On 21 June 2018, the Home Office published a Statement of Intent, which gives more details regarding the status of EU nationals and their family members following the Brexit referendum. The Statement of Intent is not yet law, but it is unlikely things will change significantly between now and then.

From later this year, EU citizens and their family members living in the UK will be able to start applying for UK immigration status through the new EU Settlement Scheme.

Who can apply under the Scheme?

EU nationals and their family members who arrived in the UK before 31 December 2020 will be protected and allowed to continue living in the UK, working, accessing public funds, healthcare and pension, as they are currently entitled to.

Family members of EU nationals who are living overseas on 31 December 2020, but where the relationship existed before 31 December 2020, will be allowed to join their EU citizen resident in the UK even after 31 December 2020. Children born after 31 December 2020 of EU citizens living in the UK before then will also be protected.

The rights of citizens of Norway, Iceland, Liechtenstein and Switzerland are currently being negotiated, but the British government’s intention is that the settlement scheme will be open to them too.

Irish nationals will not need to apply under the new Scheme. Their non-Irish family members will need to.

How will I apply and what will the Home Office check for status to be granted?

The application will be made online, although the Home Office is looking at whether some applicants should be allowed to apply by completing a paper form. The government will also provide an assisted digital service for those who need support to make an online application.

The Home Office will check three things:

1. Proof of identity

Applicants will need to provide evidence of their identity, which they can do by submitting their passport details or, for EU citizens, their national ID, via an app. Those who do not have a biometric identity document will not be able to use the app, and will need to send the original document via post. This will be returned to them as soon as possible.

Applicants will also need to provide a passport-size photograph. EU nationals can upload it online. Non-EU nationals who have a biometric Residence Permit issued under current EU law will also be able to upload their photo online. Other non-EU nationals will need to attend an application centre to give their fingerprints and a photograph.

2. Confirmation of residence in the UK

Applicants will need to have been living in the UK before 31 December 2020. Applicants will not initially be asked to submit evidence of residence, and the Home Office will carry out their own checks through HMRC and DWP. Where HMRC and DWP do not hold evidence confirming the applicant’s residence, then applicants will have an opportunity to upload, online, evidence of residence, such as bank statements, letters from employers, P60s etc. A full list of suggested evidence will be published by the Home Office when the scheme is in force. A draft version of this list was included in the Statement of Intent as Annex A.

3. Criminality

Applicants will need to self-declare their criminal convictions. The Home Office will also carry out their own checks. Serious criminal convictions might lead to a refusal.

Family members will also need to show that they are related to the EU national.

How much will it cost?

Subject to approval by Parliament, the application will cost:

• £32.50 for children under the age of 16
• £0 for
  • those who already have valid indefinite leave to remain, and have not been absent for two consecutive years since obtaining it
  • those who already have a document certifying permanent residence, and have not been absent for more than five consecutive years or lost their right because a deportation order was made against them
  • those who have been granted pre-settled status and are applying for settled status after April 2019
  • children in local authority care
• £65 for all other applicants

What will I be given?

Generally, EU nationals and their family members who have lived in the UK for 5 years will be given settled status. There are some categories of people who can qualify for settled status before 5 years, including, provided certain conditions are met, those who have had to stop working due to retirement or incapacity, or the family members of deceased EU nationals.

Children of EU nationals who have been granted settled status will also be given settled status, even if they have not themselves lived in the UK for 5 years.

Those who have not yet lived in the UK for 5 years will be granted pre-settled status for a period of 5 years. Once they have reached 5 years residence, they will be able to switch to settled status.

If you are an EU national, your new status will be issued in digital format only. You will not be issued with a physical document.

If you are a non-EU national, and do not have a Biometric Residence Permit, then you will be issued with one.

When can I apply?

The new system is expected to start later this year, and will be fully open from 30 March 2019.

You will need to submit an application no later than 30 June 2021. If you apply after this date, you will become an overstayer.

How long will it take?

Although exact timeframes have not been published, the Home Office suggested that most applications should be decided in “a few days”. Less straightforward ones might take longer. In the future, the Home Office intends to publish current waiting times so that people will have an idea of how long the wait will be.

If you have questions about your rights, or would like to book an initial consultation for tailored, individual advice, please do not hesitate to contact us.

The attitude of the Home Office towards asylum claims made by Bangladeshi nationals on the basis of their sexual identity has changed over the years.

Until approximately mid-2016, it seems that the Home Office accepted that gay, lesbian and bisexual people were at risk of harm in Bangladesh. This meant that many were granted asylum.

Since mid-2016, however, we have seen a lot of refusals on the basis that gay, lesbian and bisexual individuals are not at risk of harm in Bangladesh. The Home Office says that they are discriminated against, but they are not persecuted (seriously harmed), and that the state will protect them.

In December 2016, and again in September 2017, the Home Office published a Policy and Information Note on Bangladesh which made this clear. The Note from September said that:

in general the treatment of LGBT persons in Bangladesh, even when taken cumulatively, is not sufficiently serious by its nature and repetition as to amount to persecution or serious harm”;

and that

effective state protection against societal ill-treatment may be available depending on the facts of the case”.

A group of lawyers and other stakeholders, including myself, wrote to the Home Office to ask them to reconsider their Note. We explained that the evidence showed that LGBT persons in Bangladesh are at risk of serious harm.

As a result, in November 2017, a new Note was published. This time, the policy summary says that:

In general, an LGBT person who does not conceal their sexual orientation or gender identity may be at risk of treatment, which by its nature and repetition amounts to persecution or serious harm” and that “the state appears able but unwilling to offer effective protection”.

This new Note is a move in the right direction. We are hoping that decision makers will now find it harder to refuse asylum claims by gay, lesbian and bisexual Bangladeshi nationals who want to live an openly gay life in Bangladesh, but would not do so because they are scared of being harmed.

However, some points from the Policy and Information Note are still concerning and misleading. For example, the Note says that “the available evidence does not establish that LGBT persons are systematically targeted and subject to treatment amounting to persecution or serious harm by the state”. Whether there is systematic targeting is not the issue. The Home Office should look at whether, if they went back to Bangladesh, LGBT persons would be at risk of harm, and I would say they are.

Similarly, the notes have consistently stressed that the Bangladeshi police and government do not use section 377 of the Penal Code, which criminalises same-sex sexual acts, to arrest LGBT persons. This is true, however that is not the point. The rest of the evidence shows that LGBT persons are at risk of harm and the state will not protect them. That is the test to apply when deciding asylum claims.

I was at the Upper Tribunal on 28 November for a gay man from Bangladesh. The Home Office accepted that he was gay but they continued to say that the evidence on Bangladesh does not show that he will necessarily be at risk of harm. Therefore, the new Policy and Information Note is still used to argue that Bangladesh is safe. This is why we will continue to push the Home Office to review it.

Thankfully for my client, the Upper Tribunal judge agreed with us and he won his appeal. I have had two other successes at the First-Tier Tribunal for Bangladeshi gay men in the last year. However, we would like the Home Office to accept that Bangladeshi LGBT persons are at risk of harm, without them having to go to court.

In the meantime, if you are LGBT, from Bangladesh, currently in the UK, and you fear for your life were you to be returned to Bangladesh, you should get legal advice as you may have a good asylum claim. Please do contact us to arrange a consultation by phone or by email.