News and updates

Biometric Residence Cards and Third Country Nationals

12th March 2021 By Ciera McCartney

When applying to the European Settlement Scheme from within the UK, most third country nationals (i.e., non-Europeans) will already hold a Biometric Residence Card issued to them because of their right to reside in the United Kingdom under European law. This document proving their status, the Biometric Residence Card, will have been issued under the EEA Regulations.

Third country nationals who have not previously held a Biometric Residence Card issued under the EEA Regulations will be invited to attend an appointment to provide their biometric data with the Home Office provider Sopra Steria. If the application for pre-settled or settled status is granted, the individual will be issued with a Biometric Residence Card under the European Settlement Scheme.

However, those third country nationals who apply to the European Settlement Scheme and already hold a valid Biometric Residence Card issued under the EEA Regulations are currently not issued with an updated Biometric Residence Card.

For example, a third country national who submits an application with two weeks left until their card issued under the EEA Regulations expires will not receive a new Biometric Residence Card under the European Settlement Scheme. The Home Office has confirmed this is because their card is still valid at the time the application was made. They have also confirmed this is the case even if the EEA card has expired by the date of the decision. An individual in this scenario will therefore also not be issued with a new card automatically under the European Settlement Scheme.

While third country nationals have their status recorded digitally on the European Settlement Scheme online portal accessible through Gov.UK, if they do wish to obtain another Biometric Residence Card to reflect their new immigration status, they must make a further application and re-submit their biometric data. Third country nationals are likely to need to do this in practice, given that their status is not linked to their passport, as is the case for European nationals.

Yet unfortunately the decision letter currently sent to applicants who have successfully obtained status is silent on this point and gives no guidance or a link to the appropriate page on the Home Office website where one can apply to update their Biometric Residence Card under the EU Settlement Scheme.

This lack of clarity raises practical issues. While we understand the Home Office plans to move the immigration status of all migrants to a digital only status, this has not yet happened, meaning third country nationals still need to evidence their status to carriers and border staff through a Biometric Residence Card when returning to the United Kingdom from abroad. Unaware that this is the case, we have heard reports of confusion by airline staff and border personnel, difficulty at the border and in several cases people left stranded outside the UK.

Third country nationals granted status under the European Settlement Scheme therefore do require a valid biometric card reflecting their current immigration status. Yet, if they fall into one of the scenarios outlined above, the process to update to a new card is unclear, costly (there is a Home Office fee of £75.20) and lengthy (the Home Office state these applications can take up to six months to be decided).

Instead, we believe all third country nationals should be given Biometric Residence Cards automatically up until the point that the Home Office can rely on digital immigration statuses for all migrants. These cards should be issued at the time the applicant is granted their new status, solving the practical difficulties faced by those third country nationals already holding at the date of application a valid Biometric Residence Card issued under the EEA Regulations.

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

Coronavirus: travellers to England required to self-isolate for 14 days

8th June 2020 By Andrew Jones

Starting from today, Monday, 8 June 2020, most travellers coming to England will need to self-isolate for 14 days and complete a ‘Passenger Locator Form’ so that the government can contact you if anyone you travelled with falls ill with COVID-19.

The government says that it has introduced these new rules to reduce the chance of a ‘second wave’ of coronavirus in the UK.

These new restrictions apply to most people travelling to England from outside of the Common Travel Area (the United Kingdom, the Republic of Ireland, the Isle of Man and the Channel Islands). If you are traveling from within the Common Travel Area, but were outside of it within 14 days of arrival, these rules apply to you, too. They apply equally to British citizens and foreign nationals.

Within 48 hours of departure, travellers need to complete a Passenger Locator Form. The form asks for your personal and travel details as well as where you will be staying for the first 14 days in the UK and an emergency contact in case you fall ill. The form can be found here. Travellers should print off a completed copy of the form or have it accessible on their mobile phone to show the Border Officer on arrival. Failure to do so can lead to a £100 fine and you may be refused entry (if you are not a British citizen).

Once in England, arrivals must self-isolate for 14 days. The rules on this are very strict, and much stricter than the current government guidance for those who are already here. If you are required to self-isolate, you cannot go out in public, go to work or go to school. You cannot leave your home for exercise or to walk your dog. You should not go shopping, even for essentials, and instead should arrange for these to be delivered. There is no “reasonable excuse” exception, not even in situations regarding childcare.

The only exceptions are:

If you are legally required to go somewhere (e.g. to take part in legal proceedings or a child moving between homes as part of a custody agreement);
You require urgent medical care;
To attend the funeral of a close relative;
To access basic necessities or essential public services and there are exceptional circumstances why these could not be delivered to you;
You needed to stay in safe overnight accommodation before travelling to the location where you would be self-isolating for the remainder of the 14 days; or
There is an emergency

Failure to follow these rules can lead to fines of up to £1000, or even up to £3200 in some circumstances. Migrants should be aware that they would be required to disclose these fines in applications for leave to remain and could see an application for British citizenship refused if it is made within three years from the date of the fine.

The full government guidance can be found here.

There is a long list of people who are exempt from these rules, which can be found here. These exceptions would not apply to most people coming to England, but does include diplomats, foreign representatives and other consular staff, those employed by the military, those who are only transiting and do not leave the airport and those (either living in the UK or outside of the UK) who travel in and out of the country at least once a week for work.

Please note, these rules only apply to England, as the Welsh, Scottish and Northern Irish governments have control over their own public health measures. At the time of writing, there were no regulations in place requiring quarantine for those living in Wales, Scotland or Northern Ireland.

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

European Update: The Good and the Bad

28th May 2020 By Alison Hunter

On 14 May, the government issued a new Statement of Changes to the Immigration Rules. And once again it included changes to the European Settlement Scheme. Some were small in nature and a tidying up exercise to deal with small omissions or inconsistencies. However, there were two important substantive changes.

The good news is that protection has been extended to those in durable relationships to ensure that if their relationship with a European national breaks down due to domestic violence, they should be able to remain in the United Kingdom in their own right. This comes into force from 4 June 2020.

From 24 August 2020, the rule changes will also allow for dual British and Irish nationals born in Northern Ireland to rely on their Irish nationality to bring dependants to reside with them in the United Kingdom. This allows for a less onerous set of rules to be applied to them, ensuring there is no need for them to fulfil stringent financial requirements, which apply to British people sponsoring their family members.

This was however swiftly followed on 15 May 2020 with some far less welcome news: the new naturalisation guidance clarifies that European citizens who did not hold comprehensive sickness insurance while they were students or self sufficient, or were not exercising a Treaty right during the qualifying period for naturalisation, can be considered to have been in breach of immigration law. This means that if a European national is applying to naturalise having obtained settled status they will still need to show that they fulfilled these requirements during the five year period (or three year period, if married to a British Citizen) before making the application. Unlike under the European Settlement Scheme, where residence in the United Kingdom on its own is sufficient to ensure a grant of status, a successful naturalisation application may need to go beyond mere residence for the qualifying period, if an applicant did not hold pre settled or settled status for part of the period. Home Office caseworkers now have to check whether applicants can be considered to be in breach of immigration law and can request further information to reassure themselves that such time spent in the United Kingdom was ‘on a balance of probabilities’ in accordance with the law. I should add that the guidance also states that it will be possible for caseworkers to waive the requirement on a discretionary basis but without giving any further guidance as to when that would be deemed appropriate.

Given the £1330 fee attached to a naturalisation application, applicants should ensure that they really do qualify before making this payment to the Home Office as only £80 (the cost of the citizenship ceremony) would be reimbursed if the application were refused.

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

Retirement announcement

7th May 2020 By Diana Baxter

In these troubling and uncertain times, it is with mixed emotions that we announce the retirement of our Senior Partner and namesake, Wesley Gryk.

After 25 years at the helm, and in celebration of his 71^st birthday on 12 May 2020, Wesley will be retiring as Senior Partner at Wesley Gryk Solicitors LLP. Fortunately, he will continue to share with us his wisdom on an ongoing basis as an unpaid Consultant.

12 May 2020 will, undoubtedly, be a bittersweet day for the firm as we celebrate the achievements of our founder, who built the firm from scratch into the leading law firm that we are today (see here for a memoir of the early days).

In the past 25 years, Wesley has assisted numerous individual migrant and refugee families from across the world to navigate the bureaucracy of the UK’s immigration system, while more widely championing and promoting the rights of migrants in the UK. His legacy lies not only in the clients he has advised, but also in the generations of immigration solicitors / barristers he has trained along the way and who continue to uphold his exceptional standards of legal advocacy across the field of immigration law. In this period of state overreach, it is more pertinent than ever that we uphold this legacy in striving to maintain the rule of law, civil liberties and human rights.

Wesley’s achievements have been well documented by the Law Society in its recent Minority Report. Wesley is known for his exceptional commitment to his clients, his formidable knowledge across the broad spectrum of immigration law, and for his compassion. In particular, Wesley should be proud of his achievement with respect to the rights of LGBT+ migrants and the role he played in achieving recognition of same-sex relationships in immigration law.

We are not just Wesley’s firm, but also his ‘family’. And like many families right now, we are separated – unable to mark this momentous occasion together with the grandeur it so demands. And with the same commitment that Wesley has shown over the last 25 years to ensure our clients can be together in safety with their families, we will keep battling on remotely as his legacy and in anticipation of coming together again later this year (or perhaps more realistically early next year!) to give Wesley the send off he so truly deserves.

Thank you, Wes.

The EU Settlement Scheme: an Update

27th April 2020 By Alison Hunter

As the press reported last week, the Home Office has announced that it has received 3.4 million applications from people seeking to stay in the United Kingdom after Brexit under the EU Settled Status Scheme. The government estimates that the number of EEA and Swiss citizens eligible to remain in the United Kingdom lies between 3.4 million and 3.8 million. Are they thinking ‘job done’?

The Migration Observatory report about the EU settlement scheme clearly sets out the flaws with the way the government is producing data and counting applications made. The Home Office has a very crude system of just counting every application. However, there are very basic problems:

It is not known how many people are eligible to apply and how many still live in the United Kingdom.
One person may have applied for pre-settled status and settled status – this counts as two applications.
There are people who have applied to the scheme but have left the United Kingdom.

What we do know is that the Home Office still has a backlog of 320,000 applications and that inevitably, the applicants who have not yet applied are likely to be the more difficult cases including, for example the citizens in children’s homes, victims of domestic abuse, third country national family members of EU citizens and people who are not able to provide the documentation required by the Home Office. We also know that 300 applications were refused by the Home Office in March 2020.

There is now of course the added problem of Covid-19 with a slow down in the processing of applications at the Home Office due to reduced staffing levels. The telephone line set up to assist applicants with the EU Settlement Scheme is not functioning as the Home Office was not able to provide a safe working environment for its case workers. This means that the only way to get in touch with the EU Settlement Scheme staff is by email. The delays in response time are significant and standard responses often appear to be being sent out without any specific information about individual cases.

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Although it is still possible for EU citizens with passports which are chipped to make applications, non-EEA family members are unable to submit applications as the Home Office is currently not accepting passports. It is therefore not possible to provide identity documents either to the Home Office or to Sopra Steria, the company to which the Home Office has outsourced the initial processing of applications.

There are also some more complex applications which have to be completed on a paper form. The procedure is that the form has to be requested from the Home Office. Previously an applicant was required to phone in and outline their case before a paper form was sent out, which is now not possible. Paper forms can still be requested by email and are then sent to the applicant. The Home Office has reassured us that these applications are still being dealt with, although we know from experience that the delays before the Covid-19 lockdown were significant, and they are only likely to increase now. These applications would normally be sent back to the Home Office with original documentation but we have been informed by a senior case worker at the Home Office that only copies should be sent to the Home Office.

Given the Covid-19 pandemic, further delays seem inevitable. There are also likely to be some difficulties ensuring that biometrics are captured as required for the Home Office going forward. One thing that has been stated categorically, is that the EU Settlement Scheme will not be extended beyond June 2021, despite the Covid-19 pandemic.

If you require assistance in connection with the EU Settlement Scheme or any other EU immigration matter, please contact us on 020 7401 6887 or contact@gryklaw.com.