March 30, 2021

EU residence documents are no longer valid after 30 June 2021

Although the UK left the European Union on 31 January 2020 and the post-Brexit transition period came to an end on 31 December 2020, certain aspects of EU free movement law continue to apply into 2021 — but not for much longer. Old EU residence documents such as permanent residence cards, UK residence cards and derivative residence cards continue to be valid only until 30 June 2021, when this “grace period” comes to an end.

These documents have effectively been replaced by the newer pre-settled status and settled status, although these are not granted automatically and anyone who only has an old EU residence document should apply for a new status by 30 June.

Expiry of EU residence documents

Under EU free movement law, citizens of European Economic Area countries and their family members could apply for permanent residence documents if they had been living in the UK for at least five years, and non-EEA family members specifically could apply for UK residence cards and derivative residence cards if they were living in the UK for less than five years. These documents are evidence that someone is residing in the UK lawfully under the EEA Regulations 2016.

As EU residence documents are issued in accordance with the EEA Regulations, they will no longer be valid when free movement law truly ends on 30 June 2021. After this date, holders of these documents will essentially be living in the UK unlawfully. This is due to the Citizens’ Rights Regulations 2020 and the Immigration Act 2020 which bring EU free movement law to an end in the UK and repeal the EEA Regulations.

What if I want to stay in the UK?

Holders of EU residence documents who wish to remain in the UK should apply to the EU Settlement Scheme to regularise their stay before 30 June 2021. Those who already have a permanent residence document can essentially swap it for full settled status. Residence card and derivative residence card holders will also be able to apply for settled status if they have been living in the UK for at least five years, and for pre-settled status if they have not yet reached five years’ residence.

The deadline for applications to the EU Settlement Scheme for those living in the UK before 31 December 2020 is 30 June 2021. If you intend to remain in the UK, you should apply as soon as possible.

Switching to settled status would only be unnecessary if you have been granted British citizenship, and attended your citizenship ceremony, by 30 June. Whilst it is still possible to apply for British citizenship with your permanent residence document, the current decision-making timescales and delays arranging ceremonies due to COVID-19 mean that it is unlikely you will receive a decision before 30 June.

Merely applying for citizenship does not give you any particular residence rights under UK immigration law. If you have applied for citizenship based on a permanent residence document you must still apply for settled status before 30 June or risk being unlawfully resident while awaiting your citizenship decision.

What will happen to those who don’t apply

When the grace period finishes on 30 June 2021 there will undoubtedly be thousands of EEA nationals and non-EEA family members who have not yet applied to the EU Settlement Scheme. It remains to be seen whether the government plans to address the problem of potential widespread illegality. One solution could be to extend the validity of EU residence documents beyond 30 June to allow those affected more time to apply. But there is absolutely no guarantee of this happening and the government has insisted that the deadline is final.

So for any EEA nationals and their family members who wish to remain in the UK beyond 30 June and have not yet applied to the Settlement Scheme or for British citizenship, this is likely your final reminder – apply now or get ready to face the hostile environment.

March 27, 2021

Punishment of clandestine entrants

As proposed in new Immigration Plan, people who have entered the UK illegally to claim asylum, or who have travelled through a “safe third country” such as France, will be have fewer rights than before.

Rules allowing the Home Office to refuse even to consider an asylum claim where the person has come via a safe third country are already in place but get another airing.
We are told that “anyone who arrives into the UK illegally – where they could reasonably have claimed asylum in another safe country – will be considered inadmissible to the asylum system, consistent with the Refugee Convention”.

There will be a “rebuttable presumption” that people can be returned to EU and other developed countries, and sections 77 and 78 of the Nationality, Immigration and Asylum Act 2002 amended so that people can be removed despite having a pending asylum claim or appeal. This is all academic given that punting asylum seekers to other countries is admitted to be “contingent on securing returns agreements”, which do not exist (but will be pursued).

So instead, people in this position will be punished with a new “temporary protection status” instead of refugee status. This is for people with inadmissible claims, and who cannot be returned, and:

did not come to the UK directly,

did not claim without delay, or

did not show good cause for their illegal presence.

Temporary protection will be a grant of permission to remain in the UK for no longer than 30 months, with no recourse to public funds and “restricted” family reunion rights. They would also be “regularly reassessed for removal from the UK” (a policy that already exists, at least on paper).

There will be an increase in the maximum sentence for entering the UK illegally. The maximum currently is six months, but the document does not say what this would change to. The separate “facilitation” offence of assisting unlawful immigration will now attract a maximum of life in prison, up from 14 years (in reality the average sentence handed down is three and a bit years).

There follow a range of other measures which will affect all asylum seekers, not just those said to have “jumped the queue”.

Other asylum measures

Changes to substantive law

There are to be changes to the legal test for whether someone has a “well-founded fear of persecution”, subject to consultation and the Refugee Convention.
People will first have to prove on the balance of probabilities that “they are who they say they are and that they are experiencing genuine fear of persecution”. There will then be consideration of “whether the claimant is likely to face persecution if they return to their country of origin”. This would have to be established on the lower standard of proof of “reasonable likelihood”.

This effectively rolls back the law to the 1990s, before the courts held in a series of cases that having such a split standard of proof was impractical, overly complex and generally stupid. Quite why this zombie issue of refugee law is now shaking the grave dirt from its boots is anyone’s guess, although presumably the Home Office thinks that it will make it hard for asylum claims to succeed.

There will also be a statutory definition of “persecution”, in line with the Refugee Convention.
Asylum appeals and judicial reviews

There will be a “Good Faith Requirement” for appeals. “Anyone bringing a claim or a challenge in the courts and their representatives will be required to act in good faith at all times”. This is so nebulous as to defy commentary.

Also a “new ‘one-stop’ process” to incentive people to raise all asylum or human rights issues up front:

People who claim for any form of protection will be issued with a ‘one-stop’ notice, requiring them to bring forward all relevant matters in one go at the start of the process.

It may be that this is different from the existing one-stop process, if the word “will” indicates that notices will be mandatory rather than discretionary. Caseworkers and judges will be told to give “minimal weight” to evidence introduced later in the process, “unless there is good reason”.

There is one paragraph on bringing back some form of fast-track asylum appeals, but no details. Clearly there are no fresh ideas on how to get such an affront to justice past the judges.

On the judicial review front, the Home Office is “considering” (so presumably will consult on) making people who lose JRs pay some of the government’s costs. Tribunal judges may also get additional powers to make wasted costs orders “in response to specified events or behaviours, including failure to follow the directions of the court, or promoting a case that is bound to fail”.

Also under consideration is requiring medical and other experts to be drawn from a state-approved panel. This is, I kid you not, with a view to “putting the independence of the experts beyond question”.

Removals

Also in the mix are some bits and pieces on removing people from the UK. Perhaps the most eye-catching is an attempt to blackmail other countries into taking their citizens back:

We also expect our international partners to work with us on facilitating the return of their own nationals back to their country where those nationals have no lawful right to remain in the UK. We will seek to use the range of levers we have to improve returns co-operation, including considering whether to more carefully control visa availability where a country does not co-operate with receiving their own nationals who have no right to be in the UK.

This will go down extremely well at the Foreign Office.

Existing powers to remove asylum support from people who fail to comply with attempts to remove them will be enforced (no doubt triggering a wave of human rights challenges).

The scheme under which someone can be let out of jail early if they leave the UK will be adjusted. The early release window will be increased from 9 months to 12 months at the end of the sentence, subject to the person serving out at least 25% of their overall sentence.

Finally, the maximum sentence for a foreign national offender who returns to the UK in breach of a deportation order will be increased from six months to five years. This will of course have the effect of keeping such people in the country for longer when the whole point is to get rid of them.

Trafficking and slavery

Too many people are the victims of human trafficking and it is a pain, so there will be changes to keep more people out of the support system.

There will be a consultation on a “public order exemption” so that people with a criminal sentence of 12 months or more can be denied access to the National Referral Mechanism and the associated protections, even if there are reasonable grounds to suspect that they are a trafficking victim.

The legal test for issuing a reasonable grounds decision may change from “reasonable grounds to believe that a person may be a victim” to “reasonable grounds to believe that a person is a victim”. Likewise the wording of the associated guidance could be tightened. These measures too will be consulted on.

On the plus side, there are various improvements to the system promised, including legislation to give confirmed victims an entitlement to temporary permission to remain.

March 9, 2021

At last: the graduate visa is finally here!

After waiting with bated breath, the rules for the Graduate route have finally been published and the Graduate visa will officially launch on 1st July 2021. In 2019, the UK government announced that they will be bringing back the treasured Tier 1 (Post Study Work) visa – now called the Graduate visa.

The PSW visa route allowed international students to work after completing their education in the UK, without relying on the cumbersome process of sponsorship. To the relief of hundreds of thousands of international students, this was a welcome change as the Graduate visa will allow international students to undertake full time employment at any skill level upon completion of their studies. This is a big change from the mere four months they may have had upon the end of a student visa since the closure of the PSW visa in 2012.

Here are the key points of the Graduate visa:

The route will open at 9am on 1st July 2021 and will be available to all international students who have completed a degree at a Higher Education institution in the UK. Students will need to have a valid Tier 4 or Student visa at the time of applying in the UK for the Graduate visa.
International students who have completed a Bachelor’s or a Master’s degree in the UK will be granted a two-year Graduate visa to stay in the UK and work or look for work.
International students who have completed a PhD in the UK will be granted a three-year Graduate visa to stay in the UK and work or look for work.
International students on the Graduate visa will be able to switch to the Skilled Worker visa and can take advantage of the new entrant minimum salary discount.
Dependent family members of international students can apply for a visa provided they are in the UK and were last granted a visa as a dependent family member of the main applicant. New dependants will not be allowed, other than children born during the course of the student or Graduate visas.
This route will not count towards indefinite leave to remain/settlement. However, applicants on the Graduate visa will be allowed to extend their stay by applying to other available visa routes and this route can count towards the 10-year-long residence settlement route. Time spent on the Graduate visa will count towards the maximum four-year period which can be spent as a new entrant in the Skilled Worker category.
International students whose Tier 4 or Student visas expire prior to the launch of the Graduate visa will unfortunately not be eligible to apply.
International students who are successful in applying for the Graduate visa will be able to undertake self-employment.
International students will not require sponsorship from employers in order to work.
The fees to apply for the Graduate visa will be £700. Applicants will also be required to pay upfront for the Immigration Health Surcharge which for adults is £624 per year of the visa.
It should be noted that UKVI has put concessions in place so as to not disadvantage international students due to COVID-19:

International students who began their studies in autumn 2020 have until 21st June 2021 to enter the UK on their student visa in order to be eligible to apply for a Graduate visa. This deadline has been pushed back from the previous deadline of 6th April 2021.
International students who began their studies in January or February 2021 will need to be in the UK by 27 September 2021 to be eligible to apply for the Graduate visa.
The Graduate visa will bring tremendous joy – not just to the international students but also to the UK universities where international student numbers have dropped since the closure of the PSW category. By bringing in the Graduate visa, the UK will be able to attract more international students who since the closure of the PSW category have chosen Australia, Canada and the US as the top locations for their further education.

This route will be a great opportunity for both employers and migrant graduates to gauge whether there is employer-candidate compatibility before both sides commit to a more permanent visa route, such as the Skilled Worker visa. Most importantly, as the Graduate visa doesn’t require employers to sponsor international graduates, it allows migrants to work with any employers irrespective of whether the employer holds a sponsor licence and does not limit them to approach only the 33,000+ employers listed as sponsors.

The introduction of the Graduate is a step in the right direction but it seems unfair that those international students whose student visas are running out at the end of June 2021 will just miss out on the opportunity of taking advantage of the Graduate route. My suggestion to those students will be to not give up and perhaps use the T5 (Temporary Worker) Government Authorised Exchange Worker visa route if they are able to find an employer who is willing to offer them a supernumerary role such as an internship. They can also take advantage of other immigration routes such as the Skilled Worker, Global Talent or the Innovator visa.

Top