The UK is due to leave the EU on 30 March 2019. This follows a two year negotiation period between the EU and the UK following the UK’s service of notice of intention to leave under Article 50 of the Lisbon Treaty. Such notice was given on 29 March 2017.
As a Member State of the EU, the UK participates in the Single Market. This provides for the freedom of movement of goods, capital, services and people across all Member States of the EU.
The Brexit Process
During the two year negotiation period the EU and the UK must come to agreement on:
1. The terms and conditions attached to the UK’s withdrawal from the EU (“the Withdrawal Agreement”); and
2. The nature of the UK’s future relationship with the EU (“the Future Framework”).
In December 2017, the European Commission agreed that “sufficient progress” had been reached in respect of withdrawal to enable discussions to commence in 2018 in respect of the Future Framework and, crucially, the future trading relationship.
It is currently planned that the Withdrawal Agreement will be agreed by the EU and the UK in October 2018, accompanied by a political declaration on the Future Framework.
Draft Withdrawal Agreement
On 19 March 2018, the European Commission sent to the EU 27 Member States and the Brexit Steering Group of the European Parliament a draft agreement on the withdrawal of the UK from the EU. It provides, inter alia, for a “transition period”, also referred to as an “implementation period”, which will enter into force on 30 March 2019 and last until 31 December 2020. The purpose of the transition period is to provide for a smooth transfer of arrangements from the institutions of the EU to whatever new arrangements may be agreed under the Future Framework.
The draft Withdrawal Agreement has not yet been ratified. Ratification will require the consent of the UK Government, the European Parliament and the EU 27 Member States. Such ratification must take place in the period between the October agreement/ political declaration and 30 March 2019.
At present, citizens from the EU living in the UK have an entitlement to remain in the UK for an indefinite period providing they are exercising rights of free movement as a worker, a self-employed person, a self-sufficient person or a student.
The draft Withdrawal Agreement provides for the protection of citizens’ rights, effectively preserving the freedom of movement and the right to permanent residence, for EU citizens until the end of the transition period.
In July 2018, the UK Government published a White Paper on its proposals for the future relationship between the UK and the EU. This is also known as the “Chequers document”.
It is unclear whether these proposals will be acceptable to the EU and, furthermore, whether an agreement on the Future Framework will be ratified by the UK Parliament in Westminster through domestic legislation.
In the event that the draft Withdrawal Agreement is not ratified by either side, or there is no agreement on a Future Framework to form the basis of a political declaration, there is the possibility of a “no deal” Brexit taking effect on 30 March 2019.
EU Settlement Scheme
In June 2018, the Home Office published a “Statement of Intent” (“SOI”) in respect of the EU Settlement Scheme (“the scheme”). The stated purpose of the scheme is to deliver on the UK Government’s commitment to secure the rights of EU citizens in the UK within the context of Brexit.
In line with the draft Withdrawal Agreement, the scheme will mean that:
1. EU citizens and their family members who, by 31 December 2020, have been continuously resident in the UK for five years will be eligible for “Settled Status”, enabling them to stay indefinitely.
2. EU citizens, and their family members, who arrive by 31 December 2020 but will not yet have been continuously resident here for five years, will be eligible for “Pre-Settled Status”, enabling them to stay until they have reached the five year threshold. At that point they will be eligible to convert to Settled Status.
3. EU citizens and their family members with Settled Status or Pre-Settled status will have the same access as they currently do to healthcare, pensions and other benefits in the UK.
4. Close family members (a spouse, civil partner, durable partner, dependent child or grandchild, and dependent parent or grandparent) living overseas will still be able to join as an EU citizen resident here after the end of the implementation period, where the relationship existed on 31 December 2020 and continues to exist when the person wishes to come to the UK.
According to the document, the EU Settlement Scheme will commence a phased roll-out from late 2018. The scheme is due to be fully operational by 30 March 2019. The SOI expressly refers to the draft Withdrawal Agreement and the fact that the scheme reflects the section on citizens’ rights contained within it. The document does not however expressly state that the scheme is contingent upon ratification of that agreement or agreement on the Future Framework.
Furthermore the SOI does not expressly make the scheme contingent upon similar arrangements being put in place for UK nationals across EU27; however it is perhaps implicit:
“The agreement we reached with the EU also protects UK nationals living there. The Government continues to press for further details from our EU partners of the arrangements that will be in place for UK nationals.”
The Government has given domestic legislative force to the scheme through a Statement of Changes to Immigration Rules presented to Parliament on 20 July 2019. These rules came into force on 28 August 2018 ahead of the initial test phase of the scheme.
Implications of “no deal” for immigration control
In the event of a “no deal” (“cliff-edge”) Brexit the following consequences may follow:
1. The UK will become a “third-country” for the purpose of the movement of people.
2. There will be a requirement for a border, and the administration of immigration control, in respect of the movement of UK citizens into the EU and vice versa.
3. EU nationals entering the UK will require leave to enter under the UK’s domestic immigration rules.
4. UK domestic immigration rules will have to be amended on an urgent basis to provide for the future entry and stay of EU nationals.
5. Such amendments will have to include criteria for entry, requirements or otherwise for entry-clearance or visa, duration and conditions of stay.
6. UK nationals entering a Member State of the EU27 will require permission to do so under the national domestic legislation of that country.
7. The status of EU nationals in the UK will require regularisation under UK domestic law.
In the event of a “no deal” (“cliff-edge”) Brexit the following consequences may follow:
1. The EU and the UK may agree to extend the two year notice period under Article 50 to provide time for further negotiations. This would extend the status quo in respect of EU citizens’ rights until agreement can be reached on a Future Framework.
2. The UK Government may decide to implement the EU Settlement Scheme on a unilateral basis (outside a Withdrawal Agreement) in order to manage the expectations of EU citizens in the UK and to provide for the orderly administration of Brexit.
3. The UK Government may unilaterally extend the current “freedom of movement” provisions, within domestic immigration law, until a decision is reached on future immigration policy regarding EU nationals.
4. The UK Government may decide to treat EU nationals in line with other foreign nationals under the Immigration Rules. This would include a requirement for skilled workers to be sponsored under Tier 2 of the Points Based System. The current system of quotas for Tier 2 sponsorship would have to be reviewed on an urgent basis to adapt to the new environment.
It is important to recognise that the Withdrawal Agreement (including the provision on Citizens’ Rights) and the agreement on a Future Framework are separate activities. In the event that the two sides fail to reach agreement on the Future Framework, it is possible that the Article 50 negotiation period will be extended, thereby enabling further time for negotiation and compromise. If, however, a Withdrawal Agreement is not ratified on one side or the other, the “no deal” scenario will inevitably follow.
In respect of future immigration policy, the following milestones are important:
September 2018 – The Migration Advisory Committee (“MAC”) will publish its report on the contribution of EU nationals to the UK labour markets and its recommendations for future immigration policy.
October 2018 – European Council is scheduled to announce the final Withdrawal Agreement and political declaration on the Future Framework. This timetable may be delayed in the event of an impasse in the Brexit negotiations.
November/ December 2018 – the UK Government will publish a White Paper on future domestic immigration policy followed by an Immigration Bill.
Whilst the implications of a “no deal” Brexit are serious, it is too early to anticipate a doomsday scenario. An orderly withdrawal and transition to new post-Brexit arrangements is a practical and political imperative for the UK Government.
Employers are advised have comprehensive records of the nationality status of their employees and to disseminate information regarding the EU Settlement Scheme widely.
Magrath Sheldrick LLP will provide clear information in respect of Brexit developments and immigration policy announcements as they take place.
The EU Settlement Scheme: A “Toolkit” for Employers
At the end of July 2018 the Home Office sought to clarify the UK’s position on EU citizen’s rights by publishing an EU Settlement Scheme: employer toolkit containing details on how UK employers should approach informing their EU national employees about how they can apply for settled or pre-settled status.
The toolkit comprises a briefing pack, three leaflets and ‘Posters’ which set out the key dates such as when the scheme will be rolled out and the deadline to make an application. The toolkit is a useful practical outline for employers but does not cover all of the potential individual circumstances faced by EU nationals and their families in the UK. The toolkit confirms that employers are:
• Not legally required to share the details for the EU Settlement Scheme;
• Not expected to pay for any applications or the costs of the EU Settlement Scheme (although they can do so if they wish);
• Must not discriminate against EU Citizens based on the UK’s decision to leave the EU;
• Still required to carry out right to work checks as normal until the end of 2020 with no change expected to the rights and status of EU Citizens currently living in the UK until January 2021.
The EU Settlement Scheme
Under the EU Settlement Scheme EU nationals and their family members will be able to apply for settled or pre-settled status before June 2021, thereby securing their right to remain in the UK post-Brexit.
To be eligible for settled status, an EU Citizen and/or their family member must have resided in the UK for 5 years. If they have not yet resided in the UK for 5 years they can obtain ‘pre-settled’ status and remain until they are eligible under the 5 year residence requirement.
Contents of the toolkit
The employer toolkit contains information and practical suggestions for supporting EU Citizen employees through the process of applying for settled status or pre-settled status in the UK as well as outlining their rights.
The toolkit confirms that the EU Settlement Scheme will be phased in from late 2018 with the scheme fully open by the end of March 2019. Individuals will have until 30 June 2021 to apply under the scheme but will need to be resident in the UK by 31 December 2020.
The toolkit suggests approaches for dissemination of the information amongst the EU citizen workforce by employers and provides details for how to sign up for regular email alerts.
Applying for EU Settled or ‘Pre-settled’ Status
The Employer Toolkit confirms that the application can be made online and the process will involve:
1. Providing basic factual information and reference numbers for documents;
2. Proof of identity – such as uploading a photograph and self-verifying an EU passport or national identity card online or alternatively sending relevant documents by post;
3. Proving UK residence – A National Insurance number may be sufficient, or other documents establishing residence;
4. A criminality declaration – A requirement to confirm any convictions or involvement in serious crimes;
5. A payment – Which will be £65 for an adult and £32.50 for children under 16 years of age. Applications will however be free to applicants who:
a. Already have indefinite leave to remain or permanent residence and can evidence the same with a valid document;
b. Have applied for pre-settled status or temporary residence through the new scheme and are later applying for settled status.
What will be required for proof of identity?
Applicants will be required to prove their identity and nationality. For EU citizens, this must be a valid EU passport or national identity card. Representations can be provided if this is not possible to explain any compelling compassionate reasons and alternative evidence may be accepted.
A facial image will have to be provided to check against the evidence of identity. Non-EU citizens will also need to provide fingerprint biometrics if they have not yet already done so for the purpose of being issued a biometric residence card under existing EU law processes.
What is required for proof of residence?
The Home Office will use the National Insurance number provided to make an initial check on which residence status the applicant will be eligible for. If an applicant does not have a National Insurance number, or the Home Office do not hold enough data to confirm this, evidence will need to be provided to show residence such as P60s, utility bills or bank statements.
What does the criminality check entail?
A criminality and security check will be carried out on all applicants, except for those under the age of 10. Only serious or persistent criminality will affect an application.
The toolkit contains a detailed glossary of terms used in the toolkit, including the meaning of ‘settled’ and ‘pre-settled’ status.
The toolkit does not address:
• The requirement for non-Irish family members of Irish Citizens to apply for settled status before 31 December 2020 to enable them to remain in the UK, and the fact that Irish nationals will not need to apply;
• Whether non-EU but EEA nationals will be treated in the same way as EU citizens. This will be tied to post-Brexit UK arrangements with these particular countries either on individual bases or as an EEA bloc. The relevant nationals are those from Iceland, Liechtenstein and Norway. Swiss nationals may also have their relationship with the UK impacted by virtue of the fact that the rights of Swiss nationals in the UK are derived through an agreement between Switzerland and the EU.
• How family members will be able to join EU citizens in the UK after 31 December 2020. Evidencing a family relationship is not straight forward when a family member is living outside of the UK and if the law regulating EU nationals moves into line with that regulating non-EU nationals, applications of this type may not be as straightforward after 31 December 2020.
European nationals retain ‘EEA national’ status after becoming British
EEA nationals who obtain permanent residence on completion of five years in the UK as a qualified person, and who then naturalise as a British citizen continue to fall under the definition of ‘EEA National’ under the Immigration (European Economic Area) Regulations 2016.
This is good news for the family members of EEA nationals because they will be able to continue to remain in the UK under European law without having to switch to ‘leave to remain’ under the domestic Immigration Rules if the principal European family member naturalises.
In 2012 the definition of ‘EEA National’ contained in Regulation 2 was changed to exclude dual British and European nationals following the judgement in McCarthy (C-434/09).
The definition has been changed again to say that: “EEA national” means a ‘national of an EEA State who is not also a British citizen; or a national of an EEA State who is also a British citizen and who prior to acquiring British citizenship exercised a right to reside as such a national, in accordance with regulation 14 or 15.’
This means that EEA nationals who have exercised their free movement rights in the UK will retain their rights derived from the freedom of movement provisions of EU law even if they become British. Europeans who may have put off naturalisation through worry about the effect of becoming British would have on their family can now naturalise as citizens in the knowledge that their family members will not have to obtain a new status under the rules.
This change in the law follows the decision of the European Court of Justice in Lounes (C-165/16)2 which decided that the spouse of an EEA National who exercises their right to move freely within the European community by moving to and residing in a Member State other than that of which they are a national will be eligible for a derived right of residence under Article 21(1) of the Treaty on the Functioning of the European Union (TFEU) on conditions which must not be stricter than those provided for by Directive 2004/38 EC.
Lounes was decided in November last year which makes this amendment to the definition of EEA National in Regulation 2 welcome, but long overdue.
UK Immigration News
Tier 2 cap continues to be reached
Employers with a Tier 2 Sponsor Licence looking to bring new employees to the UK must request a Restricted Certificate of Sponsorship (‘RCoS’) from the Home Office to sponsor the worker unless they will be a high earner with an annual salary of £159,600 or more.
Throughout 2018 to the end of July, the limit for restricted certificates was reached. Set against the backdrop of a fixed annual quota of 20,700 certificates per financial year, the category became oversubscribed. August was the first month in the year when no RCoS applications were refused based on the quota.
Applications for restricted certificates are assessed against a points system. Points are tallied from a table which assesses the role and salary, and priority is given to requests that attract the highest number of points. Typically, roles with salaries below £50,000 are at greatest risk of refusal.
The impact of the tension in the system is huge for companies of all sizes across the UK. Start-ups are struggling to fill roles on considerably lower salaries than those offered by their larger competitors. Graduate schemes in multinational companies are also experiencing difficulties obtaining the necessary certificates to support Tier 2 applications. The consequences are significant with delays to start dates, and in some cases employers being unable to pursue the chosen candidate for the role.
As a result, many potential candidates have been stuck outside the UK with their lives on hold while they wait for a positive response. Often candidates have previously been resident and working in the UK under a dependant visa or even under the Tier 5 (Youth Mobility Scheme). Their UK employer has diligently pursued the Tier 2 category on their behalf to enable a permanent role in the UK to be filled, but find their candidates in a state of limbo, not knowing if or when they will be able to return to work in the UK.
Why the increase in demand?
One of the primary reasons for the increase in demand for Tier 2 sponsorship is the uncertainty generated by BREXIT. Statistics from ONS confirm that the UK has seen a reduction in European migration to the UK since the referendum decision. Companies may be pursuing more suitable non-EU candidates on the basis that there is a known system in place to accommodate such sponsorship.
Exempting the NHS
On 15 June 2018 the Home Office announced that they will exclude doctors and nurses from the cap on skilled workers. This is a positive move from the Home Office benefiting both the NHS and the Tier 2 skilled quota. This change opens up opportunities for other highly skilled occupations that have a high demand for sponsorship. Prior to the change, NHS roles accounted for around 40% of all granted Certificates.
The current environment challenges the ongoing aim of attracting the “best and brightest” to the UK workforce. The trials encountered over the last six months have unquestionably led to a disproportionate allocation of certificates across the business sectors. The change to exclude doctors and nurses from the cap came into force on 6 July 2018. Hopefully autumn 2018 will see a reduction in tension within the Tier 2 restricted certificate scheme.
Other changes that entered into force in the summer of 2018 include:
Indefinite Leave to Remain
Tier 2 (General) employees who have taken maternity, paternity or adoption leave during their qualifying period will be required to submit evidence of the underlying adoption or birth with their application to have their full qualifying period considered.
Absences from the UK taken prior to 11 January 2018 will continue to be calculated in line with the guidance in force at the time of the absence. This will effectively provide a transitional arrangement for the ‘rolling’ absence calculation introduced earlier this year.
Tier 1 (Investor)
A small clarification has been made to confirm that applicants may withdraw interest accrued and dividends declared only after the date on which they purchased the qualifying investments in their portfolio.
FCA regulated financial institutions in which an applicant has held their qualifying investments will be required to confirm their funds have only been invested in qualifying investments and that no loan has been secured against those funds.
Tier 1 (Entrepreneur)
A provision will be restored for accountants to confirm the investment made on an applicant’s behalf.
Tier 1 (Exceptional Talent)
The endorsement of arts applicants will be widened to include those in the fashion industry who are operating leading designer fashion businesses. What constitutes a leading designer fashion business will be assessed by the British Fashion Council which will operate within the endorsement remit of Arts Council England.
Croatian citizens no longer need to apply for work authorisation owing to the lifting of transitional controls on their right to work in the UK on the fifth anniversary of Croatia’s admission to the EU. Whilst the restrictions could have been extended for a further two years if there was clear evidence that removing the controls would lead to a serious labour market disturbance, the Immigration Minister determined that no such evidence existed.
New In-Country Application Process From October 2018
It was announced on 17 May 2018 that Sopra Steria, an independent third party, will take over the in-country visa application process for work and study visas, settlement and citizenship applications from October 2018.
The new streamlined service will be available in over 60 locations, 56 of which will be local libraries, and will enable applicants to upload their documents ahead of their appointments as digital files.
Applicants will be able to attend the new service centres to submit their biometric details and hand over their documents for copying and onward submission to the Home Office at the same time.
The principal benefit of the new service is that it will enable applicants to retain their original documents, including their passports, while their applications are processed.
It is likely that the roll out of the new process will mean that the premium service centres (same-day decision) and the priority service (10 working days’ decision time) will largely cease to be in operation although it has been confirmed that UKVI Service Centres will continue to offer appointments for anyone who needs a face to face interview with a caseworker.
At present it is not yet known how Sopra Steria will deal with applications submitted under priority processing times although tailored services are likely to be offered for a fee.
Immigration Minister, Caroline Nokes, commented that the streamlined service will ensure the process is quicker and easier to access. It is widely expected that the new service will assist in registering many EU citizens in the UK after Brexit.
Appeal Success Rates Impacting on a New Home Office Review Procedure
Recent information provided by the Ministry of Justice has evidenced that 50% of Human Rights appeals and 57% of EEA application appeals against Home Office refusal decisions have been successful. The appeal success rate is often influenced by the time that elapses between the initial refusal decision date and the date of the appeal hearing, which can at times be a year or more later. By the time a case reaches the appeal date, the Tribunal may have to review fresh evidence, consider new case law or an appellant’s change in circumstances. As such, the Home Office has now confirmed that for appeal hearings due to take place from June 2018 onwards, it will undertake reviews of those cases that will be over 20 weeks old at the date of the hearing, calculated from the date of the initial decision. The review panel will comprise of barristers who will take into consideration evidence that would otherwise be heard at the upcoming Tribunal hearing.
In light of any new factors, the review panel will have the ability to deem a decision invalid. This is likely to result in the Home Office withdrawing the initial decision and entry clearance or leave to remain being granted, without the need to proceed to an appeal hearing. Conversely, an appeal hearing will continue as scheduled if the panel consider the initial decision to be appropriate. In essence, the aim of this new procedure is to avoid unnecessary appeal hearings.
General Grounds for Refusal – Indefinite Leave To Remain
The Home Office has recently been accused of abusing provisions contained in the general grounds for refusal section of the rules originally aimed at individuals who have committed serious crimes in the UK. Specifically, the Home Office has been using paragraph 322(5) of the Immigration Rules to refuse at least 1,000 highly skilled migrants indefinite leave to remain due to minor errors or omissions in respect of compliance with their tax obligations. Applicants and their families face removal from the UK on the basis of their ‘bad character’ for correcting their tax returns.
Paragraph 322(5) of the Immigration Rules states that an application for leave should normally be refused if it is undesirable to let the person concerned remain in light of their ‘conduct … character or associations or the fact that he represents a threat to national security’. This provision was clearly written to prevent applicants who represent a real threat to the public from being able to remain or settle in the UK. Such applicants could include those convicted of serious crimes or involved in acts of terrorism. It cannot be appropriate for this provision to be used by the Home Office to refuse the last of those who qualify for settlement in the UK as Tier 1 (General) Migrants.
The indefinite leave to remain route for Tier 1 (General) has now closed, consequently the large numbers of applications refused under paragraph 322(5) with minor and non-criminal tax violations cited as the reason have no redress. This is especially harsh for applicants in the Tier 1 (General) category because they cannot reapply and this can lead to serious hardship and difficulties.
The most common basis for refusal appears to be that an applicant has rectified a tax return error (which is not an offence) or there was a difference between the income declared on their tax return and that on their application to settle. For the most part, such inconsistencies can be explained by the manner in which the self-employed applicants or the company directors submit their accounts and there may be legitimate reasons why the figures are not necessarily be in sync with what they have previously declared on their leave to remain forms.
At times, applicants’ taxes may be prepared and managed by accountants who may omit to prepare the accounts in the manner that would exactly reflect the figures used for a corresponding application for leave to remain in the UK. Such errors are predominantly due to differences in timing and HMRC requirements which may not always be in sync with the Home Office requirements in the Immigration Rules. The majority of discrepancies that arise can be rectified before an application is submitted but the Home Office has been refusing applications under this paragraph even where an explanation has been obtained and/or where tax issues have been rectified shortly before an application has been submitted.
The Home Office Guidance for decision-makers advises that ‘The main types of cases you need to consider for refusal under paragraph 322(5) or referral to other teams are those that involve criminality, a threat to national security, war crimes…’
It seems the Home Office are regrettably not following their own guidance and case workers are free to use their own subjective interpretation of this provision to allow applications to be refused where applicants do not represent any kind of threat to the UK.
New “Start-Up” Visa Route Announced By The Home Office
A new visa route was announced during London Tech Week to attract and encourage entrepreneurs who wish to set up a business in the UK.
The new route will require applicants to obtain an endorsement from a university or approved business sponsor, including accelerators.
The route is the result of consultation with the Migration Advisory Committee and with the tech sector and is planned to be running from spring 2019.
Get A Faster Reply On Your Visa Application
Some applicants may be able to get a decision on their applications within five working days if they have sent their applications by post and payment has cleared.
This service exists primarily for those applying for settlement using application forms SET(AF), SET(F), SET(LR) and SET(M). Applicants can also use this service to apply for a biometric residence permit (BRP) if they are settled in the UK with no time limit. If you have applied using form SET(O) you may use this service only if you made an application to settle in the UK which isn’t covered by the immigration rules on completion of 6 years with discretionary leave granted under the transitional arrangement.
A request must be made to the Home Office and an additional £510 will be payable if Home Office accepts the request.
What Is My Application Date
As well as making sure the correct application form is used, the correct fee is paid, and all of the required documents are provided, it is essential that an application is submitted to the Home Office in time. So when is the application made?
• where the application form is sent by post by Royal Mail, the date of posting as shown on the tracking information provided by Royal Mail or, if not tracked, by the postmark date on the envelope; or
• where the application is made on a paper application form and is submitted in person, the date on which it is received at a Home Office premium service centre; or.
• where the paper application form is sent by courier, or other postal services provider, the date on which it is delivered to the Home Office; or
• where the application is made via the online application process, the date on which the online application is submitted whether or not a subsequent appointment is made at a Home Office premium service centre.
• Applications for entry clearance are not made until any fee required to be paid, has been paid.
The Hostile Environment Today
The ‘Windrush Scandal’ recently threw a spotlight on immigration policy in the UK, in particular with regard to the hostile climate created by the UK government and faced by all migrants living in the UK who must provide immigration papers in all aspects of their life.
Between 1948 and 1971, the UK experienced post-war mass migration from individuals from Caribbean countries who were willing and able to come to the UK to work in response to labour shortages following the war. A large number of arrivals were children travelling on their parent’s passports. A majority of those children never went on to obtain their own travel documents and therefore became “undocumented”.
Following the implementation of the Immigration Act in 1971, Commonwealth citizens living in the UK were granted indefinite leave to remain. However, it has since come to light that the Home office failed to record or issue paperwork confirming their immigration status. In 2010, all landing cards belonging to the ‘Windrush generation’ were destroyed. Consequently, there was no way to identify the immigration position for a significant number of people. The majority of people that arrived between 1948 and 1971 believed they were British citizens on the basis that their country of origin had not achieved independence. It was later reported that an unknown number of people from the ‘Windrush generation’ were deported from the UK as a result of the current tough document checking policies that form part of the ‘hostile environment.’
Creation of the hostile environment
In 2012, Theresa May, as Home Secretary, set out the Government’s broad aims concerning immigration policy. Ultimately, these were to discourage people from coming to the UK in order to reduce net migration to the “tens of thousands”, to stop those who come to the UK from overstaying and to prevent irregular migrants from being able to access the benefits and services afforded to the lawful resident population. Thus began the tightening of immigration policies and the roll out of stringent checks and continued monitoring for all.
To achieve these aims the Home Office put measures in place to limit access to work, housing, healthcare and bank accounts in the UK. Arguably, the hostile environment had begun outside the UK a long time previously when carrier sanctions were introduced to airlines and ships under the Immigration (Carriers’ Liability) Act 1987. The owners of such vessels remain liable to an on the spot fine for any passenger who is unable to produce a valid visa for entry to the UK on arrival.
Over time the Home Office tightened the rules for employers and education providers by creating a rigorous sponsorship system, creating stringent record keeping and reporting obligations, with the intention of protecting the resident labour market and avoiding illegal working in the UK. Significant fines are now in place for any employer that fails to conduct the required right to work checks and employs an individual without a compliant immigration status.
The Immigration Acts of 2014 and 2016 implement the majority of examples of the current hostile living environment in the UK. The 2014 Act introduced the “right to rent” scheme, which requires landlords to check the immigration papers of potential or existing tenants to ensure they have the lawful right to reside in the UK. Tenancy agreements should not extend beyond the expiry of the individual’s valid leave to remain.
In respect of marriages, the notice period for all marriages was extended from 15 to 28 days to enable the Home Office more time to assess the genuineness of the intended marriage and report any suspected sham marriages. Furthermore, driving licences can be revoked when issued to an individual that does not have permission to lawfully reside in the UK.
In 2015, new regulations meant hospitals were forced to carry out immigration checks before treatment and they received the power to impose charges to anyone that was not eligible to receive free healthcare. In 2017, data sharing between the NHS and the Home Office was brought into force. The sharing of patient data has however since been suspended.
The 2014 Act also created a system which required banks to first check that an individual had the right to reside in the UK before they can open a UK bank account. The 2016 Act developed
these provisions which required banks to also conduct checks on existing account holders to establish whether the holder had lawful permission to reside in the UK. This provision was deemed to be at the height of hostility with potentially, a huge impact since it could render many people homeless.
Will the hostility continue?
Mr. Javid, appointed Home Secretary in April 2018 has since disowned the hostile environment policy. Instead, he is keen to adopt the term “compliant environment” to describe the new Government approach. The Windrush scandal has highlighted the need to protect vulnerable migrants in the UK.
On 16 May 2018 the Home Office decided to suspend plans to freeze existing bank accounts on the basis of individuals not being able to show documentation confirming their right to reside in the UK. This is the latest ‘backtrack’ in the hostile environment policy and hopefully an indication in a change of attitude towards migrants in the UK but only time will tell whether the Government’s move to a compliant environment will include further unwelcome levels of hostility.