2016 has been a tumultuous year in the world of immigration policy, news and law. The EU Referendum has been a significant driver in the debate, but there's a whole raft of reviews and reports which have shaped immigration and resident status issues. We discuss the most topical.
Immigration Rules for adult dependent relatives reviewed
The Home Office reviewed immigration rules introduced in July 2012 for adult dependent relatives e.g. parents and grandparents. However, they have remained unchanged as they were considered to be meeting the policy objective. In our practice we know it is virtually impossible for adult dependent relatives to gain entry to the UK under the current rules. The review finds that the number of grants to parents and grandparents plummeted from 2,325 per year to an average of 162 per year – fewer than the Home Office expected. The review considered alternatives to the new, restrictive rules, such as compulsory health insurance and a financial bond, but rejected them on the grounds it would make this kind of application too expensive for people to use. Learn more here
Dental X-Ray Age Assessment A Possibility for Asylum Seekers
Young asylum seekers can undergo dental x-rays in order to assess their age. If the child refuses, his or her court case will be struck out. Warnings from the British Dental Association fell on deaf ears. The BDS had said that it was A. unethical to expose an individual to dental x-ray where there was no direct health benefit and B. it was their view that dental examination did not produce an accurate assessment of age. In spite of this, the court ruled that x-rays would allow the correct age to be assessed, enabling individual to receive the appropriate support when growing up, therefore being of great benefit to both the person in question and to the public as a whole.
The Future Rights of EU Nationals in the UK
The EU Justice Community published a report on the future of EU nationals in the UK after Brexit. The report recommended that full EU rights be preserved for existing EU national residents in the UK.
In November, the Home Office issued new guidance on EU free movement and the 'Surinder Singh Route' cases. There is an entirely new document headed "Entry Clearance Officers Abroad" on how to assess and decide applications for EA family permits. It includes a significant section on family members of British citizens. The new guidance focuses on when not to issue family permits, rather than when they should be issued, and how quickly.
Appeal Fee Increases Reversed
In a surprising development, the government reversed a 500% increase in fees for immigration appeals. From 10th October 2016 fees will be charged at the old rate. We are now waiting for some of our clients' payments to be refunded. The increase in fees would have hit EU nationals and their families very hard given the number of permanent residence applications generated by Brexit.
Out of Country Human Rights Appeals
The power under the Immigration Act 2016 to certify any human rights appeal for removal (not just deportation appeals) came into force on 1st December 2016. It means the Home Office now has the power to remove a person who pursues a human rights appeal, even while the appeal is pending. The new commencement order also introduced out-of-country human rights appeals. A similar power was introduced in the Immigration Act 2014 but applied only to foreign criminals. It is now extended to all migrants who might rely on human rights appeals. We are waiting for the guidance to be issued to show how the Home Office will exercise this power.
Conflicting Recommendations into the Status of EU Nationals
A hard-line report shared by the prominent leave campaigner, Gisela Stuart, into the status of EU nationals in the UK recommended a registration programme for existing EU residents and a cut-off date for new arrivals. The report suggested EU citizens arriving after this cut-off date – likely to be April 2017 – will be subject to the full force of UK immigration law. Existing EU residents will be subject to UK immigration laws and will have to apply for indefinite leave to remain. This hard line report is in contrast to the House of Lords' EU Justice Committee, which recommended the continuation of EU law for existing EU residents. So how do the two reports compare?
The report which has been coordinated by Free British Future, (Gisela Stuart) assumes a total end to free movement of EU nationals in the UK, under the 'hard Brexit' umbrella. The report recommends the Home Office will simplify the application process for permanent residents. Applications will be compulsory and will involve cross-checking against multiple government databases rather than relying on documents produced by the applicant. It assumes it is possible to register all EU residents in the United Kingdom. The method proposed involves a character test and an application for indefinite leave to remain rather than permanent residence. How this can occur while the UK remains a member of the EU is not clear, and how those with permanent residence should convert their status to a 'bespoke' indefinite leave to remain under the UK immigration rules, is not clear either.
What does 'bespoke' mean? The report proposes a five-year transition for EU nationals who are qualified persons or who had permanent residence at the cut-off date. This transition period will allow those people to bring their family members to the UK under the equivalent EU rules which are far friendlier than the UK immigration rules. After the five years, the EU residents will be treated the same as other migrants with limited family immigration possibilities.
This report is not official and so it is unclear how likely the recommendations are to find their way into policy.
How does the report propose to deal with British citizens who reside in the EU? A British citizen in Spain will become subject to Spanish immigration law and will be completely beyond the protection of the British Government or the EU, if Spain for example were to decide to change the resident's status. If the UK were to subject EU nationals to this regime, the reciprocal would only happen to British citizens in the EU.
On the other hand, the House of Lords Justice Committee recommend that full EU law rights be preserved for existing EU nationals resident in the UK. The report does not make assumptions about the future shape of post-Brexit immigration policy, and does not suggest any kind of cut-off date. It recognises how it would be almost impossible for the Home Office to process applications for permanent residence or indefinite leave to remain for three million EU citizens, and even if it was possible, EU citizens would be left with far fewer rights than are currently enjoyed with indefinite leave to remain. The report deals with the difficult question of how rights may be enforced after Brexit, and suggests adopting existing mechanisms which have already been tried and tested within the EEA and Iceland, which deals with these eventualities.