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High Court Rules that Rwanda Plan is Lawful

Elena Musa

12th January 2023 By Elena Musa

On 19 December 2022, the High Court ruled in the case of AAA and others v Secretary of State for the Home Department that the government’s plan to deport migrants to Rwanda is lawful.

Despite the claimants’ efforts to argue that the plan is contrary to the Refugee Convention, the High Court declared that it does not breach the UN Refugee Convention nor the legal obligations imposed by the Human Rights Act 1998. However, this is not a definitive decision, as it will likely be appealed to the Court of Appeal and Supreme Court.

The Rwanda asylum plan was first announced by the Conservative government in April 2022. It aims to remove some asylum seekers from the UK to Rwanda so that their claims be assessed according to Rwandan law, which will lift the UK’s responsibilities to these migrants. Once in Rwanda, they can either be granted asylum or removed back to their country of origin. The launch of the plan triggered a widespread wave of protests among activist groups and the challenge to the lawfulness of the removal policy brought by AAA & Otrs, four individual asylum seekers (who also brought individual challenges against the decisions to remove them under the policy) together with the Public and Commercial Services Union, Detention Action and Care4Calais. When the UK sought to remove its first group of asylum seekers to Rwanda under the policy in May, a a last-minute injunction from the European Court of Human Rights pending the outcome of AAA & Otrs led to the flight being abandoned.

In making its judgment in December 2022, the High Court concluded that it is lawful to make arrangements to relocate asylum seekers to Rwanda. The court did not itself determine whether Rwanda is a safe country for migrants’ removal, instead they looked at whether the Home Secretary had made a lawful decision in deciding that it is. The court held that the Home Secretary had made a lawful decision because she had done a “thorough examination of all relevant generally available information”. This assessment was favored by a lack of evidence that could show how these asylum-seekers might be treated in Rwanda, as removals have not yet taken place. The court did not want to consider past instances where Rwanda had breached its obligations, as using past evidence to show some future concerns would only be “speculative”.

The court also rejected the claimants’ argument that the Rwanda plan breached two provisions of the Refugee Convention. They held that there is a “clear consensus” that Article 31, which provides that penalties should not be imposed on refugees based on their illegal entry or presence, does not prevent a state from removing a refugee. In addition, since the judges had already held that the Home Secretary’s decision to establish Rwanda as a safe country was lawful, the court rejected the claimants’ argument that the policy breached Article 33, which provides that a refugee should not be expelled or returned to a territory where their life or freedom would be threatened.

The court also rejected additional arguments made by the claimants. The judges did not hold that the policy was discriminatory, despite the special provisions made by the Home Secretary for Ukrainian refugees. They also believed that the claimants had been given an adequate opportunity to explain why they had not claimed asylum in countries they had been to, and that procedural fairness did not mean they had to be provided with legal representation as this was a question of fact, not of law.

The individual decisions for the four asylum-seeking claimants were found to be inadequate and will need re-making, even though the policy itself remains lawful. However, as it is likely the High Court’s decision will be appealed, for now, removals to Rwanda remain suspended thanks to the interim measure issued by the European Court of Human Rights, which has stated that removals cannot take place until 3 weeks after the delivery of the final domestic decision of the judicial review proceedings.

Filed Under: History, News and Updates

Global Talent in the UK

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13th December 2022 By Alison Hunter

One of the endorsing bodies, TechNation has recently published its report about the Global Talent visas which are endorsed by TechNation. It includes some very interesting statistics:
• Roughly 2,500 Global Talent visas have been granted in this category;
• A quarter of the Global Talent migrants own their own company;
• 73% of investment in this sector comes from overseas;
• 18% of UK Tech scale ups have at least one non-UK founder; and
• The overall sector valuation is considered to be roughly £1 trillion.

In short, the government sees the technology sector as a growth industry and wants to continue to attract highly skilled tech professionals. Currently, the UK is home to the third most valuable tech economy in the world, behind only the United States and China. The areas span a wide range of industries, including health, finance and energy.
In total, there are now roughly five million people working in UK tech start-ups and scale-ups which is a two million increase over the figures in 2019. Not only are the jobs in tech occupations, but the industry also provides opportunities to people in HR, legal, finance and sales.

Over a 120 different countries are represented in the applicants for the Global Talent tech visa. It is entirely likely that demand for highly skilled tech talent will continue on an upward trend in the future, particularly as domestic supply is unlikely to be able to fulfil the necessary demand for jobs.
Applying for a Global Talent visa is a two-stage process. The first stage is to present an application to an endorsing body, such as TechNation, with evidence to show that you are a leader in your field or that you have the potential to become a leader in your field. Although this may sound daunting, but clear guidance and support means that all sorts of people with very different ideas can make successful applications.

If you are interested in pursuing this route, we have expertise in guiding people through the Global Talent visa structures and helping them get endorsements from Tech Nation but also Arts Council England and the endorsing bodies for Academics. Please contact us on 020 7401 6887 or at Alison@gryklaw.com.

Filed Under: News and Updates

Registration for British citizenship as a Chagossian descendant

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1st December 2022 By Imogen Simpson

During the 1960s and 70s, the UK government removed all inhabitants of the Chagos Islands from their land, creating what is known as the British Indian Ocean Territory (BIOT). This allowed the islands to become a US military base. The majority of Chagossians were removed to Mauritius and Seychelles.

In 2002, the UK government made the decision to grant British citizenship to all British Overseas Territories citizens, which included Chagossians. However, this applied only to those born on the Chagos Islands and their children. Citizenship was not extended to subsequent generations such as grandchildren or great-grandchildren.

The UK government has finally addressed this issue.  The Nationality and Borders Act 2022 amends the British Nationality Act 1981 to create an entitlement for the direct descendants of Chagossians to be registered as British citizens and/or British Overseas Territories citizens (BOTC).

Applicants can apply for British citizenship and BOTC at the same time as part of one application and, if eligible, can obtain both forms of citizenship.

Requirements

The requirements for the application are relatively straightforward, at least in theory. Applicants will need to evidence that they are a direct descendant of someone born in the Chagos Islands. The Home Office published caseworker guidance on these citizenship applications in which they define ‘direct descendant’ as:

‘Direct descendants are the biological children and grandchildren of an ancestor. For example, you are a direct descendant of your mother, your grandmother, your greatgrandmother, and so on. This also applies to the paternal side and includes your father, your grandfather, your great grandfather and so on. Direct descendants do not refer to aunts, uncles, nieces, nephews, brothers, sisters, cousins, and so on.’

Evidence of direct descent will typically include birth certificates and birth records, but can also include:

  • medical or dental records;
  • marriage or civil partnership certificates;
  • change of name deed polls; and
  • factual records including court proceedings.

The Home Office has confirmed that the BIOT administration is in the process of digitalising the birth records it holds for those born on the Chagos Islands. This means that where an applicant does not have access to a copy of their ancestor’s birth certificate, the BIOT should be able to help with verifying the applicant’s Chagossian ancestry.

Applicants will also need to provide a form of ID, and two referees to verify their identity. There is no good character requirement for these applications.

You are not eligible to apply if you have ever previously been a BOTC or British Dependent Territories citizen.

Applications are open as of 23 November 2022.  You can apply online here: Apply for British citizenship as a person of Chagossian descent – GOV.UK (www.gov.uk). There is no application fee.

The Home Office has set a time limit on these applications. Those who are already 18 or over will have five years from 23 November 2022 to apply. The deadline for those under the age of 18 as at 23 November 2022 is the person’s 23rd birthday.  Under the guidance those born between 23 November 2022 and 23 November 2027 may also be eligible to apply up to their 23rd birthday.

While this does not fully rectify the situation, the introduction of this entitlement to register is good news for Chagossian descendants who have previously been excluded from becoming British citizens or BOTCs.

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

Filed Under: News and Updates Tagged With: British Nationality, news and updates, Registration

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

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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.

 

Filed Under: Uncategorised

Landmark High Court Case on Transnational Marriage Abandonment

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4th November 2022 By Andrew Jones

Migrants who are in the United Kingdom as the partner of a British citizen can apply for indefinite leave to remain if that relationship breaks down permanently because of domestic abuse.

However, if that migrant is outside of the United Kingdom, they cannot apply for indefinite leave. That is because the wording of the Rules makes clear that the application can only be made from inside the United Kingdom.

This becomes a particular problem for migrants (usually women) who are victims of transnational marriage abandonment. This is a phenomenon whereby an abusive partner deliberately removes their partner from the United Kingdom, often by deception, and then leaves them stranded abroad. Common features of transnational marriage abandonment include taking away the woman’s visa and travel documents and the abusive partner contacting the Home Office to declare that the relationship has ended so that the woman’s visa is curtailed. These women have no recourse under the Immigration Rules to return to the United Kingdom, whereas if they were still in the United Kingdom, they would be eligible for indefinite leave to remain. This is the case even though transnational marriage abandonment has been recognised in the Family Courts as a form of domestic violence.

Nath Gbikpi set out this issue in further detail in an earlier blog.

On 14 October 2022, the High Court found that by treating victims of domestic violence differently depending on whether or not they are in the United Kingdom, victims of transnational marriage abandonment are being unlawfully discriminated against. The Home Office will now have to introduce new Rules and guidance to ensure that victims of transnational marriage abandonment are treated the same as victim of domestic violence who are in the United Kingdom. This should mean that they will be able to apply for indefinite leave to enter.

In the meantime, however, many women will have been excluded from indefinite leave on the basis of this discriminatory treatment. Some may have returned to the United Kingdom on different visas. It remains to be seen whether the Home Office will allow them to apply for indefinite leave to remain, too.

Our Diana Baxter wrote a detailed analysis on this issue on Lexis Nexis.

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

Filed Under: News and Updates Tagged With: Advice, Immigration, news and updates, Personal Immigration

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Latest News

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  • Recent High Court Decision in R(Roehrig) v SSHD EWHC 31 (Admin) January 2023
  • High Court Rules That Potential Loss of Rights For Those With Pre-Settled Status Under EUSS Is Unlawful
  • High Court Rules that Rwanda Plan is Lawful
  • Global Talent in the UK
  • Registration for British citizenship as a Chagossian descendant
  • Helpful new guidance makes it easier for children to register as British citizens
  • Landmark High Court Case on Transnational Marriage Abandonment
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wesleygrykllp Wesley Gryk LLP @wesleygrykllp ·
26 Jan

In December 2022, the High Court ruled that the way the government is implementing the EU Settlement Scheme is unlawful.

Our Beatrice Windsor (@bearosewindsor) explains the judgement: https://www.gryklaw.com/high-court-rules-that-potential-loss-of-rights-for-those-with-pre-settled-status-under-euss-is-unlawful/

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12 Jan

At the end of last year, the High Court ruled that the Home Office's plan to remove some asylum seekers to Rwanda was lawful. Our Elena Musa explains the judgment: https://www.gryklaw.com/high-court-rules-that-rwanda-plan-is-lawful/

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13 Dec

Tech Nation, one of the Global Talent endorsing bodies, has recently published a report about Global Talent visas.

Our Alison Hunter explains what this report says, assesses the likely impact on Global Talent applications and summarises the process: https://www.gryklaw.com/global-talent-in-the-uk/

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