News and updates | Wesley Gryk Solicitors LLP

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.

The new Innovator Founder visa route: is it simply a difference in name?

30th March 2023 By Nikhil Kabariya

Earlier this month, the Home Office published a statement of changes to the Immigration Rules (HC 1160). One of the biggest changes is the introduction of a new Innovator Founder visa route, which will replace the existing Innovator route from 13 April 2023. The Start-up route will close.

This new route is quite similar to its predecessor, as applicants would still need to be supported by an endorsing body to show that their business proposal is innovative, viable and scalable. It is envisaged that there will be three new endorsing bodies under the Innovator Founder route. The previous endorsing bodies (known as “Legacy Endorsing bodies”) will then generally only be able to continue endorsing those already under the Innovator route who apply to extend their stay for the same business concept assessed in a previous application.

A welcome change with the new scheme is the removal of the requirement for applicants to have a minimum of £50,000 available to invest in the business. The idea behind this is to provide more flexibility for those who do not require a significant level of investment to deliver their business idea.

Another key difference under the Innovator Founder route is the removal of the restriction on secondary employment. This means that individuals can engage in other employment in addition to working for the business they have established, provided that the role is at a skill level of at least RQF level 3 (equivalent to A-levels or above).

There is also greater flexibility in terms of the timing of contact point meetings between applicants and their endorsing bodies to assess the applicant’s progress. The new scheme only requires at least two contact points as opposed to the set timeline under the previous route of contact points at 6, 12 and 24-month intervals from the date an application is granted.

It remains to be seen whether these changes will attract more people to come to the UK with their business ideas.

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.

Electronic Travel Authorisation (ETA)

23rd March 2023 By Ilhaan Dirshe

The Home Office has established a new scheme which aims to ensure that all those travelling to the UK have permission to do so in advance.

The intention is that Electronic Travel Authorisation (ETA) will be a requirement for individuals who do not require a visa the UK for short stays. It provides permission to travel to the UK which is linked directly to the applicant’s passport. An approved ETA will be issued electronically and is valid for multiple entries on either a basis of two years, or until the expiry of the passport used to make the application, if earlier. If refused, the applicant will need to make an entry clearance application to travel to the UK.

This ETA allows travel to the UK for up to 6 months for tourism, visiting family and friends, business or study. It will also allow Creative Workers to come to the UK for up to three months and allows individuals to transit through the UK.

The introduction of ETAs will be done in stages. Stage 1 is for nationals of Qatar who intend to travel to the UK on or after 15 November 2023. Stage 2 is for nationals of Bahrain, Jordan, Kuwait, Oman, Saudi Arabia or the United Arab Emirates, who intend to travel to the UK on or after 22 February 2024. Although the Home Office has initially specified nationals of these countries, it seems that the aim is to make ETAs a requirement for individuals of all countries, including those from Europe and the US, by the end of 2024 as stated in this article.

The application will be made online using the UK ETA mobile app or the online application form, both of which are currently unavailable. The Home Office has stated that the standard processing time for ETA applications will be three working days. Information regarding the Home Office fee for this application, and the biometric enrolment process, have not been disclosed yet.

Further information on the validity requirements, suitability requirements and grounds for refusal regarding ETAs can be found from page 32 of the Statement of Changes in Immigration Rules dated 9 March 2023. Once this scheme comes into force from 12 April 2023, all the rules will be set out in Appendix Electronic Travel Authorisation.

Recent High Court Decision in R(Roehrig) v SSHD EWHC 31 (Admin) January 2023

7th March 2023 By Caroline Asken

What is the case about?

Prior to the implementation of the British Nationality Act 1981, children born in the United Kingdom were automatically born British. Since the British Nationality Act’s implementation on 1 January 1983, a person born in the United Kingdom is British if they are born to a parent who is British or a parent who is settled in the United Kingdom. A ‘settled’ person has no conditions on the length of their stay in the United Kingdom. EEA parents exercising rights of free movement, for example working here, were considered to be settled and therefore the children born to them were considered British and subsequently could be issued with British passports.

On 2 October 2000, the Home Office issued guidance stating European parents were not settled and that they had to apply for indefinite leave to remain to be deemed settled. The Roehrig judgment confirmed that the restrictive approach applied by the Home Office since 2000 was the correct interpretation of the British Nationality Act. This confirmed that EEA parents exercising rights of free movement were not settled and that the children born to these European nationals were not born British. Therefore, the automatic entitlement to British citizenship which had been assumed, was not correct. The judgment raises implications for those granted British passports in error.

What may the Home Office do to address this issue?

The Home Office could change the British Nationality Act 1981, implementing a legislative fix. This could be a retroactive statutory recognition of British citizenship to those affected. Who is a British citizen is a matter of fact so only a legislative change would be able to easily rectify the mistake which affects those who were incorrectly issued with a passport. However, the Home Office may decide to extend the reasons why someone can register a British citizen as an adult so that the people affected can make an application to become British. This is quite likely to be an application that could be made free of charge.

What are the implications of the judgment?

This judgment could affect thousands of individuals.

The children born before 2 October 2000 to EEA national parents are unlikely now have the immigration status they require. As this cohort believed they were British, they would not have had to apply for immigration status in the United Kingdom, nor of course register or naturalise as a British citizen. Additionally, it has been a requirement for EEA nationals wanting to stay in the United Kingdom beyond 31 December 2020, to apply to the EU Settlement Scheme. Those that believed they were British would not have done this.

EEA nationals who cannot hold dual nationality, may have taken steps to renounce their first nationality as they believed they were British and without their British nationality would be rendered stateless. There is now also potentially a second generation of people who thought that they were British by virtue of their parents being British who in fact are also not British citizens.

What does this mean for you if you are a person affected?

It is difficult to quantify how many people will be affected by this judgment. People may only become aware of this matter affecting them when they try to renew their British passport and they are denied a passport.

If you were born between 1 January 1983 and 2 October 2000 to an EEA parent who was exercising rights of free movement but did not hold indefinite leave to remain and if you have been treated as a British citizen, we would urge you to follow the developments resulting from this case, in particular any possible announcement from the Home Office clarifying what they intend to do.

We will be keeping updated on this area and the developments with our experts in EU law and nationality matters. We would be happy to advise you at any point if this case affects you. Please contact us on 0207 401 6887 or via email on contact@gryklaw.com.

High Court Rules That Potential Loss of Rights For Those With Pre-Settled Status Under EUSS Is Unlawful

26th January 2023 By Beatrice Windsor

On 20 December 2022, in the case Independent Monitoring Authority v Secretary of State for the Home Department, the High Court found that the government’s use of the European Union Settlement Scheme (EUSS) was unlawful.

The background

Following Brexit, the Withdrawal Agreement was agreed by both the UK and the EU, which addresses various terms of the UK’s exit from the European Union. New laws were contained in the Withdrawal Agreement such as Part 2 of the Agreement which was drawn up to protect the rights of millions of EEA citizens (people from EU countries and Iceland, Liechtenstein and Norway) living in the UK. The laws at Part 2 give these EEA nationals the right to continue to live, rent, work, study, and access state services in the UK, as they had been able to pre-Brexit.

Before Brexit, it was not necessary for EEA nationals to apply for any sort of immigration status in the UK to be able to access these rights. But Brexit threw up the question of how these EEA nationals’ immigration status would be defined once the UK left the EU. The UK Home Office created the EU Settlement Scheme (EUSS) to address this question and to put into action the UK’s obligation to protect the rights set out at Part 2 of the Withdrawal Agreement.

The EUSS allowed EEA nationals who had lived in the UK for five years before 31 December 2020 to obtain settled status. Settled status means that you can stay in the UK indefinitely, and is a secure and permanent immigration status. Those who had been here for less than five years on 31 December 2020 could get pre-settled status. Those with pre-settled status were granted temporary status or leave to remain, and this expires after five years.

Before the end of their five-year period of leave, those with pre-settled status would then have to submit another application for settled status. However, it was unclear what would happen to those who did not apply for settled status or who did not apply in time. It would appear that they would become overstayers and lose the rights they previously held. It was reported by the 3million that thousands of people with pre-settled status could lose their rights to live, work, study, and access state support in the UK, if they let their status expire. There was also the risk of detention or deportation.

The case

The Independent Monitoring Authority (IMA) is a body that was set up as part of the Withdrawal Agreement to protect the rights of the EU citizens who fall into its scope. The IMA issued the judicial review claim in the High Court to question whether this loss of rights for those with pre-settled status is what had actually been agreed by the UK and the EU in the Withdrawal Agreement.

The UK argued that the EU had agreed to this. However, the IMA successfully argued that it was unlawful for the UK to use the EUSS to create a situation where those with pre-settled status who did not apply for settled status would lose the rights conferred on them by the Withdrawal Agreement.

Mr Justice Lane determined several key points:

While the UK can put in place a system whereby people must apply for status by a certain deadline, the rights associated with this status once granted can only be lost in the circumstances that are set out in the Withdrawal Agreement – and expiry of status is not one of them.
Recipients of one type of status ie ‘pre-settled or ‘settled’ cannot be forced by the UK to pursue another. If this were a requirement, then it would be set out in the Withdrawal Agreement.
Therefore, those with pre-settled status should not lose their rights if they do not make a second application when their leave expires.
The right of permanent residence accrues automatically once the conditions for obtaining the right have been fulfilled, and it is unlawful for the UK Home Office to withdraw these rights based on the basis that to a person has not applied for settled status.

What now?

The UK Home Office has been granted permission to appeal this judgment. Until the judgment from this appeal is handed down and confirmed, those with pre-settled status should continue to apply for settled status before their leave expires.

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