Following the end of phase one of the Brexit negotiations, a joint report from the negotiators of the European Union and the United Kingdom was published on Friday 8 December 2017. Amongst other things, it indicates what agreements have been reached in respect of European citizens and their family members residing in the UK after Brexit.

We have known since June that European citizens and their family members who have been residing in the UK for five years will have to apply for ‘settled status’. ‘Settled status’ will give people the right to reside in the UK indefinitely, to access public funds and to go on to apply for British citizenship if they wish to. However, the process and timings to acquire ‘settled status’ were not clear.

Since the report, European citizens and their family members finally have some indication as to how the application process for ‘settled status’ is going to be implemented, although the procedure is far from finalised.

In summary, it has been agreed that European citizens and their family members who have been living in the UK lawfully for a full five year period before 29 March 2019 will be able to apply for ‘settled status’.

It has also been agreed that all citizens who have a permanent residence document under European Law must have that document converted into a new ‘settled status’ document. The process will be free of charge, however, anyone who does not have their document converted by a deadline yet to be announced may make themselves unlawfully present.

European citizens and their family members who arrive by 29 March 2019 but who will not have been in the UK lawfully for five years when the UK leaves the EU will be able to apply for a temporary residence permit until they have reached five years. They will then be able to apply for ‘settled status’. Neither the report, nor the updated Home Office guidance define the term ‘lawfully’.

Certain ‘close’ family members will be able to apply to join their EU family members after the exit date, but only where the family member had an existing relationship with the EU national before 29 March 2019. This relationship must continue to exist when the family member wishes to come to the UK. Children who are born or adopted after the exit date will also be able to apply. All other family members will have to meet UK immigration law if they wish to enter the UK.

‘Settled status’ will be lost if a person is absent from the UK for a continuous period of five years, and they will then also be subject to UK immigration law.

A decision has still not been reached on the application process for European citizens who arrive in the UK after 29 March 2019.

The UK has also said that they expect their offer to be extended to citizens of Norway, Iceland, Lichtenstein and Switzerland, although that has not yet been confirmed. Irish citizens will not need to apply for the new status.

Please bear in mind that all of the above could still change as the negotiations continue. Also be aware that it is not yet possible to make an application for ‘settled status’; the new application system is expected to go live sometime in 2018.

It is possible to make an application for a permanent residence document under the current system, and we are assisting many European citizens and their family members with these applications. Please contact us for a consultation if you would like advice on permanent residence, or any other aspect of European Law.

The attitude of the Home Office towards asylum claims made by Bangladeshi nationals on the basis of their sexual identity has changed over the years.

Until approximately mid-2016, it seems that the Home Office accepted that gay, lesbian and bisexual people were at risk of harm in Bangladesh. This meant that many were granted asylum.

Since mid-2016, however, we have seen a lot of refusals on the basis that gay, lesbian and bisexual individuals are not at risk of harm in Bangladesh. The Home Office says that they are discriminated against, but they are not persecuted (seriously harmed), and that the state will protect them.

In December 2016, and again in September 2017, the Home Office published a Policy and Information Note on Bangladesh which made this clear. The Note from September said that:

in general the treatment of LGBT persons in Bangladesh, even when taken cumulatively, is not sufficiently serious by its nature and repetition as to amount to persecution or serious harm”;

and that

effective state protection against societal ill-treatment may be available depending on the facts of the case”.

A group of lawyers and other stakeholders, including myself, wrote to the Home Office to ask them to reconsider their Note. We explained that the evidence showed that LGBT persons in Bangladesh are at risk of serious harm.

As a result, in November 2017, a new Note was published. This time, the policy summary says that:

In general, an LGBT person who does not conceal their sexual orientation or gender identity may be at risk of treatment, which by its nature and repetition amounts to persecution or serious harm” and that “the state appears able but unwilling to offer effective protection”.

This new Note is a move in the right direction. We are hoping that decision makers will now find it harder to refuse asylum claims by gay, lesbian and bisexual Bangladeshi nationals who want to live an openly gay life in Bangladesh, but would not do so because they are scared of being harmed.

However, some points from the Policy and Information Note are still concerning and misleading. For example, the Note says that “the available evidence does not establish that LGBT persons are systematically targeted and subject to treatment amounting to persecution or serious harm by the state”. Whether there is systematic targeting is not the issue. The Home Office should look at whether, if they went back to Bangladesh, LGBT persons would be at risk of harm, and I would say they are.

Similarly, the notes have consistently stressed that the Bangladeshi police and government do not use section 377 of the Penal Code, which criminalises same-sex sexual acts, to arrest LGBT persons. This is true, however that is not the point. The rest of the evidence shows that LGBT persons are at risk of harm and the state will not protect them. That is the test to apply when deciding asylum claims.

I was at the Upper Tribunal on 28 November for a gay man from Bangladesh. The Home Office accepted that he was gay but they continued to say that the evidence on Bangladesh does not show that he will necessarily be at risk of harm. Therefore, the new Policy and Information Note is still used to argue that Bangladesh is safe. This is why we will continue to push the Home Office to review it.

Thankfully for my client, the Upper Tribunal judge agreed with us and he won his appeal. I have had two other successes at the First-Tier Tribunal for Bangladeshi gay men in the last year. However, we would like the Home Office to accept that Bangladeshi LGBT persons are at risk of harm, without them having to go to court.

In the meantime, if you are LGBT, from Bangladesh, currently in the UK, and you fear for your life were you to be returned to Bangladesh, you should get legal advice as you may have a good asylum claim. Please do contact us to arrange a consultation by phone or by email.

We are delighted that we have been shortlisted for the Human Resources Firm (Specialism) of the year award:

http://www.legal500.com/assets/pages/awards/uk/2018/uk-2018-firms-shortlist.html

 

On 23 November, the High Court considered a challenge to the high cost of fees for a child’s citizenship application.

A child is a British citizen automatically if born in the United Kingdom at a time when one of their parents is British or settled (i.e. has permanent residence or indefinite leave to remain). When Parliament made this law, they also intended for children who could show a clear connection to the United Kingdom to be able to claim citizenship, regardless of their parents’ status – children therefore have a right to register as British if they were born in the UK and have lived here for the first ten years of their life.

This case was brought on behalf of a child, known in this case as ‘VF’, who was born and brought up in the UK. As VF was not born to British or settled parents, she is not automatically British. In order for her to register as British, she needs to pay a Home Office fee of £973. VF, and many other children like her, cannot afford the fee.

The actual cost to the Home Office of processing a citizenship application is £386. The remainder, £587, generates a profit for the Home Office, as part of plans to make the Home Office “self-funding”. There isn’t an exemption or fee waiver, even if a child is in local authority care or their parents are on a low income. This stops children acquiring a citizenship to which they are entitled purely because of their financial status.

The High Court was asked to declare the profit making element of the fee ‘unlawful’. In this case, VF was able to crowd fund to raise money for the application, and was subsequently registered. The High Court acknowledged that thousands of children were affected but declined to rule because the matter had become academic as VF had been registered as British.

Amnesty International and the Project for the Registration of Children as British Citizens (PRCBC) are campaigning in this area and you can read more about this here: https://www.amnesty.org.uk/blogs/childrens-human-rights-network-blog/uk-price-citizenship

If you think you or your children are eligible to register as a British citizen, or would like to know more about this application, please do not hesitate to contact us for an initial consultation.