsibility in the usual manner.

The idea that someone who was removed on foot of an unlawful decision should then need to pay for their flight back to the UK, or for appointments to get their return visa, sounds outrageous but is potentially not illegal. After R (Kiarie and Byndloss) v Secretary of State for the Home Department [2017] UKSC 42 in the Supreme Court, there was a rush of cases where people tried to return pending their appeals, but the Court of Appeal said that there is no presumption in favour of return even if the underlying decision was unlawful.

All in all, this guidance does a decent job of ironing out some creases but I suspect it’s just going to encourage more litigation on some bigger issues.

July 28, 2020

can EU citizens with pre-settled status claim Universal Credit?

It was the worst of times; it was the worst of times. As a result of the Home Office gridlock caused by the coronavirus pandemic, EU citizens seeking to apply for post-Brexit immigration status under the EU Settlement Scheme have been disadvantaged in various ways, including longer processing times. The application deadline looms, but the government has ruled out an extension.

In a further blow, those already granted pre-settled status who are facing financial difficulties as a result of the pandemic are finding that their entitlement to claim benefits is more complicated than they might have expected. In this article, we’ll explain the law on claiming benefits and then discuss how it applies to people with pre-settled status trying to claim Universal Credit in particular.

Overview: habitual residence and right to reside

Since 1994, eligibility to claim public funds in the UK has been determined in part by the “habitual residence” test. The habitual residence test can be complex and is based on factors such as length of residence in the UK and intention to reside here in future.

Failure to meet the test meant that you are treated as not being “in Great Britain” — or in some benefits regulations as being “a person from abroad” — and so ineligible to claim benefits. It applies to anyone from abroad, including British citizens returning to the UK, unless they fall into an exempt group (see below).

The Social Security (Habitual Residence) Amendment Regulations 2004 require people — including EU citizens — who want to claim certain benefits to pass an additional “right to reside” test. In effect, this creates a two-step process: if you pass the right to reside test, you will then be assessed for habitual residence. Someone who does not have a right to reside automatically fails the habitual residence test, unless they are exempt from the test entirely.
Which benefits are affected?

The full two-part test applies to means-tested non-contributory benefits, where eligibility does not depend on National Insurance contributions. These include income-based Jobseeker’s Allowance, income-related Employment and Support Allowance, Housing Benefit and Universal Credit.

Other benefits are subject to the habitual residence test without having to prove a qualifying right to reside: Disability Living Allowance, Personal Independence Payment, Carer’s Allowance and Attendance Allowance.

In the case of contributory benefits, where eligibility is based primarily on National Insurance contributions and which are not means-tested, EU citizens again need only meet the habitual residence test and not the right to reside test. These benefits include contribution-based Jobseeker’s Allowance and contribution-based Employment and Support Allowance.

In the rest of this article we’ll focus on Universal Credit, which is being rolled out as one of the main welfare payments, including to people who are unemployed.

Who is exempt from the habitual residence test?

An EU citizen who is a “qualified person” as a worker or a self-employed person under the Immigration (European Economic Area) Regulations 2016 is exempt from the habitual residence test entirely. That also means they don’t have to pass the right to reside test. The same exemption also applies to their direct family members, such as children and spouses.

In practice, EU citizens who are exempt from the habitual residence test because they are a worker or self-employed still need to demonstrate their status, by providing evidence such as payslips, P60s and employment contracts in the case of workers, and business bank statements, proof of HMRC registration, tax records, receipts and invoices if they are self-employed.

The Universal Credit Regulations 2013 also exempt anyone who has acquired permanent residence under EU law as a worker or self-employed person who has ceased activity (regulation 15(1)(c) of the EEA Regulations), a family member of such a person (regulation 15(1)(d)) and anyone who acquires permanent residence following the death of such a person (regulation 15(1)(e)). In these cases, applicants should provide evidence of their permanent residence, as well as evidence of the basis on which it was acquired.

Other exempt groups include refugees and anyone granted Discretionary Leave or Humanitarian Protection, although that is beyond the scope of this article.

For everyone else, the first step in establishing eligibility for Universal Credit is proving their right to reside.
What counts as a right to reside?

EU citizens granted settled status under the EU Settlement Scheme have been granted indefinite leave to remain under the Immigration Rules. That meets the right to reside test. Provided the person is habitually resident in the UK, they are eligible to claim Universal Credit. (At least from an immigration point of view — there are other eligibility rules, such as not having enough savings to fall back on.) The same applies to EU citizens with permanent residence acquired under the EEA Regulations (other than on the grounds mentioned above, which exempt them from the habitual residence test entirely) for the duration of the transition period.

But we’re here to talk about people with pre-settled status. Pre-settled status does not meet the right to reside test. This is because of the Social Security (Income-related Benefits) (Updating and Amending) (EU Exit) Regulations 2019. As the explanatory notes for the regulations state (my emphasis):

These Regulations amend the income-related benefit regulations [including the Universal Credit Regulations 2013] to reflect that a new right to reside has been created for nationals of European Economic Area states (“EEA nationals”) in Appendix EU to the immigration rules made under section 3(2) of the Immigration Act 1971 (c. 77), in the form of limited leave to enter, or remain in, the United Kingdom. The effect of these Regulations is that this new right to reside [ie pre-settled status] is not a relevant right to reside for the purposes of establishing habitual residence.

In other words, while pre-settled status is obviously a right to reside in ordinary language — it allows you to live in the UK — it does not satisfy the “right to reside test” in benefits-speak.

That doesn’t mean that it is impossible for people in this position to satisfy the right to reside test. It just means that flashing pre-settled status won’t cut it. There are other ways that people with pre-settled status can meet the test.
How can EU citizens with pre-settled status meet the right to reside test?

EU citizens not exempted from the habitual residence test thus cannot rely on pre-settled status alone to meet the right to reside test and must show that they have an alternative right to reside under the EEA Regulations 2016. Regulation 9 of the Universal Credit Regulations 2013 says that there are a number of residence statuses that do not count, including:

Initial right of residence for three months (see regulation 13 of the EEA Regulations)
Jobseeker (regulation 6(1) of the EEA Regulations)
Family member of a jobseeker (regulation 7 of the EEA Regulations)
Zambrano carer (regulation 16(5) of the EEA Regulations)

So what does that leave? Putting aside these exclusions, and anyone who is exempted from the habitual residence test altogether, there are several types of status which demonstrate a right to reside:

Student (regulation 4(d) of the EEA Regulations)
Self-sufficient person (regulation 4(c))
Worker or self-employed person who has ceased activity (regulation 5)
Family member of the above

In each of these cases, evidence should be provided of how the applicant has a right to reside. In cases where the right to reside stems from a family member, evidence should be provided of how they meet the right to reside test, as well as how the applicant is related to them. The Citizens’ Advice website provides helpful resources on the right to reside test and how it can be met by EU citizens on pre-settled status.
How can EU citizens with a right to reside meet the habitual residence test?

The next step after demonstrating a qualifying right of residence is to show that the wider habitual residence test is met. As noted above, however, this does not apply to anyone exempted from the test entirely, including workers and self-employed people.

The classic test for habitual residence, which for these purposes is synonymous with “ordinary residence”, comes from the House of Lords case of R (Shah) v London Borough of Barnet [1982] UKHL 14:

“ordinarily resident” refers to a man’s abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or long duration.

There is, of course, one important exception. If a man’s presence in a particular place or country is unlawful, e.g. in breach of the immigration laws, he cannot rely on his unlawful residence as constituting ordinary residence […] And there must be a degree of settled purpose.

Meeting the habitual residence test is reasonably straightforward for applicants who have lived in the UK over the last five years, where the centre of their life is in the UK. More recent arrivals, and anyone who splits their time between different countries, may need to provide more extensive evidence of their circumstances. The type of evidence that can be submitted includes:

Evidence of when they arrived in the UK (e.g. passport, travel tickets, tenancy agreement)
Evidence that the UK is their main home (e.g. tenancy agreement or mortgage statement, payslips, letter from GP or medical records, HMRC records, evidence of membership of local clubs or societies, bank statements)
Evidence that their future lies in the UK (e.g. evidence of a job offer, evidence that their children have been enrolled in school)

Legal challenge to pre-settled status not being a right to reside

In the recent case of Fratila and Tanase v SSWP [2020] EWHC 998 (Admin), the High Court rejected the argument that excluding pre-settled status from being a qualifying right to reside is discriminatory on the ground of nationality. The Child Poverty Action Group, representing the claimants, said that it will appeal the decision.

Whatever the outcome of the appeal, the government has a moral obligation to ensure that members of the public, including EU citizens, who are facing destitution as a result of the pandemic, are able to meet their basic needs. In such exceptional circumstances, it would be appropriate and just to extend access to public funds to prevent the most vulnerable from falling through the cracks — even in the absence of a legal obligation to do so.