Katie Dilger

Recent Issues with British Passport Applications

13th July 2023 By Katie Dilger

Since October 2022, many passport applications have been put on hold due to the case of R (Roehrig) v SSHD [2023] EWHC 31 (Admin). This was the case in which the High Court held that EEA nationals exercising free movement rights in the UK prior to 2 October 2000, but who had not been granted indefinite leave to remain, were not settled for the purposes of the British Nationality Act 1981. See our previous updates from March and April 2023.

The good news is that, following the British Nationality (Regularisation of Past Practice) Act 2023 coming into force on 29 June 2023, passport applications from this cohort are now being processed.[1] Applicants whose cases had been put on hold have already started to receive their British passports.

While this issue has, it seems, now been resolved, we are increasingly seeing British citizens who have a second nationality having their applications put on hold. This is due to HM Passport Office’s current policy on aligning names on foreign documents. The policy states:

“Customers may send us a passport application in a name that does not match their foreign documents. Unless it meets one of our exceptions, we expect customers to change the name on their foreign document, so it matches the name on their passport application, before they send their application to us.”

This policy catches out many British citizens who are dual nationals, but whose non-British passport is in a slightly different name. This includes those who have renewed their British passports several times before without previously encountering any issues.

HM Passport Office’s rationale for this is that it:

“Must protect the security of the British passport (by preventing, disrupting and identifying those who change their name to commit crime or avoid detection)
cannot accept documents that allow a customer to apply for a foreign passport, travel document or identity document in a different name”.

In many cases, an applicant will be able to remedy the situation by obtaining a new foreign passport in the same name as their British passport. However, this is not always possible or appropriate. HM Passport Office recognises this, and, in certain limited situations, it will issue a British passport where the holder also has a foreign passport in a different name. This includes where the other country imposes restrictions on name or gender changes or limits the number of characters that can be used in the name fields in a passport. HM Passport Office also recognises that there may cultural naming conventions which dictate how a name is written in a non-British passport. For example, some countries have rules on name order or requirements that a passport must show the family names of both parents. In these circumstances, HM Passport Office is likely to issue a British passport with an observation that the person also holds a second passport in a different name.

If you are affected by any of the issues addressed above and would like expert legal advice, please do not hesitate to contact us at enquiries@gryklaw.com or on 020 7401 6887.

[1] See NEWS AND UPDATES – prcbc

Fee-waivers for citizenship applications by children

9th June 2022 By Katie Dilger

The application fee for a child applying for citizenship is £1,012 and has been for some time. This fee applies to all nationality applications by children.

The £1,012 fee has been the subject of litigation over the last few years by the Project for the Registration of Children as British Citizens (PRCBC). The High Court in 2020 and the Court of Appeal in 2021 both found that the fee was unlawful as the Home Office had set it without having considered the best interests of children.

The Home Office has now reviewed the registration fee in light of its obligation to consider the best interests of children. Unfortunately, it has re-set the fee at £1,012. However, for the first time it has also introduced fee waivers for children’s citizenship applications from mid-June 2022.

To qualify for a fee-wavier, applicants and their families must show that they cannot afford the fee. The new Home Office guidance explains that this means that the applicant child and their parent(s) “do not have sufficient funds at their disposal, after meeting their essential living needs, to pay the fee”. Applicants and their families will need to submit fee waiver request forms together with supporting documentation. Under this new policy, fees will either be waived in full or required to be paid. There is no provision for fee reductions or partial waivers.

Some children, namely those who are looked-after by a local authority, will be exempt from paying a fee at all and will not be required to apply for a fee waiver. This exemption does not, however, apply to children in receipt of local authority support. They may still qualify for a fee waiver, but, as with other applicants, they will need to apply for one and the fee will only be waived if they show that they meet the affordability test.

The Home Office has released detailed guidance on the new fee waiver regime. This is available at Citizenship fee waiver for individuals under 18 caseworker guidance – GOV.UK (www.gov.uk)

If you require advice in relation to the above, we would be happy to help. Please contact us on 020 7401 6887 or by email at contact@gryklaw.com.

Automatic extension of leave – some good news

28th October 2021 By Katie Dilger

Clients often ask whether they can continue to work while an application is outstanding. The answer is generally yes, provided that they were permitted to work before and made a valid in-time application. This is because leave is automatically extended by law while an in-time application is pending.

Leave is also extended if the application is refused and the person submits an in-time appeal or application for administrative review. The person’s leave only falls away once the appeal rights or the administrative review is no longer pending.

When leave is extended in this way it is called “section 3C leave” after the provision of the Immigration Act 1971 which sets out the mechanism for leave to continue.

Section 3C leave is incredibly important because it keeps people here lawfully. It prevents a person from losing their job or an entitlement to access NHS treatment free of charge.

Earlier this year the Court of Appeal looked at what happens to section 3C leave when a person lodges an appeal out of time. For example, a person normally has 14 days to lodge an appeal against the refusal of an in-country application for leave as the partner of a British citizen. If the person who has section 3C leave lodges the appeal in time, their section 3C leave will continue while the appeal is pending. What the court looked at is what happens if the appeal is late.

The Court of Appeal concluded that section 3C resurrects from the date the appeal papers are lodged, provided that the Tribunal later grants the person extension of time for the lodging the appeal papers. In late October 2021, the Home Office updated its guidance to reflect this. This is available at 3C and 3D leave – GOV.UK (www.gov.uk).

This development may be very useful for individuals and families who have missed an appeal deadline but were previously lawfully present with section 3C leave. Provided the Tribunal grants the extension of time, they will become lawfully present again from the date the appeal papers were lodged. This does not, however, assist those who lodge late appeals and did not have section 3C leave at the date the application was refused.

If you require immigration advice in relation to the above, we can help. Please contact us on 020 7401 6887 or by email at contact@gryklaw.com.

Digitalisation of the Immigration System

1st June 2021 By Katie Dilger

On 24 May 2021, the Home Secretary announced further plans for the digitalisation of the immigration system. This intention is that by 2025 the system will be fully digital from beginning to end. The Home Office’s vision is that not only will we continue to use online forms and upload supporting evidence, but all biometrics will be given via apps and individuals will prove their status at the border and to third parties by using a digital record rather than a physical document. As previously announced, the Home Office will also introduce an Electronic Travel Authorisation scheme akin to the United States’ ESTA programme. More detailed information is available in the policy paper published that day, New Plan for Immigration for legal migration and border control.

To date, the use of digital status has not been without controversy. Digital status is being given to EEA nationals who have been granted leave under the EU Settlement Scheme (the EUSS). Under the EUSS, EEA nationals are given a digital record rather than issued with a biometric residence card or any physical evidence of their settled or pre-settled status. Indeed, the grant letter issued to EEA nationals even expressly states that it is not proof of the person’s status. Instead, the Home Office runs a “view and prove” system which requires EEA nationals with status under the EUSS to trigger a share code when they need to prove their status, e.g. to an employer.

The 3Million, an organisation which seeks to protect the rights and interests of EU citizens living in the UK after Brexit, sought to challenge this. It argued that the digital-only policy meant that EEA nationals with status under the EUSS had to be able to access and use the internet effectively if they were to prove their status to third parties. This was likely to disadvantage some groups, including older people, people with certain disabilities and the Roma community.

On 3 May 2021 the challenge was brought to an end by the Administrative Court when it refused permission to bring a judicial review. However, this is unlikely to be the end of the matter. Permission was refused primarily because the claim was regarded as ‘premature’. This is because until the end of June 2021, EEA nationals can still rely on their EEA documents to enter the UK and prove their status. It is only from 1 July 2021 that people will need to rely on the digital system alone.