90% of initial decisions reviewed under the EU Settlement Scheme overturned

As of 31 October 2019, more than 1.9 million applications to the EU Settlement Scheme that have been determined. Of these, 60% were granted settled status, 40% were granted pre-settled status and four applications were refused on suitability grounds. An incorrect decision could impact the terms by which EU nationals and their family members are able to reside and access services in the UK after Brexit.

written by Judit Adorjan

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/846263/eu-settlement-scheme-statistics-october-2019.pdf

If a decision grants pre-settled status instead of settled status due to a caseworker error or an application is refused on eligibility grounds, the initial decision can be reviewed by a different official, but within the same department. This administrative review is the primary form of redress available for EU Settlement Scheme applicants if they believe they have received an incorrect decision.

An administrative review is not available against a decision where an application is refused on suitability grounds. In this case an application can be refused due to serious or persistent offending, non-exercise or misuse of rights in the Citizens Directive (Directive 2004/38) or where the applicant has provided false or misleading information in the application.

https://visas-immigration.service.gov.uk/product/administrative-review?_ga=2.81184343.1762568128.1572858601-176436110.1500043100&_gac=1.209464870.1571927680.EAIaIQobChMI0tz48I615QIVia3tCh3z2ga9EAAYASAAEgJmM_D_BwE

As opposed to other administrative review systems run by the Home Office, an administrative review allows individuals to submit further evidence, which will then be considered alongside their original application.

Statistics on administrative reviews for the EU Settlement Scheme show that 451 requests have been received as of 12 September 2019. This figure does appear to be relatively low in relation to the 885,000 decisions which may be eligible for challenge.

The statistics published reveal that 89.5% of decisions reviewed were overturned. Whilst this does imply that the automated data checks and initial decision makers are frequently making mistakes, the high success rate could suggest that the administrative reviews are working efficiently. However, the reconsidered decision could be attributed to the opportunity to introduce new evidence for the reviewer to consider. Therefore, it is possible the Home Office was accurate in the initial decision, but new evidence has led to that decision being overturned on review. This raises the concern that the initial application process does not inform applicants of the facility to submit supplementary evidence and the types of evidence required for the scheme.

https://www.theguardian.com/uk-news/2019/dec/03/data-shows-90-of-eu-settlement-scheme-appeals-successful-brexit

The impact of the political parties manifestos on the immigration system

With a general election coming up on the 12th of December 2019, voters must decide which political party’s manifesto serves their country’s best interest.

As reiterated for months by Boris Johnson and the Tories, the key policy aim of a future Conservative government is to introduce a ‘firmer and fairer’ Australian-style points-based immigration system, which will prioritise people who:

  • have a good command of English
  • have no criminal convictions
  • are highly qualified
written by Judit Adorjan

The manifesto also confirms that, under this system, most people will still need a job offer to come to the UK. This indicates that the new points-based system will not replace the existing Tier 2 employer sponsorship system, but it will be an additional system to this.

The proposals feature new immigration routes to fill skills shortages, such as the post study work visa for graduates, the NHS visa, the science and technology visa and the Start-up visa.

Despite wanting to move away from specific net migration targets, the manifesto states that overall ‘numbers will come down’ and promises fewer low-skilled workers in the UK. Hence, there is unlikely to be much improvement on the visa options provided in the immigration white paper.

The new immigration system is meant to be ‘fairer and more compassionate’, although the manifesto states that the immigration health surcharge will increase to as high as £800 per person per year, implying further increases from the £625 announced previously.

EU nationals’ access to benefits and housing will also be limited in line with non-EU migrants.

The manifesto ignores criticism of the EU Settlement Scheme and states that the scheme fulfils its promise to European residents of “guaranteeing their existing rights”. https://www.freemovement.org.uk/conservative-manifesto-2019/

What does this mean for the UK’s immigration system?

The EU Settlement Scheme has been created by secondary legislation, which unlike an Act of Parliament, can be easily changed over time. The application system will turn legally residing EU citizens into “illegal immigrants” if they do not apply successfully by the deadline, leading to scenarios similar to those seen with the Windrush scandal.  EU Citizens would have no right to reside, to work, to rent, to get benefits or access free healthcare.

The solution is to introduce a declaratory registration system through an Act of Parliament which would confer automatic rights to EU citizens currently residing in the UK to continue to live and work in the UK after Brexit.

The Conservative immigration policy seems to be a promise to bring back a number of old visa routes, some of which were closed by the party as they were considered flawed and did not fulfil the aim of ‘attracting the brightest and the best’ to the UK. The fact that these have been presented as new ideas makes one hope that the criteria are different to avoid past mistakes.

Once free movement ends immigration from non-EU countries will have to significantly increase to ensure public services and industries can still be adequately staffed.

The Labour Party launched its election manifesto with a promise to maintain freedom of movement, whether the UK leaves the EU or not.

The leader of the party, Jeremy Corbyn says they will seek to securea sensible deal’ to leave the EU within three months of coming to power and then put that deal to a public vote with the option of a legally binding referendum on remaining in the EU.

EU nationals in the UK would be granted an automatic right to continue living and working in the country without having to apply under the government’s EU Settlement Scheme.

The promise for non-EU migration is to introduce a ‘human’ migration system that meets the skills and labour needs of the UK economy. It would extend family reunion rights to non-EU citizens and close two major immigration removal centres.

https://www.politico.eu/article/uk-labours-manifesto-explained/

What does this mean for the UK’s immigration system?

Labour’s promise to maintain and extend free movement rights has been diluted and the end result is no clear vision of what a future immigration system under a Labour government will look like.

The manifesto criticises the Conservative net migration target and suggests a regulated labour market where “all workers have full and equal rights from day one”. But there is a lack of concrete proposals for what a future immigration system post-Brexit would look like and how industries in particular can continue to source the work they need.

The statement “our work visa system must fill any skills or labour shortages that arise” is not particularly illuminating. It seems to suggest that Labour have adopted the Conservative’s idea of an Australian points-based system and have potentially missed an opportunity to seize and reframe the immigration debate at a critical time.

The Liberal Democrats want to stop Brexit and save EU freedom of movement.

They are pledging to scrap right to rent checks, banking checks and upfront charging in the NHS.

It has also been said that they will get rid of “immigration checks” in the NHS, although it’s unclear if that means there will be no charging at all. Under a Liberal Democrat government illegal working will no longer be a criminal offence. But the party is silent on the employer right to work checks that came in under Labour.

Their plan is to invest in officers, training and technology to prevent illegal entry at Britain’s borders, assist seekers of sanctuary, combat human trafficking and the smuggling of people, weapons, drugs and wildlife.

The party wants to create a “firewall” to prevent public agencies from sharing personal information with the Home Office for the purposes of immigration enforcement and repeal the immigration exemption in the Data Protection Act 2018. They also plan to introduce a 28-day time limit for detention and close all but two detention centres. The fee for registering a child as a British Citizen is to be reduced from £1,012 to the cost of administration and there is to be a new route to regularisation for people who came to the UK as children.

Asylum seekers will have the right to work after three months and receive free English lessons. There will be no 16-hour rule around financial support for those with poor English and the party will provide more money for integration work in the community. The move on period for newly recognised refugees having to leave asylum accommodation is to be increased from 28 to 60 days.

The Liberal Democrats will fund community sponsorship schemes for refugees and aim to resettle 10,000 vulnerable adults and 10,000 child refugees from elsewhere in Europe over ten years.

They propose moving policymaking on work permits and student visas out of the Home Office and into the Departments for Business and Education. Their promise is to create a “flexible merit-based system” instead of Tier 2 and have committed to a 2-year post study visa.

The minimum income requirement for spouse and partner visas is to be scrapped.

https://www.libdems.org.uk/plan

What is missing from the Liberal Democrat manifesto?

You can’t prevent public agencies from sharing personal data with the Home Office, stop exploitation and hostility without decriminalising migration. In order to address racism and exclusion built into the system all fees for child applicants should be removed.

The resettlement commitment of refugees does not engage with the reality of the UK’s obligations.

Overall, while all parties are lacking vision for the future, there is a clear commitment from the Liberal Democrats to substantially reform the immigration system we have now.

Conservative Party plan US-style visas to enter the UK after Brexit

On the 1st of December 2019 Home Secretary Priti Patel announced her plan to introduce a new Electronic Travel Authorisation system (ETA). EU and Commonwealth visitors will need to apply for new US-style visas to enter the UK after Brexit.

The aim is to make it easier for border officials to screen arrivals based on pre-arrival data provided; count visitors into and out of the UK and to block potential threats from entering the UK. The Home Office will know how many people are in the country and who is overstaying their visa.

Reported by Judit Adorjan

https://www.telegraph.co.uk/politics/2019/12/01/eu-commonwealth-visitors-have-apply-new-us-style-visas-enter/

EU citizens will no longer be permitted to use ID cards to enter the UK after a no deal Brexit, preventing criminals and illegal immigrants using fake documents. The EU ID cards, as travel documents, will be phased out by the end of 2020, requiring passports to be presented at UK borders. According to the EU border agency, Frontex, more than 7,000 people were detected trying to enter the bloc using fraudulent documents in 2016 – with most found trying to get into the UK.

https://www.telegraph.co.uk/politics/2019/09/06/eu-citizens-barred-entering-uk-cards-crackdown-criminals-using/

After 31 December 2020 EU citizens will be able to evidence their right to work (or rent) in the UK using their passport or their digital status granted under the EU Settlement Scheme or under the European Temporary Leave to Remain Scheme.

https://www.gov.uk/government/publications/no-deal-immigration-arrangements-for-eu-citizens-moving-to-the-uk-after-brexit/no-deal-immigration-arrangements-for-eu-citizens-arriving-after-brexit

In the light of the new proposals, EU citizens planning to travel to the UK who do not currently hold a passport are advised to apply for one as soon as possible.

Conservative Party plans include bringing in new powers to stop EU criminals at the border once the UK is no longer subject to freedom of movement rules. At present, under EU law, previous criminal convictions do not in themselves count as a reason to deny entry to or deport someone.

In regard to customs and border controls, future plans include risk-based, largely automated analysis of consignments entering the UK. There will be a mandatory collection of information on goods before they cross the border.

EU Settlement Scheme – Apple now onboard

EU citizens living in the UK, who have the correct biometric document, can use the EU Exit: ID Document Check app to complete the identity stage of their application under the EU Settlement Scheme.

The app was initially launched on Android phones earlier this year and runs on Dutch firm InnoValor ReadID app.

Apple users, with a compatible device and the correct biometric documents, no longer need to gain access to an Android device in order to submit their application to the EU Settlement Scheme.

On the 18th of October the Home Office released a beta version of the app for iPhone models 8 and above. Due to the software update to IOS 13.2 the app is now available for iPhone 7 and iPhone 7 Plus users. https://apps.apple.com/gb/app/eu-exit-id-document-check/id1478914184

Up to this point Apple devices have been unable to scan passports as Apple would not permit third-party developers to access the near-field communication (NFC) features needed to scan biometric passport chips. As this is a beta test by the United Kingdom Visas and Immigration (UKVI), the app may become available on other iPhone models in due course, although there is no immediate visibility on the timeline from the UKVI. https://www.theregister.co.uk/2019/09/02/eu_settled_status_app_to_be_available_on_iphones_from_october/

In order to use the ID Document Check beta app you will need IOS 13.02 or newer, at least 120MB of storage space to install the app and to be connected to 3G, 4G or WIFI. https://www.gov.uk/guidance/using-the-eu-exit-id-document-check-app

Applicants without a biometric passport and non-EEA family members of EEA nationals without a biometric document issued under the European regulations, will not be able to use this app. They will need to submit a postal application or attend an in-person appointment at one of the 80 locations across the UK, where they can have their passport scanned and verified. https://www.gov.uk/government/news/home-office-launches-1-million-advertising-campaign-for-eu-settlement-scheme

Shortage of occupation list expanded to include more jobs

With effect from 6th October 2019, the Home Office will include more jobs in the UK that qualify as a shortage occupation. The full list of eligible occupations will be published in Appendix K of the Immigration Rules.

The changes will be very welcome by employers who need to sponsor overseas workers under Tier 2 General of the Points Based System. Those vacancies that meet the shortage of occupation criteria will not need to undergo a Resident Labour Market test. Furthermore, qualifying jobs are awarded a high number of points under the monthly quota system which means that applicants have a very good chance of being awarded a Certificate of Sponsorship.

Jobs to be published on the forthcoming list include:

  • Engineering roles (SOC codes 2121, 2122, 2123, 2124, 2126, 2127, 2129, 2461)
  • IT business analysts and designers (2135)
  • Programmers and software development professionals (2136)
  • Web designers (2137)
  • Cyber security specialists (2139)
  • Medical practitioners (2211)
  • Veterinarians (2216)
  • Architects (2431)
  • Quantity Surveyors (2433)
  • Occupational Therapists (2222)
  • Graphic Designers (3421)

Home Office releases guidance in the event of a ‘no deal’ Brexit

Migrate’s MD Jonathan Beech highlights main points from Home Office guidelines.

  • EU citizens and their family members already resident in the UK by 29th March 2019 will be welcome to stay under the current rules of free movement. They will have until 31st December 2020 to make an application for ‘Settled’ or ‘Pre-settled’ status;
  • Once free movement has ended from 30th March 2019, EU citizens arriving from this date for the first time will require permission to remain under the UK immigration rules. For those wishing to stay for more than 3 months, they will need to apply for temporary leave to remain valid for 3 years. This allows work and study but is non extendable. To stay longer or be able to re-enter, they will need to meet the UK skills based immigration system still under review;
  • Up until December 2020, the Home Office will not ask employers to start distinguishing between EU citizens who were resident before exit and post-exit arrivals;
  • EU citizens will still be able to use e-gates if they have biometric passports. Until 31st December 2020, EU citizens will be able to enter the UK by showing either a valid national ID card or a passport;
  • Irish citizens are not affected by a no-deal and will continue to have the right to enter and live in the UK as now;
  • The arrangements noted here for EU citizens will also apply to EEA group members (Norway, Iceland and Liechtenstein plus Switzerland).
  • Regarding the ‘Settled’ & Pre-Settled’ status application process, this is still in its public trial stage. There is still no obligation for EU citizens to apply, but they can do so as a matter of reassurance. Decisions on these applications are coming though in less than a week in the majority of cases.

Life in the UK test – changes to take effect 1 November 2018

 

The Life in the UK test required for all settlement applications, provides an exemption to applicants who are unable to sit the test for medical reasons. In most circumstances the evidence that will be accepted would be from a professional such as the applicant’s GP.  As from 1 November 2018, this has been extended to include evidence from alternative practitioner. This will allow the applicant to obtain a second opinion if desired and submission of these findings for exemption purposes along with the copy of the form published on Gov.uk for this purpose.

EU nationals working in higher education, healthcare and social care – settlement in the UK

 

 

EU Settlement Scheme:

Following the initial trial run of the EU Settlement Scheme in August 2018, the government has introduced its second private beta phase. This will run from 1st November 2018 to 21st December 2018 and will be rolled out to staff in higher education, health and social care sectors.

It is anticipated the scheme will fully open on 30th March 2019 after a further set of immigration rules is announced in December 2018 to be implemented in January 2019.

Under the second beta phase from 1st November, EU Citizens will need to prove their identity when applying for pre-settled/settled status and this will allow for individuals to do so remotely. The applicant’s Identity will be checked online as an integrated part of the online application process. However, the possibility to submit documents via post will remain open if the digital app is unable to read the relevant information.

Also, from 1st November 2018, an Administrative Review will be awarded under Appendix AR (EU) against any decision to either (i) refuse leave under the EU Settlement Scheme on eligibility grounds or (ii) to grant the limited leave to remain as oppose to indefinite leave to remain (ILR). Most importantly, the Administrative Review will consider ANY information and evidence submitted with the application for the review including information and evidence that was not available to the original decision maker. This is a major change from current policy.

 

‘Blast from the Past’: recommendations for new migrant worker scheme from 2021 released

 

 

The Migration Advisory Committee (MAC) has today released its report on the impact of EEA migration on the UK.

The aim of the report is to make recommendations for a new work-based immigration system to be implemented in 2021.

The latest MAC report recommends that the framework of the current Points Based System for sponsored workers remains but is thoroughly overhauled and provides options for some migrant workers not seen since April 2012. Should free movement end and no specific deals be formalised, the MAC does not believe EEA citizens should have any preferential treatment over non-EEA workers. Furthermore, the approach for attracting the ‘brightest and the best’ has shifted somewhat. The MAC recommends opening sponsorship to medium and high skilled workers (jobs at RQF Level 3 and above) and ending the immigration cap which can completely undermine an employer’s forward planning. Furthermore, the Resident Labour Market Test (advertising the vacancy for 4 weeks) should be abolished with employers deterred from relying on overseas workers through the immigration skills charge and a robust approach to salary thresholds. For the latter point, the MAC recommends having a minimum threshold of £30,000 for both medium and highly skilled jobs for experienced workers. With these points in mind, the future of the Shortage Occupation List is in doubt and the MAC will undertake a full review of the composition of the List and publish its findings in the Spring 2019.

The main recommendations are shown below. It is important to stress that the recommendations are just that. The Brexit negotiations may well have an impact here unless the UK has the power to set its own system (in a similar way to Canada where they are open and welcoming to immigration but no one country has preference). Also, once this this has been decided, the government can pick and choose the recommendations it wishes to implement.

 

Summary of recommendations for work migration post-Brexit

  1. General principle behind migration policy changes should be to make it easier for higher-skilled workers to migrate to the UK than lower-skilled workers.
  2. No preference for EU citizens, on the assumption UK immigration policy not included in agreement with EU.
  3. Abolish the cap on the number of migrants under Tier 2 (General).
  4. Tier 2 (General) to be open to all jobs at RQF Level 3 and above. (currently the minimum level is RQF Level 6 for the vast majority of roles). Shortage Occupation List will be fully reviewed in our next report in response to the SOL Commission.
  5. Maintain existing salary thresholds for all migrants in Tier 2.
  6. Retain but review the Immigration Skills Charge.
  7. Consider abolition of the Resident Labour Market Test (RLMT) – this is where you advertise a vacancy to the general public to check if a settled worker can do the job. If not abolished, extend the numbers of migrants who are exempt through lowering the salary required for exemption.
  8. Review how the current sponsor licensing system works for small and medium-sized businesses.
  9. Consult more systematically with users of the visa system to ensure it works as smoothly as possible.
  10. For lower-skilled workers avoid Sector-Based Schemes (with the potential exception of a Seasonal Agricultural Workers scheme)
  11. If a SAWS (Seasonal Agricultural Workers Scheme) scheme is reintroduced, ensure upward pressure on wages via an agricultural minimum wage to encourage increases in productivity
  12. If a “backstop” is considered necessary to fill low-skilled roles extend the Tier 5 Youth Mobility Scheme.
  13. Monitor and evaluate the impact of migration policies.
  14. Pay more attention to managing the consequences of migration at a local level.

Read the whole report here:

https://www.gov.uk/government/publications/migration-advisory-committee-mac-report-eea-migration

Migration Advisory Committee – recommendations to change the student visa policy

 

The Migration Advisory Committee (MAC) released its report today on the impact of international students in the UK. They have made recommendations to change the student visa policy after evidence gathered for this report, and engagement with stakeholders.

Historically, the UK has the second-largest group of international students in the world after the US but there is a real risk the UK will be overtaken by Australia. The UK leaving the EU also poses new threats. Although international student numbers have risen in recent years, the UK’s overall market share has fallen slightly, and competitor countries are more active in recruitment.

The MAC understands that the UK’s competitors require students to obtain visas to enter as students, however, any barriers to student mobility are likely to have a negative impact.

The main recommendations are:

  • Retain no cap on the numbers of international students;
  • Rules of work while study and dependent rights should remain unchanged;
  • Not re-introduce a 2 year post-study work visa. The value should be the qualification rather than the opportunity to take a graduate level job and settle in the UK;
  • Government and the sector should continue to work together to grow the number of international students;
  • International students should not be removed from the net migration statistics;
  • Widen the window in which applications for switches from Tier 4 to Tier 2 can be made;
  • Post-study leave period extended to six months for Master’s students, though with a more thorough review of whether this is appropriate;
  • The 12 months leave to remain after PhD completion to be incorporated into the original visa duration, subject to meeting progress requirements and course completion, for eligibility to remain in the UK after course end date. This would replace the existing Doctoral Extension scheme that allows the same rights but has to be applied for with associated visa costs;
  • Previous Tier 4 students, who passed their Level 6 (or above) qualification in the UK, should be entitled to a two-year period during which they can apply out-of-country for a Tier 2 visa, under the same rules as current in -country Tier 4 to Tier 2 switches i.e. being exempt from the Resident Labour Market Test (RLMT) and Immigration Skills Charge.

Read the whole report here:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/739089/Impact_intl_students_report_published_v1.1.pdf