10 May 2018 sees the official launch of the LexisNexis publication ‘Surrogacy, Law, Practice and Policy in England and Wales’ . The book is an essential guide for those advising on surrogacy law.

The book is edited by Ruth Cabeza of Field Court Chambers and she has been ably assisted by fellow barristers from her chambers and Lillian Odze of the Cafcass High Court Team.

I am the author of the chapter ‘International Surrogacy and British Nationality and Immigration Law’.

The book is an important step towards informing both advisors and parents as to the British nationality and immigration law issues that arise in international surrogacy cases. Given the restriction on commercial surrogacy arrangements in the UK, UK-based commissioning parents frequently enter into international surrogacy agreements which lead to the birth of their children abroad. The birth of a child outside the UK inevitably leads to questions concerning British nationality and immigration law.

The fact that there is any nationality or immigration issue at all can come as something of a shock to many commissioning parents. Those who are British from birth have often not come into contact with the British nationality and immigration system before and understandably assume that their child will be born British whatever the circumstances.

Furthermore, British nationality law will often be at odds with the law in which the child will be born. In that country, the British commissioning parents may be the legal parents at the date of birth and named on the birth certificate. This does not mean that they will be the parents for the purposes of British nationality law.

Commissioning parents are well-advised to consider the immigration and nationality matters in advance. Ideally, they should take immigration and nationality law advice before entering into the surrogacy agreement. That said, there is an immigration and nationality law solution to most situations and parents who obtain advice during the pregnancy can usually prepare in time for the birth. We can, of course, also give initial advice after the birth but parents are well-advised not to leave obtaining advice until then.

In my chapter, I have set out the different circumstances that can arise and the immigration and nationality law solutions. The aim is to have these issues more widely known. Of course, we remain happy to advise parents on their particular case.

 

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.

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.