Advice

Landmark High Court Case on Transnational Marriage Abandonment

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 victims 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.

Late applications to the EU Settlement Scheme

30th September 2021 By wesleygryk

If you’re from the EU, Switzerland, Norway, Iceland or Liechtenstein, you and your family might have needed to apply to the EU Settlement Scheme to continue living in the UK. This includes people who hold a permanent residence document or an EEA biometric residence card.

The deadline for applying to the EU Settlement Scheme, for most people, was 30 June 2021. If you have missed this deadline, you can still make an application.

You must either:

meet one of the criteria for a later deadline to apply
have ‘reasonable grounds’ for not applying by 30 June 2021

The scheme provides the following not complete list of possible reasonable grounds for not applying by the deadline:

you’re a child, or applying for your child, and you did not know you needed to apply
your parent, guardian or local authority did not apply for you when you were a child
you have, or had, a medical condition which prevented you from applying
you lacked the physical or mental capacity to apply
you have care or support needs, or those caring for you were unaware of the deadline
you’ve been the victim of modern slavery
you’ve been in an abusive or controlling relationship
you did not have internet access, or access to relevant documents
you came to the UK on a work or study visa and became eligible to apply to the EU Settlement Scheme while you were here, but did not know you could apply
you already have indefinite leave to enter or remain, and you did not know you could apply to the scheme
you had permanent residence status or a residence document that stopped being valid after 30 June 2021, and you did not know you needed to apply to the scheme
you had difficulty accessing support to apply because of coronavirus (COVID-19) restrictions
another compelling practical or compassionate reason prevented you applying

The caseworker guidance suggests that the Home Office will be taking a fairly flexible approach to late applications, at least initially, stating:

For the time being, you will give applicants the benefit of any doubt in considering whether, in light of information provided with the application, there are reasonable grounds for their failure to meet the deadline applicable to them under the EU Settlement Scheme, unless this would not be reasonable in light of the particular circumstances of the case.

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.

For more information on deadlines please see:

the government website: https://www.gov.uk/settled-status-eu-citizens-families/eligibility
the guidance: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1004627/main-euss-guidance-v13.0ext.pdf

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

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

24th June 2021 By wesleygryk

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

“I have a permanent residence document, do I need to apply for settled status?”

17th February 2020 By wesleygryk

“I have a permanent residence document, do I need to apply for settled status?”

In short, the answer is yes.

Despite the Home Office reportedly spending millions of pounds on advertising the EU Settlement Scheme, we remain concerned that there remains a lack of awareness about the Scheme and the difference between permanent residence and settled status.

Even if a European national or their family member has previously been granted a permanent residence document, they must apply for settled status under the EU Settlement Scheme if they intend to continue living in the UK.

What is permanent residence?

Before the introduction of the EU Settlement Scheme, the rights of European nationals and their family members to live in the UK were set out in the Immigration (European Economic Area) Regulations. These Regulations were based on EU free movement law.

Under the Regulations, a European national would have a right to reside in the UK in the majority of cases as long as they continued to be what is known as a “qualified person”. Generally speaking, this meant that they met the definition of being a worker, self-employed person, a jobseeker, a self-sufficient person, or a student.

After living in the UK for a continuous period of five years as a “qualified person”, the European national would acquire a permanent right of residence. Certain family members of the European national, such as a spouse/civil partner or child, would also acquire permanent residence if they lived in the UK for a continuous period of five years.

This right would arise automatically. It is possible for a European national and their European and non-European family members to apply to the Home Office for a document confirming this right – a permanent residence document. For the European national, this would take the form of a residence document labelled as a “document certifying permanent residence”. For a non-European family member of the European national, this would take the form of a biometric permanent residence card. Along with the document, the Home Office also issues a letter confirming the date the person is deemed to have acquired permanent residence.

There was no requirement to apply for a permanent residence document, although for practical reasons many European nationals and their family members chose to do so.

What is settled status and when is the deadline to apply?

In light of Brexit, the Home Office introduced the EU Settlement Scheme to allow for European nationals and their family members to continue to live in the UK.

The requirements of the Scheme are set out in the UK Immigration Rules. Under the scheme, a person can either be granted “settled status” (equivalent to indefinite leave to remain) or five years’ “pre-settled status” (equivalent to limited leave to remain). The Scheme is based on a person’s residence in the UK, rather than the nature of their economic activity while living here.

Generally speaking, if a European national or their family member has lived in the UK for a continuous period of five years, they will be granted settled status. If they have lived in the UK for less than five years, they will be granted five years’ pre-settled status with a view to applying for settled status once they have lived in the UK continuously for five years.

If a person is granted settled status, there are no time limits on their residence in the UK and they can continue to live here without making any further applications to the Home Office. Settled status can only be lost if a person leaves the UK for a continuous period of five years without returning or if they commit a very serious criminal offence and the Home Office decides to revoke their status.

The deadline to apply under the EU Settlement Scheme is 30 June 2021. However, we are urging people to submit their application before the end of the transition period on 31 December 2020. It is currently unclear on what legal basis European nationals and their family members will be able to remain in the UK from December 2020 onwards if they have not applied under the EU Settlement Scheme.

Applying for settled status with a permanent residence document

If a person has been granted a permanent residence document, they can apply for settled status under the EU Settlement Scheme. To be granted settled status, they must meet the following requirements:

They are either an EEA national, Swiss national, or they meet the definition of the family member of an EEA/Swiss national;
They have been granted a permanent residence document;
They have not been absent from the UK for a continuous period of five years since the date they are deemed to have acquired permanent residence;
The Home Office has not made a decision to remove or exclude them from the UK;
They are not “unsuitable” for a grant of settled status (such as if they have committed serious criminal offences or deceived the Home Office in their application).

If you have been granted a permanent residence document and can meet these requirements, you will be eligible for settled status. We would urge you to apply as soon as possible. You can find more information about the application procedure on gov.uk, and my colleague Nath Gbikpi has written a detailed post about how to apply on the Free Movement website.

This blog focuses on European nationals and their family members who have been issued with permanent residence documents. It should be stressed that this is one of several ways a person may be eligible for settled status under the EU Settlement Scheme. If you have any questions about your eligibility for settled status or require assistance to submit an application under the Scheme, please contact us as we would be happy to help.

If you require advice or assistance with an application under the EU Settlement Scheme, please contact us on contact@gryklaw.com or on +44 20 7401 6887.

Immigration after Brexit

31st January 2020 By Alison Hunter

Immigration after Brexit

For many of us, today is tinged with sadness as the United Kingdom leaves the European Union at 11pm tonight. For others it is of course, great cause for celebration.

Immigration played a significant role in the outcome of the referendum and one of the arguments for leaving the EU was the idea that the UK should be able to control its borders. But what is the position in terms of immigration law now and what is likely to happen in the future? I have set out below what we know so far.

EU citizens

Although the government is understandably not keen to publicise this, during the transition period that is in place up until 30 December 2020, EU free movement law continues and all EU citizens have the same rights to enter the UK, reside here and work as they did when the UK was in the European Union.

However, European citizens and their family members, or anybody who currently resides in the UK on the basis of European law and wants to remain here, needs to register under the European Settlement Scheme. The government expects people to have applied by 30 June 2021. We are however urging people to do it by the end of this year, as currently it is unclear on what legal basis these people will be able to remain in the UK from December 2020 onwards if they have not registered on the Settlement Scheme.

Global Talent Visa

Boris Johnson has announced a new Global Talent visa for which people will be able to apply for from 20 February onwards. The aim is to ensure that highly skilled people, and particularly scientists, have a smooth entry route to the UK to carry out research in the fields of science and medicine. It also though encompasses people who have digital technical or engineering expertise, academics, and those who are leaders in the arts and culture.

‘Australian style’ points based system – the future immigration scheme

Finally this week, the Migration Advisory Committee (MAC) issued its 272 page report that was commissioned by the government setting out where it sees the priorities for the immigration scheme that will come into force in January 2021.

Despite the government heavily trailing an ‘Australian style’ points based system, the MAC has been much more conservative and has recommended that the current Tier 2 (employer sponsored worker) scheme stays in place with some modifications, The main proposal is to reduce the salary threshold to £25600 (from £30000) . The MAC though has not endorsed regional differentiations in salary levels despite the well recognised disparities in pay throughout the United Kingdom.

The MAC was also not as enthused as the government about a points based system. Although it grapples with the idea, it suggests a relatively restrictive approach for highly skilled workers only. It envisages awarding points for characteristics such as qualifications, age, English language skills and for priority sectors of the job market.

Conclusion

It remains to be seen how the government will respond and what they will be put in place. What we do know is that the new immigration system will have to address the loss of free movement of people from Europe with all the benefits this has provided for employers, such as flexibility and easy access to all skill levels of labour. Getting the new immigration system right for the United Kingdom will be no small task!

If you require advice on the EU settlement scheme or the new global talent visa, please contact us on contact@gryklaw.com or on +44 20 7401 6887.