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Sudan crisis highlights why UKVI shouldn’t hold on to passports while processing applications

4th May 2023 By Diana Baxter

We were very proud this week to have helped a Sudanese father-to-be successfully evacuate to the UK despite his passport being held by the now closed UK Visa Application Centre in Khartoum. Sadly, many others have not been so fortunate as it is estimated that thousands of Sudanese nationals are trapped inside Sudan upon the outbreak of civil war with their passports retained by the UK and other visa authorities.

Such visa applicants are likely to be family members of British citizens, skilled workers and students resident in the UK, whose passports have been held by UKVI (or on its behalf, by the company TLScontact) for varying lengths of time. They may even include British citizens applying for Certificates of Entitlement to the Right of Abode or new passports. The last few years have seen significant delays in processing of UK visas overseas, first due to Covid (when visa offices abroad were also closed without notice, trapping applicants’ passports inside for months) and then following the Russian invasion of Ukraine. Throughout 2022, family settlement visa applications regularly took up to six months for a decision and, while the timing of these has improved recently, refugee family reunion applications are averaging 12 months or longer for a decision.

This week, we were contacted by a distraught refugee in the UK whose wife applied for refugee family reunion more than 12 months ago yet she still has no decision and her passport is still held at the VAC in Khartoum. Such delays are not unusual with refugee family reunion processing yet UKVI continues to insist that passports are retained for the decision making process, unless additional fees are paid (and not universally available) to the private contractor for a ‘keep my passport’ service. The continued logic for this is increasingly hard to justify as UKVI transitions to a digital only immigration status, where applicants’ identity can be determined through biometrics and a check of biometric passports and where visa applicants in the UK (as opposed to those applying from overseas) are, for the most part, no longer required to submit their passports for consideration.

We sincerely hope and encourage UKVI and TLScontact to assist those affected by their passport loss at the TLS VAC in Khartoum by:
• immediately sending each individual affected a formal and personalised (with the relevant passport details) confirmation of the loss of their passport;
• urgently considering their outstanding visa applications and, if successful, facilitating their entry to the UK despite the lack of passport (a FAV (‘form for affixing a visa’) can be used in these circumstances).

Post pandemic changes to the sponsor guidance – hybrid working and delayed start dates

6th April 2023 By Rachael Ockenden

Several changes have come into effect for Skilled Worker sponsors over the law few months. Two of these changes in particular are a reflection of the lasting impact of the pandemic.

Hybrid working

The guidance for sponsors part 3: sponsor duties and compliance was updated on 31 March 2023 to include welcome clarification on hybrid working. It has always been the case that a sponsor is required to report when a sponsored migrant’s work location changes, within 10 working days of the change taking effect. A sponsor is now also required to report when a worker is, or will be, working remotely from home on a permanent or full-time basis or where the worker has moved, or will be moving, to a hybrid working pattern.

The guidance defines a ‘hybrid working pattern’ as a situation where the worker will work remotely on a regular and planned basis from their home or another address.

During the pandemic, the Home Office made it clear that sponsored migrants could work from home. It became less clear whether this would be permitted to continue beyond lockdowns and in line with the government’s ‘living with covid’ approach. One could have anticipated that the Home Office would argue that if a Skilled Worker migrant was working from home on a full-time basis, they do not need to be in the UK to undertake the role and therefore do not fulfil the requirements for obtaining a Skilled Worker visa. The recent changes to the guidance seem to suggest that they are not taking this approach.

Delayed start dates

Towards the end of last year, the Home Office removed the requirement to report where a sponsored migrant’s start date is delayed by no more than 28 days. This is likely a reflection of the overwhelming number of late start date reports that have been submitted since March 2020 due to the delays in visa processing times and international travel restrictions which prevented sponsored migrants from starting work in the UK as planned.

Where a sponsored migrant’s start date will be more than 28 days beyond the start date of their CoS, or their grant of immigration permission, a sponsor must report this and explain the reasons for the delayed start. However, the sponsor does not need to wait for the Home Office to review and accept the report before the sponsored migrant begins work. We believe these reports are currently taking at least several months to be processed.

Whilst the reduction in reporting duties for delays of 28 days or less is of course welcome, the system in place for delays of more than 28 days could result in sticky situations for sponsors and their sponsored migrants. If the Home Office does not accept the reason for a delay of more than 28 days, the sponsored migrant’s leave could be cancelled. This could then present various commercial and logistical issues. For example, if a sponsored migrant, their partner and children all move to the UK only to find out their leave has been cancelled within a few months, this could have significant implications. Although it may be possible for a Skilled Worker sponsored migrant to apply for leave to remain with a newly issued CoS in this situation, there would be substantial financial and administrative costs for both the sponsor and migrant.

We will need to wait and see what happens in practice and whether the ’28 day’ rule will be sufficient and flexible enough for employers. If you require advice in relation to the above or any other business immigration matters, please contact Rachael Ockenden at rachael@gryklaw.com.

Law Commission Report on Surrogacy Law Reform

30th March 2023 By Barry O’Leary

On 29 March 2023, the Law Commission published its proposals for surrogacy law reform in the UK. This followed their research and discussions going back to 2018. I was involved in those discussions on behalf of the Law Society. I know that the Law Commission were committed to hearing responses from many different viewpoints and balancing those responses. They took their responsibilities very seriously.

While the Law Commission’s proposals are a positive step for those who are able to arrange a surrogacy in the UK, they are more limited for those who enter into international surrogacy arrangements.

The Law Commission have proposed a new pathway which would replace the current parental orders, but international surrogacy arrangements would be excluded from that pathway and parental orders would still need to be obtained. On the positive side, the Law Commission has proposed:

Improvements to the speed and efficiency of existing nationality and immigration processes;
An amendment to British nationality law so that more children would be born automatically British;
The introduction of clearer guidance;
Updating the current ‘outside the rules’ visa policy and bringing it within the Immigration Rules.

It should be stressed that these are just proposals and it is up to the government to decide whether to adopt any or all of the Law Commission’s recommendations. We await a response from the government.

For now, we continue as before and we are, of course, happy to advise on any immigration nationality issues relating to international surrogacy agreements.

Helpful new guidance makes it easier for children to register as British citizens

17th November 2022 By Swabra Natabi

If a child is born in the United Kingdom and lives here until they turn 10 years old, they may have an entitlement to register for British citizenship. However, if they are born outside of the United Kingdom and move here as a child, they have no entitlement to citizenship, even if they, too, live here for 10 years. Fortunately, the Home Office recently updated their citizenship guidance meaning that children in this situation have a much better chance of registering as British citizens.

Section 3(1) of the British Nationality Act 1981 (BNA 1981) states that ‘if while a person is a minor an application is made for his registration as a British citizen, the Secretary of State may, if he thinks fit, cause him to be registered as such a citizen’. This means that the Home Office can exercise a wide discretion to register children as British citizens. They have published detailed guidance setting out the circumstances in which they will do so.

On 19 July 2022, the Home Office updated its guidance relating to the registration of children as British citizens under Section 3(1) of the BNA 1981, specifically for those who were not born here but have lived in the United Kingdom for more than 10 years. The reason for this change is to recognise that 10 years “constitutes a significant period of residence for a child to demonstrate a strong connection with the UK”, irrespective of whether they were born here.

Children who have lived in the United Kingdom for more than 10 years

Children born abroad who have lived in the United Kingdom for more than 10 years will now “normally” be granted British citizenship under Section 3(1) of the BNA 1981 provided they meet all the relevant parts of the guidance as follows:

They are in the UK lawfully;
Their parents have regularised their own status;
Where necessary, both parents consent to registration or any objections by the non-applying parent are ill-founded; and
There is no reason to refuse on character grounds

Previously, the guidance stated that they would only grant British citizenship to a child in this scenario if they were an older teenager (16 years old and above) who had spent most of their life in the UK, on the basis that those were exceptional circumstances. This is a significant change which means many more children are likely to have successful British citizenship applications.

What if the child does not meet the criteria in the guidance?

There will still be children who have lived in the United Kingdom for more than 10 years, but cannot meet those criteria, for example because the child and/or their parents do not have lawful immigration status.

In this scenario, it is always open to those children to apply for registration at the Home Office’s discretion. However, as before, they will be expected to provide evidence of exceptional circumstances why they should be granted British citizenship, such as their length of residence, connection to the United Kingdom and proof that their future lies here.

The Home Office must always treat the best interests of the child as a primary consideration. These cases will be considered on their own merits. Therefore, immigration advisers should not be deterred from making these applications even if the child’s circumstances are not perfectly in line with this guidance. They must, however, ensure that these applications are well evidenced.

We have a lot of experience assisting children to register as British citizens. If you require advice in relation to this updated guidance, we would be happy to help. Please contact us on 0207 401 6887 or via email on contact@gryklaw.com.

Wesley Gryk Solicitors maintains its top tier rankings for 2023

20th October 2022 By Diana Baxter

We are delighted to announce that Wesley Gryk Solicitors LLP continues to be ranked as one of the UK’s leading Immigration firms by both Chambers 2023 and the Legal 500 2023.

WGS is ranked as a Tier 1 firm by the Legal 500 2023 for ‘Immigration: Human Rights, Appeals and Overstay’ and by Chambers 2023 for both ‘Immigration: Human Rights, Appeals and Overstay’ and ‘Immigration: Private’.

All of our three partners, Alison Hunter, Barry O’Leary and Diana Baxter, are ranked as ‘Leading individuals’ by the Legal 500, with senior solicitor Katie Dilger listed as a ‘Key lawyer’.

Described by Chambers 2023 as a “fantastic firm”, partners Alison Hunter (“absolutely fantastic”) and Barry O’Leary (“truly outstanding”) are ranked as Band 1 lawyers in two immigration categories, and Diana Baxter (“a star lawyer in the ascendant”) is in Band 2. For private immigration work, senior solicitor Katie Dilger is an Associate to watch.

We are particularly proud of our fantastic testimonials this year:

‘They know their stuff like no-one else. At Wesley Gryk, clients are guaranteed to have a service which is second to none. They are at the top of their game in relation to tactics, case preparation, and expertise in the areas of immigration law they practice in. Briefs are always prepared to an exceptionally high standard.’

‘Besides the outstanding technical competence, the relationship with clients is very humane, which provides much needed reassurance and comfort during stressful moments.’

‘The level of expertise demonstrated by Wesley Gryk Solicitors was exceptional. Their lawyers provided excellent guidance, and a deep understanding of the Home Office was used with good impact.’