News and updates

Changes to nationality law post EU Settlement Scheme deadline – is my child British?

23rd July 2021 By Ban Hussein

Children born in the UK to parents who are ‘settled’ (i.e. have indefinite leave to remain) are automatically British from birth. EU citizens and their family members who had lived in the UK for at least five years were able to apply for indefinite leave to remain (‘settled status’) under the EU Settlement Scheme. The deadline to apply was 30 June 2021. But what is the situation for children born in the UK after 30 June 2021 where the parents had a pending application for settled status at the time of their birth? Equally, what if the parents applied after the deadline but were eventually granted settled status?

As of 1 July 2021, there have been changes to the British Nationality Act 1981 to deal with this situation.

British Nationality Act 1981 (Immigration Rules Appendix EU) (Amendment) Regulations 2021 has provided for children to automatically acquire British citizenship from the date that their parent is granted indefinite leave to remain (“settled status”) under the EU Settlement Scheme. For children born on or after 1 July 2021, the legislation will operate under the following circumstances

Where a parent has submitted an application under the EU Settlement Scheme by 30 June 2021 deadline, but the application was yet to be resolved at the point the child was born
For applicants who make a late application under the EU Settlement Scheme (i.e. after 30 June) if they can show that they had reasonable grounds for missing the deadline and the application was unresolved before the child was born. In this situation the applicant would need to show that:
they met the eligibility requirements by 30 June deadline; and
had the reasonable grounds for delay not intervened and they applied in time under the EU Settlement Scheme.

Under the above circumstances, the child in question will not have to register as a British citizen for a fee of £1031.20 (although the lawfulness of this fee is currently being challenged by PRCBC. They will automatically be born British citizens and they will be able to proceed with a British passport application straight away.

The changes are a welcome development in ensuring that children of individuals who applied late under the Scheme or those whose applications remain pending due to the decision-making backlog are not deprived of British citizenship.

If you would like more information or advice on how this may affect you or your children, we can help. Please contact us on 020 7401 6887 or by email at contact@gryklaw.com.

No Recourse to Public Funds – What does it all mean?

24th June 2021 By Esther Oshinmi

S.115 of the Immigration and Asylum Act 1999 states that a person will have ‘no recourse to public funds’ if they are ‘subject to immigration control’. This means they have no entitlement to most welfare benefits, including income support, universal credit, housing benefit and a range of tax credits.

People ‘subject to immigration control’ include those with limited leave to remain, and this also extends to family members. For example, spouses/partners, children, adult dependant relatives and parents of children in the UK all have this condition imposed on their leave in these cases. Additionally, this is commonly imposed on asylum seekers and those who have overstayed their visas.

Failure to comply with the No Recourse to Public Funds condition may result in:

Your current permission to stay in the UK being revoked
Refusal of your visa extension application
Refusal of future settlement applications, including Indefinite Leave to Remain (ILR) or British citizenship.

Applying for a change of conditions

Paragraph GEN.1.11A of Appendix FM provides that certain types of leave will normally be granted subject to a condition of no recourse to public funds, unless the applicant has provided the decision-maker with:

(a) satisfactory evidence that the applicant is destitute as defined in s. 95 of the Immigration and Asylum Act 1999; or

(b) satisfactory evidence that there are particularly compelling reasons relating to the welfare of a child of a parent in receipt of a very low income.

For these purposes, a person is ‘destitute’ if they do not have adequate accommodation or enough money to meet living expenses for themselves and any dependants.

When leave has been granted subject to a condition of no recourse to public funds, an application must be made to lift that condition before public funds can be accessed. The Home Office provides for two circumstances in which a person can apply for a change of conditions:

since being granted leave, your financial situation has changed and you have become destitute, or there are now particularly compelling reasons relating to the welfare of your child on account of your very low income, or there are now exceptional circumstances in your case relating to your financial circumstances; or
you were destitute, or there were particularly compelling reasons relating to the welfare of your child on account of your very low income, or there were exceptional circumstances in your financial circumstances at the time of your application, but you failed to provide evidence of this and would now like to rely on this.

You may be able to apply for this change of conditions to allow access to public funds if you have leave to remain under the 10-year parent or partner route, and where the refusal of your application for leave to remain would breach your rights under ECHR Article 8 (the right to respect for private and family life).

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

EU Settlement Scheme – when to apply?

11th June 2021 By Alison Hunter

The simple answer to that is “now”.

The deadline for most EU/EEA and Swiss citizens and their family members to apply for the EU Settlement Scheme is 30 June 2021. It is important to understand that most EU/EEA and Swiss citizens and their family members need to make an application to ensure they secure their existing rights beyond 30 June 2021. This includes people who hold a permanent residence document or an EEA biometric residence card.

Who does not need to apply?

People who have obtained indefinite leave to remain in the past do not need to apply under the EU Settlement Scheme but may decide that they want to as it will allow them to be registered with the Home Office and given a mechanism to prove their immigration status digitally, which may be useful in the future.

Equally, Irish citizens do not need to apply but may do so if they wish. Irish citizens are allowed to live and work in the United Kingdom going forward purely on the basis of their Irish nationality.

What happens if you miss the deadline?

First and foremost try not to. Remember that an application is submitted on the day that it is triggered on-line, that is to say the day that you press the button on the on-line form to send it to the Home Office. If you need to upload documents after this date that is still possible and the date of application will still be the date that you triggered the application.

However, if you do miss the date, the Home Office has now provided guidance which will allow you to explain why you missed the date and a caseworker can exercise discretion to still grant an application. The best advice is to apply as quickly as possible, with evidence as to why the application is late. The evidence could for example include proof of a medical reason why the application has been delayed.

Applications which can still be made

Although the EU Settlement Scheme deadline is 30 June 2021, there are still plenty of applications that can be made after this date. These include from spouses where the couple were married before 30 December 2020 and from children. Applications can be made for these family members to join an EU/EEA or Swiss citizen in the United Kingdom. The procedures will vary depending on whether the applicant is in the United Kingdom or abroad.

The application

Most applications are straightforward and can be done with the EU Exit app on a smartphone and by completing the on-line form. If you do though need advice, either guiding you through the application, or with questions about applications for family members, please do not hesitate to contact us on contact@gryklaw.com or by telephone 020 7401 6887.

Digitalisation of the Immigration System

1st June 2021 By Katie Dilger

On 24 May 2021, the Home Secretary announced further plans for the digitalisation of the immigration system. This intention is that by 2025 the system will be fully digital from beginning to end. The Home Office’s vision is that not only will we continue to use online forms and upload supporting evidence, but all biometrics will be given via apps and individuals will prove their status at the border and to third parties by using a digital record rather than a physical document. As previously announced, the Home Office will also introduce an Electronic Travel Authorisation scheme akin to the United States’ ESTA programme. More detailed information is available in the policy paper published that day, New Plan for Immigration for legal migration and border control.

To date, the use of digital status has not been without controversy. Digital status is being given to EEA nationals who have been granted leave under the EU Settlement Scheme (the EUSS). Under the EUSS, EEA nationals are given a digital record rather than issued with a biometric residence card or any physical evidence of their settled or pre-settled status. Indeed, the grant letter issued to EEA nationals even expressly states that it is not proof of the person’s status. Instead, the Home Office runs a “view and prove” system which requires EEA nationals with status under the EUSS to trigger a share code when they need to prove their status, e.g. to an employer.

The 3Million, an organisation which seeks to protect the rights and interests of EU citizens living in the UK after Brexit, sought to challenge this. It argued that the digital-only policy meant that EEA nationals with status under the EUSS had to be able to access and use the internet effectively if they were to prove their status to third parties. This was likely to disadvantage some groups, including older people, people with certain disabilities and the Roma community.

On 3 May 2021 the challenge was brought to an end by the Administrative Court when it refused permission to bring a judicial review. However, this is unlikely to be the end of the matter. Permission was refused primarily because the claim was regarded as ‘premature’. This is because until the end of June 2021, EEA nationals can still rely on their EEA documents to enter the UK and prove their status. It is only from 1 July 2021 that people will need to rely on the digital system alone.

High Court rules in favour of Windrush victim in landmark ruling

20th May 2021 By Roisin Finnegan

While the Windrush Scheme was designed to remedy the historic injustices suffered by Windrush victims as a result of the failings of past administrations, the cracks in the present Scheme continue to be unveiled. In less than one month, the High Court has ruled against the Home Office twice in cases concerning Windrush. On 23 April 2021, in Hubert Howard v Secretary of State for the Home Department CO/979/2019, the High Court held that the Home Office’s practice of denying Windrush victims with minor criminal convictions citizenship as a result of them failing the restrictive “good character” requirement was irrational and unlawful. This judgment should encourage Windrush victims in a similar situation to re-apply.

The Windrush Scheme most recently came under the spotlight before the High Court on 6 May 2021 in R (Mahabir) v the Secretary of State for the Home Department [2021] EWHC 1177. This case concerned a Windrush victim, Mahabir, who was born in Trinidad and came to the UK at 3 months old. She lived in the UK for 8 years before returning to Trinidad in 1977. By virtue of the Immigration Act 1971, Mahabir became entitled to indefinite leave to remain (“ILR”) in the UK on 1 January 1973. However, this was lost when Mahabir returned to Trinidad and she was unaware of her right to regain her ILR by returning to the UK before 1 August 1988. It was not until 2018, when stories of the Windrush scandal had circulated widely that Mahabir was granted entry clearance for six months to allow her to collect the documentation confirming that her ILR had been restored.

Mahabir entered the UK alone, with her family (including her five children) remaining in Trinidad. In order for Mahabir’s family to join her in the UK, they had to pay application fees amounting to £22,909—an unaffordable fee for Mahabir and her family. Notably, the Windrush Scheme permits fee-free applications for leave to remain for a child of a Windrush victim if they live in the UK but a child living overseas must pay a full application fee.

Mahabir and her family challenged the Home Office’s refusal to allow them to make fee-free applications for leave to enter or remain under the Windrush Scheme. They argued that such refusal led to their family being separated for over 2 years, which was in breach of their right to respect for private and family life under article 8 of the European Convention on Human Rights (ECHR) and their right not to be discriminated against under article 14 ECHR.

The Court held that Mahabir’s article 8 rights had been breached by the unaffordable application fee which rendered the procedure effectively inaccessible and disproportionately interfered with her family life. The Court opined that a criterion of affordability should be introduced as a safeguard, rather than fee-free applications.

While the Court accepted that the benefits of the Windrush Scheme had deliberately been extended only to direct victims of the Windrush scandal, this policy rationale did not justify an interference with Mahabir’s article 8 rights. Ultimately, Mahabir was faced with what Mr Justice Smith described as a “thankless choice”: Mahabir either had to dispense with the remedies the Home Office had granted in order to remedy the injustice suffered by her and other Windrush victims, or she had to break up her family.

The Court held that the Home Office’s failure to treat family members of a Windrush victim preferentially in respect of application fees was indirect discrimination and in breach of article 14 ECHR. The Court also found that distinguishing between applications made from outside the UK and those made from within, when calculating fees, was both an arbitrary distinction and unjustifiable on the facts.

It is hoped that this case will assist many other Windrush victims in bringing their family to the UK.

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

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