I spoke with John Humphrys on the Today Programme on Radio 4 this morning. The interview is here at 1:16:05: https://www.bbc.co.uk/radio/player/b09zt3fj.

On behalf of the Law Society, I raised the Data Protection Bill, currently making its way through Parliament, and the clear link with the ‘Windrush cases’. In those cases, the Home Office has apologised because individuals who have been in the UK lawfully for many years have been treated as if they had no status at all. This is clearly a scandal.

However, if the Data Protection Bill is passed in its current form, it will increase the chance of such injustices happening again in the future, and to a much wider group of individuals.

The main purpose of the Data Protection Bill is to strengthen individuals’ data protection rights but it contains an ‘immigration control exemption’ which means that the Home Office can ignore data protection rights if they think such rights will ‘undermine immigration control’.

There are a number of concerns with this part of the Bill (explained in detail in Liberty’s briefing below) but we are most concerned with the impact on Subject Access Requests (SARs), that is the right to see what information the Home Office holds about an individual.

We often make SARs to the Home Office for the release of our clients’ files because these files can provide crucial information. The Home Office cannot be relied upon to provide this information without a SAR, and the Home Office often does not act in accordance with its own records when making life-changing decisions. As the Windrush cases show, the Home Office frequently make serious mistakes.

The immigration control exemption means the Home Office will be able to refuse SARs and withhold information. This will remove an important tool in holding the Home Office to account when they ignore or misrepresent facts, it will fundamentally undermine access to justice and the effective operation of the rule of law in the UK.

We have gathered examples from many immigration lawyers to show when SARs are crucial. These examples have been used in the Parliamentary briefings by the Immigration Law Practitioners Association, The Law Society, and The Bar Council (see below). The examples bring home forcefully how important SARs are.
In response, the Home Office has stated:

“It is wrong to say that the proposed narrow exemption in the Data Protection bill is an attempt to deny people access to their data. People will still be able to request data as they can now and will be met in all cases except where we to do so could undermine our immigration control. They will have the right to complain to the information commissioner if they disagree with any use of the immigration exemption and we would always want to assist those whose claims are in question.”

This is simply not good enough. The exemption is not narrow; there is no definition of ‘undermine immigration control’ and the Bill gives the Home Office wide-ranging powers to ignore data protection rights. Furthermore, access will be all in their power. If the Home Office make a mistake and say an individual is unlawfully present when they are not, that individual will not have access to the information required to show a mistake had been made because the Home Office can legally deny that access on the basis of ‘immigration control’.

The right to complain against denial of access is of no comfort. Such complaints can take many months to be resolved, meaning the individual may have been removed or deported from the UK or may have been denied access to essential services, such as health care. Also, such complaints may well be unsuccessful as this Bill will make lawful the denial of access to information. The Information Commissioner’s hands may be tied.

If the government has learned anything from the Windrush cases, it must remove this exemption from the Bill. If they do not, they have learned nothing.

If individual MPs vote for this bill in in its current form, then despite their professed disgust at the Windrush cases, they will be complicit in future injustices.

 

 

Links:

https://www.libertyhumanrights.org.uk/sites/default/files/Liberty%27s%20Briefing%20on%20the%20Data%20%20Protection%20Bill%202017%20for%20Second%20Reading%20in%20the%20House%20of%20Commons.pdf

http://www.ilpa.org.uk/resources.php/34023/ilpa-briefing-for-second-reading-of-the-data-protection-bill-2017-in-the-house-of-commons-2-march-20

https://publications.parliament.uk/pa/cm201719/cmpublic/DataProtection/memo/dpb20.pdf

https://www.barcouncil.org.uk/media/641717/180228_immigration_control_exemption_hoc_2r_briefing_data_protection_bill_bar_council.pdf

 

The government has finally taken responsibility today for the appalling way it has treated the ‘Windrush children’ – Commonwealth nationals who arrived in the UK as children during the 1950s and 60s, whose parents were actively encouraged to move to live and work in the UK, and who lawfully entered and have lawfully remained in the UK for decades since then.

Such Commonwealth nationals may automatically hold indefinite leave to remain in the UK, acquired by law on 1 January 1973 through the enactment of the Immigration Act 1971.  For decades, they have lived, studied and worked in the UK without issue, until the introduction of the ‘hostile environment’, designed to prevent unlawful migration by denying access to services, public or private, to those who cannot correctly prove their status.  This ‘hostile environment’ created a society where ID documents are effectively mandatory for daily living – to open a bank account, see the doctor, rent a house or take a job – but without first ensuring that all those lawfully present in the UK have, or have access to, ID documents. It was entirely foreseeable.

Amber Rudd, Home Secretary, has apologised today for the treatment of these Windrush children, while promising that they won’t need to pay to resolve their position. According to newly published Home Office guidance, this can be done by making an application for a “no time limit” biometric residence permit, which usually costs £234 (https://www.gov.uk/government/publications/undocumented-commonwealth-citizens-resident-in-the-uk/undocumented-commonwealth-citizens-resident-in-the-uk).

Commonwealth nationals in this position should also be advised that, in addition to applying for a no time limit (NTL) document, they may also be eligible to naturalise as British citizens if they wish to and without first obtaining a biometric residence permit. This may be preferable to those who wish to become British citizens and the applications require similar levels of evidence.  While a valid identity document is usually required for an NTL application, which requirement has caused difficulties for the ‘Windrush children’ we have represented, there is no such mandatory requirement for a naturalisation application.

The requirements to naturalise as a British citizen are set out in Schedule 1 of the British Nationality Act 1981.  An applicant should be able to demonstrate at least five years’ lawful residence, of which at least 12 months must have been ‘free from immigration time restrictions’.  Commonwealth nationals who acquired indefinite leave automatically on 1 January 1973 have been free from immigration time restrictions for more than 45 years since then, usually with no absences from the UK.

Page 15 of the Nationality policy: Naturalisation as a British citizen by discretion, Version 2.0 confirms that applicants are not required to provide their original passport or travel document.  The policy states that, “if the applicant does not have passports to cover the qualifying period”, then they can submit:

“other evidence such as employers’ letters or tax and National Insurance letters:  in such cases you should assess whether there is sufficient evidence to show that that applicant has been resident in the UK during the qualifying period, giving them the benefit of any doubt where claimed absences are within the limits we would normally allow and there are no grounds to doubt the accuracy of the claim.”

HMRC employment records can be obtained as far back as the 1960s and are a good place to start to show length of residence and pension entitlements acquired as a result of NI contributions. Ancestry.com may have records of when applicants (or their parents) arrived in the UK, if coming by boat, and may corroborate an applicant’s account of their and their families’ lives in the UK, along with birth, marriage and death records for family members. Schools, hospitals, local authorities, employers and banks can also help, although many of these will have closed down or changed hands.

The same evidence required for a successful NTL application can therefore be used for a successful naturalisation application, without first having to acquire a biometric residence permit or other ID.

In addition to the residence requirements, an applicant for naturalisation must also demonstrate they are ‘of good character’ and that they have sufficient knowledge of language and life in the UK. This usually involves taking the Life in the UK citizenship test and, if not from an English speaking country, a specified English language test. Both of these require ID documentation simply to take the test, which may be a barrier in these cases, although the requirement is waived for those over 65 years and the Home Office has the discretion to waive these requirements in other cases as well. It is also possible to make an application to naturalise as a British citizen and then request the Home Office contacts a test centre to allow a person to take a citizenship test where they have been unable to do so due to lack of ID.

A naturalisation applicant must also show that they intend to keep living in the UK, which should not be difficult to establish if the applicant has not left the UK since at least 1972.

The greatest barrier to making a citizenship application is undoubtedly the cost. An application to naturalise as a British citizen now costs £1,330, a significant amount especially to an applicant who may have lost their job as a result of the hostile environment and had their bank accounts closed.

If the Home Office will now process NTL applications on behalf of the Windrush children for free, why not make a proper gesture of goodwill and waive the hefty naturalisation fee as well?  There is precedent for this in the correcting of other historical wrongs, such as for children born to British mothers or fathers at a time when they were unable to pass on citizenship. This would then allow this Windrush generation to become full British citizens, if they wish to, and finally secure their position in the UK.

The government has recently announced that the Immigration Health Surcharge (IHS), which is payable by nationals of countries outside the European Economic Area who stay in the United Kingdom for six months or longer, will soon rise from £200 to £400 a year. The discounted rate for students and those on the Youth Mobility Scheme will go up from £150 to £300.

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While a huge increase, it is below the tripling of the charge which was proposed in the Conservative Party’s Manifesto of 2017, and there is therefore concern that the amounts could increase further in the future. The IHS already represents a significant financial burden for many applicants and the increase will only worsen the impact: a spouse applying to join their partner in the UK will face an outlay of £1200 in addition to the expensive Home Office application fees.

The government say the rise will provide “an extra £220 million a year to support the NHS”. Quite how far an extra £220m will stretch against an annual budget of £122 billion remains to be seen.

We think that this change will come into force at the beginning of April 2018. Therefore if you are in a position to make an application before then, you may want to consider doing so. Equally, for those who are part-way through their five year route to settlement, we would expect the higher amount to be due on the extension application and you will need to plan accordingly. In most cases, this means that you will need to find another £500 to make a successful application.

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

** Please note that some of the information in this blog post is now out of date due to further changes in the Immigration Rules and Home Office Guidance which came into force on 6 July 2018.  You can read about the changes of 6 July 2018 here.  We would urge readers always to check the current legal position before making an application to the Home Office. **

 

In order to be eligible for indefinite leave to remain (ILR) in certain categories, applicants are required to demonstrate that they have spent a “continuous” period of 5 years’ residence in the UK. So what is continuous residence, and when is it broken?

A recent change in the Immigration Rules has redefined continuous residence for ILR in work categories, including Tier 1, Tier 2, UK Ancestry, and Representatives of an Overseas Business.

Prior to 11 January 2018, continuous residence was considered unbroken where:

“the applicant has been absent from the UK for a period of 180 days or less in any of the five consecutive 12 month periods preceding the date of the application for leave to remain, except that any absence from the UK for the purpose of assisting with the Ebola crisis which began in West Africa in 2014 shall not count towards the 180 days…”

Since 11 January 2018, however, continuous residence is considered unbroken where:

“the applicant has not been absent from the UK for more than 180 days during any 12 month period in the continuous period, except that any absence from the UK for the purpose of assisting with a national or international humanitarian or environmental crisis overseas shall not count towards the 180 days…”

Although the change is a difference of just a few words, its effects can be far-reaching.

Under the old rules, for example, if an application was being submitted on 10 January 2018, the Home Office would consider whether the absences amounted to over 180 days in each of the five consecutive 12-month periods before that date, i.e. between 11 January 2017 and 10 January 2018, 11 January 2016 and 10 January 2017, etc.

This meant that where a person had a long absence from the UK, in our example, say, between 1 September 2016 and 11 March 2017 (a total of 190 days), they would have been able to split this long absence between two separate years, and therefore stay within the 180 day limit in each consecutive 12-month period.

Under the new rules, however, this is no longer possible. Absences of more than 180 days in any 12-month period will now mean that continuous residence is considered to have been broken.

The new rule came into force on 11 January 2018 with immediate effect and with no ‘grandfather clause’ or transitional provisions for people who had been relying on the previous rule, believing that it would continue to apply to them. This means that people who expected shortly to be eligible for ILR may have to apply for an extension of leave instead.  This issue is being raised with Home Office officials by the Immigration Law Practitioners’ Association and, if no amendments are made, then the retroactivity of this provision may end up the subject of legal challenge on the basis that applicants under the old rules had a legitimate expectation that they would be eligible for ILR.  Such legal challenges have been successful in the past, although in the meantime, applicants will need to consider their options carefully.

The Home Office’s new guidance suggests that ILR may be granted “outside the Rules” on a discretionary basis where the excess absences were due to “serious or compelling reasons”, such as serious illness, conflict, or a natural disaster. Unfortunately, it also specifically states that absences “for employment or economic activity reasons” will not be considered exceptional, which may be difficult for those required to travel for business.

It also states that the Home Office may grant ILR outside the Rules where an applicant can provide a letter explaining how this recent change to the law will cause them “exceptionally harsh consequences”, such as if they would not be able to qualify for ILR in future because of being unable to apply for further extensions. This may be helpful for people who have a high number of absences under the Tier 2 (General) route, where there is a 6-year limit on extensions.  In addition, the guidance states that a relevant factor in deciding whether to grant ILR outside the Rules is when the periods of leave relied upon were granted in relation to the changes of 11 January 2018.

A further significant change in relation to absences applies to dependants of Points Based System (PBS) migrants, including dependants of Tier 1, Tier 2, Tier 4 (General) and Tier 5 (Temporary Worker) migrants. Historically, PBS dependants have not been subject to absence limits for the purpose of obtaining ILR.  However, they will now be subject to the 180 day cap on absences from the UK in any 12 month period for leave granted on or after 11 January 2018.  In this case, the Rules do, at least, make clear that the new provisions for PBS dependants will not apply retroactively, so that absences from the UK for leave granted prior to 11 January 2018 will not count towards the 180 day cap. This is confirmed in the latest version of the SET(O) form, which only requires dependants to list absences for leave granted after this date.

However, while these changes apply to dependants of PBS migrants, they do not apply to dependants of migrants in the other work categories under “Part 5” of the Immigration Rules, which relates to, among others, those of UK Ancestry, Representatives of an Overseas Businesses and Overseas Government Employees (which are commonly referred to as “Part 5 migrants”). Dependants of Part 5 migrants do not have any residence requirements in order to be eligible for ILR.

It is worth noting that the Home Office’s guidance for dependants of Part 5 migrants, available here, on page 15, erroneously suggests that partners of Part 5 migrants must comply with residence requirements in order to be eligible for ILR. However, we have had direct correspondence with the policy team at the Home Office responsible for this document who have confirmed there are no residence requirements for dependants of Part 5 migrants and that the changes that now apply to dependants of PBS migrants do not apply to dependants of Part 5 migrants. We are happy to share this correspondence if you contact us at the email address below.

For tailored advice on how these new changes may affect your eligibility for indefinite leave to remain, and your options for moving forward, contact us by phone on 020 7401 6887 or by e-mail on contact@gryklaw.com.