UK GOVERNMENT ISSUES “TECHNICAL NOTE” ON CITIZENSHIP RIGHTS
On 7th November 2017, the UK Government provided the European Commission with a “Technical Document” with the aim of further clarifying their proposals in respect of post-Brexit citizenship rights. The note aims to offer reassurance to EU citizens and their family members by setting out further details of how a new “settled status” scheme will operate in practice.
Amongst other clarifications, the document says that those applying to stay in the UK after Britain leaves the EU will not have their applications refused because of minor technicalities and caseworkers considering applications will exercise discretion where appropriate. The aim is to create a “user-friendly” system.
The route for individuals to apply for settled status (permanent residence) will be by application to the UK authorities, made within a period of time after exit from the EU as specified by the UK (likely to be within a two year implementation period).
Obtaining settled status will be a condition for lawful residence in the UK. Such status will be guaranteed under the terms of Britain’s Withdrawal Agreement. The status document will enable qualifying EU citizens to prove their rights and status to employers, public service providers and local authorities.
Streamlined application system
The Government proposes to introduce a new application system “from scratch” with new processes, technology, rules and support for applicants. The aim is to design a process with “users in mind”. The Government aims to engage with users “every step of the way”. It is clear that the Government wishes to allay concerns that a new system will be overly bureaucratic, costly and time-consuming.
Those currently resident in the UK will be given sufficient time after exit to make an application. The Government also proposes to establish an early agreement with the EU on these issues in order to set up a voluntary application process before Britain leaves the EU so that those who wish to do so can get their new status at the earliest convenience. This would enable applications to be spread over time thereby avoiding a sudden spike in applications that would cause strain on resources.
The UK estimates that the period made available for individuals to make an application after exit will last for around two years. This is in line with the proposals for an implementation period set out in the Prime Minister’s Florence speech.
The intention is to develop a system which draws on existing Government data, including employment records held by HMRC. It remains to be seen whether such joined up government can be delivered in practice.
The fee for applying for this status will not exceed the cost of a British passport. The Government is therefore keen to emphasise that this will be an administrative cost, in line with those applicable to British Citizens, and there is no intention to penalise EU citizens financially.
For those who already hold a valid EEA permanent residence document, there will be a “simple process” to exchange this for a settled status document, subject to ID verification and submission of a photograph, a security check and confirmation of ongoing residence. It will be interesting to see how the Home Office proposes to combine data integrity and security with simplicity of process and convenience.
Travel during the implementation period
The Government states that people will continue to be able to come and live and work in the UK during the implementation period after the UK leaves the EU, and there will be a registration system. It seems likely that EU citizens will continue to benefit from freedom of entry at the ports in line with pre-Brexit admission processes.
Criteria for granting settled status
The document indicates that the criteria applied will be simple, transparent and in accordance with the Withdrawal Agreement. EU citizens and their family members who can evidence to the UK authorities that they fall within the scope of the Withdrawal Agreement (i.e. are lawfully resident before the specified date) must be granted status by the UK authorities unless one of the grounds for refusal permitted by the Withdrawal Agreement is met.
The UK has already agreed that the conditions for EU citizens acquiring permanent residence under the agreement will be as per the existing EU directive (five years of continuous and lawful residence as a worker, self-employed person, student, self-sufficient person, or family member thereof).
The document proposes a pragmatic approach “including, for example, not checking that comprehensive sickness insurance has been held by those who are not economically active or are studying, or applying a genuine and effective work test.” This takes away one of the most common complicating features for applicants in those categories.
Applicants who are not able to evidence the five years continuous residence necessary to obtain settled status, but who can evidence that they were resident before the specified date, will be given temporary status. This will enable them to remain in the UK until they have built up five years continuous residence allowing them to apply for settled status.
Caseworkers will give applicants the opportunity to furnish supplementary evidence or remedy any deficiencies where it appears a simple omission has taken place.
Review and appeal
The Government aims to establish an administrative review mechanism to quickly resolve any case working errors. Beyond this, applicants will have recourse to an independent judicial authority (unspecified). This means that EU citizens and their direct family members will have recourse to a statutory right of appeal, allowing the UK courts to examine the legality of the UK authorities’ decision to refuse or revoke status.
Out of time applications
The Government will retain the discretion to consider applications submitted after the deadline if the delay was for a “good reason”.
Any EU citizen whose application under the Withdrawal Agreement is refused as out of scope will be in the UK unlawfully and will be required to apply to remain under successor immigration arrangements or leave the country.
NEW ONLINE CITIZENSHIP TRIAL
Following the successful launch of online forms for European nationals applying for residence documents, the Home Office is now considering whether the process can be adopted for British citizenship applications. They are currently conducting a trial online application with selected users, of which Magrath Sheldrick LLP is one.
The proposed format is an online form accessible to both adult and minor applicants, who are currently required to complete separate paper forms AN and MN1 respectively. The new service will enable family members such as dependants to be added to the main applicant’s online form without having to complete a separate application form of their own. It will still be necessary however, for dependants to show that they meet their own respective requirements for a grant of British citizenship without relying on their relationship to the main applicant.
Initially, an email address and password is required to create the form. A link to the application will then be sent directly to the registered email address enabling easy return access for further completion. This means the form can be saved and edited at any point before submission. Once all sections have been completed payment will have to be made online. A checklist of supporting documents will then be generated based on the data entered, providing a tailored request for supporting documents.
There has been very little change to the application for British citizenship since the implementation of the British Nationality Act 1981. Innovations have included the introduction of biometrics for all applicants, together with the option to make a joint citizenship and British passport application. Practically, the introduction of online forms will reduce the risk of applicants completing an out of date application form. Hopefully this will provide a quicker, simpler and more instinctive approach to completing the application form.
Timeframes for the trial are currently undetermined and any official launch will be notified here. If you are in the process of applying for British citizenship or keen to understand the requirements ahead of time, do feel free to get in touch with our UK immigration team.
BANKS AND BUILDING SOCIETIES TO CARRY OUT IMMIGRATION CHECKS
Since 12 December 2014, immigration status checks have been required by anyone opening a new bank or building society account under the Immigration Act 2014, however until now there was no measure requiring checks on every current account in the United Kingdom.
Banks and Building Societies will now be required to check the identity of every current account holder against a list provided by anti-fraud organisation Cifas of people who are liable for removal or deportation from the UK or who have absconded from immigration control.
The checks form part of a series of measures introduced by the Immigration Act 2016 aimed at encouraging illegal immigrants to leave the United Kingdom voluntarily.
Financial institutions that identify anyone not legally in the United Kingdom will be required to close down or freeze the bank accounts of those account holders to make it harder for them to maintain or establish a settled life without valid and current leave to remain.
United Kingdom immigration welfare campaigners have warned that the Home Office has a record of previously making mistakes, including the recent sending out of erroneous emails requiring lawful migrants to leave the country, which means that it cannot be trusted to implement the new system without error. The consequences of any errors made would seriously threaten those who legitimately hold a valid UK immigration status. The following account holders could potentially be affected:
- migrants with valid leave to remain, but where an error is made in an assessment by the financial institution;
- lawful migrants with a complex immigration status such as those who are currently in the process of obtaining valid leave or who are waiting for the outcome of an appeal process.
The Home Office will be providing further instructions to banks advising that there is no requirement for them to contact account holders or require additional documentary evidence as part of their checks.
In respect of the freezing and closing of bank accounts, there will be exceptions for joint accounts or where an account holder requires access to funds to cover their living expenses and the legal costs of appealing the decision to freeze or close their account.
CALLING EXCEPTIONAL TALENT
The Home Office has announced that it will expand the number of visas available through the Tier 1 (Exceptional Talent) route from 1,000 to 2,000 per year. The Tier 1 (Exceptional Talent) route allows exceptional world leaders and promising individuals to come to the UK and work for any employer or set up their own business. The route leads to settlement after five continuous years.
Applicants must be endorsed by one of the five recognised endorsing organizations to be eligible to apply for the visa: Tech City UK; Arts Council England; The British Academy; The Royal Society and The Royal Academy of Engineering. Each organization has its own selection criteria for the assessment of whether or not an applicant should be endorsed.
The first 1,000 visas available will be allocated equally amongst the five organizations. The additional 1,000 visas will then be allocated according to demand. It is likely that the selection process will involve some type of a priority system based on a filing deadline however further clarification is needed on this to ensure transparency and fairness. It remains to be seen how the Home Office will allocate the remaining 1,000 visas where demand exceeds the number of available allocations.
EXPANSION OF REGISTERED TRAVEL SCHEME
The Registered Traveller Scheme was introduced in April 2015 and allows frequent visitors and business travellers from a group of specified countries to travel through the UK border quickly on arrival to the UK.
In the past the scheme has only been open to those who hold passports for countries including Argentina, Australia, Brazil, Canada, Hong Kong, Japan, Malaysia, Mexico New Zealand, Singapore, South Korea, Taiwan and the USA.
However as of 5th October 2017, the scheme has been expanded to those who hold passports from the following 15 countries; Andorra, the Bahamas, Botswana, Holy See (Vatican City), Macao, Maldives, Monaco, Namibia, Papua New Guinea, Samoa, St. Vincent and the Grenadines, Seychelles, Tonga and Trinidad and Tobago. Dependent children who are travelling with their family members are also now eligible to apply for the scheme.
To apply for the scheme you must hold a valid UK visa or have visited the UK at least 4 times in the 2 years preceding the application. It costs £70 per person to have access to the scheme for 1 year and renewal of membership costs a further £50 per year.
Members of the scheme do not have to fill in a landing card on arrival to the UK at the following airports; Birmingham, East Midlands, Edinburgh, Heathrow, Gatwick, Glasgow, London City, Luton, Manchester and Stansted. Landing cards are also not required at the Brussels, Paris and Lille Eurostar terminals. Members are allowed to travel through the passport eGates or UK/EU entry lanes on arrival to the UK which is a much faster process.
LANDMARK ECJ DECISION FOR EEA FAMILY MEMBERS
In the landmark decision of Toufik Lounes v Secretary of State for the Home Department, the European Court of Justice (“ECJ”) has held that an EEA national who exercises free movement in another member state, and who later naturalises in that country and retains their original nationality, continues to enjoy the rights afforded under the Treaty of the Functioning of the European Union (“TFEU”). Further, that qualifying family members also continue to derive the same rights through the EEA national, including the right of residence.
The ruling will undoubtedly have a significant impact for the many EEA nationals residing in the UK with Third Country National (“TCN”) family members who previously ceased to enjoy residence rights under the Free Movement Directive (2004/38) (“the Directive”) upon naturalisation of the EEA national.
Ms Ormazabal is a Spanish national who moved to the UK in 1996 and exercised free movement under the Directive continuously from that point on, both as a student and as an employee. She naturalised in 2009 as a British citizen, retaining her Spanish nationality.
In 2013, Ms Ormazabal began a relationship with Mr Lounes, an Algerian national. Mr Lounes had arrived in the UK as a visitor in 2010 and had overstayed, making him an illegal migrant. The couple married in 2014 and Mr Lounes applied for a Residence Document as the spouse of an EEA national.
Mr Lounes’ application was refused on the basis that Ms Ormazabal could no longer rely on her rights as an EEA national since becoming a British citizen and that, therefore, Mr Lounes could not derive a right of residence as her spouse. Indeed, due to his illegal status, he was issued with a “notice to a person liable to removal”.
The basis of the refusal was that the Immigration (EEA) (Amendment) Regulations 2012 (2012/1547) (which amended the Immigration (EEA) Regulations 2006) incorporated the ECJ McCarthy decision (C-434/09) which held that an EEA national who had never exercised free movement rights in another member state could not rely on the Directive to enable a TCN spouse a right of residence.
Mr Lounes applied to the High Court for a judicial review of the refusal, on the basis that his wife had been exercising free movement rights since she moved to the UK from Spain in 1996 and that naturalising as a British citizen should not remove those rights from her. If his wife continued to enjoy the rights associated with her Spanish nationality, then, as her spouse, Mr Lounes claimed he was entitled to enjoy the same rights as derived from hers. The High Court referred the following question to the ECJ for a preliminary ruling:
“Where a Spanish national and Union citizen:
- moves to the United Kingdom, in the exercise of her right to free movement under Directive [2004/38]; and
- resides in the United Kingdom in the exercise of her right under Article 7 or Article 16 of Directive [2004/38]; and
- subsequently acquires British citizenship, which she holds in addition to her Spanish nationality, as a dual national; and
- several years after acquiring British citizenship, marries a third country national with whom she resides in the United Kingdom
are she and her spouse both beneficiaries of Directive [2004/38], within the meaning of Article 3(1), whilst she is residing in the United Kingdom, and holding both Spanish nationality and British citizenship?”
In essence, the ECJ agreed with the Advocate General’s opinion in case C-165/16 in concluding that derived rights of residence should continue for TCNs when they continue to live with the EEA national who exercised their freedom of movement in a new member state, even when they have gone on to acquire citizenship of the host member state and retained their original nationality.
As the Directive does not confer a derived right of residence on TCNs following the acquisition of host state nationality by the EEA national, it was necessary for the AG and ECJ to revert to Article 21(1) TFEU to determine whether the rights should be preserved. Article 21(1) TFEU confers on every citizen of the Union the right to move and reside feely within the territory of the member state, subject to the limitations and conditions laid down in the Treaties.
The judgment means that EEA nationals are free to progress to British citizenship without first weighing up the effect it will have on their TCNs. Up until now, EEA nationals were required to consider the complexity and costs related to Appendix FM applications under the far more onerous UK Immigration Rules before making the decision to acquire British citizenship.
The Appendix FM category is specific for family members of British citizens looking to join and remain in the UK. Applicants under this category are subject to a much higher threshold of requirements before residence is granted, including suitability, financial, English language, and maintenance and accommodation. There is also a much higher Government fee incurred to make this application.
Prior to this judgment, TCNs would need to make an application under the UK Immigration Rules once their family member became British in order to stay in the UK. Subsequently, this re-set their period of residence in the UK for the purposes of permanent residence. Once switched from EU derived law into UK immigration law, TCNs then needed to reside for a further 5 consecutive years before being eligible to apply for permanent status in the UK, despite the length of previous residence. The judgment effectively ends this requirement.
The positive impact from this judgment is “too little too late” for many EEA nationals and their family members. Further, the judgment does not help those who acquire nationality in a member state which does not allow dual nationality. It is undeniable that this judgment is a righting of wrongs. However, with UK’s impending exit from the EU in March 2019, the lasting benefits of this judgment are unknown and the overall impact undetermined at this stage.