Immigration Law Update – March 2018
22 March 2018
Is the UK immigration system prepared for Brexit?
Not according to a recent report published by the House of Commons Home Affairs Committee.
The 59-page report examined the capacity of the Home Office to deliver new immigration processes to support the UK’s decision to leave the European Union. The report revealed that the current systems are under strain and under-resourced. Although the Home Office is recruiting, the Committee has questioned whether this planned recruitment is sufficient to “alleviate existing burdens, let alone provide the resources required to cope with the increased workload and challenge that Brexit will bring”.
The report particularly criticised the government for the delay in publishing the White Paper outlining future immigration policy, which was initially scheduled to be published in autumn 2017. The Committee said that this, and the lack of any timetable for resolving questions about registration and transition, is “completely unacceptable”.
The Committee has urged the Home Office to take rapid action to provide clarity about what the Government intends for EEA nationals’ registration and immigration post-Brexit.
Updated guidance on the status of EEA nationals after Brexit
The updated guidance on the status of EEA nationals after Brexit was published on
16 March 2018.
The guidance confirms the rights of EEA nationals during the transition period and confirms that there is no need for EU citizens living in the UK to do anything now.
The agreement currently suggested provides that:
- EEA nationals who, by 29 March 2019, have been continuously and lawfully living in the UK for five years, will be able to apply to stay indefinitely by getting ‘settled status’. That means they will be free to live here, have access to public funds and services and go on to apply for British citizenship
- EEA nationals who arrive by 29 March 2019, but won’t have been living here lawfully for five years when we leave the EU, will be able to apply to stay until they have reached the five-year threshold. They can then also apply for settled status
- family members who are living with, or join, EU citizens in the UK by 29 March 2019 will also be able to apply for settled status, usually after five years in the UK
- close family members (spouses, civil and unmarried partners, dependent children and grandchildren, and dependent parents and grandparents) will be able to join EU citizens after exit, where the relationship existed on 29 March 2019.
EU citizens with settled status, or temporary permission to stay, will have the same access as they currently do to healthcare, pensions and other benefits in the UK.
At present the UKVI have not defined what constitutes ‘living here lawfully’ exactly means, but we will provide updates as and when further information becomes available.
It is possible to sign up for email updates on www.gov.uk.
Illegal working penalties
The UKVI found 826 illegal workers between 1 July and 30 September 2017, according to a quarterly report published by UKVI. As a result, 600 illegal working penalties were issued to employers across the UK, equating to over £9m in fines.
London and South East region was found to have the highest number of illegal workers and consequently received the greatest value of penalties.
We can support employers with a right to work check masterclass and mock audits. Please contact our Immigration Team for further details.
If you would like a reminder of your obligations, you may wish to attend our seminar, ‘Protecting your Sponsor Licence’ on 18 April 2018. The seminar will include hints and tricks for managing your licence, together with examples of good practice. For more information and booking please visit our events page.
Tier 2 unrestricted Certificates of Sponsorship allocation deadline
If you are a sponsor of skilled foreign workers, do not forget to renew your unrestricted Certificates of Sponsorship allocation before 5 April 2018. For further details see our Immigration Update: February 2018.
Tier 2 restricted Certificates of Sponsorship
At the time of writing, it appears, once again, that the allocation of Restricted Certificates of Sponsorship this March was over-subscribed. Any unsuccessful applications can be entered into the April allocation, but please ensure that any advertising for the job is current. The UKVI will not accept advertising that is more than six months old.
The Home Office immigration and nationality fees will increase from 6 April 2018. The new fees were published on 16 March 2018, and include changes to both out-of-country and in-country applications, settlement and naturalisation.
An out-of-country Tier 2 application – where a certificate of sponsorship has been issued for a period of three years or less – has seen an increase of nearly 4% to £610. But where a certificate of sponsorship has been issued for more than three years, the fee has decreased by nearly 5% to £1,120. There have been no increases to sponsor licence applications or the cost of Certificates of Sponsorship.
The changes also include an increase of 10% to £1,021 for a Tier 1 (Entrepreneur) out-of-country application, 4% increase in settlement (indefinite leave to remain or ILR) applications to £2,389, and 3% increase in naturalisation fees to £1,330.
Some applications have seen a decrease in fees. The biggest decrease by far is a 93% decrease from £293 to £152 for an in-country application for Tier 1 (Exceptional Talent).
The full list of changes can be viewed here.
The government has also announced their intention to double the cost of the Immigration Health Surcharge form £200 per year of the visa, to £400 per year. The discounted rate for students and those on the Youth Mobility Scheme will also increase from £150 to £300.
We suggest that anyone in a position to make an application, prior to the fee increase in early April, would be well advised to do so.
Private and Family life – the case of Onwuje v Secretary of State for the Home Department  EWCA Civ 331
In the recent case of Onwuje v SSHD  EWCA Civ 331, the Court of Appeal looked at Article 8 of the European Convention on Human Rights in the context of a Tier 1 (Entrepreneur) Migrant and although the appeal was dismissed, the court confirmed that running a business may amount to private life for the purposes of Article 8 of the European Convention on Human Rights.
In this particular case, the court considered the private and family life grounds, and the involvement of Mr Onwuye in his business, but ultimately concluded that removal would not be disproportionate. It was, however, accepted that “an entrepreneur’s ownership of, and involvement in, his or her business may also be regarded as an aspect of their private life for the purpose of Article 8”, as stated in Niemietz v Germany (1993) 16 EHRR 97.
Tier 1 General
A reminder that Tier 1 General closes on 5th April 2018. All applications for Indefinite Leave to Remain must be submitted by that date.
The content of this article is for general information only. For advice on making an application, please contact a member of Birketts’ Immigration Team.
This article is from the March 2018 issue of Employment Law, our monthly newsletter on employment legislation and regulation. To download the latest issue, please visit the newsletter section of our website. Law covered as at March 2018.
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The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at March 2018.