EU

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.

Biometric Residence Cards and Third Country Nationals

12th March 2021 By Ciera McCartney

When applying to the European Settlement Scheme from within the UK, most third country nationals (i.e., non-Europeans) will already hold a Biometric Residence Card issued to them because of their right to reside in the United Kingdom under European law. This document proving their status, the Biometric Residence Card, will have been issued under the EEA Regulations.

Third country nationals who have not previously held a Biometric Residence Card issued under the EEA Regulations will be invited to attend an appointment to provide their biometric data with the Home Office provider Sopra Steria. If the application for pre-settled or settled status is granted, the individual will be issued with a Biometric Residence Card under the European Settlement Scheme.

However, those third country nationals who apply to the European Settlement Scheme and already hold a valid Biometric Residence Card issued under the EEA Regulations are currently not issued with an updated Biometric Residence Card.

For example, a third country national who submits an application with two weeks left until their card issued under the EEA Regulations expires will not receive a new Biometric Residence Card under the European Settlement Scheme. The Home Office has confirmed this is because their card is still valid at the time the application was made. They have also confirmed this is the case even if the EEA card has expired by the date of the decision. An individual in this scenario will therefore also not be issued with a new card automatically under the European Settlement Scheme.

While third country nationals have their status recorded digitally on the European Settlement Scheme online portal accessible through Gov.UK, if they do wish to obtain another Biometric Residence Card to reflect their new immigration status, they must make a further application and re-submit their biometric data. Third country nationals are likely to need to do this in practice, given that their status is not linked to their passport, as is the case for European nationals.

Yet unfortunately the decision letter currently sent to applicants who have successfully obtained status is silent on this point and gives no guidance or a link to the appropriate page on the Home Office website where one can apply to update their Biometric Residence Card under the EU Settlement Scheme.

This lack of clarity raises practical issues. While we understand the Home Office plans to move the immigration status of all migrants to a digital only status, this has not yet happened, meaning third country nationals still need to evidence their status to carriers and border staff through a Biometric Residence Card when returning to the United Kingdom from abroad. Unaware that this is the case, we have heard reports of confusion by airline staff and border personnel, difficulty at the border and in several cases people left stranded outside the UK.

Third country nationals granted status under the European Settlement Scheme therefore do require a valid biometric card reflecting their current immigration status. Yet, if they fall into one of the scenarios outlined above, the process to update to a new card is unclear, costly (there is a Home Office fee of £75.20) and lengthy (the Home Office state these applications can take up to six months to be decided).

Instead, we believe all third country nationals should be given Biometric Residence Cards automatically up until the point that the Home Office can rely on digital immigration statuses for all migrants. These cards should be issued at the time the applicant is granted their new status, solving the practical difficulties faced by those third country nationals already holding at the date of application a valid Biometric Residence Card issued under the EEA Regulations.

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

European Update: The Good and the Bad

28th May 2020 By Alison Hunter

On 14 May, the government issued a new Statement of Changes to the Immigration Rules. And once again it included changes to the European Settlement Scheme. Some were small in nature and a tidying up exercise to deal with small omissions or inconsistencies. However, there were two important substantive changes.

The good news is that protection has been extended to those in durable relationships to ensure that if their relationship with a European national breaks down due to domestic violence, they should be able to remain in the United Kingdom in their own right. This comes into force from 4 June 2020.

From 24 August 2020, the rule changes will also allow for dual British and Irish nationals born in Northern Ireland to rely on their Irish nationality to bring dependants to reside with them in the United Kingdom. This allows for a less onerous set of rules to be applied to them, ensuring there is no need for them to fulfil stringent financial requirements, which apply to British people sponsoring their family members.

This was however swiftly followed on 15 May 2020 with some far less welcome news: the new naturalisation guidance clarifies that European citizens who did not hold comprehensive sickness insurance while they were students or self sufficient, or were not exercising a Treaty right during the qualifying period for naturalisation, can be considered to have been in breach of immigration law. This means that if a European national is applying to naturalise having obtained settled status they will still need to show that they fulfilled these requirements during the five year period (or three year period, if married to a British Citizen) before making the application. Unlike under the European Settlement Scheme, where residence in the United Kingdom on its own is sufficient to ensure a grant of status, a successful naturalisation application may need to go beyond mere residence for the qualifying period, if an applicant did not hold pre settled or settled status for part of the period. Home Office caseworkers now have to check whether applicants can be considered to be in breach of immigration law and can request further information to reassure themselves that such time spent in the United Kingdom was ‘on a balance of probabilities’ in accordance with the law. I should add that the guidance also states that it will be possible for caseworkers to waive the requirement on a discretionary basis but without giving any further guidance as to when that would be deemed appropriate.

Given the £1330 fee attached to a naturalisation application, applicants should ensure that they really do qualify before making this payment to the Home Office as only £80 (the cost of the citizenship ceremony) would be reimbursed if the application were refused.

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

The EU Settlement Scheme: an Update

27th April 2020 By Alison Hunter

As the press reported last week, the Home Office has announced that it has received 3.4 million applications from people seeking to stay in the United Kingdom after Brexit under the EU Settled Status Scheme. The government estimates that the number of EEA and Swiss citizens eligible to remain in the United Kingdom lies between 3.4 million and 3.8 million. Are they thinking ‘job done’?

The Migration Observatory report about the EU settlement scheme clearly sets out the flaws with the way the government is producing data and counting applications made. The Home Office has a very crude system of just counting every application. However, there are very basic problems:

It is not known how many people are eligible to apply and how many still live in the United Kingdom.
One person may have applied for pre-settled status and settled status – this counts as two applications.
There are people who have applied to the scheme but have left the United Kingdom.

What we do know is that the Home Office still has a backlog of 320,000 applications and that inevitably, the applicants who have not yet applied are likely to be the more difficult cases including, for example the citizens in children’s homes, victims of domestic abuse, third country national family members of EU citizens and people who are not able to provide the documentation required by the Home Office. We also know that 300 applications were refused by the Home Office in March 2020.

There is now of course the added problem of Covid-19 with a slow down in the processing of applications at the Home Office due to reduced staffing levels. The telephone line set up to assist applicants with the EU Settlement Scheme is not functioning as the Home Office was not able to provide a safe working environment for its case workers. This means that the only way to get in touch with the EU Settlement Scheme staff is by email. The delays in response time are significant and standard responses often appear to be being sent out without any specific information about individual cases.

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Although it is still possible for EU citizens with passports which are chipped to make applications, non-EEA family members are unable to submit applications as the Home Office is currently not accepting passports. It is therefore not possible to provide identity documents either to the Home Office or to Sopra Steria, the company to which the Home Office has outsourced the initial processing of applications.

There are also some more complex applications which have to be completed on a paper form. The procedure is that the form has to be requested from the Home Office. Previously an applicant was required to phone in and outline their case before a paper form was sent out, which is now not possible. Paper forms can still be requested by email and are then sent to the applicant. The Home Office has reassured us that these applications are still being dealt with, although we know from experience that the delays before the Covid-19 lockdown were significant, and they are only likely to increase now. These applications would normally be sent back to the Home Office with original documentation but we have been informed by a senior case worker at the Home Office that only copies should be sent to the Home Office.

Given the Covid-19 pandemic, further delays seem inevitable. There are also likely to be some difficulties ensuring that biometrics are captured as required for the Home Office going forward. One thing that has been stated categorically, is that the EU Settlement Scheme will not be extended beyond June 2021, despite the Covid-19 pandemic.

If you require assistance in connection with the EU Settlement Scheme or any other EU immigration matter, please contact us on 020 7401 6887 or contact@gryklaw.com.

“I have a permanent residence document, do I need to apply for settled status?”

17th February 2020 By Jonathan Kohler

“I have a permanent residence document, do I need to apply for settled status?”

In short, the answer is yes.

Despite the Home Office reportedly spending millions of pounds on advertising the EU Settlement Scheme, we remain concerned that there remains a lack of awareness about the Scheme and the difference between permanent residence and settled status.

Even if a European national or their family member has previously been granted a permanent residence document, they must apply for settled status under the EU Settlement Scheme if they intend to continue living in the UK.

What is permanent residence?

Before the introduction of the EU Settlement Scheme, the rights of European nationals and their family members to live in the UK were set out in the Immigration (European Economic Area) Regulations. These Regulations were based on EU free movement law.

Under the Regulations, a European national would have a right to reside in the UK in the majority of cases as long as they continued to be what is known as a “qualified person”. Generally speaking, this meant that they met the definition of being a worker, self-employed person, a jobseeker, a self-sufficient person, or a student.

After living in the UK for a continuous period of five years as a “qualified person”, the European national would acquire a permanent right of residence. Certain family members of the European national, such as a spouse/civil partner or child, would also acquire permanent residence if they lived in the UK for a continuous period of five years.

This right would arise automatically. It is possible for a European national and their European and non-European family members to apply to the Home Office for a document confirming this right – a permanent residence document. For the European national, this would take the form of a residence document labelled as a “document certifying permanent residence”. For a non-European family member of the European national, this would take the form of a biometric permanent residence card. Along with the document, the Home Office also issues a letter confirming the date the person is deemed to have acquired permanent residence.

There was no requirement to apply for a permanent residence document, although for practical reasons many European nationals and their family members chose to do so.

What is settled status and when is the deadline to apply?

In light of Brexit, the Home Office introduced the EU Settlement Scheme to allow for European nationals and their family members to continue to live in the UK.

The requirements of the Scheme are set out in the UK Immigration Rules. Under the scheme, a person can either be granted “settled status” (equivalent to indefinite leave to remain) or five years’ “pre-settled status” (equivalent to limited leave to remain). The Scheme is based on a person’s residence in the UK, rather than the nature of their economic activity while living here.

Generally speaking, if a European national or their family member has lived in the UK for a continuous period of five years, they will be granted settled status. If they have lived in the UK for less than five years, they will be granted five years’ pre-settled status with a view to applying for settled status once they have lived in the UK continuously for five years.

If a person is granted settled status, there are no time limits on their residence in the UK and they can continue to live here without making any further applications to the Home Office. Settled status can only be lost if a person leaves the UK for a continuous period of five years without returning or if they commit a very serious criminal offence and the Home Office decides to revoke their status.

The deadline to apply under the EU Settlement Scheme is 30 June 2021. However, we are urging people to submit their application before the end of the transition period on 31 December 2020. It is currently unclear on what legal basis European nationals and their family members will be able to remain in the UK from December 2020 onwards if they have not applied under the EU Settlement Scheme.

Applying for settled status with a permanent residence document

If a person has been granted a permanent residence document, they can apply for settled status under the EU Settlement Scheme. To be granted settled status, they must meet the following requirements:

They are either an EEA national, Swiss national, or they meet the definition of the family member of an EEA/Swiss national;
They have been granted a permanent residence document;
They have not been absent from the UK for a continuous period of five years since the date they are deemed to have acquired permanent residence;
The Home Office has not made a decision to remove or exclude them from the UK;
They are not “unsuitable” for a grant of settled status (such as if they have committed serious criminal offences or deceived the Home Office in their application).

If you have been granted a permanent residence document and can meet these requirements, you will be eligible for settled status. We would urge you to apply as soon as possible. You can find more information about the application procedure on gov.uk, and my colleague Nath Gbikpi has written a detailed post about how to apply on the Free Movement website.

This blog focuses on European nationals and their family members who have been issued with permanent residence documents. It should be stressed that this is one of several ways a person may be eligible for settled status under the EU Settlement Scheme. If you have any questions about your eligibility for settled status or require assistance to submit an application under the Scheme, please contact us as we would be happy to help.

If you require advice or assistance with an application under the EU Settlement Scheme, please contact us on contact@gryklaw.com or on +44 20 7401 6887.