Immigration

Long residence ILR: what are the rules on absences from the UK?

15th April 2021 By Andrew Jones

Where a migrant can show that they have lived in the United Kingdom for at least a continuous, lawful 10-year period, they may be eligible for apply for indefinite leave to remain (‘ILR’).

However, one potential sticking point is whether they have been outside of the United Kingdom for too long. That is because the Immigration Rules say that for the period to be “continuous”, the applicant cannot have spent more than 18 months in total outside of the country during those 10 years, or any single absence of six months or more.

The Home Office guidance states that six months is calculated as 180 days and 18 months is calculated as 540 days. The Home Office interprets this very strictly and will only make exceptions to these limits in “compelling or compassionate circumstances”. There have been several stories in the news where applicants have been refused ILR due to their excessive absences, despite having perfectly good reasons for being outside of the country for as long as they were. Unfortunately, in the eyes of the Home Office, the reasons were not compelling enough.

Recently, the Upper Tribunal (Immigration and Asylum Chamber) looked at how the Home Office should be interpreting this rule. In particular, it looked at whether the limit is, in fact, 540 days. The Rules state that the applicant must not have been absent for 18 months – but how long is 18 months? A month is not a fixed period of time. The Home Office argued that a month should be interpreted as being 30 days long, which is how they calculated the limit as being 540 days. The Upper Tribunal disagreed and ruled that 18 months is 548 days and that the Home Office guidance was wrong.

On the face of it, this is not a big difference. However, it did make a big difference to Mrs Chang, whose appeal was being considered by the Upper Tribunal. She had been absent from the United Kingdom for 543 days during the 10-year period she was relying upon. As an illustration of how strict the Home Office is on this issue, her application was refused for that reason. Happily, after the Upper Tribunal decision, she will now be granted ILR.

We have a lot of experience making ILR applications on this basis, including advising clients on how to deal with excessive absences. If you have spent more than 10 years lawfully resident in the United Kingdom and would like advice or assistance on applying for ILR, please feel free to contact us on 020 7401 6887 or by email at contact@gryklaw.com.

The end of the resident labour market test

1st April 2021 By Rachael Ockenden

The launch of the Skilled Worker category on 1 December 2020 heralded a new age for sponsors with the removal of the resident labour market test (RLMT), the time consuming and administratively burdensome advertising requirement of the Tier 2 (General) immigration route. The RLMT arguably did nothing to protect resident workers and was often merely a box-ticking exercise for sponsors.

However, the guidance accompanying the new rules appeared to retain the RLMT requirement leading to months of confusion amongst practitioners and sponsors alike. The guidance stated that the same documents sponsors were required to keep on a sponsored migrant’s file when an RLMT had been completed were still required for sponsorship cases post 1 December 2020.

The guidance was finally amended this month to clarify that there were different recordkeeping requirements for cases where an RLMT was a requirement and for those where it was not. The guidance also gives examples of the permissible circumstances in which no advertising at all would be carried out including where a worker:

was identified through a university milk round;
was already legally working for the sponsor on another immigration route and the sponsor established they were suitable for the role through their previous performance; and
made a speculative application and the sponsor was satisfied they had the necessary skills and experience to do the job.

An explanation and, where practicable, evidence must be provided to support these recruitment practices.

Whilst the clarification provided by the guidance is welcome and reassuring, the guidance still appears to mandate how a sponsor should advertise. RLMT-like documentation is still required to be kept on file and it would arguably be easier for a sponsor to rely upon one of the alternative circumstances rather than advertising for the role. It remains to be seen how the Compliance Officers at the Home Office will assess these cases.

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.

What measures could UKVI take now to help ‘flatten the curve’ while maintaining the immigration system?

17th March 2020 By Diana Baxter

Given the current Covid-19 crisis and need for us all to increase social distancing, the Home Office needs to issue clear and swift guidance to migrants in the UK on their position.

Such measures could include:

Temporary waiver on the need for biometric enrolment. By doing this, applicants could submit extension applications online and submit supporting documents, which can then be transmitted online to a Home Office caseworker, without the need for in-person interaction by the client, Sopra Steria employee or Home Office caseworker. A small number of appointments would need to be maintained for vulnerable clients who need scanning and online assistance.
Online temporary fee waiver application, that can be submitted at the same time as online visa application, to allow persons to remain lawfully present in the UK but who may not be able to afford the fees, especially in cases of redundancy / reduced hours as a result of Covid-19.
All NHS employees, paramedics and other essential service workers should be given automatic fee waivers.
Extension of automatic grant of leave to those currently in the UK but who cannot return overseas due to Covid-19.
End immigration detention to prevent the spread of Covid-19 throughout detention centres.

For now, the immigration tribunals remain operating as normal but with people advised to contact the tribunal if the appellant, sponsor, any witness or representative needs to self-isolate and so cannot attend.

Please contact us should you need advice at this time on your individual circumstances: contact@gryklaw.com

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

17th February 2020 By Jonathan Kohler

“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.