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Further to yesterday's post about the case of the Advocate General for Scotland v Romein [2018] UKSC 6, we can confirm that the Home Office have updated their guidance on section 4C registrations for children of British citizen mothers.

The following passage has been inserted in to their guidance:


Persons born between 1 January 1949 – 1 January 1983

Where you are considering whether a person who was born outside the UK between 1 January 1949 – 31 December 1982 (inclusive) to a British mother you must disregard the requirement that their birth must have been registered with a UK consulate in the 12 month period after their birth.

This change is listed in their update log as a simple “Clarification on the application of Section 4C(3A) of the British Nationality Act 1981”.

No mention at all of the Romein case or the Supreme Court judgment going against them, and no recognition of the fact that many cases such as Ms Romein's may have been wrongly decided in the past! 

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McGill & Co by Iain Halliday - 1w ago

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In a judgement handed down this morning, the Supreme Court has opened the door to applications for registration as a British citizen from people born abroad to a British mothers between 1949 and 1983.

The case is Advocate General for Scotland v Romein [2018] UKSC 6. McGill & Co Solicitors acted on behalf of the Respondent, Ms Romein, along with Advocates Lesley Irvine and Kenny McBrearty QC. The case concerned the correct interpretation of the British Nationality Act 1981, in particular the provisions inserted into the Act in 2003 to correct the historic gender discrimination inherent in British nationality law. For a detailed analysis of the judgement, and its implications, head over to the Free Movement blog to read our John Vassiliou’s excellent post on the case.

Ms Romein’s mother is British by decent through her father (Ms Romein’s grandfather) who was born in the UK. Ms Romein was unable to obtain British citizenship following her birth because, at that time, it was not possible for women to pass citizenship on to their children. Had it been her father who was the British citizen, Ms Romein would have been able to acquire British citizenship through registration of her birth at the British consulate within one year of her birth. In 2003 additional provisions were added to the 1981 Act which allowed those deprived of citizenship by this gender discrimination to apply to the Home Office for registration as a British citizen.

In 2013, our firm assisted Ms Romein with an application to the Home Office under these provisions on the basis that, had the law allowed women to pass on their citizenship prior to 1983, her birth would have been registered and she would have become British. The Home Office refused the application as Ms Romein’s birth was not actually registered at the British consulate. The birth was not registered because it was generally not possible for a child born to a British mother to register their birth at a British consulate given that British citizenship law only allowed fathers to pass on citizenship to their children.

The Outer House of the Court of Session agreed with the Home Office, adhering to a strict interpretation of the statutory language. Ms Romein appealed to the Inner House of the Court of Session. The Inner House, adopting a purposive interpretation of the legislative provisions, overturned the Outer House’s decision and concluded that where an applicant is able to prove that, had the law been different, they (or, in practice, their parents) would have registered the birth at the British consulate, they should be granted British citizenship. The Home Office appealed to the Supreme Court.

The Supreme Court agreed with the Inner House that the Home Office’s original decision was wrong, although disagreed with the reasons given by the Inner House. The Supreme Court did not agree that success should be limited to cases where it can be proved registration would have taken place. Instead, the registration requirement must simply be ignored because insisting on that condition would nullify the practical effect of the assumption, required by the amendments to the 1981 Act, that the law prior to 1983 had been free of gender discrimination.

The practical effect of the Supreme Court’s decision is that anyone born abroad to a British mother between 1949 and 1983 can now apply for registration as a British citizen regardless of whether their birth was (or would have been, had the law been different) registered with the British consulate. Anyone looking for assistance with making such an application, or advice on whether they can benefit from the Supreme Court’s judgement, should get in touch via the contact page.

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The Immigration Health Surcharge is a now well known term among applicants and practitioners as it was introduced almost 3 years ago, on 6 April 2015. Unlike application fees, it remained static at £200 per year for non-EEA nationals applying to work, study or join your family in the UK for more than 6 months.  Those under Tier 4 (students) or Tier 5 (Youth Mobility Scheme) visas currently pay a discounted rate of £150 a year. The money generated by the health surcharge goes directly towards funding the NHS. Having paid the surcharge, migrants then have same access to the NHS as a UK permanent resident for the duration of their visa.

Two days ago, the government announced its plan to double the surcharge. From £200 to £400 for those applying to work, study or joint the family for over 6 months and from £150 to £300 for student and Youth Mobility Scheme visa applicants. 

The Department of Health and Social Care (DHSC) estimates that the NHS spends £470 on average per person per year on treating surcharge payers. Projections suggest that the increased charges may provide around £220m extra every year, with this money going to NHS services to better reflect the actual costs to the NHS of treating those who pay the surcharge.

Our Health and Immigration Ministers are in favour.

Health Minister James O’Shaughnessy said:

"Our NHS is always there when you need it, paid for by British taxpayers. We welcome long-term migrants using the NHS, but it is only right that they make a fair contribution to its long-term sustainability.

By increasing the surcharge so that it better reflects the actual costs of using health services, this government is providing an extra £220 million a year to support the NHS."

Immigration Minister Caroline Nokes said:

"It is only right that people who come to the UK should contribute to the running of the NHS. The surcharge offers access to health care services that are far more comprehensive and at a much lower cost than many other countries.

The income generated goes directly to NHS services, helping to protect and sustain our world-class healthcare system for everyone who uses it."

But not everyone thinks the increase is a good idea. An article explores the practical consequences of the increase in the context of the NHS workforce. There are believed to be shortages of staff such as nurses and doctors, leaving NHS to recruit workers from outside of the EU. A work visa is required for this. Often this is initially for a period up to 3 years. Under these plans, the health surcharge would cost £1200 and an application fee of around £587. For those with a family, the same costs would need to be borne for each dependant family member. To conclude:

"...Greater upfront costs of getting into the UK to work - also including professional registration fees - are likely to make the prospect of working in the health service less attractive for overseas health workers and make NHS trusts; efforts to recruit from overseas in the face of staff shortages even more challenging."

The figure is still short of what was pledged by the Tories during last year's election manifesto which stated the immigration health surcharge would be tripled to £600 for workers and £450 for students. The hike announcement only being a plan so far, who knows what the final figure will be. More on this later in the year, with plenty of media coverage to keep us going in the meantime.  

 

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The Home Office introduced the Destitution Domestic Violence Concession (DDV) to assist women on a spousal visa or the five year family migration route as the spouse, civil partner, or partner of someone who is British or present and settled in the UK fleeing domestic abuse who have no recourse to public funds (who are destitute and need financial help).
This newly updated guidance addresses makes some amendments to the template used, calrifies the specified evidence to be produced and some administrative amendments to the destitution concession ie : fee waiver guidance

The domestic violence (DV) provisions of Appendix FM section DVILR only apply to applicants who have previously been granted leave to enter or remain as the:
• spouse
• civil partner
• unmarried or same-sex partner of any of the following:
o British citizen
o settled person
o member of HM forces who has served for at least 4 years
To be eligible under section DVILR the applicants first grant of leave under Appendix FM must have been granted under one of the following paragraphs:
• D-ECP.1.1
• D-LTRP.1.1
• D-LTRP.1.2, (other than as a partner of a person in the UK with limited leave, a fiancé or fiancée or proposed civil partner)
• D-DVILR.1.2

This guidance does not include those whose leave was given as the partner of a refugee or recipient of humanitarian protection who was not settled at the time of the grant of leave. But note  decision of the Inner House of the Court of Session on 27th May  A V Secretary of State [2016] CSIH 38 and previous blog post here. 

The domestic violence rules do not apply to:

  • • the spouse, unmarried partner or registered civil partner of a sponsor who has only limited leave to enter or remain in the UK
  • • fiancé or fiancées or proposed civil partners
  • • people seeking asylum in the UK
  • • the spouse or civil partner of a foreign or Commonwealth citizen who is serving, or has served, in Her Majesty’s (HM) forces and who has not completed a minimum of 4 years’ reckonable service

Individuals in these groups are not eligible to apply under the domestic violence rules because they were not admitted to the UK, or originally given leave in the UK, as the partner of someone who already has the right of permanent residence in the UK. They have come to the UK as the dependant of someone who does not have settled status in the UK, and who may never have settled status, and should have no expectation of remaining in the UK outside that relationship. [14] Individuals who have never had leave on one of the specified routes may be able to make an application on form FLR(FP) on the basis of their family and private life under Article 8 of the European Convention on Human Rights or for leave outside the rules on form FLR (HRO) or FLR(IR).   European Economic Area (EEA) nationals exercising treaty rights and their family members are also ineligible to apply under the domestic violence rules.

Applicants must establish that the relationship:

  • • with their partner was subsisting at the start of the last grant of leave as a partner
  • • broke down during that last period of leave
  • • broke down because of domestic violence

The Immigration Rules do not specify any mandatory evidence or documents to be submitted with an application. All evidence submitted must be considered and a conclusion drawn as to whether there is sufficient evidence to demonstrate that, on the balance of probabilities, the breakdown of the relationship was as a result of domestic violence.  Factors to be taken into account when assessing the evidence include:
• timing of the application
• length of relationship before the application is made:
the fact that the relationship broke down due to domestic violence during the very early stages of the probationary period, may not be an adverse factor in reaching a decision to grant indefinite leave to remain (ILR) but in the context of the immigration history as a whole may give rise to suspicion
• previous immigration history, particularly where there is evidence that the applicant has made a number of attempts to secure leave in the UK on different grounds
• length of time since the alleged incident and reasons given for any delay in submitting an application
The fact the couple are still living at the same address when the application is made may not necessarily be taken as an indicator the relationship has not broken down, as this could be due to a number of reasons. See pages 22 - 29 of the guidance which produces a table of evidence which could be drawn upon.
 

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The Court of Appeal considered the Home Office’s “evidential flexibility” policy earlier this week in Mudiyanselage v Secretary of State for the Home Department [2018] EWCA Civ 65, After comprehensively reviewing the history of the policy the court concludes that, when it comes to applications under the Points Based System, the policy applies only in the circumstances prescribed by the rues, namely:

  1. where a documents missing from a sequence;
  2. where a document in the wrong format;
  3. where a document is a copy rather than an original; and
  4. where a document does not contain all of the specified information.

The wider policy of requesting an entirely absent document is no longer in place following changes to the Home Office’s guidance which brings the guidance into line with the provisions of the rules. Our Darren Stevenson explores the judgement in further detail in an excellent post over on the Free Movement blog.

The decision in Mudiyanselage relates only to applications under the Points Based System. There are also evidential flexibility provisions contained within Appendix FM-SE of the rules, which applies to applications from the family members of British citizens. These provisions are of wider application, allowing a decision maker to request a document which is entirely absent. The same is true for the provisions of Appendix KoLL which specifies the documents required to demonstrate compliance with the knowledge of language and life requirement for indefinite leave to remain applications.

As such, there is scope in these types of applications to argue that a decision maker should have requested further documentation before refusing an application. However, the decision maker is not obliged to request further documents; it is an entirely discretionary power. This makes a decision not to apply the evidential flexibility provisions difficult to challenge. Where a decision maker has a wide discretionary power, the courts are often reluctant to interfere. It is, of course, always best to include all the required evidence with the initial application. However given the current complexity of the rules, it is all too easy to miss something.

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McGill & Co by Iain Halliday - 3w ago

There are two recent changes to the rules on calculating continuous residence which those applying for indefinite leave to remain as a Points Based System Migrant and their partners will need to look out for:

  1. Previously applicants were permitted up to 180 days absence in any fixed 12 month period. This was calculated based on the five 12 month periods prior to the application. For instance, if you made your application on in December 2017 you would need to show that you have not have been absent from the UK for more than 180 days in the 12 month period from December to December each year. However, as of 11 January 2018, applicants now need to show that they have not been absent in any 12 month period within the 5 year period.There are no transitional provisions which is likely to cause problems for applicants who, despite diligently planning their absences to ensure any lengthy trips fall within different fixed 12 month periods to ensure compliance with the old rules, are now caught out by this change. Joanna Hunt provides detailed analysis of this change over on the Free Movement blog.  
  2. Previously there was no absence threshold for partners of Points Based System Migrants. As of 11 January 2018, a threshold of 180 days in any 12 month has been introduced to bring the rules for dependants in to line with the rules for lead applicants. Thankfully there are transitional provisions for this change: any absence which took place before 11 January 2018 will not be taken into account when calculating whether the 180 day limit has been exceeded. As such, applicants are less likely to be caught out, having been given advance notice of:the new threshold.

The Home Office recently updated their guidance to take these changes in the rules into account. If you would like advice in relation to an application for indefinite leave to remain, please get in touch via the contact page and one of our solciitors will be in touch. 

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On 20 December 2017, the Court of Appeal issued a determination in relation to the rules that govern the deportation of foreign criminals. The case is Secretary of State for the Home Department v SC (Jamaica) [2017] EWCA Civ 2112, which concerned a Jamaican national originally granted asylum as a dependant of his mother in 2003. Our Iain Halliday explains the struggles of the Tribunal judges with the complexity of the relevant rules. His blog is available here

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Shortly before Christmas, the UK Government announced that an agreement had been reached with the Irish Government which ensures that the rights enjoyed by British and Irish citizens under the Common Travel Area (CTA) are protected after the UK leaves the EU. The CTA includes the UK, the Republic of Ireland, the Channel Islands, and the Isle of Man. British and Irish citizens are entitled to free movement within the CTA (this is independent of any free movement rights derived from EU law). 

The UK Government states in the recent announcement, published on 22 December 2017, that “no UK or Irish nationals will be required to apply for settled status to protect their entitlements in Ireland and the UK respectively”. Other EU nationals will need to apply for settled status (see our previous post on the recent agreement on citizens’ rights here).

The announcement contains very little detail and it is unclear whether the UK Government intends to introduce new legislation to protect the position of Irish citizens living in the UK or whether Irish citizens will need to rely on the existing legislation relating to the CTA.  If the latter, the suggestion that no Irish citizens living in the UK will need to apply for settled status is misleading.

Not every Irish citizen living in the UK will be entitled to reside here on the basis of a CTA entitlement. Some may be relying on EU free movement rights. Many will be completely unaware which set of rights apply to them as, until recently, it has been irrelevant. Section 50A(5)(b) of the British Nationality Act 1981 provides that, in order to have a CTA entitlement, a person must have last arrived in the UK on a local journey from the Republic of Ireland. Similarly, section 1(3) of the Immigration Act 1971 provides that a person arriving in the UK from a local journey does not require leave to enter the UK (a.k.a a visa). A local journey is one that begins and ends within the CTA.

As such, an Irish citizen who last entered the UK from France (having taken a break from their continuous residence in the UK for a holiday) does not have a CTA entitlement. The only reason a person in this situation is able to enter the UK without a visa, live here, and work here, is due to EU free movement law. Those relying on EU free movement law in order to continue living in the UK will need to apply for settled status if they wish to remain in the UK lawfully after 29 March 2021 (two years after the UK leaves the EU).

It is entirely unsatisfactory that the status of an Irish citizen in the UK depends on when and where they had their last holiday. The recent announcement fails to recognise, let alone provide a solution to, this problem. Where there is the political will to do something, legal technicalities are often irrelevant. Politicians can, after all, change the law. Given the collective and cross party support for protecting the rights of Irish citizens in the UK, a solution will be found. However, rather than continually assuring everyone that their rights will be protected, it would be helpful if the UK Government could outline precisely what they intend to do in order in order to protect these rights, including publishing draft legislation so that the precise terms and scope of the “protection” offered can be reviewed and analysed.

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In what has been referred to as a significant 'breakthrough' by the European Commission president, the UK and the EU have now finalised the first stage of Brexit negotiations. On 08 December 2017 the parties reached an agreement on the three key issues at the core of Brexit, one of which is the rights to be afforded to EU citizens in the UK after Brexit.

Having reached an agreement ‘in principle’ the European Council signed off on the deal last Friday, allowing it to form the basis of a Withdrawal Agreement between the parties, binding in international law once Brexit talks are concluded.  Whilst the Government published extensive guidance and a joint report covering all aspects of the deal, this article will summarise the content of the agreement merely in relation to the status of EU citizens in the UK.

As we have discussed previously, in order to remain in the UK after Brexit, EU citizens must apply for the new ‘settled status.’ The agreement establishes the requirements and scope of the status and, in summary, provides the following:

  • EU citizens who, by 29 March 2019, have been continuously and lawfully living here for 5 years will be able to apply to stay indefinitely by getting settled status.
  • EU Citizens who arrive by 29 March 2019, but won’t have been living here lawfully for 5 years when we leave the EU, will be able to apply to stay until they have reached the 5-year threshold. They may given ‘temporary status’ and they can then apply for settled status.
  • Family members who are living with, or join, EU citizens in the UK by 29 March 2019 will also be able to apply for settled status, usually after 5 years in the UK.
  • Close family members (spouses, civil and unmarried partners, dependent children and grandchildren, and dependent parents and grandparents) will be able to join EU citizens after exit, where the relationship existed on 29 March 2019.
  • This settled status is not automatically conferred, and all EU nationals will have to apply to acquire it. EU citizens who do not apply for the status before the end of the transition period will be subject to removal.
  • EU citizens arriving after 29 March 2019 will be subject to the domestic immigration process that is in place at the time, and will not be able to enter under the previous EU free-movement provisions.
Who will qualify?

The agreement confirms the same eligibility criteria that were initially proposed by the UK government in a technical note. As such, EU citizens who are and continue to be legally resident in the UK, as a worker, self-employed person, student, or self-sufficient person will be eligible to apply for settled status. It will also no longer be necessary for students or self-sufficient persons to hold Comprehensive Sickness Insurance (CSI).

Previous underlying criticisms about the lack of clarity provided on the new settled status remain as the agreement is silent on what will happen to those EU citizens who do not meet the requirements. Those who will not be lawfully resident in the UK on 29 March 2019, or do not qualify as a worker, self employed person, student, or self-sufficient person may, therefore, be subject to removal, although the Home Office has previously suggested these persons may be afforded some form of temporary status.

The Government has provided example case studies which help to understand the position of EU nationals in various different circumstances.

What rights are afforded with this status?

EU citizens who have acquired settled status will be treated in much the same way as a British citizen, with the exception of the specific rights attached to British citizenship such as the right to vote and the ability to receive consular assistance abroad.  Those with settled status will be allowed the same access to public funds and benefits as British citizens. However, those with temporary status will have a more limited access to public funds, in the same way the EU nationals currently present in the UK do.

In terms of healthcare, the current provisions under the European Health Insurance Card scheme will remain, allowing EU citizens continued access to the NHS.

Will family members be allowed to remain?

Family members who arrived before 29 March 2019 will be eligible for settled status after five years, and those who do not hold five years residency will be afforded temporary status until they do.

However, the following family members will also qualify for settled status even if they arrive after 29 March 2019, but only if the relationship existed before that date, and there is evidence of this:

  • Spouses.
  • Civil partners.
  • Durable partners.
  • Children or grandchildren under 21.
  • Dependent children or grandchildren older than 21.

Children born after 29 March 2019 will also qualify, however, those who do not arrive before 29 March 2019, and are not one of the above noted family members, will have to apply to enter under the current domestic immigration rules for family members and dependant adults.

I’m an EU citizen, what do I need to do?

All EU citizens will have to apply for settled status: it is not automatically conferred on anyone, even those who already hold permanent residence. As such, applications for settled status will need to be submitted before the end of the transition period which begins on 29 March 2019 and is expected to run for at least 2 years. The length of the transition period is, however, still open to negotiation and the EU are trying to put a 21 limit on the temporary arrangement. Failure to submit an application will effectively render that citizen in breach of UK law, and will be staying here unlawfully.

The details of the application process have been discussed previously, but in summary:

  • The application process will cost no more than a British passport (£72.50)
  • The process is promised to be simpler, and aims to minimise the burden of documentary evidence.
  • For those who already hold permanent residence, there will be a streamlined process that does not require a demonstration of continuing exercise of treaty rights.

There will, however, be criminality and security checks, and confirmation of continued residence is necessary. Currently, the test for removing EU citizens with criminal records is a very high and stringent test, and it is difficult for the Government to remove these citizens. However, people who acquire convictions from 29 March 2019 will no longer be protected by EU law, and the assessment undertaken in the new criminal and security checks is a much lower test.

In what is a welcome move, those who already hold a permanent residence document issued under EU law will be able to convert that document into the new document free of charge. This is a change from the Government’s initial proposition of a ‘reduced fee’ for those who already hold permanent residence.

Those EU citizens who are living outside of the UK on 29 March 2019 will not be able to apply for settled status, whether they hold a permanent residence document or not. The agreement establishes that the new application process can only be undertaken from within the UK, and anyone out of the country will not have their past rights protected. This begs the question as to what will happen to those EU citizens who are outside the UK on 29 March 2019 on holiday, or visiting others. The agreement is not clear on this, and it will no doubt cause controversy in the future. As such, any EU citizen that wishes to exercise their right to apply for settled status and settle in the UK should carefully consider their future plans and travel arrangements to account for this.

It should be noted that the agreement does not currently extend to non-EU citizens from EEA countries - Norway, Iceland, Lichtenstein and Switzerland, but is expected to do so in the future.

Most will undoubtedly be relieved that phase 1 of the Brexit negotiations is finally complete, however there are still many left questioning the scope and requirements of this new status. Our immigration solicitors often consult with individuals and families facing the same questions. If you would like further advice on issues regarding the rights of EU citizens in the face of Brexit, please contact us for further assistance.

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